Nawaal Deane and Mungo Soggot
The state’s Road Accident Fund has placed a general bar on white professionals both legal and medical specialists handling its cases.
The fund, which deals with lawsuits stemming from car accidents on behalf of the
state, has instructed law firms acting on its behalf that they too should avoid
using white advocates to defend their cases.
A similar directive has gone out concerning the medical specialists regularly
called to give evidence in such matters. The fund has told its representatives
that they should use medical professionals only from “previously disadvantaged”
backgrounds.
The fund says the new policy is a temporary move, and that it is currently drawing up permanent panels of approved professionals. Nevertheless a list of
approved medical providers is already circulating among law firms that have in
the past represented the fund. The list is divided into the fields regularly
involved in such litigation, each category including between one and four black
specialists.
The Bar Council, which represents advocates, has declined to be included on such
lists, and has questioned the constitutionality of the fund’s directive. Other
legal experts have raised the possibility of a discrimination suit.
As can be seen from the fund’s directive (see ragout), white advocates face a
blanket exclusion from doing fund work unless special permission is granted from
fund officials. Attorneys who have in the past represented the fund are still
awaiting their list, to see if they are among the chosen firms.
A small handful of black professionals stands to benefit from the new policy,
which effectively excludes the large, established group of predominantly white
experts who have specialised in such medico-legal work.
The fund’s workload has increased considerably in the past few years. Currently
it has 204 000 claims in the pipeline. At the end of the past financial year,
the fund paid out R2497-billion. The statistical department confirmed that it
finalised about 82 580 cases last year.
The fund pays out from a kitty sustained from a levy on the fuel price. This has
created a large and sophisticated industry in both the legal and medical professions to facilitate and often contest such claims. Both the fund and
accident victim are represented by teams of lawyers and doctors who fight out
whether and how much an accident victim should receive in compensation.
The directive, drafted by the fund’s Committee for Transformation and Empowerment, has been welcomed by the Black Lawyers’ Association as an opportunity to level the playing fields.
However, the General Council of the Bar, representing advocates countrywide, has
written a letter to the fund’s chairperson, Kessie Naidu, querying the constitutionality of the directive. The letter says the “absolute terms” of the
directive “cannot pass constitutional scrutiny”.
The vice-chairperson of the Bar Council, Roland Sutherland, said this week: “Affirmation is a delicate process and should be handled delicately. We are waiting for them to come back with a revised version.”
The directive, dated April 26, states: “All advocates engaged by the fund should, with immediate effect, be from the previously disadvantaged category.
Every instruction to advocates who are not from the PDI [previously disadvantaged institutions/individuals] should be [authorised by] the regional
managers, who in turn will be required to account for such authorisation.”
The directive spells out similar “previously disadvantaged only” rules for medical and associated professionals, as well as for other service providers
such as costs consultants and assessors.
The directive concludes saying that until “formal panels of service providers”
are in place “you are directed to observe these interim arrangements from today”. It states perhaps somewhat prematurely that the panels were to be in
place before the end of May.
Naidu denies the panels will consist “of individuals and groups only from the
previously disadvantaged category”. He adds, however, that the policy change was
necessary because “for many years the Road Accident Fund had been briefing and
instructing … service providers on a basis which was skewed overwhelmingly
against individuals and groups from the previously disadvantaged category”.
The new directive only allows for exceptions if formal permission is obtained
from regional managers. Naidu argued that this means the initiative is not discriminatory.
But Professor David Unterhalter, director of the Mandela Institute at the University of the Witwatersrand, commented: “This is a crude policy … It is
using race as an exclusionary factor rather than an inclusionary one.” He agreed
the directive was potentially discriminatory and could be challenged under the
Constitution.
Questions have been asked about a potential conflict of interest involving some
fund office holders who are practising advocates George Maluleke, a board member of the fund being one of them.
Maluleke has represented accident victims taking the fund to court. His firm has
a substantial accident case practice. Maluleke has refused to comment.
Naidu, initially cagey about the policy, said the directive was an interim measure not yet approved by the fund’s board: “Its implementation is presently
under consideration.” However, the Bar Council told the M&G that the directive
has been distributed and is being enforced.
Dumisa Ntsebeza, deputy president of the Black Lawyers’ Association, said: “It
is a welcome development to recognise that there are black professionals who are
able to do this work.”
The fund has long been mired in controversy, with allegations that it has been
mismanaged and bled by some unscrupulous lawyers from all races. The way in which South Africa deals with accident insurance is currently the subject of a
judicial commission of inquiry, which is widely expected to result in a major
shake- up of the current system.