The Road Accident Fund (RAF) has been compelled by the Klerksdorp Regional Court to comply with all valid and existing court orders granted in favour of 209 road accident victims, and to pay them a combined total of more than R47.3 million within 30 days.
Regional Court Magistrate MB Mamana further ruled, in a judgment handed down last week, that in the event of non-compliance, the applicants/claimants are granted leave to approach the court for further relief, including contempt of court proceedings.
The judgment was prompted by law firm Theron, Jordaan & Smit Inc, acting on behalf of the claimants, which launched an application to compel the RAF to comply with multiple final court orders already granted in favour of each of the road accident claimants.
This ruling follows the Supreme Court of Appeal (SCA) last week ordering the RAF to pay Newnet Property (Pty) Ltd, trading as Sunshine Hospital, more than R92 million within seven days.
Comment was requested from the RAF last week about the SCA judgment and whether it has sufficient funds to pay Sunshine Hospital, but no response has yet been received.
RAF cites administrative issues
Jan van Aswegen, a director of Theron, Jordaan & Smit Inc, said in an affidavit that each order obliges the RAF to pay a specified capital amount to each claimant, and that the fund has failed to honour these obligations.
Van Aswegen said the RAF has instead adopted the uniform stance that payment cannot be made because certain claims were allegedly “not registered” or not properly captured on its internal administrative system.
He stressed that the purpose of the application is therefore not to revisit the merits of the individual matters or to vary any orders, but solely to enforce existing judgments and compel the RAF to take the internal administrative steps required to comply with them.
Van Aswegen said the key facts are:
- Each applicant/claimant obtained a valid court order against the RAF;
- Each order remains unsatisfied;
- The RAF does not dispute its liability to make payments in terms of the court orders;
- Its reasons for non-compliance are consistent across all cases; and
- Each applicant/claimant seeks relief compelling the RAF to comply with the court orders.
Van Aswegen said that after judgment was granted, all relevant post-judgment documents required for payment were delivered to the RAF for each applicant/claimant, but the RAF has failed to make payment in all matters despite repeated follow-ups.
He said the RAF’s uniform explanation is that it “cannot process payment until the claim is registered on its system”.
He argued that this is factually incorrect, as some claims remain unpaid despite being properly registered.
Van Aswegen further stated that the explanation is legally untenable, because “internal administrative errors, omissions or system issues with the RAF cannot override valid court orders”.
“The RAF’s ongoing failure constitutes a direct and continuing breach of the applicants’ rights and of this court’s authority,” he said.
Court rejects RAF’s defence
The RAF argued that the application is fundamentally flawed and ought to be dismissed because it does not comply with established legal procedures governing enforcement of court orders.
The fund further claimed the relief sought by the applicants/claimants effectively attempts to bypass proper execution procedures and amounts to “an impermissible attempt to enforce payment through alternative means”.
It also argued that the application improperly seeks to compel the fund to undertake internal processes that fall outside the scope of court orders, maintaining that these administrative processes are internal mechanisms not governed by the orders relied upon by the claimants.
In her judgment, Mamana said the starting point in this matter is the existence of valid and binding court orders granted in favour of the applicants/claimants, and it is common cause that such orders have not been rescinded, varied or set aside by any competent court.
She said that in these circumstances, the legal position is clear: a court order must be complied with.
She said the RAF’s primary defence is that execution proceedings are the appropriate remedy, but emphasised that while execution is recognised, it is not the exclusive remedy, particularly where an organ of state persistently fails to comply.
Mandamus relief granted
Mamana said the applicants/claimants seek mandamus (judicial command) relief to compel the RAF to take the necessary steps to give effect to court orders.
“Courts are empowered to grant such relief to uphold the rule of law,” she said.
She further stated that the RAF’s reliance on internal administrative processes cannot justify non-compliance with court orders.
She said the RAF’s contention that the Promotion of Administrative Justice Act (Paja) applies is without merit, as this matter concerns the enforcement of court orders rather than a review.
There is also no evidence the court orders are suspended in terms of the Superior Courts Act, she said.
Mamana ruled that mandamus (judicial command) is the appropriate remedy in this case.
While acknowledging that the applicants/claimants contributed to delays in isolated instances, she stated that this does not excuse the RAF’s non-compliance, adding that the fund’s conduct “reflects a systemic failure to discharge its obligations“.
Mamana held that the applicants have established a clear right to relief and that the requirements for mandamus have been satisfied.
She ruled that they are entitled to enforce the existing court orders by way of mandamus, noting that the existence of valid and binding court orders, coupled with the RAF’s failure to comply, justifies the granting of mandatory relief.
Mamana said the RAF’s failure constitutes unlawful non-compliance, and that the fund has not provided a lawful justification for its continued failure to comply with court orders.
Contempt not yet established
However, she noted that a finding of contempt is not made “at this stage”, because while non-compliance has been established, the applicants have not presented sufficient evidence to prove wilfulness and mala fides (bad faith) on the part of identified RAF officials.
Mamana ruled that the RAF’s internal administrative processes may be compelled, and cannot be used to frustrate compliance with court orders. She added that the fund may be required to take the necessary steps to give effect to such orders.
This article was republished from Moneyweb. Read the original here.
