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Rhyno
 
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Who screwed up the RAF?

20 February 2014, 07:33

“The greatest achievement of law, as the second oldest profession in the world, is that it improved and perfected the shortfalls of the oldest profession...”  (Unknown British Lord and Barrister, somewhere in the 1400’s)

Of course, this would only be funny if you knew what the oldest profession on earth is...

No one appreciates a good lawyer joke more than lawyers themselves, heck; most lawyer jokes are told by lawyers in the first place!

Unfortunately, there is a couple of obvious reasons this perception exists. More so, the fact that law is the most hated profession by quite some margin...

Personally, I think it’s simply because lawyers are the perfect scapegoats

Few may know that a crucial part of a lawyer’s job entails being his client’s scapegoat, elevating the reason for the world’s hatred...

Governments are no exception to this; just consider Jacob Zuma’s eloquent utterings that our legal system is a failure, because it’s not African enough (give me a break...)

The Road Accident Fund (RAF) is the forerunner of lawyer blaming, citing legal fees and unending due process as the reason for the dire straits the Fund finds itself in.

As with ESKOM’s impending energy crisis in the mid 2000’s, no one truly cared... until we've had to deal with load shedding that was...

Hardened by our environment, South Africans tend to resist getting depressed by the ever looming chaos around us; until the day it impacts on our own lives...

When that impact occurs however, all hell is usually let loose!

In a nutshell, the RAF is currently running on a deficit of R 56 billion, according to Business Day, without any light at the end of the abyss. This, notwithstanding the fact that 96 cents of every litre petrol and diesel sold in South Africa, replenishes the RAF each year.

During 2013 alone, the RAF’s income was almost R 23 billion on fuel levies, according to the Department of Energy

The impact of this on the public is that RAF claims for relatively minor injuries now take an average of 3 to 6 years to finalize! This excludes the painful amount of time it takes post-settlement to actually get a cheque in your hand!

Over the years, many commissions of inquiry, investigative journalists, law societies and Bar councils have done their bid to find some sort of a resolution to the issue, with everyone reaching the same result; the RAF’s age old recital as an excuse... lawyers.

Now, I am willing to concede that Beelzebub himself probably has a better public relations image than attorneys and advocates.

With all due respect, the negative tag strung around the necks of lawyers mostly stem from ignorance of the law by the general public, coupled with the fact that the best case scenario in any lawsuit is that only 50% of the parties involved will leave Court with a smile...

Alas, allow me to book my own special place in hell; by defending the lawyers.

Now, admittedly there was a time in my life I practiced law, and RAF claims formed a huge proportion of my time spent on litigation.

I can wholeheartedly state that the RAF is the sole cause of their current predicament, for one reason and one reason alone; incompetence.

In order to illuminate my bold statement, kindly allow me to briefly revert to some boring technicalities...

The vast majority of RAF claims are for relatively minor injuries, thus any claim within Magistrates Court jurisdiction. That means that the total claim is R 100 000.00 or less.

Around 20% of all RAF claims are for serious injuries or death, and mostly end up in High Court.

Now before any Court comes into play, the following is done...

A claim, together with any accident reports, photographs, medical records, expenses, etc. is submitted to the RAF. After three months, they usually revert back with some ridiculous counter offer, well knowing it would never be accepted by the injured.

At this juncture, most attorneys attempt to settle by making another counter offer, usually based on case law and further medical records – given that this wasn’t done when the claim was originally submitted.

From there, you never hear from the RAF again...

Sometimes you’re lucky, and the RAF claims handler hasn't gone on leave. This means you receive a letter by snail mail, confirming their refusal to accept the offer you made.

The effect is that you are forced to sue them in Court.

Now for the big reveal...

The overwhelming majority of these cases are settled 5 minutes before the trial starts.

I would go as far as to state that close to 95% of RAF cases are settled, minutes before a judge or magistrate enters the Courtroom to hear the matter.

In most of the cases I handled, these settlements were near as makes no difference, the same as the initial offer I made, before suing.

That means that roughly 18 months worth of litigation, endless hours worth of work, hundreds of pages in wasted copies and thousands in medical-legal opinions is wasted by the RAF.

Normally, a medical expert (mostly an orthopedic surgeon) is subpoenaed to appear in Court.

Because the expert needs to be available the entire day, as the length of the trial is uncertain, they charge a day fee for sitting in the corridors of justice... 

On average, this was about R 15 000.00...

It was not uncommon to have the RAF settle a claim for R 30 000.00, with a cost order and added expenses of another R 30 000.00.

The bottom line is that the RAF is the sole cause of their financial debacle.

Contrary to what many may believe, most attorneys earn far less in fees than they should, especially when you consider the amount of time and effort spent on a litigation file. It is vastly more lucrative to handle a large amount of claims with a fast turnaround time.

The client benefits from receiving his money much quicker; the attorney improves his cash flow by handling more claims, without the massive time and cost expenditure on unnecessary litigation. On the other hand, the RAF cuts disbursements by roughly 50%, and have the capacity to actually spend time on avoiding fraudulent claims.

Everyone wins.

Before the RAF came into existence in the 90’s, insurance companies rotated the management of third party claims annually. Interestingly, there were far less issues in wasted litigation when this was the case, as their own profitability was at stake.

I suppose the RAF’s answer to their self-created turmoil is to simply request a fuel hike so they can enlarge their levy, as with many a political solution these days.

As with many government institutions, their wastefulness is simply transferred to the public; and the much hated scapegoats can get blamed for the reason everyone pays more at BP!

I can already hear the masses mumbling when this happens, quoting English literature whilst waiting for their tanks to fill...

 “The first thing we do, let’s kill all the lawyers” (William Shakespeare, HENRY VI (2))

Sure masses and William, as long as we start with the politicians.

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