The Law Society of South Africa has brought an urgent application in the Cape High Court to set aside as unlawful a decision announced by the Road Accident Fund (RAF), the society said on Tuesday.
”The decision is aimed at eliminating the current system of paying compensation awards for road accident victims to their authorised attorneys,” the society said in a statement.
Most of the country’s road accident victims were poor people, often seriously disabled by their injuries and unable themselves to institute their claims, prove the liability of the RAF, and prove the extent of their losses, it said.
”Attorneys, up to now, have acted for them on the basis that they will have to pay from their own pockets substantial costs needed to mount the claims, and to run the risk of the claims failing.
”Currently, sums owing to claimants by way of compensation and costs are paid into the trust accounts of attorneys with powers of attorney signed by their client directing the RAF to do so.
”From those payments, attorneys — who are under the supervision of their law societies and who are backed by the Attorneys Fidelity Fund — deduct what they have already advanced in payment of medical, actuarial and other experts and counsel.”
The society said the RAF’s decision to change the system had not been made by the transport minister and implemented by regulations made under the Road Accident Fund Act.
”Instead the decision has been made by the RAF itself, and announced in a newspaper advertisement.”
The society charged that the decision appeared to have been made on October 30 2007 and ”kept secret” until the public announcement on July 21.
”The consequence has been to make it impossible for the decision to be challenged in court prior to the date it purports to take effect.”
The Law Society said it was challenging the move ”on many grounds”, including its concern that direct payments into the bank accounts of indigent and often illiterate claimants would afford them less legal protection against abuses than at present.
”The decision will also make it impossible for many legal practitioners to continue to represent road accident victims, because they cannot afford to continue to provide upfront funding of the costs of the case without the security of being covered by a payment from the RAF in due course for this.”
It said that without proper legal representation, the already highly criticised system of compensation in operation in South Africa would be further weakened, and would seriously diminish access by the most vulnerable to the courts.
”The RAF has been called upon to undertake to defer implementation of its decision pending a review by the courts. To date it has failed to give that undertaking.”
The Law Society said it was joined in its court application by the South African Association of Personal Injury Lawyers and an individual claimant, Mr Luvuyo Nicolaas Mbele.
They were seeking an urgent order interdicting the implementation of the decision until its validity could be fully determined.
The urgent application had been set down for hearing in the Cape High Court on August 8. – Sapa