Road Accident Fund Wasting Millions on “Chaotic” Court Cases

Judge Jan Swanepoel of the Gauteng High Court in Pretoria says millions are wasted on chaotic litigation by the Road Accident Fund.

• The Road Accident Fund (RAF) is losing millions in default court judgments. A default court judgment occurs when the respondent, the RAF in this case, fails to defend against a claim.
• The RAF often does not send lawyers to court, and is therefore unrepresented.
• Then, when the RAF applies to rescind (annul) these default judgments, it often loses, incurring further costs.
• The RAF is failing in its constitutional duties, said Judge Jan Swanepoel.

A judge of the Gauteng High Court in Pretoria has blasted the Road Accident Fund (RAF) for its “chaotic approach to litigation” which has resulted in huge losses of public money.

Courts are swamped with RAF cases, many of them without merit or with over-inflated claims for compensation.

But “the main problem lies with the RAF”, said Judge Jan Swanepoel in a recent judgment. The RAF does not deal with its matters properly, does not send lawyers to court to oppose applications or, if it does, does not provide them with any instructions.

This results in “default” judgments. The fund would then apply to rescind the judgments, often on baseless grounds.

“In this manner huge sums of money, public money, it must be emphasised, are lost,” said Judge Swanepoel.

In the week of 5 May, he had granted judgments against the fund of R25-million, and two other courts made default judgments in the same week which he said would have added R50-million to the RAF’s liabilities. “[A]t the same time it pleads poverty.”

He pointed out that in two matters with over-inflated claims, the RAF had not provided any expert reports to assist the court in assessing whether the claims were reasonable.

The case before Judge Swanepoel was an application by the RAF to rescind part of a previous order granted in favour of a road accident victim in 2021. The RAF had been ordered to pay past medical expenses of R223,000 and future loss of earnings of R6-million.

The RAF’s rescission application was made outside of the allowed timeframe. It gave no explanation for this.

A more “serious problem”, Judge Swanepoel said, was that the RAF made three untrue submissions to the court: that the 2021 hearing was heard virtually, that its defence had been previously struck out, and it had been barred from making submissions to the court.

The record showed that the matter had been heard in open court, its defences were never struck out and the fund was represented at court by Ms N Xegwana from the office of the State Attorney. It had been placed on record that she was there to “note the judgment” and had no instructions to make any submissions.

Judge Swanepoel said that because of these “false averments”, there was no legal basis to rescind the judgment.

He had advised Ms N Kunene, who drafted the affidavit with the false claims, and Tonya de Beer, who deposed it, to appear before him. He was considering making them personally pay the costs of the litigation.

Kunene then explained that she drafted the affidavit after receiving a memorandum from the RAF in which the alleged facts were spelled out. She did not know they were not true. She said De Beer was merely asked to sign the affidavit and she herself did not have knowledge of the facts of the matter.

Judge Swanepoel said this was “highly unacceptable” and “perturbing”.

“The result is that the respondent (the claimant) has been dragged to court to oppose an application based on falsehoods.”

He said “although I cannot express my disapproval of Ms Kunene and Ms de Beer’s conduct strongly enough, I accept that they did not set out to mislead. The falsehoods originated from the fund, who misrepresented the facts to them.”

Because of this he would not make a personal cost order against them. He ordered the RAF to pay costs on a punitive scale.

“This application has added to the applicant’s financial burdens in that it will be required to settle the costs of a doomed application which resulted from its own inept management of its affairs.”

Losing by default

“The main problem lies with the [RAF and its chaotic approach to litigation, of which this application is but one example,” Judge Swanepoel wrote.

He said when the fund had terminated the services of its panel attorneys, there had been warnings that default judgments would result and inflated claims would not be properly scrutinised.

This proved to be true and five years later, the RAF’s system was largely still “in chaos”.

“Many cases are heard every day in which the applicant is not represented at court or, if it is, instructions are not forthcoming.”

Judge Swanepoel said this was in spite of the fund being given special legal treatment — not extended to any other litigant — in that it was given multiple opportunities to comply with the rules of court.

“Notwithstanding the multiple warnings it has received, I still had 41 unopposed matters on the default roll in the week of 5 May 2025. In eight of these matters, the defence had been struck out and in 13, the fund was under bar [failing to file papers within the prescribed time]. In 20 cases the fund had not even noted an appearance to defend.”

He said this failure by the fund to properly exercise its constitutional duties “required urgent attention”.

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