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[2021] ZAGPPHC 173
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Road Accident Fund v Legal Practice Council and Others (58145/2020) [2021] ZAGPPHC 173; [2021] 2 All SA 886 (GP); 2021 (6) SA 230 (GP); [2021] HIPR 166 (GP) (9 April 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: Yes.
(2)
OF INTEREST TO OTHER
JUDGES: Yes.
(3)
REVISED: Yes
9
April 2021
Case
NO: 58145/2020
In
the matter between:
ROAD
ACCIDENT FUND
Applicant
and
LEGAL
PRACTICE COUNCIL
1
st
Respondent
BOARD
OF SHERIFFS
2
nd
Respondent
ABSA
BANK LIMITED
3
rd
Respondent
THAKA
F SEBOKA N.O. (SHERIFF, PRETORIA CENTRAL)
4
th
Respondent
LANA
NEL N.O. (SHERIFF, PRETORIA EAST)
5
th
Respondent
SHOKENG
E DHLAMINI N.O. (SHERIFF, CENTURION EAST)
6
th
Respondent
MARKS
MANGABA N.O
.
(SHERIFF,
JOHANNESBURG CENTRAL)
7
th
Respondent
NELSON
NTSIBANTSU N.O. (SHERIFF, CAPE TOWN WEST)
8
th
Respondent
NOMANDLA
NDABENI N.O. (SHERIFF, EAST LONDON)
9
th
Respondent
G
S NDLOVU N.O. (SHERIFF, DURBAN CENTRAL)
10
th
Respondent
AD
DANDALA & ASSOCIATES
11
th
Respondent
GODLA
& PARTNERS
12
th
Respondent
SITHOMBE
ATTORNEYS
13
th
Respondent
K
MALAO INCORPORATED
14
th
Respondent
MDUZULWANA
ATTORNEYS
15
th
Respondent
ROBERT
MUVHIMI, MOTLHOLO KOOS TLHAOLE,
PHILADIPHIA
NOMTHANDAZO MEMELA,
SIPHO
SKHOSANA,
LINDIWE
MACAKA, JUSTINE CHEPETE and EVIDENCE SHAVA
represented
by SPRUYT INCORORATED
16
th
Respondent
DVDM
INCORPORATED
17
th
Respondent
DE
BROGLIO ATTORNEYS INC.
18
th
Respondent
VDS
ATTORNEYS
19
th
Respondent
ROETS
& VAN RENSBURG
20
th
Respondent
PERSONAL
INJURY PLAINTIFFS LAWYERS ASSOCIATION
21
st
Respondent
ADVOCATE
RAF FEE RECOVERY ASSOCIATION
22
nd
Respondent
KHOROMMBI
MABULI INCORPORATED
23
rd
Respondent
PRETORIA
ATTORNEYS ASSOCIATION
1
st
Amicus Curiae
GENERAL
COUNCIL OF THE BAR
2
nd
Amicus Curiae
Case
Summary
: Practice –
Warrants of Execution – Suspension of warrants of execution and
attachments
– Whether writs and attachments should be suspended
in the particular circumstances of this case, either in terms of r
45A
of the Uniform Rules of Court or the common law or s 173 of the
Constitution, 1996.
JUDGMENT
MEYER
J (ADAMS and VAN DER WESTHUIZEN JJ concurring)
[1]
The applicant, the Road Accident Fund (RAF), according to the
evidence presented in
this application by its current chief executive
officer, is experiencing severe financial difficulties that have been
exacerbated
by the Covid-19 pandemic. Its implosion is imminent
and will have disastrous consequences for this country since s
21(2)
(a)
of the
Road Accident Fund Act
56 of 1996 (RAF Act) will then be triggered
. Section
21(1) and (2)
(a)
provides that no claim for compensation in
respect of loss or damage resulting from bodily injury or the death
of any person caused
by or arising from the driving of a motor
vehicle shall lie against the owner or driver of a motor vehicle or
against the employer
of the driver, unless the RAF or an agent is
unable to pay any compensation. The RAF seeks extraordinary
relief in this application
as a step to stabilize its precarious
financial position to prevent a constitutional crisis, because it is
also constitutionally
enjoined to pay reasonable compensation in
respect of loss or damage resulting from bodily injury or the death
of any person caused
by or arising from the driving of a motor
vehicle (RAF’s application).
[2]
The lifeline the RAF seeks from this court is an order - either in
terms of r 45A
of the Uniform Rules of Court or the common law or s
173 of the Constitution of the Republic of South Africa, 1996 -
suspending
all writs of execution and
attachments based on court orders already granted against it or
settlements already reached with claimants
entitled to the payment of
compensation for damages resulting from bodily injury or death caused
by road accidents that are regulated
by the RAF Act in terms of a
court order or settlement reached with the RAF (successful claimants)
for a period of 180 days.
Such relief will enable the RAF to
make payment of the oldest claims first by date of court order or
date of settlement agreement
a priore
tempore
. It undertook to use
its best endeavours to pay all claims based on court orders already
granted or settlements already reached
older than 180 days, on or
before 30 April 2021.
It does not seek an order to
temporarily stop making payments to successful claimants.
[3]
The first respondent is the Legal Practice Council (LPC). The
third respondent
is ABSA Bank Ltd (ABSA), which bank acts as banker
for the RAF. The second respondent is the Board of Sheriffs, and the
fourth
to tenth respondents are cited in their official capacities as
the sheriffs for Pretoria Central, Pretoria East, Centurion East,
Johannesburg Central, Cape Town West, East London and Durban
Coastal. The eleventh respondent, AD Dandala & Associates,
the twelfth respondent, Godla & Partners, the thirteenth
respondent, Sithombe Attorneys, the fourteenth respondent, K Malao
Inc., the fifteenth respondent, Mduzulwana Attorneys and Legal
Consultants, the seventeenth respondent, DVDM Inc., the eighteenth
respondent, De Broglio Attorneys Inc., the nineteenth respondent, VDS
Attorneys, the twentieth respondent, Roets & Van Rensburg,
and
the twenty third respondent, Korommbi Mabuli Inc., are all firms of
attorneys
inter alia
representing claimants in claims for
compensation against the RAF regulated by the RAF Act. Spruyt
Inc., also a firm of attorneys,
represent the sixteenth respondents
(Robert Muvhimi, Motlholo Koos Tlhaole, Philadiphia Nomthandazo,
Sipho Skhosana, Lindiwe Macaka,
Justine Chepete and Evidence Shava)
herein. The twenty first respondent is the Personal Injury
Plaintiffs Lawyers Association,
and the twenty second respondent is
the Advocate RAF Fee Recovery Association. The Pretoria
Attorneys Association (PAA) and
the General Council of the Bar (GCB)
were respectively admitted as the first and second
amici
curiae
.
[4]
The RAF’s application is opposed by the 11
th
, 14
th
to 17
th
, and 19
th
to 23
rd
respondents. The 11
th
and 23
rd
respondents brought counter applications in which they seek orders
for payment against the RAF in respect of court orders that
had
already ordered the RAF to pay compensation for damages and costs to
various of their clients, which amounts are outstanding
for more than
180 days. The 17
th
respondent brought a counter
application in which it seeks an order that certain claims of its
clients be registered on the RAF’s
‘Registered Not Yet
Paid’ (RNYP) list (it is a list of judgments and settlements
that still need to be paid) with
a date corresponding with the
date upon which the order was made and ancillary relief to give
effect to such order. It further
seeks for this court to issue
a rule nisi calling on all interested parties why an order in the
terms proposed by the 17
th
respondent to resolve the
problem created by the RAF’s inability to promptly pay all its
judgment creditors due to its present
precarious financial position
should not be made.
[5]
The 19
th
and 20
th
respondents brought counter
applications in which they sought orders for the RAF ‘to make
payment, from its very next available
funds’ of amounts due to
successful claimants they represent, whose payments have all been
outstanding in excess of 180 days,
and to enter upon its RNYP list -
in their proper chronological order according to their respective
dates of settlement or court
order - certain other successful
claimants they represent. The 19
th
respondent
further sought an order for the RAF to rectify and remedy short
payments made in respect of other of its successful
claimants, also
‘out of the very next available funds’. The RAF has
complied with the relief sought in the counter
applications of the
19
th
and 20
th
respondents, and they accordingly
no longer persist with their counter applications and abide the
decision of this court in the
RAF’s application. They
merely seek the costs of their opposition and of their counter
applications. Supplementary
affidavits have been filed by many
of the parties, and the RAF and the 17
th
respondent wish
to amend the relief they seek. We allow all the supplementary
affidavits and the proposed amendments.
[6]
On 9 December 2020, a full court of this division (Lamont, Ranchod,
Kubushi JJ)
inter alia
postponed the RAF’s application
to a date for hearing before a full court to be arranged with the
Judge President. It
further ordered this:
‘
5.
The order of His Lordship Mr. Justice Louw stands until the 1
st
of February 2021 or until a Full Bench hears the matter, whichever is
the earliest, namely:
5.1
The Respondents undertake not to execute against the ABSA Bank
accounts or any movable assets of the Applicant
until the 1
st
of February 2021;
5.2
The Applicant will register court orders and settlement agreements on
its list of payments in order of date
that the court order was
granted or the written settlement agreement was made;
5.3
The Applicant will take reasonable steps to ensure the court orders
or written settlement agreement for payments
are registered on the
Applicant’s payment list within 30 business days of receipt of
the court order or written settlement
agreement.
5.4
The Applicant will take reasonable steps to ensure that the court
orders or written agreements that have not
been captured on its
payment list will be captured on its payment list in historical
chronological order from the date that the
court order was granted by
the court or the written settlement agreement was made;
5.5
The Applicant will provide all attorneys on its database of email
addresses of attorneys involved in third
party matters against the
Applicant with updated payment lists on a bi-monthly basis from
January 2021 onwards;
5.6
The Applicant undertakes to make payment of the oldest claims first
by date of court order or date of written
settlement agreement.
6.
The applicant shall continue to pay claims from oldest to newest in
respect of orders older than 180 days.’
[7]
The Judge President of this division allocated Friday, 29 January
2021, for the hearing
of the RAF’s application and the 17
th
respondent’s counter application before this full court.
The
communio opinio
of the legal representatives, my
colleagues and myself was that one day would be insufficient to hear
the matter. We therefore
postponed the matter for a two-day
hearing on 15-16 March 2021, as then directed by the Judge President,
and we extended the order
made by the full court on 9 December 2020
to 16 March 2021. When judgment was reserved on 16 March 2021,
we made an order
that the temporary order granted by the full court
on 9 December 2020 is extended until this court has given judgment or
made an
order in the matter, and that any attorneys who represent
successful claimants that have payment claims older than 180 days
against
the RAF are to notify it, within 14 days of that order, of
the existence of such claims.
[8]
The non-joinder of other interested parties is in issue. The
RAF caused copies
of its application and notices in terms of r 16A of
the Uniform Rules of Court to be served on the LPC and requested it
to disseminate
the application and notices amongst all its members
who are practising attorneys, which the LPC did. The LPC is the
statutory
body for thousands of legal practitioners. Its
notices in terms of r 16A were also furnished to the GCB, which is
constituted
by 14 member societies from every province and together
they represent 3 000 advocates, a significant number of whom
represent
plaintiffs as well as the RAF in in third party litigation
against the RAF. The RAF has on its database over 3 000 firms
of attorneys who are part of its mailing list and who have
represented claimants for the payment of compensation for damages
against
the RAF, or who have acted for the RAF in the past. It
also electronically sent its application to all those attorneys whose
details it has on its database. It also notified the PAA,
which association represents 1 479 attorneys in private practice,
mainly in the Pretoria are, but also further afield. Many of
its members practice in the field of personal injury which includes
third party matters in terms of the RAF Act. On 29
January 2021, this court granted the RAF leave to publish, advertise,
and give notice of any relief sought in the RAF’s application,
or any other amendment, to all practicing attorneys through
the LPC,
by email to all attorneys on its database, to the Minister of
Transport and the Minister of Finance by service on the
State
Attorney and by publication in two national newspapers. The RAF
duly complied with this court’s order permitting
such
substituted service. It
inter alia
gave notice of the
relief sought in this application by publication in two national
newspapers. A few of the opposing respondents
have intervened
as a result of these steps taken by the RAF and were joined to the
RAF’s application.
[9]
The Constitutional Court, in
Matjhabeng Local Municipality v Eskom
Holdings Limited and others
[2017] ZACC 35
para 94, has held
that-
‘
[t]here
may well be a situation where joinder is unnecessary, for example
where a
rule nisi
is
issued, calling upon those concerned to appear and defend a charge or
indictment against them. Undeniably, in appropriate
circumstances, a rule nisi may be adequate even when there is a
non-joinder in contempt of court proceedings.’
And
in
Road Accident Fund v Lana Nel NO and another
((43873/2020))
para 4, Van der Schyff J said the following:
‘
In
Insamcor (Pty) Ltd v
Dorbyl Light & General Engineering (Pty ) Ltd; Dorbyl Light
General Engineering (Pty) Ltd v Insamcor (Pty)
Ltd
2007
(4) SA 467
(SCA) the Supreme Court of Appeal held joinder was
necessary, but where the number of affected parties was substantial,
the issuing
of a rule nisi was sufficient to effect joinder. In
those instances, because of the sheer volume of parties that could be
affected, the failure to respond could be taken to equate to a waiver
of the right to be joined.’
[10]
This matter, in my view, is one where the joinder of the many
thousands of parties that could
be affected by the order of this
court, is unnecessary in the light of the steps taken by the RAF to
notify as many parties of
its application as possible. The
steps taken are adequate. The number of affected parties is
substantial, and the steps
taken by the RAF to notify the sheer
volume of parties that could be affected were sufficient to effect
their joinder. Only
the seventeenth to twenty third respondents
responded and were joined to these proceedings. The failure to
respond by those
who were notified can be taken to equate to a waiver
of the right to be joined.
[11]
The jurisdiction of this court is also in issue. It is not the
issue of writs of execution
against the RAF out of the offices of the
registrars in the various divisions across the country that forms the
subject of the
RAF’s application, but whether or not all writs
of execution that had been issued on behalf of successful claimants,
and
attachments, should be suspended for a fixed period. The
writs are served at the RAF’s branch offices. All writs
countrywide are consolidated at ABSA’s head office by its legal
counsel, which is in Centurion. ABSA then places a
hold on the
equivalent available funds. The attached funds are paid by ABSA
to the relevant sheriffs’ offices.
The sheriff holds the
funds in trust and makes payment thereof to the firm of attorneys
representing the successful claimant.
The RAF instituted its
application in Pretoria since, it is common cause on the papers, most
of the warrants of execution are issued
out of the offices of the
registrars in Gauteng and most of the attachments of the RAF’s
movable property, including its
right, title and interest in and to
its bank account held by ABSA in Johannesburg, occur in Gauteng.
Furthermore, the LPC
(the first respondent) has its national office
in Midrand, ABSA (the second respondent) has its head office in
Johannesburg, both
within this court’s jurisdiction. The
fourth, fifth, sixth and seventh respondents are sheriffs for
districts within
this court’s jurisdiction. The
thirteenth to twentieth and the twenty third respondents are all
firms of attorneys
practicing within this court’s
jurisdiction. Both the twenty first and twenty second
respondents are associations seated
in Pretoria.
[12]
De Villiers JP said in
Steytler NO v Fitzgerald
1911 AD 295
at
346, that the enquiry into jurisdiction is twofold: ‘[A]
court can only be said to have jurisdiction in a matter
if it has the
power not only of taking cognisance of the suit, but also of giving
effect to its judgment.’ There cannot
be an issue with
giving effect to this court’s judgment. Only the first of
these issues, therefore, arises: is
there a recognised ground
of jurisdiction. In relation to the second and eighth to
twelfth respondents, and all those other
persons who could be
affected by this court’s order who reside within the areas of
jurisdiction of other divisions of the
high court, the RAF contends
that the the
causae continentia
principle
(the
doctrine of cohesion of a cause of action)
and
s
21(2) of the Superior Courts Act 10 of 2013 (the
Superior Courts
Act), find
application, which principle extends the jurisdiction of a
particular division of the high court.
[13]
D Pistorius
Pollak on Jurisdiction
2 ed (1993) at 26, states:
‘
.
. . where the causae continentia rule is applicable the court may
assume jurisdiction in respect of a defendant who is otherwise
not
amenable to that jurisdiction on any of the recognized grounds of
jurisdiction and this may be done to avoid inconvenience’.
The
Roman and the Roman-Dutch origin of the rule was discussed at length
by Steyn CJ in
Roberts Construction Co Ltd v Willcox Bros (Pty)
Ltd
1062 (4) SA 326
(A). There, it was held, applying the
common law
causae continentia
rule, that where one court has
jurisdiction over a part of a cause, considerations of convenience,
justice and good sense justify
its exercising jurisdiction over the
whole cause. The partial location of the object of contractual
performance (a bridge
between two provinces) within the jurisdiction
of one court, therefore, gave that court jurisdiction over the whole
cause of action.
It was held that the rule avoids a
multiplicity of proceedings and the possibility of conflicting
judgments on the same cause and
allows for the more convenient
disposition of cases. (Also see
Permanent Secretary
Department of Welfare, Eastern Cape Provincial Government and another
v Ngxuza and others
(493/2000)
[2001] ZASCA 85
(31 August 2001).)
[14]
The
causae
continentia
rule is now enshrined in
s 21(2)
of the
Superior Courts Act, which
provides that ‘[a]
Division also has jurisdiction over any person residing or being
outside its area of jurisdiction who
is joined as a party to any
cause in relation to which such court has jurisdiction or who in
terms of a third party notice becomes
a party to such a cause, if the
person resides or is within the area of jurisdiction of any other
Division’. The same
provision was originally introduced
into
s 19(1)
(b)
of the former Supreme Court Act 59 of 1959, by s 2 of the Supreme
Court Amendment Act 41 of 1970.
[15]
In
Mossgas (Pty) Ltd v Eskom and another
1995 (3) SA 156
(W)
at 157C-G, Fine AJ said this:
‘
Section
19(1)
(b)
was enacted to extend the territorial jurisdiction of a Local or
Provincial Division over parties not ordinarily susceptible to
the
Court’s jurisdiction where it was sought to join such party to
a cause over which the Local or Provincial Division had
jurisdiction. By ‘cause’ is meant an action or
legal proceeding, not a cause of action. (See
Spier
Estate v Die Bergkelder Bpk and Another
1988
(1) SA 94
(C) at 100B.) The aim and purpose of s 19(1)
(b)
was to avoid a
multiplicity of actions with all the inconvenience and expense that
that would involve and to avoid conflicting judgments
on the same
cause of action. See
Majola
v Santam Insurance Co Ltd and Others
1976
(1) SA 874
(SE) at 876H and 877I.
The
difficulty which would arise when defendants who are liable to a
plaintiff on the same cause of action and are resident in different
jurisdictions is thus averted by the enactment and proper application
of this section. There is in my view no basis for limiting
its
application and the only limitations on its applicability are those
to be found in the subsections. See
Majola’s
case
supra
at 877C-D.
Once
the Local or Provincial Division has jurisdiction in the action or
legal proceeding s 19(1)
(b)
can be invoked to join to that cause a defendant not resident within
the area of jurisdiction of that Court provided, of course,
that the
other requirements for joinder and the jurisdictional requisites are
present.’
[16]
In
PMG Motors Kyalami (Pty) Ltd and another v Firstrand bank Ltd,
Wesbank Division
2015 (2) SA 634
(SCA) para 14, Gorven AJA said
the following:
‘
As
regards PMG Westville, the dealerships submitted that if any other
court had jurisdiction over all of the dealerships, the doctrine
of
causae continentia
could not be invoked. Since the KwaZulu-Natal High Court,
Durban, was such a court due to the registered offices of all of
the
dealerships falling under its jurisdiction, the court below did not
have jurisdiction to hear the application. DR Harms
in
Civil
Procedure in the High Court
points
out that the causae continentia ‘principle is now enshrined in
section [19(1)
(b)
]’.
[At A4.19. See also its successor
s 21(2)
of the
Superior Courts Act
10 of 2013
.] PMG Westville was a party – ‘who is
joined … to any cause to which such provincial or local
division
has jurisdiction . . . if the said person resides or is
within the area of jurisdiction of any other Provincial or Local
Division’.
[Section 19(1)
(b)
of the Supreme Court Act.]
PMG
Westville was joined in the application. The court below had
jurisdiction to entertain the application in respect of PMG
Kyalami
and PMG Alberton. PMG Westville ‘resided’ within
the area of jurisdiction of another local division.
This means
that s 19(1)
(b)
of the Supreme Court Act applied in the
circumstances. I agree with the author Pistorius in
Pollak
on Jurisdiction
[D Pistorius
Pollak on Jurisdiction
2 ed
(1993) at 26] that it is not necessary to consider issues of
convenience when the provisions of s 19(1)
(b)
apply. If
one had to have regard to such issues, however, the finding of
jurisdiction was amply justified in the present
matter. It
avoided a multiplicity of applications along with the additional
costs and the risk of discordant findings in
a situation where the
issues were essentially the same for each dealership.’
[17]
The same holds true in the present matter. It is not necessary
for us to consider whether
the
causae continentia
rule should
or should not be applied in this case since
s 21(2)
of the
Superior
Courts Act finds
application. This court has jurisdiction to
entertain this application in respect of the respondents and
thousands of interested
parties residing in its area of jurisdiction,
which is not in issue, but also in respect of the second, eighth to
twelfth respondents
and the thousands of other interested parties
residing within the areas of jurisdiction of other divisions.
Also, regarding
the question of convenience, this application avoids
a multiplicity of applications along with the additional costs and
the risk
of discordant findings.
[18]
I now turn to the pertinent facts. There can be no doubt that
the RAF has been beset with
financial problems for several years and
is presently in a precarious financial position. Many reported
judgments chronical
the RAF’s tardy and wasteful litigation and
poor administration. The Minister of Transport took the drastic
step late
in 2019 to appoint a new management team for the RAF.
Its current CEO was appointed as Acting CEO in September 2019 and
appointed
permanently in August 2020. His mandate is
specifically to turn around the RAF’s parlous state.
Before his appointment
he was in the full-time employment of the
Department of Transport as a Director General: Finance and he was the
Department of Transport’s
Chief Financial Officer. He
deposed to the RAF’s affidavits in this application and has
been frank with this court.
The RAF accepts that its systems
and processes have in the past been antiquated and that its employees
are a major part of the
problem. Its systems are plagued with
corruption and during 2020 (since the appointment of the RAF’s
new management)
it engaged in large investigations and disciplinary
hearings. Matters of
inter alia
corruption are now being
investigated by the National Prosecuting Authority, the Hawks and the
Special Investigation Unit.
The CEO specifically states:
‘
To
continue with old structures that were in place before my appointment
would increase the Applicant’s exposure to claimants
on a
virtually daily basis whilst at the same time increasing the
Applicant’s factual insolvency. The urgent relief
sought
in the Applicant’s application is to immediately stabilize the
Applicant’s operations and financial position.
The
Applicant respectfully submits that the relief sought is extremely
urgent.’
[19]
In
Law Society of South Africa and others v Minister for Transport
and another
2011 (1) SA 400
(CC) paras 52 and 55, Moseneke DCJ
said that ‘urgent steps must be taken to make the Fund
sustainable so that it can fulfil
its constitutional obligations to
provide social security and access to healthcare services’ and
that it is a ‘legitimate
government purpose to make the Fund
financially viable and its compensation scheme equitable’.
The RAF’s new
management team has embarked on a five-year
turn-around plan from 2020 to 2025. Its plan or strategy has
five main priorities
which are the reduction in legal costs, the
revision of the structure and business process, integrated claims
assessment systems,
rehabilitation network and the revision of the
supply chain management structure. Should the RAF continue with
its past model
then projections show that its deficit will only
increase substantially and ultimately lead to its collapse. The
RAF’s
CEO tells us that the proposals that are currently being
considered may lead to the RAF in the immediate future turning to a
cash
positive position. This, according to him, will require
drastic and exceptional measures, and the order it seeks in this
application will alleviate the situation in the immediate short
term.
[20]
If the situation is not so alleviated for the immediate short term,
so states the CEO, the RAF’s
implosion will be imminent due to
attachments against its essential assets (including its bank account)
to obtain payment on behalf
of successful claimants. Its policy
and avowed intention is to pay
a priore tempore
claims first
as a result of its precarious financial position. There are
between 2 500 and 3 000 firms of attorneys who institute
claims
against the RAF governed by the RAF Act countrywide. Of those
firms only approximately 100 cause such execution steps
to be taken
against the RAF. The execution steps bring the RAF’s
operations to a standstill, causing it irreparable
damage and is
debilitating any progress made to bring stability to the RAF’s
operations and financial position. The
vast majority of
attorneys appreciate the financial constraints within which the RAF
operates and accept the delays that the RAF
imposes on the processing
of claims. They do not issue writs of attachment and wait until
paid. In
the present application, according
to the RAF, it seeks to prevent a Constitutional crisis where it can
no longer fulfil its constitutional
obligations to provide social
security and access to healthcare services and s 21(2) of the RAF Act
will automatically be triggered.
[21]
In
Mabunda Incorporated and others v Road Accident Fund; Diale
Mogashoa Inc. v Road Accident Fund
(15876/2020) [2020] ZAGPPHC
(27 March 2020) paras 3.6 to 3.8 and 3.18-3.19, Davis J noted as
follows:
‘
3.6
. . . As an example, in 2005 there were 185 773 claims lodged which
resulted in legal costs of R941 million. In
2018, when there
were only 921 010 claims, the legal costs had ballooned to R8,8
[billion]. In 2019 the legal costs have
increased to R10,6
[billion]. . . .
3.7
Prof Klopper’s conclusion was that, should the RAF change its
litigation model and properly deal with and settle
all meritorious
claims expeditiously, it could save up to R10 billion of public
funds.
3.8
The current CEO for the time being of the RAF is also the deponent to
its answering affidavits. He is in the
full-time employment of
the Department of Transport as a Director General: Finance and is the
Department’s CFO. He
was seconded to the RAF as its
Acting CEO with a mandate from the Minister to “
. . . turn
the RAF Financial woes around by inter alia cutting its legal costs
incurred by the RAF”
. He commenced acting in his
position on 9 September 2019.
.
. .
3.18
The Acting CEO reported that the RAF’s strategic plan for the
five year period 2020-2025, in compliance with the Government’s
Medium-Term Strategic Framework (“MTSF”), and with due
regard to presentations made by the Minister of Transport in
a public
forum, was presented to the Fund’s Board at a Strategic session
held on 16 and 17 January 2020. On 31 January
2020 the Board
approved the plan. In the meantime, the Chairperson of the
Board had signed a revised Board Performance agreement.
Therein, five priorities requiring attention were identified.
These were (a) a reduction in legal costs, (b) revision of
the
structure and business process, (c) integrated claims assessment
system, (d) rehabilitation network and (e) revision of the
supply
claim management structure.
3.19
In order to attain the abovementioned objectives, the RAF came to the
realization that it must drastically adopt a different
model than the
previously utilized “counter-productive legal strategy”.
To continue therewith, was to increase
the RAF’s exposure to
claimants on virtually daily basis whilst at the same time increase
its insolvency, all at the expense
of the public purse. Should
the old litigation model (including the retention of a panel of
attorneys) be retained many,
including the Board members, had warned
that the RAF then risked going down the path envisaged in section
21(2)(a) of the RAF Act,
which comes into operation when the RAF
becomes unable to pay claims against it. The consequence
thereof would be dire for
claimants as it would terminate the RAF’s
position as statutory defendant for claims arising out of driving a
motor vehicle
and would re-institute the common law position.
The “insured driver” as it is now known, would cease to
be insured
leaving claimants with huge claims against impecunious
defendants.’
[22]
The RAF’s primary available resources are the revenue generated
through the allocation
of the fuel levy. It may well be, as
some of the opposing respondents contend, that the RAF is
under-funded.
The
RAF Act provides
for the funding of the RAF out of the Road Accident Fuel Levy and by
means of raising loans. Despite
the protestations by some
of the opposing respondents, I accept that the RAF cannot apply for a
loan at the present time given
the country’s notorious
financial plight and the RAF’s precarious financial position.
A loan will obviously lead
to greater future liability.
[23]
The RAF’s draft annual financial statement ending 31 March 2020
shows that it had an accumulated
deficit of R322 billion. Its
total liabilities exceeded its assets by over R300 billion. The
fuel levy received from
April to September 2020 was R7.9 billion less
than expected. The expectations are that over the next 12
months the claims
settlements will average R4,3 billion per month.
The RAF’s fuel levy income is expected to average R3 billion
per month
and its operational costs will average R178 million per
month. The expected deficit is expected to average at about
R1,25
billion per month. This will result in the list of unpaid
successful claimants to increase from R17,6 billion to R33 billion
by
September 2021. Payment delays will increase from an average of
187 days to 331 days, possibly averaging 261 days to date
of
payment.
[24]
Litigation costs have increased almost tenfold from 2005 although the
total amount of claims
has decreased. The projection for 1
October 2020 to 30 September 2021 is even worse should there not be a
dramatic change
in the system employed by the RAF. During 2020 its
position was significantly exacerbated by the Covid-19 pandemic and
national
lockdown. Its income from the fuel levy declined by
50%. The RAF’s new management is implementing
far-reaching
plans to restructure its payment system, prevent
internal corruption and corruption that in some instances involved
members of
the legal profession, and its historic briefing patterns.
Its immediate actions seek to achieve the following aims:
to
pay claims on a
priore tempore
basis from date of judgment or
order or settlement reached and to pay all claims currently in excess
of 180 calendar days old by
30 April 2021. It is stated in the
RAF’s founding affidavit that-
‘
[t]he
RAF has implemented an equitable system of paying claims on the basis
that the RNYP (requested, not yet paid) claims will
be paid from the
oldest to the newest. Based on the RAF’s available
monthly fuel levy, the RAF is able to pay on average
claims which are
180 days and older.’
[25]
Since the appointment of the RAF’s new management in 2019, it
has recovered approximately
R600 million in duplicate payments.
The total of such duplicate payments is about R1,2 billion.
Duplicate payments,
according to the RAF, occur as a result of the
attachments of its right, title and interest in and to its bank
account held at
ABSA. When there is an execution against the
RAF’s bank account, the warrant is sent to the RAF’s
central treasury.
However, most of the claims in respect of
which the writs were issued have already received attention in the
RAF’s regional
office, which then makes payment to the
attorneys in ignorance of the attachment and payment to the relevant
sheriff. Payments
on the same claim are thus made by the
sheriff’s office, and by the RAF regional office unbeknown that
the claim has already
been paid. Since the RAF’s
new management was appointed, it has implemented a short-term
solution to manage potential
duplicate payments from occurring.
Once a duplicate payment has been discovered and verified, the RAF
attempts to recover
the duplicate payment from the attorneys’
firm involved and suspends all payments of claims of other successful
claimants
to that firm until the money is repaid. Once
repayment is received and the RAF’s internal administrative
processes
completed, its treasury department is informed that that
firm of attorneys can be cleared for payments of other claims of
successful
claimants to that firm of attorneys. The recoveries
process often takes long and, according to the RAF, is a reason why
amounts
owing to other successful claimant clients of such firms of
attorneys are only paid after the lapse of periods long exceeding 180
days after the court order or date of settlement.
[26]
A large number of attorneys are willing to work with the RAF to solve
the current crisis and
potential constitutional crisis. This
includes, for instance, De Broglio Attorneys (the 18
th
respondent), which filed an affidavit in these proceedings supporting
the RAF’s relief for a suspension of attachments.
Also,
the PAA (the 1
st
amicus curiae
) representing 1 479
attorneys, which agrees that urgent relief should be granted whilst
making submissions on a refined order.
DVDM Attorneys (the 17
th
respondent) furthermore imply in their answering affidavit that the
180-day period is already an ‘unofficial agreement’
between the RAF and firms of attorneys across the country.
Counsel for the seven 16
th
respondents, who are
represented by Spruit Inc., made the submission to us that the
constitutional crisis can spiral out of control
(that is if the RAF
implodes) and that the larger public interest must trump any possible
infringement caused by delayed payments.
[27]
Most of the opposing respondents argue that the relief which the RAF
seeks in this application
is unconstitutional, essentially since it
will infringe the successful claimants’ constitutional rights
to equal protection
and benefit of the law and access to courts.
The RAF, on the other hand, argues that the relief it seeks - either
in terms
of r 45A of the Uniform Rules of Court or the common law or
s 173 of the Constitution of the Republic of South Africa, 1996 - is
to prevent a constitutional crisis from occurring if it can no longer
fulfil its constitutional obligations to provide social security
and
access to healthcare services.
[28]
Section 9(1) of the Constitution provides that ‘[e]veryone is
equal before the law and
has the right to equal protection and
benefit of the law’. Section 34 affords everyone ‘the
right to have any
dispute that can be resolved by the application of
law decided in a fair public hearing before a court’. The
right
to execute an order is incidental to the rights afforded by s
34. As was said by Mokgoro J in
Chief Lesapo v North West
Agricultural Bank and another
[1999] ZACC 16
;
2000 (1) SA 409
(CC) para 13:
‘
An
important purpose of s 34 is to guarantee the protection of the
judicial process to persons who have disputes that can be resolved
by
law. Execution is a means of enforcing a judgment or order of
court and is incidental to the judicial process. It
is
regulated by statute and the Rules of Court and is subject to the
supervision of the court which has an inherent jurisdiction
to stay
the execution if the interests of justice so require.’
(Footnotes
omitted.)
And
Jafta J put it as follows in
Mieni v Minister of Health and
Welfare, Eastern Cape
2000 (4) SA 446
(Tk) at 452G-H and 453C-D:
‘
The
constitutional right of access to courts would remain an illusion
unless orders made by courts are capable of being enforced
by those
in whose favour such orders were made. The process of
adjudication and the resolution of disputes in courts of law
is not
an end in itself but only a means thereto; the end being the
enforcement of rights or obligations defined in the court order.’
[29]
Payment of compensation by the RAF under the RAF Act is not only a
statutory duty, but a mechanism
whereby the state must comply with
its constitutional duty in terms of s 12(1)
(c)
read with s
7(2) of the Constitution, to protect road users against the risk of
infringement of the right to freedom and security
of their persons.
In
Law Society of South Africa and others v Minister for Transport
and another
2011 (1) SA 400
(CC), Moseneke DCJ said the
following:
[17]
The statutory road accident scheme was introduced only in 1942, well
after the advent of motor vehicles on public roads.
And even
so, it came into effect only on 1 May 1946. As elsewhere in the
world, statutory intervention to regulate compensation
for loss
spawned by road accidents became necessary because of an increasing
number of motor vehicles and the resultant deaths
and bodily injuries
on public roads. The right of recourse under the common law
proved to be of limited avail. The
system of recovery was
individualistic, slow, expensive and often led to uncertain
outcomes. In many instances, successful
claimants were unable
to receive compensation from wrongdoers who had no means to make good
their debts. On the other hand,
it exposed drivers of motor
vehicles to grave financial risk. It seems plain that that the
scheme arose out of the social
responsibility of the State. In
effect, it was, and indeed still remains, part of the social security
net for all road users
and their dependents.
.
. .
[63]
The concession that the Minister has made is the correct one. A
plain reading of the relevant constitutional provision
has a wide
reach. Section 12(1) confers the right to the security of the
person and freedom from violence on “everyone”.
There is no cogent reason in logic or in law to limit the remit of
this provision by withholding the protection from victims of
motor
vehicle accidents. When a person is injured or killed as a
result of negligent driving of a motor vehicle, the victim’s
right to security of the person is severely compromised. The
State, properly so, recognises that it bears the obligation
to
respect, protect and promote the freedom from violence from any
source.
.
. .
[67]
For all these reasons, I conclude that the State incurs s 12
obligations in relations to victims of road accidents.’
[30]
It is unnecessary for us to decide whether r 45A of the Uniform Rules
of Court, which provides
that ‘[t]he court may suspend the
execution of any order for such period as it may deem fit’,
finds application in
the present case, because a stay of execution
falls within the purviews of a court’s common law inherent
power to regulate
its procedures and also s 173 of the Constitution.
Superior courts have an ‘inherent reservoir of power to
regulate
its procedures in the interests of the proper administration
of justice’:
Universal City Studios Incorporated and
others v Network Video (Pty) Ltd
[1986] ZASCA 3
;
[1986] 2 All SA 192
(A).
There, Corbett JA drew a distinction between a court creating
substantive law as opposed to procedural law: ‘Substantive
law is concerned with the ends which the administration of justice
seeks; procedural law deals with the means and instruments
by
which those ends are to be attained’. The present case
clearly concerns procedural law, not substantive law.
[31]
In
Moulded Components and Rotomoulding South Africa (Pty) Ltd v
Coucourakis and another
1979 (2) SA 457
(W) at 462H-463B, Botha J
said the following:
‘
I
would sound a word of caution generally in regard to the exercise of
the Court’s inherent power to regulate procedure.
Obviously, I think, such inherent power will not be exercised as a
matter of course. The Rules are there to regulate the
practice
and procedure of the Court in general terms and strong grounds would
have to be advanced, in my view, to persuade the
Court to act outside
the powers provided for specifically in the Rules. Its inherent
power, in other words, is something that will
be exercised
sparingly. As has been said in the cases quoted earlier, I
think that the court will exercise an inherent jurisdiction
whenever
justice requires that it should do so. I shall not attempt a
definition of the concept of justice in this context.
I shall
simply say that, as I see the position, the Court will come to the
assistance of an applicant outside the provisions of
the Rules when
the Court can be satisfied that justice cannot be properly done
unless relief is granted to the applicant.’
[32]
In
Whitfield v Van Aarde
1993 (1) SA 332
(E) at 337E-G, Nepgen
J said this:
‘
In
my judgment a Court does have an inherent discretion to order a stay
of execution. Execution is the process which enables
a judgment
creditor to obtain satisfaction of a judgment granted in his favour.
The effect of holding that a Court is unable
to control its own
process would be to deprive a Court of what has always been
considered to be an inherent power of such Court.
Of course,
the discretion which a Court has must be exercised judicially, but
cannot be otherwise limited, for example by stating
that such
discretion can only be exercised in favour of a judgment debtor in
certain circumscribed circumstances.’
[33]
The common law on a superior court’s inherent jurisdiction to
regulate its own processes
has now been subsumed by s 173 of the
Constitution (
Oosthuizen v Road Accident Fund
2011 (6) SA 31
(SCA) para 15), which provides that ‘the Constitutional Court,
the Supreme Court of Appeal and the High Court of South Africa,
has
the inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interest
of justice’.
The court’s inherent jurisdiction to regulate its own
process is not unlimited but must be used
sparingly and only in
exceptional circumstances taking into account the interests of
justice. (See
Oosthuizen
para 17;
South African
Broadcasting Corp Ltd v Director of Public Prosecutions and others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) para 36;
S v Molaudzi
2015 (2) SACR
341
(CC) para 34.) In Systems Applications Consultants (Pty)
Ltd t/a
Securinfo v Systems Applications Products AG and others
(1371/2018)
[2020] ZASCA 81
(2 July 2020) para 25, said the
following:
‘
What
must be borne in mind is that the invocation of s 173 must be
determined on the peculiar facts of each case, mindful of the
fact
that the power granted by that provision should be exercised only in
exceptional circumstances to avoid legal uncertainty
and potential
chaos. A fact-specific casuistic approach must therefore be
adopted.’
[34]
I found that the joinder of the many thousands of parties that could
be affected by the order
of this court, is unnecessary in the light
of the steps taken by the RAF to notify the sheer volume of parties
that could be affected
was sufficient to effect their joinder and
that the failure to respond by those who were notified can be taken
to equate to a waiver
of the right to be joined. The opposing
respondents who were originally cited and those who were joined as a
result of the
steps taken by the RAF all put forward their defences,
essentially of non-joinder, the lack of this court’s
jurisdiction
to entertain the RAF’s application, and that the
relief sought by the RAF is unconstitutional. Other objections
raised
by attorneys acting on behalf of successful claimants are a
lack of transparency on the part of the RAF, its failure to pay the
amounts owing to such clients and costs awards in many instances
after the lapse of periods long exceeding 180 days after the date
of
court order or settlement, and its administration of payments made to
such successful claimants via their attorneys. Court
orders and
such settlement agreements are not always registered within a
reasonable period on the RAF’s list of payments
in order of
date that the court order was granted, or the written settlement
agreement concluded, or they are not always captured
on its payment
list in historical chronological order from the date that the court
order was granted, or the written settlement
agreement reached.
The result is that the RAF does not always make payment of the oldest
claims first by date of court order
or date of the written settlement
agreement. Furthermore, the RAF fails to provide all
attorneys on its database of
email addresses of attorneys involved in
claims for compensation against the RAF regularly with updated
payment lists.
[35]
The invocation of this court’s common law inherent power to
regulate procedure and of its
inherent power in terms of s 173
regulate its process, therefore, must be determined on the peculiar
facts of this case.
I am of the view that exceptional
circumstances exist, taking into account the interests of justice,
for the exercise of this court’s
inherent common law and
constitutional power to order a temporary suspension for a limited
period of 180 days as from the day when
argument before this court
was concluded on 16 March 2021, of a
ll writs of
execution and attachments against the RAF based on court orders
already granted or settlements already reached in terms
of the RAF
Act, which are not older than 180 days as from the date of the court
order or date of the settlement reached.
[36]
I do not agree with the contention of most of the respondents that
such relief will be unconstitutional.
In the words of
Mokgoro
J in
Chief Lesapo
para 13, an important purpose of s 34 of the
Constitution (access to courts) is to guarantee the protection of the
judicial process
to persons who have disputes that can be resolved by
law and execution is incidental to the judicial process. ‘It
is
regulated by statute and the Rules of Court and is subject to the
supervision of the court which has an inherent jurisdiction to
stay
the execution if the interests of justice so require.’
[37]
The granting of such a temporary stay
is
necessary to prevent the RAF’s implosion and resultant
constitutional crisis when the RAF will no longer be able to fulfil
its constitutional obligation to provide social security and access
to healthcare services for road victims and s 21(2)
(a)
of the RAF Act is triggered. No imagination is required to
fathom the likely dire situation of thousands of injured
uncompensated
road accident victims. The
social security
net for all road users and their dependents will then fall away.
There is a significant
number of motor vehicle accidents
on our public roads countrywide with resultant deaths and bodily
injuries. As was said by
Moseneke DCJ in
Law Society of
South Africa and others v Minister for Transport and another
(supra),
the right of recourse under the common law proved to be of limited
avail. In many instances, successful claimants
will be unable
to receive compensation from wrongdoers who have no means to make
good their debts and drivers of motor vehicles
will be exposed to
grave financial risk.
[38]
Section 17(3)(a) of the RAF Act provides that no interest calculated
on the amount of any compensation
which a court awards to any third
party by virtue of the provisions of subsection (1) shall be payable
unless 14 days have elapsed
from the date of the court’s
relevant order. The 14
th
respondent argues that the
morae
interest to be paid by the RAF will result in wasteful
expenditure should this court grant the relief which the RAF seeks.
However, the reality is that that is the
status quo
because of
the RAF’s present dire financial situation. Judgment
creditors (successful claimants) must wait to be paid
priore
tempore
. Furthermore, the RAF does not move for an order
for a stay of payments or the payment of interest. It seeks an
order
for a stay of attachments to enable it to make payment within
its available resources.
[39]
I have referred to the objections raised by attorneys acting on
behalf clients who are successful
claimants against the RAF. I
do not believe that payments should be withheld from successful
claimants because of a dispute
between the RAF and the attorneys
acting for them, or pending the repayment of double payments by
attorneys.
Such exceptions may cause
undue hardship on and be unfair to successful claimants. In
such instances, the RAF should approach
the court, on a case-by-case
basis, if it believes or is advised that it has valid grounds to
obtain an order
suspending
writs of
execution and warrants of attachment against it.
The
order which we propose to make, therefore, does not provide for any
exceptions.
The RAF, as it undertook to
do, must pay all claims based on court orders already granted or
settlements already reached in terms
of the RAF Act, which are older
than 180 days as from the date of the court order or date of the
settlement, on or before 30 April
2021, provided it has been notified
by any attorneys who represent claimants that have such claims that
are older than 180 days
of the existence of such claims in accordance
with paragraph 3 of this court’s order made on 16 March 2021.
[40]
The GCB and s
ome of the opposing respondents propose that this
court issue a rule nisi or a structural interdict; one that demands
that the RAF
provide proper information, a comprehensive detailed
rescue plan, and for the relevant ministers and institutions to
explain what
they have done to resolve the funding crisis.
The
board of the RAF exercises overall authority and control over the
financial position, operation and management of the RAF (s
11(1) of
the RAF Act). The Financial Services Board (now the Financial
Conduct Sector Authority) exercises financial supervision
over the
RAF. The RAF submits copies of reports on the business of the
RAF to Parliament in terms of s 4 of the Financial
Supervision of the
Road Accident Fund Act, 8 of 1993 (the FSRAF Act), and s 14(3) of the
RAF Act. The RAF Board is subject
to the supervision of the
Minister of Transport. In terms of the FSRAF Act, the Minister
of Finance is required to submit
reports to Parliament within 6
months of the end of a financial year. The reports by the
Minister of Finance and by the CEO
of the Financial Sector Conduct
Authority are based on returns of assets and liabilities of the RAF
in respect of its business
in the past and in the future audit
years. These returns are to be submitted to an actuary who is
required to express an
opinion for the benefit of the funding
decisions by those who have oversight, including parliament. I
have mentioned that
the
RAF Act provides for the funding of
the RAF out of the Road Accident Fuel Levy and by means of raising
loans. The fuel levy
is administered by the South African
Revenue Service. The RAF is funded through a parliamentary
process. The Schedules
to the Customs and Excise Act 91 of
1964, which provide for the fuel levy, are expressly stated to form
part of that Act.
Hence, the allocation of those funds to the
RAF is a parliamentary prerogative. Ultimately, the fuel levy
is paid by the
National Treasury to the RAF. Any substantial
increase in the fuel levy will obviously have massive inflationary
repercussions
for the country as a whole.
[41]
I am of the view that the circumstances of this case do not warrant
the issuing of a rule nisi
or the granting of a structural interdict
as proposed by some of the opposing respondents. It is possible
to craft an order
that unambiguously defines the exact period in
which the relevant writs of execution and attachments against the RAF
are stayed,
by when the claims of successful claimants that are older
than 180 days must be paid, and the ancillary relief to alleviate
many
of the problems experienced by attorneys who represent claimants
in matters governed by the RAF Act with the RAF. (See
Agri Eastern Cape and others v MEC for the Department of Roads and
Public Works and others
[2017] 2 All SA 406
(ECG) paras 39-40.)
Such order is along the lines of the draft order which the RAF handed
up to us once the matter was fully
debated in court, but with
amendments in accordance with my findings.
[42]
This court must also be cautious not to usurp the functions of the
board of the RAF or to interfere
in the functions of other branches
of government and in the parliamentary prerogative regarding the
allocation of funds. In
Doctors for
Life International v Speaker of the National Assembly and others
[2006] ZACC 11
;
2006
(6) SA 416
para 37, Ngcobo J said this:
‘
The
constitutional principle of separation of powers requires that other
branches of government refrain from interfering in parliamentary
proceedings. This principle is not simply an abstract notion;
it is reflected in the very structure of our government.
The
structure of the provisions entrusting and separating powers between
the legislative, executive and judicial branches reflects
the concept
of separation of powers. The principle has important
consequences for the way in which and the institutions by
which power
can be exercised. Courts must be conscious of the vital limits
on judicial authority and the Constitution’s
design to leave
certain matters to other branches of government. They too must
observe the constitutional limits of their
authority. This
means that the Judiciary should not interfere in the processes of
other branches of government unless to
do so is mandated by the
Constitution.’
(Footnote
omitted.)
[43]
Finally, the matter of costs. The RAF and the opposing
respondents are
ad idem
that
‘
. . . the general approach of not
awarding costs against an unsuccessful litigant in proceedings
against the State, where matters
of genuine constitutional import
arise’, should be applied in this case:
Biowatch
Trust v Registrar, Genetic Resources
2009
(6) SA 232
(CC) paras 23-24. The opposing respondents, however,
urge me to order the RAF to pay their costs of opposition, and also
the costs of their counter applications where counter applications
were instituted. They argue that the relief sought by the
RAF
is in the nature of an indulgence and their opposition was not
unreasonable. As far as the counter applications are concerned,
they argue that the institution thereof was necessary since the
counter applications concern claims of successful claimants against
the RAF which have been unpaid for periods in excess of 180 days and
in some instances proposals were made on a proper refined
order
in respect of the RAF’s application. An indulgence
granted to the RAF in the main application will result in
the counter
applications not succeeding at this stage. I agree.
[44]
The ordinary principle as far as costs are concerned where an
indulgence is sought is that unless
the opposition was unreasonable
the party seeking the indulgence ought to pay the costs of
opposition. In fact, the opposition
of the opposing respondents
was not only not unreasonable, but helpful - some more than others –
and it was only after the
matter had been fully debated in this court
that the RAF came forward with a considered and substantially
acceptable draft order.
I agree with the 15
th
respondent’s contention that the RAF’s case has undergone
a metamorphosis since it was first launched as a matter of
urgency on
4 November 2020. The fact that we propose to make no order in
respect of each counter application does not mean
that they were
unsuccessful, since the order we propose to make includes a mandamus
for the RAF
to pay all claims based on
court orders already granted or settlements already reached in terms
of the RAF Act, which are older
than 180 days as from the date of the
court order or date of the settlement reached, on or before 30 April
2021.
The issues raised by the 19
th
and 20
th
respondents in their counter applications have been resolved by the
RAF since they were instituted, and I consider it fair and
just that
the RAF should also bear the costs of those two counter applications.
Finally, there seems to me to be no reason, and
none was advanced, to deviate from the rule that an
amicus curiae
is generally not entitled to be awarded costs:
Hoffmann v South
African Airways
2001 (1) SA 1
(CC) para 63.
[45]
In the result the following order is made:
(a)
The temporary order made by the full court of this division on 9
December 2020, and extended
by this court on 16 March 2021, is
discharged.
(b)
All writs of execution and attachments against the applicant based on
court orders already
granted or settlements already reached in terms
of the Road Accident Fund Act, 56 of 1996 (the RAF Act) are suspended
until 30
April 2021.
(c)
The applicant is to pay all claims based on court orders already
granted or settlements
already reached in terms of the RAF Act, which
are older than 180 days as from the date of the court order or date
of the settlement
reached, on or before 30 April 2021, provided
that the applicant has been notified by any attorneys who represent
claimants
that have such claims that are older than 180 days of the
existence of such claims in accordance with paragraph 3 of this
court’s
order made on 16 March 2021.
(d)
All writs of execution and warrants of attachment against the
applicant based on court orders
already granted or settlements
already reached in terms of the RAF Act, which are not older than 180
days as from the date of the
court order or date of the settlement
reached, are suspended from 1 May 2021 until 12 September 2021.
(e)
The applicant is to take all reasonable steps to:
(i)
register court orders or written settlement agreements for claims
instituted in terms of the RAF
Act against the applicant, on its list
of payments in order of date that the court order was granted or the
date of the settlement
agreement;
(ii)
ensure that court orders or written settlement
agreements for claims in terms of the RAF Act for payment are
registered on the applicant’s
payment list within 30 business
days of receipt of the court order or settlement agreement;
(iii)
ensure
that court orders or settlement agreements for claims as set out
above that have not been captured on its payment list will
be
captured in historical chronological order from the date that the
court order was granted by the court or the written settlement
agreement was entered into;
(iv)
provide
all attorneys on its database of email addresses of attorneys
involved in third-party matters against the Road Accident
Fund with
updated payment lists on a bi-monthly basis from April 2021 onwards.
(f)
The applicant is to continue with its process of making payment of
the oldest claims
first by date of court order or date of written
settlement agreement
a priore tempore.
(g)
Any party may approach the court during September 2021 to vary,
extend or amend this order.
(h)
This order and the order made by this court on 16 March 2021 shall
forthwith be published
by the applicant:
(i)
to all practicing attorneys through the Legal Practice Council;
(ii)
by email to all of the applicant’s list of attorneys on its
database;
(iii)
to the Minister of Transport and the Minister of Finance by service
on the State Attorney;
(iv)
by publication in two national newspapers.
(i)
No order is made in respect of each counter application, except that
the applicant
is to pay the costs of each counter application.
(j)
The applicant is to pay the costs of each opposing respondent’s
opposition
of the application, including all reserved costs and the
costs of two counsel, one of whom a senior counsel, whenever so
employed.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION
Judgment:
09 April 2021
Hearing:
15 – 16 March 2021
Applicant’s
Counsel:
Adv C Puckrin SC (assisted by Adv R Schoeman and Adv P Motsie)
Instructed
by:
Malatji & Co Attorneys, Sandton
3
rd
Respondent’s Counsel:
Adv H Cowley
Instructed
by:
Tim du Toit Inc. Attorneys, Pretoria
11
th
Respondent’s Counsel:
Adv K Korf
Instructed
by:
AD Dandala & Associates, Durban
14
th
Respondent’s Counsel:
Adv EC Labuschagne SC (assisted by Adv V Mabuza)
Instructed
by:
K Malao Inc., Pretoria
15
th
Respondent’s Counsel:
Adv BP Geach SC (assisted by Adv F Kehrhahn)
Instructed
by:
Mduzulwana Attorneys, Pretoria
16
th
Respondent’s Counsel:
Adv PG Cilliers SC (assisted by Adv C Spangenberg)
Instructed
by:
Spruyt Inc., Pretoria
17
th
Respondent’s Counsel:
Adv AA Lubbe
Instructed
by:
DVDM Inc., Pretoria
19
th
Respondent’s Counsel:
Adv BP Geach SC (assisted by Adv F DeW Keet)
Instructed
by:
VDS Attorneys, Pretoria
20
th
Respondent’s Counsel:
Adv BP Geach SC (assisted by Adv F DeW Keet)
Instructed
by:
Roets & Van Rensburg Attorneys, Pretoria
21
st
Respondent’s Counsel:
Adv N Motala
Instructed
by:
Selwyn Drobis Attorneys, Sandton
22
nd
Respondent’s Counsel:
Adv D van den Bogert (assisted by Adv R Kayingo)
Instructed
by:
De Bruyn Morkel Attorneys, Pretoria
23
rd
Respondent’s Counsel:
Mr K Mabuli
Instructed
by:
Ledwaba Shapiro Attorneys, Pretoria
Counsel
for 1
st
Amicus Curiae
: Adv JP van
den Berg SC
Instructed
by:
Adams & Adams, Pretoria
Counsel
for 2
nd
Amicus Curiae
: Adv D Williams
SC (assisted by Adv M Hugo)
Instructed
by:
Bernhard van der Hoven Attorneys, Pretoria