The Road Accident Fund v Ehlers Attorneys

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: PM Mabuse J
• Judgment Date: 28 July 2021
• Docket Number: 32968/21
• Hearing Date: 20 July 2021
• Court: Gauteng Division, Pretoria
• Citation: 2021 JDR 1728 (GP)

Mabuse J:

[1]

This matter came before me on 20 July 2021 as an urgent application. According to the notice of motion the Applicant seeks the following order:

"1.

Declaring that the rules relating to time limits and forms be dispensed with and that this application be heard as a matter of urgency in terms of Rule 6(12) of the Uniform Rules of Court.

2.

That a rule nisi be issued calling upon the First Respondent and any interested parties to show cause, if any, to this Honourable Court on 24 August 2021 at 10h00, why the following order should not be made final:

2.1

any writ of execution based upon a court order that compels the Applicant to make payment to the First Respondent's trust account or any attachment and removal of the Applicant's assets by the Third Respondent pursuant thereto is immediately suspended and set aside in terms of Section 173 of the Constitution, alternatively Rule 45A of the Uniform Rules of Court pending finalisation of the South African Police Services Investigation;

2.2

that the Applicant be authorized to pay the capital amounts directly to the First Respondent's claimants' bank accounts, which banking details and contact details must be provided to the Applicant by the First Respondent within 2 days of the confirmation of this rule;

2.3

that the order sought under paragraph 2 to 2.2 shall operate as an interim order, with immediate effect, pending the confirmation or discharge of the rule nisi;

2.4

that the First Respondent be compelled to serve on all of its RAF clients in writing a copy of this Court order and the Applicant's founding and replying affidavit (together with any annexures) within 2 days from such date of the grant of the rule nisi and that the First Respondent be ordered to provide proof thereof to the Applicant within 6 days thereof;

2.5

that the First Respondent pay the Applicant's costs;

2.6

further and/or alternative relief."

2021 JDR 1728 p3

Mabuse J

This application is predicated on the founding affidavit deposed to by Collins Phutjane Letsoalo, (Mr Letsoalo) the Applicant's chief executive officer.

[2]

THE PARTIES

[2.1]

The Applicant is the Road Accident Fund, a Schedule 3A public entity, established in terms of s 2(1) of the Road Accident Fund Act 56 of 1996 with its principal place of business situated at 2 Eco Glades Office Park, 420 Witch-Hazel Avenue, Centurion.

[2.2]

The First Respondent, Ehlers Attorneys, is a firm of attorneys practising at 6 Migmatite Drive, Zwartkop, Centurion.

[2.3]

The Second Respondent is the Legal Practice Council ("the LPC"), a national, statutory body established in terms of the Legal Practice Act 28 of 2014. The LPC and its professional councils regulate the affairs and exercise jurisdiction over legal practitioners throughout South Africa. The LPC has its national office at Building 20, Thornhill Office Park, 94 Bekker Road, Vorna Valley, Midrand.

[2.4]

The Third Respondent is the Sheriff Pretoria East appointed in terms of s 2 of the Sheriffs Act 90 of 1987 situated at 813 Stanza Bopape Street.

[2.5]

The Fourth Respondent is Absa Bank Limited, a company duly registered in terms of the Banks Act 94 of 1990 of this country, 15 Troy Street, Johannesburg.

[3]

This application is a sequel to an application launched by the Applicant against, inter alia, firms of attorneys who were executing daily against the Applicant's assets including its bank account and which conduct had virtually brought the Applicant's business to a standstill. According to the Applicant the matter came before a Full Court of Pretoria High Court in case number: 58145/2020, which found in favour of the Applicant, but with certain provisions. The purpose of this application is therefore to seek urgent interim relief from

2021 JDR 1728 p4

Mabuse J

the Court against the imminent threat by the First Respondent to execute against the Applicant's assets and, inter alia, have those assets attached, removed, and sold.

[4]

The purpose of this application is aptly captured in the heads of argument of the Applicant's counsel, Adv C Puckrin SC, where he stated as follows:

"2. The Applicant's application is for urgent interim relief to safeguard the RAF Fuel Levy as well as the Applicant's assets against a threat to execute writs. Should the writ be allowed to be executed, the Applicant's internal systems to protect its assets against suspicions of serious impropriety would have been circumvented.

3. The relief sought is to suspend all writs compelling the Applicant to make payment to the First Respondent's trust account.

4. The genesis of this application is a judgment made by the Full Court during April 2021. The Full Court assisted the Applicant with urgent extraordinary relief. All execution against the Applicant's assets were suspended from November 2020 to 30 April 2021. This was done, inter alia, to allow the Applicant time to implement systems to make payment equitably and a priori tempore." At the heart of the application for urgent relief was the Applicant's desire to "protect its assets against suspicion of serious impropriety."

[5]

I think it is only apposite if I quote the full order granted by the Full Court. It reads as follows:

"(a) The temporary order made by full court of this Division on 9 December 2020 and extended by this court on 16 March 2021, is discharged.

(b) All writs of execution and attachments against the applicant based on court orders already granted or settlements already reached in terms of the Road Accident Fund Act, 56 of 1996 ("the RAF Act") are suspended until 30 April 2021.

(c) The applicant is to pay all claims based on court orders already granted or settlements already reached in terms of the RAF Act, which are older than 180 days as

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Mabuse J

from the date of the court order or date of the settlement reached, on or before 30 April 2021, provided that the applicant has been notified by any attorneys who represent claimants that have such claims that are older than 180 days of existence of such claims in accordance with paragraphs 3 of this Court order made on 16 March 2021.

(d) All writs of execution and warrants of attachment against the Applicant based on court orders already granted or settlements already reached in terms of the RAF Act which are not older than 180 days as from the date of the court order or date of the settlement reached are suspended from 1 May 2021 until 12 September 2021.

(e) The Applicant is to take all reasonable steps to:

(i) register court orders or written settlement agreements for claims instituted in terms of the RAF Act against the applicant, or its list of payments in order of date that the court order was granted or the date of the settlement agreement;

(ii) ensure that court orders or written settlement agreements for claims in terms of the RAF Act for payments are registered on the applicant's payment list within 30 business days of receipt of the court order or settlement agreement;

(iii) ensure that court orders or settlement agreements for claims as set out above that have not been captured on its payment list will be captured in historical chronological order from the date that the court order was granted by the court or written settlement agreement was entered into;

(iv) provide all attorneys on data base of email addresses of attorneys involved in third party matters against the Road Accident Fund with updated payments list on a bi-multi basis from April 2021 onwards.

(f) The Applicant is to continue with its process of making payment of the oldest claims first by date of court order or date of written settlement agreement a priore tempore.

(g)Any party may approach the Court during September 2021 to vary, extend or amend this court order."

2021 JDR 1728 p6

Mabuse J

[6]

It was argued by Mr Puckrin in his heads of argument that the Applicant has no protection against the execution of the writs that are older than 180 days which state that the Applicant must make payment to the First Respondent's trust account. The First Respondent represents judgment creditors that have court orders that are older than 180 days and it has given instructions to the Third Respondent urgently to attach, remove and sell the Applicant's essential assets. The Applicant has no alternative but to approach the High Court for urgent relief.

[7]

It is for the afore going reason that the Applicant has brought this application. This application does not constitute an application for the extension of the order of the Full Court. It constitutes an application on its own and must therefore be dealt with on its own merits. This application was not brought on the basis that the Applicant was experiencing severe financial difficulties that have been exacerbated by the Covid-19 Pandemic or by any other adverse reason. The applicant does not in his application seeks extraordinary relief as a step towards stabilising its precarious financial position to prevent a constitutional crisis. It was launched because, in terms of a letter dated 29 June 2021 by Messrs Malatji & Co, the Applicant's attorneys, to the First Respondent:

"2. Our instructions are that:

2.1 Your firm is currently under investigation for suspicion of serious impropriety;

2.2 A preliminary and a confidential report by our client's Forensic Investigating Department ("the FID") has been handed over to the South African Police Services for further investigation.

2.5 Currently payment to your firm's trust account is suspended pending inter alia the finalisation of the SAPS investigation."

Nowhere in this letter did the attorneys point out that their client, RAF, was experiencing financial difficulties of any kind.

2021 JDR 1728 p7

Mabuse J

[8]

It is not in dispute that the Applicant has suspended payments to the trust account of the First Respondent. One of the reasons for doing...