While news reports dominate with former RAF boss Collins Letsoalo’s refusal to appear before SCOPA, another crisis is unfolding as the RAF’s compulsory mediation, introduced in Gauteng in May for civil cases, continues to unravel.
Advocate Justin Erasmus, Chairperson of the Personal Injury Plaintiff Lawyers Association (PIPLA), says since PIPLA brought an application which will be heard early in New Year to challenge the legality and constitutionality of the Practice Directive in May this year, there have been numerous incidents of the Fund being either unprepared, unavailable or inconsistent in its management to mediation.
The RAF maintains that mandatory mediation would streamline matters, yet compelling evidence from PIPLA, paints a very different picture. There is mounting evidence that the system is collapsing under its own weight.
Erasmus says the Directive is unlawful, unconstitutional and impossible to implement given the RAF’s operational breakdown.
The scale of the challenge becomes unmistakable when measured against historical volumes. Johannesburg and Pretoria previously finalised around 300 RAF matters per week through settlement or trial. Under compulsory mediation 300 mediations would therefore need to be completed weekly to keep pace – requiring at least 60 state attorneys dedicated solely to the task. 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,” says Erasmus.
Against this backdrop, PIPLA is urging the immediate withdrawal of the Directive and a return to voluntary mediation, which has repeatedly proven effective when conducted in good faith and supported by adequate resources.
Central to PIPLA’s argument is that the Directive unlawfully converts what is meant to be a voluntary process under Rule 41A of the Uniform Rules of Court into a compulsory one. Only the Rules Board or Parliament may amend court rules – not the head of a division. By forcing claimants into mediation before their matters can be set down for trial, the Directive effectively rewrites Rule 41A, undermining the separation of powers and erecting an unconstitutional barrier between injured victims and the courts.
Concerns about constitutionality and equality are reinforced by practical failures that show the RAF cannot sustain mandatory mediation. Evidence before the courts reveals a consistent pattern of unpreparedness and non-compliance.
One law firm alone submitted hundreds of amplified Rule 41A notices without receiving any substantive response, and the RAF’s internal tracking systems have been described as “hopelessly inaccurate”, confirming its inability to manage or monitor mediation obligations. “One only needs to look at the discrepancy in numbers,” says Erasmus. PIPLA, on behalf of just two of its members has served1088 Rule 41A notices for example and yet the RAF claim they have only received 576. “Of these, only a fraction have been attended to,” says Erasmus.
These shortcomings are further reflected in the collapse of the Special Interlocutory Court processes. On a single day in Pretoria, the RAF was the non-compliant party in nearly 100 matters across both the Special Interlocutory Court and Trial Default rolls – clear evidence, PIPLA argues, of a system no longer merely under strain but already breaking down.
“Mandatory mediation under the current conditions is not reform – it is regression. Victims should not be punished for the RAF’s systemic failings. Access to justice must be restored lawfully, fairly and without obstruction,” he says.
All heads of argument and supplementary affidavits, as mandated by the Acting Judge President’s Directive of 30 July, were submitted on the dates set out prior to 23 October. The matter will now proceed to the High Court in early 2026. At Case Management, the Judge President confirmed that, given the contentious nature of the Directive and the significant pressure its implementation would place on judges, the application will be heard by a panel of three judges – either drawn from other divisions or retired members of the Bench.