Quote of the week

An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
18 August 2008

Road Accident Fund: fighting a cartel or stuffing up?

Criticizing courts or judges is a tricky thing. Not that the lot at Luthuli House would notice. I was reminded again of how tricky it is to criticize judges responsibly when I read the judgment of acting Judge President Janet Traverso in the case brought against the Road Accident Fund (RAF) by the Law Society of South Africa and Others.

Last week’s (RAF) chief executive, Jacob Modise, accused Traverso of bias saying that the hearing was “doomed from the beginning”, and accusing Traverso of “already having made up her mind” on the outcome of the matter. According to IOL he continued:

“The RAF questions the reasons why the hearing was brought to the Cape (high court) Division when the RAF headquarters are in Gauteng. The judge did not allow the RAF counsel enough time to state his case. What was seen in court was a complete disappointment.”

Turning his sights on the Law Society of SA, Modise said it had “continuously insulted the ordinary people”. He added: “(The Law Society) says they are semi-literate and have never owned bank accounts. They have also said that claimants who have received large sums of money will squander or steal it. There is no more racist statement than that.”

Although I found Modise’s language a bit too intemperate, my gut reaction was that he might have a point. Was this not perhaps a case of lawyers protecting their own, I wondered? And was the arguments by lawyers that poor people would suffer if the present system – which allows lawyers to take RAF cases for clients on contingency basis – not merely self-serving drivel to protect their income stream?

Let’s face it, lawyers make lots and lots of money out of the RAF system and although many clients benefit from the arrangement that allows lawyers to take their RAF cases on contingency basis, the whole system seems wasteful and inefficient to me. Why can’t they devise a system that cut out the lawyers altogether?

I still hold these views and I am still a bit skeptical of the motives of the lawyers to bring this application. Can’t imagine they would have brought the application if only their client’s interests and not their own financial interests were at stake.

But after reading the Traverso judgment, it seems clear that Modise was criticising the judge and the lawyers without any regard for the substance of the decision. This was merely an application for interim relief until such time as the court reviews the decision of the RAF to stop payment of funds to attorneys directly.  As judge Traverso makes clear there is well grounded apprehension on the part of lawyers of irreparable harm would result if the decision of the RAF was implemented.

Interim relief was therefore perfectly in order.

It would be for another court to decide whether the decision itself should be set aside permanently. Mr. Modise’s criticism was therefore uninformed and scurrilous. I assume he is a lawyer and he should have known better.

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