Thirteen advocates, including two senior counsel, have been charged by the Pretoria Bar Council for “double briefing” on Road Accident Fund (RAF) legal cases, allegedly involving millions of rands.
Double (or multiple) briefing is the practice whereby an advocate charges a client for appearing in more trials on a particular day than is physically possible for him or her to do. Critics of the RAF say this problem is symptomatic of the RAF’s longstanding inefficiency. The fund is fully financed by public money from a fuel levy of 64c per litre.
“There is a rule that says that an advocate must avoid a conflict of interest between his financial interest and the interest of his client,” said Nic Maritz SC who, on behalf of the Bar, is prosecuting the 13 advocates charged this week.
“If you take two matters for the same day, you’ve got a conflict. Some advocates have been taking up to 15 matters a day.”
Maritz told the Mail & Guardian that there were about 90 RAF court matters a day last year and that advocates had been settling cases, even when doing so meant paying claimants higher amounts than those that might have been awarded following a full court hearing.
Further upping the toll on the RAF’s coffers, he said, has been the rate at which advocates charge their time. “It is accepted that advocates charge 10 times their hourly rate to appear in court — If they take five briefs for one day, they charge for five days in court, even if the matters settle [without a full hearing in court].”
The majority of the 13 advocates charged are expected to plead guilty, facing a maximum fine of R2 000 per offence, Maritz said.
The RAF’s chief executive, Jacob Modise, told the M&G the fund was aware of the practice and had complained to the Bar. But Maritz said the problem came to light only when other members of the Bar complained.
The RAF is partly to blame, Maritz said. “Most RAF matters settle. The RAF takes an inordinate amount of time to get instructions to its attorneys, sometimes only on the morning of the trial.”
Attorney Michael de Broglio said litigation has become a major expense for the RAF in the past few years because it does not settle within the stipulated time, which would be at a potentially far lower cost. “You have 120 days for the fund to investigate a matter and make an offer before the process goes into legal action. But they don’t make settlement offers on almost any matters, so the smallest of the smallest matter ends up going to court.”
The RAF’s legal fees increased from R900million in 2005 to R2,5-billion last year; and the fund is preparing to introduce a “no-fault” scheme that will cut lawyers out of the picture completely.
Modise told the M&G criticisms of the RAF come from lawyers because they have “perverse incentives”. “It’s not our fault the court system is clogged up,” he said. “With the no-fault scheme, we will pay quicker because we’ll deal directly with the public.”
But personal injury attorney Ronald Bobroff said “the no-fault scheme will make the RAF prosecutor, judge and jury” because only RAF employees will sit on the panel that assesses a claimant’s case.
Modise argues that the poor, in particular, will benefit from the new scheme’s immediate private hospital care for accident victims until they are stabilised, plus a fixed amount of R9 000 a month in social insurance for all successful claimants until they reach retirement age.
The fund has long been insolvent and last year had 260 000 claims outstanding. Modise said the RAF’s finalised claims have increased by about 200 000 per year since 2005.