Court ruling opens door for previously rejected RAF claims

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JEREMY MAGGS: A landmark Supreme Court of Appeal (SCA) ruling has thrown the Road Accident Fund (RAF) claims process into fresh uncertainty. Now, as I understand it, the court has declared key changes to the RAF claims process unlawful. It’s found that the RAF, the Minister of Transport (Barbara Creecy), acted outside their powers when introducing stricter requirements to the RAF 1 claim form.

Now, what does it mean? Well, again, as I understand it, thousands of previously rejected claims may now have to be re-lodged by the end of September. That obviously is going to place a lot more pressure on an already strained system. So let’s find out what this means for claimants, for attorneys and for the Road Accident Fund itself.

Read: The RAF might need a major government bailout …

I’m in conversation now with Kirstie Haslam, who is a partner at DSC Attorneys. Kirstie, maybe just try and simplify this for us, and welcome to you, what exactly did the Supreme Court of Appeal find was unlawful in the claims process?

KIRSTIE HASLAM: Hi, Jeremy. Yes, what happened originally was that the Road Accident Fund introduced a new claim form, which sounds innocent on the face of it, in 2022 effectively. However, what that claim form stipulated was basically that a claimant had to present a perfectly prepared and finally quantified claim in order for it even to be accepted and registered as a claim.

That was, of course, entirely onerous and impractical, and why they got in trouble with the Supreme Court of Appeal and all the courts below, was that they followed an unlawful process in implementing that claim form.

In order for that to have been properly implemented, there should have been public consultation so that relevant stakeholders could give their views and input on the practicability and the workability of this new system. That was just run over roughshod and it was simply introduced. That resulted in many years of litigation, which culminated in the SCA’s judgment last week.

JEREMY MAGGS: Kirstie, of more concern is the court also said the fund and the minister acted outside their powers. How serious is that finding, do you think?

KIRSTIE HASLAM: It is a damning finding. What is significant is that when the matter got to the Supreme Court of Appeal, the minister didn’t even participate in those proceedings, so the Road Accident Fund was pursuing that alone. So initially, the Road Accident Fund themselves tried to implement this form by way of simply publishing a board notice.

Then they realised they were in sticky waters as far as that was concerned, and got the minister to simply publish the new claim form thereafter. It is very concerning that administrative law was simply bypassed and overlooked in the haste to bring about this new system which was supposed to create administrative efficiency, but just created chaos and loads of problems for claimants.

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JEREMY MAGGS: So let’s talk about claimants then. Why is this ruling so important for ordinary road accident victims?

KIRSTIE HASLAM: Because it gives them a new chance now until 30 September of this year, which is not a very large window, it’s a narrow window, to resubmit claims which were previously unlawfully rejected. We ourselves experienced this in our practice every time we lodged a claim since 2022, inevitably the claim would be rejected out of hand, so not registered, and their system, which is very concerning, the Road Accident Fund’s internal claims management system, does not have the capacity to record details of those claims which were rejected, which poses all sorts of problems.

So claimants do now have the opportunity to resubmit those claims. But of course, there’s been innumerable delays in the time that has passed in processing claims. So there’s a huge backlog that’s going to have to be, A, registered and then, B, dealt with.

JEREMY MAGGS: Let me tread carefully in asking the next question, how much of this is academic, given that it appears increasingly likely that the fund is going to require, at some point, a significant government bailout? Effectively, it’s running on the smell of an oil rag at the moment.

KIRSTIE HASLAM: Well, what is important is that it is a pay-as-you-go system, so it’s not run as typical insurance companies would be run, where you need certain reserves to satisfy outstanding claims and so on. It is a pay-as-you-go system. What has happened over the years since the implementation of this new claim form is that, in fact, their rates of finalisation of claims plummeted dramatically.

The registration of new claims plummeted 72%, so rates of finalisation similarly declined, which would mean hopefully that there would have been saving that would have come about as a result of that, and the failure to finalise claims was because they simply weren’t registering or dealing with them.

So it is a pay-as-you-go system. What does always need looking at is the fuel levy, because we fell behind with fuel levy increases several years ago, and that had a knock-on effect in terms of the fund’s liquidity and ability to settle claims.

Read:
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JEREMY MAGGS: We’re hearing now – and again, just test me if I’ve got the right timeline here – but some claimants may have to re-lodge by 30 September. Is that deadline realistic, do you think?

KIRSTIE HASLAM: It is a very tight deadline. My concern, particularly in this respect, is those claimants who approached the Road Accident Fund directly and tried to lodge claims directly, which indubitably would have been rejected, and who now would be unaware of this judgment.

There is a duty on the fund to publish in various newspapers, and to make the public alive to this change, and to invite people to resubmit their claims, but I fear that there will be many who will fall through the cracks as far as they’re concerned.

So those people who are road accident victims, who may have been victim to this rejection process, must consult an attorney versed in this area as quickly as possible. It’s not impossible to meet that deadline, but one must act swiftly.

Read:
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JEREMY MAGGS: If, of course, the RAF is administratively capable of handling a new wave of re-lodged claims.

KIRSTIE HASLAM: Yes, this is true. The Road Accident Fund did issue a communiqué following the Supreme Court of Appeal judgment, stating that their claims management system has been updated to accept the previously valid claim form, the 2008 claim form, which was reinstated effectively with the SCA judgment. So they say that they’ve updated their system. But, of course, it is going to be a massive influx for them to deal with.

JEREMY MAGGS: Kirstie Haslam, thank you very much indeed, partner at DSC Attorneys.