(Photo: Provided)
The association of lawyers for claimants with personal injuries (Pipla), which represents around 600 lawyers and advocates who in turn assist victims of road accidents, appeared in the Pretoria High Court this week before a full bench of judges to challenge a directive from the Road Accident Fund which prescribes compulsory mediation as a prerequisite for litigation.
The case will be heard on Thursday and Friday.
Adv. Justin Erasmus, chairman of Pipla, says the case is considered one of the most important legal challenges for claimants of the Road Accident Fund (ROF) in years. This can also have various consequences for access to justice in South Africa.
Pipla argues that the directive unlawfully forces road accident victims to participate in a mediation process, before they have access to the court. This is labeled as an additional obstacle in the fight for justice for some of the country’s most vulnerable citizens.
“This case is ultimately about the question of whether injured South Africans can be denied access to court through an administrative process that has no basis in law.
“Road accident victims already face enormous physical, emotional and financial challenges. They should not be subjected to additional barriers that delay or impede their constitutional right to have their disputes resolved by a court.”
The court’s decision will help determine whether procedural guidelines can trump established court rules, and whether access to justice can be made subject to processes that were never intended to be mandatory.
(Archive photo: Istock)
The core of the challenge is whether a practice directive can legally transform mediation, which is intended as a voluntary process, into a mandatory prerequisite for litigation.
Pipla argues that only parliament or the Rules Council for Courts have powers to amend court rules and that the directive exceeds those powers by introducing a new procedural requirement that limits litigants’ direct access to the courts.
While Pipla remains a strong supporter of voluntary mediation where it is properly provided and carried out in good faith, Erasmus says that the current system has shown significant operational deficiencies since the RAF introduced it more than a year ago.
“The issue before the court is not mediation itself, but whether parties can be forced into a process that the RAF has repeatedly shown it does not have the capacity to administer consistently and effectively.”
Pipla believes that the outcome of the case will have ramifications that extend beyond RAF cases and will raise fundamental constitutional questions about the separation of powers and the limitations of judicial administration.
“The court will ultimately be asked to determine whether injured parties can be forced into a compulsory process that was never designed to be compulsory, and whether access to the courts can be limited by administrative instructions rather than legislation,” says Erasmus.
