Obiter on Motswai

166

OBITER 2013

SUPERFLUOUS LITIGATION, IN A WRONG FORUM ABOUT NOTHING: WHEN LAWYERS AND EXPERTS COLLUDE

Motswai v RAF 2012 SA (GSJ) Case No: 2010/17220

1

Introduction

The case of Motswai v RAF (2012 SA (GSJ) Case No: 2010/17220, not yet reported) is a clear indication of how lawyers and experts should not act in a case against the Road Accident Fund (RAF). From the facts of the case it is clear that there was no need to institute an action, yet the lawyers proceeded and experts even wrote lengthy opinions on a bruised ankle. The only inference the judge drew from this was that the lawyers (and experts) were only concerned about being paid even if it meant being paid from the funds intended to compensate road accident victims. Satchwell J therefore after analysing all the evidence made a cost order that neither the plaintiff’s nor the defendant’s attorneys should receive any fees at all in respect of this claim or litigation (par 90). The expenses incurred in respect of “experts” should not be a burden on the public purse and therefore the attorneys should meet these disbursements de bonis propriis (par 90). She further stated that counsel should be paid only on a scale of the Magistrate’s Court and it should not include trial fees (par 92).

2

The Road Accident Fund

The objective of the RAF is explained in section 3 of the Road Accident Fund Act 56 of 1996 as the payment of compensation in accordance with the Act for loss or damage wrongfully caused by the driving of motor vehicles. In Law Society of South Africa v Minister for Transport (CCT 38/10 [2010] ZACC 25; 2011 (1) SA 400 (CC); 2011 (2) BCLR 150 (CC) (25 November 2010) Moseneke DCJ said (par 17): “It seems plain that the scheme arose out of the social responsibility of the state. In effect, it was, and indeed still remains, part of the social security net for all road users and their dependants.” This view is how it should be but in the case in casu Satchwell J remarked the...