The Road Accident Fund is the largest defendant in the country and a ‘notoriously recalcitrant litigator’ – and all that the practice directive manages to achieve ‘is to support its adopted litigation strategy’.
A directive making mediation of all civil trials mandatory in an attempt to reduce court roll backlogs, particularly Road Accident Fund (RAF) litigation, has been blamed for worsening delays, escalating legal costs and undermining access to justice for road crash victims.
Advocate Justin Erasmus, chair of the Personal Injury Plaintiff Lawyers Association (Pipla), which has lodged a high court application to set aside the directive, said on Monday that hardly any mediation is happening.
The practice directive issued by then Gauteng Judge President Mlambo in April 2025 made mediation of civil cases compulsory in the Gauteng Division before they are enrolled on the court rolls.
Erasmus says De Broglio Attorneys in Johannesburg and Schutte de Jongh Inc in Pretoria, which Pipla used as case studies, had together issued about 1 400 notices to the RAF up until about November 2025 indicating they wanted to mediate – but De Broglio only finalised about seven of these mediations and he does not believe Schutte de Jongh has finalised any.
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Erasmus believes that about a quarter of mediations are fully resolved, another quarter lead to partial resolution where, for instance, the merits and general damages are settled – and about half of mediations lead to no resolution.
He says about 300 RAF matters a week have been placed on the high court roll in Pretoria and Johannesburg “for donkey’s years”, which resulted in the court roll backlog and matters being enrolled for dates up to 2031.
Erasmus claims there are 25 state attorneys in Gauteng – 15 in Pretoria and 10 in Johannesburg – and if they do nothing but RAF cases will collectively have to mediate 60 matters a week (12 each) “just to keep pace with the 300 RAF matters on the court roll each week”.
But a state attorney is only able to do one or two mediations a day, he points out.
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RAF not complying
Erasmus adds that the RAF is not complying with mediation notices, resulting in attorneys going to the interlocutory court and obtaining a referral to the default judgment roll.
He says the default judgment rolls are quite busy and possibly dealing with 20 or 30 RAF matters a day.
“Effectively what has happened is that the old trial roll, which was largely heard on an unopposed basis because the RAF did not pitch at court, has just been rebadged as a default judgment roll.
“So it [the directive] hasn’t eased the capacity burden of the court at all and it’s just added a massive administrative burden and costs for attorneys. It’s just chaotic at the court,” he says.
Pipla and Gert Nel Attorneys unsuccessfully applied for direct access to the Constitutional Court because they believe the directive is unconstitutional.
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Nel said on Monday his firm does not believe it was appropriate to have two applications on the same merits and had not pursued its case in the high court – but that depending on what happens with Pipla’s application, can always revive its application later.
He says the directive was introduced seemingly to address the ever-increasing burden on court rolls, limited judicial capacity and an urgent need to modernise case flow management.
But he claims the current framework has produced various unintended consequences, including shifting the system away from resolving disputes towards procedural “gatekeeping” – delaying cases due to administrative and arbitrary compliance reasons, which inevitably result in matters being kept off trial rolls.
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Model relies on a ‘fatally flawed assumption’
Nel says the process was punted as being more efficient and would result in early settlement and/or trial dates without protracted litigation but in practice the model relies on a “fatally flawed assumption that all parties will participate promptly and meaningfully”.
He says the RAF is the largest defendant in the country and a notoriously recalcitrant litigator, and the assumption of a co-operative interaction between the RAF and litigants is a fallacy.
“If one party does not engage, delays multiply – and the consequences are felt most acutely by injured claimants waiting for compensation to fund care, rehabilitation and basic living needs.”
Nel says that since 2021 Gert Nel Inc obtained 3 731 trial dates set down from 2022 to 2031, and about 70% or 2 612 of those dates that were set down for 2026 to 2031 have now been removed subject to the latest directive, despite compliance at the time the dates were allocated.
In 2025 alone, he adds, the firm had more than 100 matters on the roll that could not proceed to trial due to the implications of the directive.
“The concern is that when trial dates can be removed or become unattainable through procedural ‘red tape’ a key driver of dispute resolution is lost in support of the RAF’s adopted litigation strategy.”
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Nel adds that Gert Nel Inc has invited the RAF to mediate on more than 2 000 matters but not a single case progressed to an actual mediation, with many of these matters now facing an “interlocutory” detour.
In regard to the RAF’s adopted litigation strategy, Nel refers to evidence presented in parliament to the inquiry into the RAF by the Standing Committee on Public Accounts (Scopa).
Former RAF actuarial and reinsurance senior manager Itayi Charakupa testified that the RAF deployed tactics from 2019 to 2025 to slow the claims process by keeping matters longer in “processing” or litigation to ensure lower claims liability in financial statements to support the fund’s “unlawful accounting standard”.
Charakupa further testified that staffing and service-provider capacity linked to assessments was reduced to further support the strategy.
Nel argues that if a defendant, for their own benefit, wilfully limits the incentive to settle quickly, “all that the practice directive manages to achieve is to support and reward the RAF’s unlawful operational changes”.
Comment was requested from the Office of the Gauteng Chief Justice and the RAF but a response has not yet been received.
This article was republished from Moneyweb. Read the original here.