South Africans who have been in a car crash face major problems

South Africans injured in car crashes face major obstacles to justice due to the Road Accident Fund’s (RAF) lack of capacity to handle compulsory mediations, leaving thousands of claims unresolved and access to courts effectively blocked.

The problem stems from the Gauteng High Court’s Mandatory Mediation Directive, which was issued in April 2025 by the Judge President.

The directive requires that almost all civil matters, including RAF claims, undergo court-annexed mediation before going to trial.

This rule aimed to clear an unmanageable trial backlog. However, it has complicated proceedings to the point where people are being shut out of court completely.

The Personal Injury Plaintiff Lawyers Association’s (PIPLA) chairperson, Advocate Justin Erasmus, said the numbers tell a dismal story.

“Since April 2025, two large legal firms have served over 1,000 Rule 41A notices on the RAF. Only 35 have been answered, and just three matters have gone to mediation. To date, nothing has been settled,” he said.

As a result, PIPLA filed an urgent supplementary affidavit on behalf of its members last week in the Gauteng Division of the High Court regarding the current revised mediation directive’s lack of functionality.

PIPLA initially approached the Constitutional Court in May 2025 to challenge the legality and constitutionality of the Practice Directive mandating compulsory mediation in civil matters in the Gauteng Division.

They argued that the directive infringed on the constitutional right of access to courts, conflicted with Rule 41A of the Uniform Rules, and was unworkable in practice.

It is anticipated that PIPLA’s application will be heard later in 2025, or early in 2026, at the latest. Based on the last four months, Erasmus said it seems reasonable to assume the challenge was well-founded.

The RAF lacks the capacity to reply to notices, let alone attend to actual mediations. “The RAF simply does not have the capacity to mediate in volume,” he said.

RAF victims denied access to justice

Historically, Gauteng’s trial rolls carry about 300 matters per week. Mediation, by its very nature, is a protracted process that takes at least a full day.

“To keep pace and avoid any backlogs or bottlenecks, 300 mediations would need to be completed weekly – requiring at least 60 state attorneys dedicated solely to the task,” Erasmus said.

“This becomes impossible when one considers there are currently only 35 state attorneys in Gauteng, all with other fairly substantial responsibilities. Our judicial system is hopelessly under-resourced to meet this demand, as illustrated by the current situation.”

Erasmus warned that these practical constraints, combined with the financial and procedural burdens on plaintiffs, mean that the directive’s unintended consequences may outweigh its intended benefits.

“Mediation can play a valuable role, but not when imposed on a scale for which neither the RAF nor the court system has the capacity,” he said.

“This is essentially going to prevent people having access to Justice and the chance to have their case heard, ever, at the current rate.”

PIPLA’s concerns have also been echoed by other legal experts and organisations. This includes the Association for the Protection of Road Accident Victims (APRAV), which warned that Gauteng’s civil justice system is now nearing collapse.

APRAV calculated that new RAF claims could take 8 to 12 years from the incident to be paid out, if paid at all. This can be devastating, where the victim requires urgent relief after being injured or disabled.

The association also said that the RAF is exploiting the broken system, rejecting thousands of valid claims based on an unlawful board notice. The fund simply refuses to mediate, which defeats the entire purpose of the directive.

“The directive has handed the RAF the perfect opt-out,” said APRAV Deputy Chairperson Ngoako Mohlaloga. “The RAF only settles matters once trial dates are allocated.”

“By stripping trial dates under the mediation directive, the court has made it even easier for the RAF to delay, deny, and deflect.”

Even though multiple urgent court applications have been launched to challenge the directive on constitutional grounds, they have all been dismissed or referred to the same court that issued the directive.