INTERVIEW: Why APRAV is against South Africa’s mediation directive — Gert Nel

Gert Nel, legal spokesperson for the Association for the Protection of Road Accident Victims (APRAV), recently raised concerns over a Gauteng High Court directive that makes mediation compulsory before road accident fund claims can proceed to trial. 

In an interview with Crisp Nigeria (CrispNG), Nel explains how the directive bypasses standard legal procedures and infringes on constitutional rights, leaving many claimants stuck in a lengthy and costly process. He also sheds light on the struggles faced by thousands of South Africans seeking fair compensation after road accidents and highlights the urgent need for reform in civil litigation.

For those unfamiliar with the issue, can you explain what the Gauteng High Court’s mediation directive is, and why it’s become such a serious concern for APRAV and legal practitioners alike?

Thank you very much for the opportunity. I think just to make it as simple as possible to understand where we’re coming from, it’s important to realize that we are all governed by either an act or a rule that dictates how civil society should be governed and legislated.

So what a directive is, it’s neither a rule nor a piece of legislation. It is an instrument that the head of a court can issue in order to facilitate the legal or the court process. In other words, it’s there to facilitate the process, not to obstruct the process in any way, and by and large not take away any rights, especially not constitutional rights.

It’s what we would call in legal terms, it’s subordinate to either the act, the rules, or common law. So it falls way down in the pecking order in terms of the statute of such a document.

Our concern, having regard to what I’ve just told you, is that in April the judge president issued a directive in terms of which mediation is made compulsory as a requirement prior to the application for a trial date.

To put that in context, if we have regard to the rules or the uniform rules of court, in terms of rule 41 capital letter A, mediation is a voluntary process. In other words, if we are litigants, we are invited to consider mediation, but if we don’t want to mediate, the litigation process continues on its path until such a time that we either settle the matter or we go on trial in order to resolve the matter.

What this mediation directive basically requires is that plaintiffs and predominantly road accident fund victims who have already secured trial dates lose those dates on the requirement that you should try and mediate with the road accident fund first, and if that doesn’t work, then you have to reapply to get on to the court trial again.

And that’s our concern, is that this directive basically introduces an additional step to gain access to the courts. And that’s what we’re saying is one of our constitutional rights are access to court and speedy settlement or resolving other matters. So what this directive does is it’s effectively building in another barrier to get to court. So that is where we’re coming from.

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In practical terms, what is happening to claimants today as a result of this directive? (We understand it’s causing major delays and distress — can you share what this looks like on the ground?)

Okay. By and large, I’m going to refer to RAF matters because if we consider, for instance, the North Gauteng High Court roll, most of those matters—and it’s been reported to be 85% of all matters on the civil roll—are road accident fund related matters. So I would be talking from that context, even though the directive obviously applies to all civil litigation. But I think the RAF is the more common or the one that’s most in the news, so I think we’ll deal with that.

So what that means for a plaintiff, in simple terms, is to give you an idea: in more or less 2004, the road accident fund took a decision to only settle matters that have trial dates or that have secured that—that is, summonses were served and a trial date has been secured. So that is essentially the only leverage that we as practitioners have, the fact that we know that at least, if not before, we would settle on that date—even though that date might be some time in the future.

For instance, today, the earliest trial dates that we could get now, as we speak, is 2032. So I know it’s—you know, and unfortunately, that is one of the reasons why this mediation was introduced, in order to try and get those matters from the court rolls so that those dates can become a bit earlier in the process. But unfortunately, as we will explain or explore, that hasn’t really happened.

But just to get back to your question: what that means in simple terms is if I, as a plaintiff, do not have a trial date secured, it is almost impossible to settle your claim with the road accident fund.

So that being said, what this mediation directive does is if I’ve got a client that’s got a matter set down for trial in March 2032, this directive compels me to engage the road accident fund in an effort to try and mediate that matter and otherwise, obviously, to try and settle the matter at this point in time.

But what we have found is the moment this mediation directive was published, the road accident fund immediately instructed the state attorney not to mediate on certain matters—primarily matters that don’t comply with unlawful board notice. So that tells you that the road accident fund has no inclination to get involved in the mediation process.

But now we have to accept that, due to this mediation directive, the plaintiff has already lost that trial date because the requirement is that you should mediate and then you can reapply to be placed back on the roll.

So what this mediation directive essentially did is it built in additional requirements. After I’ve already secured a trial date, now I have to comply with additional directives or comply and re-secure that trial date.

So what happens in practical terms for any victim that secured a trial date—as I said, in 2032—I have to serve a notice on the road accident fund that I want to mediate, and I have to give them 10 days to reply, and then you have to accept that I’ve already got a trial date. But now I have to invite the road accident fund to come and mediate.

And just to give you an idea, this mediation directive has been in play for the past four months. I’m not aware of one successful mediation from the road accident fund because it simply doesn’t happen.

So after that 10 days has transpired, I have to serve a further notice, in terms of rule 30, to compel the road accident fund to come and mediate with the plaintiff. If they don’t comply with that notice, I have to give them another 10 days, and only then can I apply to be allocated on what we call the special interlocutory court roll, and at that roll, I can reapply for a trial date.

So that should explain to you that our concern is the fact that I’ve already got a date, but now I have to incur extra expenses, extra time, just to get to the same result essentially, because the road accident fund is uncooperative. They don’t want to get involved with mediation. I haven’t seen a successful mediation yet.

So unfortunately, all that this directive does is just kick these matters further down the road, delaying the process and preventing victims from gaining justice sooner in the process.

From a legal perspective, how does this directive bypass standard procedure — and why is that so problematic in a constitutional democracy?

As I’ve said when we started the conversation, you and I are akin to the fact that in our daily lives we deal with laws and rules that govern those laws. So if we strictly litigate on the basis of the High Court Act and rules, how the process should work is: I issue a summons and serve it on my defendant, which is the road accident fund. I have to give them a few days to decide whether or not they want to defend the matter. If they defend, it follows a process. If they don’t defend, then it follows another process. But then they have to plead to the matter, and the moment that pleadings become closed, I can apply for a trial date. That’s how simple it was in the past.

If we only have regard to the Act and the rules as it is written, that is the process that you follow to secure a trial date.

In terms of the mandatory mediation directive, I follow this exactly the same process until I’ve applied for a trial date. The difference is, when I’ve already secured a trial date, I have to basically start afresh by submitting a 41A rule notice. If the fund doesn’t comply, then I have to come back, as I’ve explained before. So it builds in additional guardrails to prevent victims from gaining access to the court sooner.

Now, if we have regard to section 34 of the Constitution, which stipulates that each one of us has the right to gain access to the court and for a speedy settlement and resolving of your matter, this should alarm us to the fact that this directive is crossing the boundaries in terms of what the Constitution dictates our rights are.

The further constitutional issue that we also have is the fact—as I’ve mentioned—that now it builds in an additional barrier to gain access to court sooner.

So again, that is where our difficulty lies with this particular directive: it simply requires more time and more costs for victims who are mostly indigent and don’t have the money to spend on this additional step just to get land on the same place where they were before they started the mediation process.

Because again, as I’ve explained to you, the Accident Fund at this particular point in time is not geared to attend to any mediations at all. So it’s a failure completely. It simply doesn’t work. What it does is prevent victims from gaining access to justice sooner. That is the main concern.

Has there been any official accountability or response from those who implemented the directive, despite its apparent unlawfulness?

I think, yes. Obviously, the intention of the directive, I think, was noble because the intention was to declutter the court rolls. But the follow-through unfortunately was without any substance because of the fact that the Road Accident Fund is simply not geared towards the settlement of—or towards mediation—for simply they don’t have enough resources, and they don’t have enough people to deal with these matters.

So, you know, in my view, I think there should have been a bit more research done and stakeholder engagement on the issue. You know, prior to the introduction of this, you asked me whether there were parties that might have become involved, for instance, in litigation or opposing this. Just as a matter of interest, the South African Law Reform Commission is currently busy considering a draft bill on mediation.

So in my mind, that would have been the better approach to introduce a system like this. The conclusion of the South African Law Reform Commission is that mediation under certain circumstances does, you know, achieve the goal in terms of decluttering the court rolls and allowing parties in the process to settle matters faster. But that is in certain matters.

What we have found is that you can’t wholesale apply such a directive and expect it to work in all instances, as we can see in the North Gauteng High Court where matters are just being moved around between different court rolls.

Where we—for instance, just to give you an example—prior to the implementation of the directives or High Court directives, there was only one civil court roll. At the moment, as I’m sitting here, we’ve got five.

So what the courts and the admin personnel are doing currently is they are taking matters off the civil roll where I’ve secured dates for my clients, they are removing those dates, and they are reshuffling them to, for instance, a default judgment roll, or a special default judgment roll, or a special interlocutory court roll, or a settlement roll.

Which is quite important because, in my view, if this process was successful—for instance, if the parties did engage and there were a lot more settlements between the Road Accident Fund, for instance, and plaintiffs—you would see hundreds of matters on the settlement roll, which would make sense.

But exactly the opposite is happening. There are no matters on the settlement roll.

So in my view, mediation on Road Accident Fund matters simply does not work, and all that it’s causing at the moment is undue delays, and it is preventing—again—it is preventing victims from gaining access to their long-awaited damages that they sought through a constitutional process by gaining access to the court.

And just in the last instance, James, sorry, my firm, for instance, filed two Constitutional Court applications to basically attack the validity or constitutionality of this directive.

And in both of those matters, we received a letter from the Chief Justice indicating that we should take these applications to the court where it originated.

And I’m sure that will tell you what will happen with that.

There’s no way that we will get a judgment in our favor in the very court that issued these directives. So it is a bit of a concern for us.

Why do you think there’s been so little public or legal sector outcry? What is preventing broader opposition?

I think people are afraid of being victimized because you must accept that this process is driven by an administrative process as well. And what I do find—or what we did find in the past and of late—is the moment that somebody raises a hand and says, “Listen, let’s think about what’s happening here,” people take note, and matters are removed from court rolls, matters are obstructed at court.

You know, there’s all sorts of moving parts in this process, and I think practitioners are concerned and afraid of being victimized because of speaking up.

I think, subject to the dynamics of APRAV and the positioning of APRAV as a non-profit organization standing for the rights of road crash victims in South Africa, I think it’s a platform uniquely suited to address this kind of concern.

And, you know, hence it gives us the opportunity to have this discussion with you and the public to make them aware of this.

Because our concern is, you know, there’s been a narrative for many years that attorneys are milking the system and that they’re trying to prolong these matters to make more money, which is totally, you know, derived from the truth.

I’m not naive to think that there aren’t some of our colleagues that do take chances, but there’s a platform that deals with any untoward practices from lawyers. So, I mean, the Legal Practice Council is there to deal with matters.

So from our point of view, this is simply just to state that there is a concern. There are victims being victimized for the second or third time in this process: first of all, being in an accident; second time, by being victimized by the Road Accident Fund by being subjected to unlawful board notices and processes there; and then what we’re seeing now are courts that are simply losing their court dates under circumstances where there’s absolutely no hope of complying with this board notice in terms of a proper mediation process.

What would justice or a workable resolution look like from APRAV’s point of view? What needs to happen next?

In our view, if, for instance, the Road Accident Fund or the management could consider rolling out nationwide settlement hubs, appointing people that are suitably qualified to settle matters, there’s a lot of attorneys and legally trained people out there that are quite capable of doing that, and they can appoint quite a few people per branch of the Road Accident Fund, create a settlement hub, start decluttering the court rolls, because all of the matters that are on the court roll are capable of being settled. You wouldn’t get a trial date if you couldn’t prove that your matter could be settled on that particular day that you applied for the trial date. So there’s no reason why the Road Accident Fund, after they’ve created this platform for settlement, cannot deal with these matters.

So, you know, in a few years we can see that there is a real possibility that you wouldn’t find an RAF matter on the court roll due to a settlement hub type of approach. So that is one of the answers that we would provide, you know, for the current situation. That would address the concerns of the judiciary in terms of having to deal with matters that shouldn’t actually be on the court roll, so that it would allow judges to attend to matters that are deserving of their attention, and the other matters could be settled in-house with the Road Accident Fund.

You know, somebody recently asked me, what about the cost implication? Just to give you an idea, the average value of a Road Accident Fund claim, just before the ex-CEO of the Road Accident Fund started, increased when he dissolved or didn’t reappoint his panel of attorneys, increased by 70%. So that 70%, or part of that, can be used per claim to appoint people to settle these matters in-house, which would prevent matters from being over-settled, or settled for more than it might be worth at the end of the day. So in our view, there could actually be a huge cost saving for the Road Accident Fund, due to the fact that you would have people protecting your interests as they should, you know, considering what the position of the Road Accident Fund is.

Do you believe this is an isolated incident, or are we seeing a pattern of power being exercised in ways that quietly erode civil justice?

There’s definitely more than what we see with these directives. You know, for instance, in the Road Accident Fund scenario, what we are currently dealing with is an unlawful board notice that is being used to prevent victims from claiming from the Road Accident Fund. And I think for any South African that’s been following what’s been happening at the Road Accident Fund, they would also be aware of the fact that the Road Accident Fund also applies an unlawful accounting standard, which has been found in more than one court to be unlawful, and which is a huge concern to the Auditor General at the moment.

So what we are seeing is that entities like the Road Accident Fund, for instance, are trying to create legislation through litigation. And I think everybody is aware that it’s not that easy to do that. That’s why there is a parliamentary process and a rules board and all these different moving parts to ensure that acts are exercised or actioned in the way that it was intended to, without having to deal with the clutter on the sides that you would find subject to a directive like this.

Because what we’re seeing is there’s no legal certainty at the moment, because apart from the act and the rules, now you’re running this parallel system subject to a court notice which is potentially unconstitutional. So it’s quite difficult for us as practitioners to navigate this landscape, having to deal with a third compass, you know, in the process. But yeah, it’s definitely not an isolated incident.

How does this issue fit into the bigger picture of RAF reform, and what does it say about the state of civil litigation in South Africa more broadly?

If the Department of Transport and the executive of the Road Accident Fund is truly sincere about turning the Road Accident Fund around and making it a centrum of excellence like it was in the 90s, it’s going to address quite a few issues concerning litigation.

You know, like I’ve mentioned, if we can see settlement hubs being created, there wouldn’t be any matters on the court rolls because those would have been dealt with in-house at the Road Accident Fund. So that would essentially, you know—it’s a double-barreled win for everybody involved—because the Road Accident Fund would settle matters for much less cost. It will be effective for the victims, they would gain access to justice much sooner, and obviously the court rolls would be decluttered, allowing other litigants in other civil matters the opportunity to gain access to the court sooner. So that essentially is a win-win for everybody involved.

More about Gert Nel

Gert Nel worked at the RAF whilst completing his LLB Degree and was admitted as an attorney in 2000 and started practising for his own account on the 1st of May 2001. In 21 years Gert Nel Incorporated grew under the leadership of Gert Nel, into one of the biggest and most successful personal injury law firms in the country.

Gert Nel was one of the founding members of APRAV who since 2014 had been actively involved in the opposition of the highly contentious and prejudicial Road Accident Benefit Scheme Bill. The hard and persistent work of APRAV led to the abolition of the Bill in 2020.

Gert Nel received the highly acclaimed LexisNexis prize 2018 for his article titled “Decoding Section 2(1)(a) and (b) of the Contingency Fees Act. The findings in this article were supported by the recent full bench judgement in the matter of N Mkuyana and the RAF(4000/2017) [2020]ZAECGHC 73.

Gert Nel is proactive and always involved in all matters relating to the progressive change in this most satisfying discipline of the Law as to ensure that the clients of Gert Nel Inc. and the victims of road crashes or road crash victims, receive the justice they deserve.