Compensation of sharks

The Road Accident Fund (RAF) was set up to compensate victims of road accidents. Due to the fact that few people knew the legal system, it was thought best to include in its legislation provisions for legal representation. But, as time went by, many people were ripped off by the very same people they hired (and paid) to protect their interests.

Let me start by saying that I am definitely not a “judiciary basher” and in fact have a lot of respect and regard for our legal system (with its imperfections). But I am also a realist who knows that the system has its shortfalls and that the magistrates and justices (and lawyers) are only people and do make mistakes.

Take the case of the Law Society of South Africa and others versus the RAF. The lawyers never said that they have a problem with the RAF amendment bill, other than it making provision for compensation to be paid directly into the banking account of the victim, not the lawyer. To me, this specific amendment is progress and a means of developing and empowering our people.

This should be seen against the fact that, over the last three years, the RAF has encouraged victims to come directly to the RAF where they would be assisted by staff in filling out the forms. The RAF would also inform the victim with regard to all documentation needed and assist with obtaining those documents.

Before you think I am just theorising here, let me state a specific scenario. My wife’s cousin lost her three-year-old son in a car accident in 2002. The baby’s father also perished in that accident. The father’s relatives engaged a lawyer to take their case to the RAF. The same lawyer then approached my wife’s cousin and convinced her to hire him to look into the matter of compensation for her son.

Three years later, the case still continued. I asked a friend of mine, who works for the RAF here in Cape Town, to look into why the case was taking so long, since we made sure that she submitted all necessary documentation to her lawyer. My friend showed me numerous petitions the lawyer submitted to the RAF, which dragged the case unnecessarily. All petitions were aimed at getting the lawyer a bigger chunk of the money (surprise, surprise!). In some cases, it took the RAF almost a year to get some documents from the lawyer, whereas the victim’s mother gave those documents to the lawyer a long time ago.

Finally, two years ago, she was informed that the case had been concluded and that the money would be paid to the lawyer, who then had to transfer the money to her.

From a pay-out of R15 000 she only received just over R4 000! Why? Over the years, the lawyer gave her “advances” and “loans”, which added to his fees, totaling just over R10 000. This is just one example, but we are aware of any more cases like this.

Now I know that there are lawyers out there who are really busting their asses to get the best deal for their clients — hats off to them. But it’s a simple truth that there are many, many lawyers out there just waiting to make a fast buck such as in this case where the lawyer approached a potential client. I speak under correction, but I am pretty sure that is unethical.

To come back to the issue of the judgment, I think that Judge Jeanette Traverso was plain wrong insofar as she did not carry the interest of the general public. I mean, in a normal court case one is represented by a lawyer. But that’s it — the lawyer gives legal representation. But you are still the one instigating or defending the legal suit. And upon conclusion of the court case, it’s you, not your lawyer, who the judge declares guilty or innocent.

So, the issue of payment or not of a lawyer is a misnomer in this instance. Once you have signed an agreement with your lawyer, it means that you promise to pay him/her for services rendered. Should you renege on this agreement, you are in contempt of physical and common law, and could be hauled in front of a magistrate or judge, who’d compel you to pay your lawyer.

This case should never have been. The RAF amendment bill was aimed at giving greater protection to victims of road accidents and to empower them to take more responsibility for themselves.

I just here have to touch also on another Though Leader blog by Sentletse Diakanyo wherein he suggests that the RAF is trying to bullshit us about the pay-out system. Come on. I mean, if the RAF keeps on paying out victims to the tune of a million bokke a pop, how long do you think the fund would exist? It’s not like there is an unlimited amount of money sitting in a pot somewhere at the end of the rainbow, just waiting to be distributed. We are talking here about a limited amount of money which could be disbursed in any given year. So, of course, it makes sense to have a more equitable, but conscientious approach to how exactly this money could be distributed.

And as for one of the contributions by Bruce, I would like to know when did people “pay a fortune in ‘insurance’ every month to the incompetent Road Accident Fund”? I know that our fuel pricing structure includes a portion for the RAF, but it being a fortune and labelled “insurance”? Come on, be serious.

Maybe we should have just a little more faith. Maybe we should give these changes some time. Who knows? We might be mighty surprised …