Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
Business Day reports that the Constitutional Court will today begin hearing arguments on whether a section of the Road Accident Fund Act governing the prescription of a claim is inconsistent with the constitution.
Section 23 (1) of the act sets a three-year limit for claimants to claim compensation after an accident. The fund is responsible for paying claims of accident victims and is financed by a fuel levy imposed on motorists.
This section is being challenged by accident victim Vusumzi Mdeyide, whose claim the fund rejected because it was instituted three days after the three-year period expired.
The fund is challenging the action, saying removing this clause will impede the fund’s expeditious processing of claims. The fund said it would also be difficult for it to forecast financial liability for outstanding claims.
Mdeyide, 38, has been blind since childhood and cannot read or write. He applied to the East London Circuit Court for compensation from the fund. Acting Judge Viwe Notshe found section 23(1) limited the right of claimants’ access to courts.
The right in issue is the right of access to courts guaranteed in section 34 of the Bill of Rights. I have not made a specific study of this case, but given the perilous state of the finances of the RAF, the Constitutional Court seems to find themselves in a difficult position.
On the one hand, a blind man – one of the most vulnerable members of society – is being denied something that others can claim. On the other hand, it seems to make sense to limit claims against the RAF to ensure that the fund does not go bankrupt. Much will depend, I think, on the actual facts of the case and whether the claimant could be said to have been negligent himself. I am glad I do not have to decide this one….