Crash: The Road Accident Fund was set up in 1996 to protect road users but it appears to be in such serious financial trouble its assets are being auctioned to recoup funds due to victims. Photo: Nelius Rademan/Gallo
‘The law is for protection of the people”. So, in a song with the same name, sang country singer and poet Kris Kristofferson, decades ago, sarcastically. In the protest song Hurricane Nobel Prize winner Bob Dylan felt “ashamed to live in a land where justice is a game”.
Amid the deeply depressing crime-induced lack of electricity and water, while this article is being written, the crucial importance of the rule of law as a founding value of our constitutional democracy comes to mind. The recent assurance by Chief Justice Raymond Zondo that the courts will not be intimidated by anyone is most welcome.
The judiciary not only has to be as honest and independent as humanly possible, but also efficiently managed. The cliché that justice delayed is justice denied contains wisdom, as clichés often do. Abstract democratic values mean little to those who wait ages for the enforcement of their rights — often until it no longer matters.
Other legal institutions are also pillars upholding the rule of law. Are some of them faltering or even imploding, as is rumoured? Inefficiency and corruption are borne from and give birth to one another.
The function of the Road Accident Fund (RAF), for example, is important. Created by the Road Accident Fund Act of 1996, it provides an insurance safety net for all users of South African roads — and to the economy.
With road users’ money, raised by a fuel levy, the RAF compensates the victims of accidents resulting in death or injury. It also provides indemnity to those who cause the accident. Thus, it is central to the protection of constitutional rights such as social security, personal security, medical care and human dignity. Life can change or be snuffed out very suddenly.
One wonders if the story of Siya “Steel” Strydom is symptomatic of the fate of many. The name is not that of the real victim’s. Barring honest misunderstandings, the facts are exactly as conveyed by the family and their attorney.
At the age of 25, the almost two-metre-tall rugby player was more than healthy and fit. He was the star lock forward of a well-known provincial team. One dreaded day in May 2016, at a traffic light, a 4×4 vehicle smashed into the side of the car in which he was a passenger. It overturned and landed upside down. Below his muscular 124kg body, the man of steel’s head forcefully hit the inside of the roof.
He was airlifted to emergency care. Two vertebrae in his neck were fractured. Siya was completely and permanently paralyzed, all the way down from the neck.
An attorney took all the necessary steps to report the injury to the RAF. Because the accident was work-related, they furthermore approached the insurance company linked to the Workmen’s Compensation Fund, also created by legislation. It assisted with medical costs, rehabilitation and loss of income.
Enormous present and future expenses, as well as general damages, remained unattended to. The suffering was immense. The stricken family struggled.
A claim was submitted to the RAF, supported by medical reports and actuarial calculations. At that stage, the RAF used private attorneys. Strong resistance and delays were encountered from the side of the fund and its attorney. No settlement was reached. The over-used “see you in court” route had to be followed. Summons was issued against the RAF, which formally opposed the claim, both on the merits (the question whose negligence caused the accident) and the quantum (Latin legal-speak for the amount of damages).
After a long and winding road, a high court date for the trial of Siya “Steel” Strydom versus the RAF was obtained. Preliminary steps such as the disclosure of documents and a pre-trial conference took place. The attorneys on both sides were quite meticulous.
Then the RAF terminated the services of the private attorneys on its panel. The state attorney was now supposed to act for the RAF. Chaos ensued. Without legal representatives on the RAF’s side, Siya’s attorney had to liaise directly with the fund. Letters and phone calls remained unanswered for lengthy periods.
On the day of the trial in 2020, more than four years after the accident, Siya was in court — as ready as before the first whistle of a big match. So were his advocate, attorney and witnesses. The RAF was nowhere to be seen; neither was any legal representative.
The trial was conducted as default proceedings, but all technical and substantive rules were adhered to. Evidence was led. Siya testified impressively on cautionary measures such as his wearing of a seatbelt. He also talked about the damages, referring to his condition and treatment. Others gave evidence.
The acting judge found the negligence of the driver of the other vehicle to be the sole cause of the collision. The court ordered the RAF to pay almost R9 million.
It did not do so. When attachment of its assets was imminent, it approached the court for rescission of the judgment. This tool was elevated to notoriety by Dali Mpofu SC’s inappropriate use thereof to get the constitutional court to set aside its own judgment in former president Jacob Zuma’s contempt of court case. It can indeed be used when an order was given in the absence of a party, provided that the absence is properly explained. It was not. The application was refused, with costs against the RAF — money that could have helped someone.
Seemingly unwilling to obey court orders involving large amounts, the RAF then decided to apply for leave to appeal. But, alas, the recording of the court proceedings had gone missing. The acting judge, who had since returned to her practice as an advocate, had to reconstruct the record. With help, this was done early in January this year.
During these proceedings the RAF — surprisingly and without consultation with Siya’s side — paid parts of what the court ordered … even though the order was argued to have been erroneously granted. Almost seven years after the accident, the matter has not been finalised. A significant amount of money remains being owed. The RAF still intends to appeal against the order with which they have partly complied. More time and money may be wasted.
The steely-willed quadriplegic athlete is fighting on. He regularly receives some money from the compensation fund’s insurance company. Of the four caregivers he needs, he can barely afford two. For transport, also to doctors, a combi had to be modified to accommodate his largely lifeless but still tall frame. He drives his expensive wheelchair with his chin. After research done on his cellular phone, with a pen in his mouth, he tries to raise money by breeding exotic pet reptiles.
Sad indeed is Siya Strydom’s story. But he may be luckier than many without access to competent, honest lawyers, the literacy to do research and other means. Unlike countless others, he has received a considerable part of what is due to him.
And the present state and future of the RAF — the only hope of many? Claims are often paid out more than five years after the accident. Attorneys are pressured by their governing body, to whom clients complain.
As allegedly happens almost monthly, an execution sale of the fund’s assets took place in Pretoria on 28 February, after an urgent court application to stop it had failed the previous day. The aim was to recover about R131 million, owed by the RAF in about 400 cases. The sale yielded approximately R50 000. Another sale by the sheriff is scheduled for 14 March — and yet another planned for the end of the month.
Can the RAF survive?
Rumours circulate among lawyers about some judges being very sympathetic to the RAF, for various reasons. But lawyerly gossip about tendencies among judges is not new. Let us halt there, for now.
Does the law, as applied by officials, protect the people? Or is Kristofferson’s sarcasm still valid?
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.