In RAF v Zilwa Attorneys Incorporated and Others the Eastern Cape High Court (case number: 4112/2023) was seized with deciding whether a party to legal proceedings can ignore valid and enforceable court orders on account of its own internal policies.

Brief Facts

The Road Accident Fund, which is a juristic person established in terms of section 2(1) of the Road Accident Fund Act (56 of 1996) for the purpose of compensating victims of loss and or damage caused wrongfully by negligent driving of motor vehicles intently failed to pay certain claimants pursuant to court orders obtained against it, it cited its own policy published in Government Gazette No. 46322, which made it mandatory for claimants represented by legal practitioners to submit certain information or documentation to the fund’s satisfaction prior to payment of their claims. Among the documentation required by the fund was a ‘copy of contingency fee agreement concluded with the claimant and proof of compliance with section 4 of the Contingency Fee Act, alternatively, the attorney must submit an affidavit to confirm that there is no contingency fee agreement’.

Issue/Dispute

In accordance with its own policy, the fund insisted on the submission of the documentation listed therein and wrongfully ignored court orders obtained by the claimants as represented by the first respondent (Zilwa Attorneys).

Aggrieved by the unlawful insistence on production of said documentation and the flagrant disregard for valid court orders, Zilwa Attorneys approached the office of the relevant sheriff and successfully attached the property of the fund with intent to execute on it and satisfy the claims of its clients. The urgent application before court therefore sought to prevent Zilwa Attorneys obo its clients from attaching and executing on the fund’s property. The fund argued that the first respondent could not proceed with its claims until it had satisfied the fund’s requirement and produced the required documentation, furthermore, the fund sought to interdict the third respondent (sheriff East London) from being able to attach or execute against the fund on the present orders or any future orders the first respondent might obtain against the fund.

While the fund sought the condonation of its noncompliance with court orders pending compliance with its policy, Zilwa Attorneys accordingly argued that the requirement unfairly discriminated between claimants and prejudiced against claimants represented by legal practitioners, furthermore, that the requirement ‘extends and abrogates judicial powers to the fund which are not foreshadowed in the fund’s founding statute’. Additionally, Zilwa Attorneys contended that the requirement was an added condition or term for compliance with court orders, thereby amending court orders at the fund’s choosing without any judicial intervention.

Decision

The court promptly rehashed the requirements a party must satisfy to meet the burden of urgency in terms of Rule 6(12)(b) of the Uniform Rules of Court and stated that in addition to urgency, the applicant must prove other requirements for the granting of an interim interdict. It found that the ‘orders stipulate the amounts to be paid, the bank details of the attorney’s trust account into which payments must be made as well as the period within which such payments must be made. The time within which the applicant ought to have complied with the court orders lapsed without any compliance. The creditors have a legitimate interest in the finality of their cases and monies due to them being paid. In that regard they obtained warrants of execution and then instructed the third respondent to attach the applicant’s movable property.’

Furthermore, the court emphasised that court orders are effective only when their enforcement is assured. The policy was declared unlawful and set aside.

Conclusion

It is important for parties, particularly public institutions do not overextend their own mandates without having properly studied their own founding statutes and the RAF is one such, furthermore, parties must always be cognisant of the fact that court orders are enforceable until stayed by due process or held otherwise by the court.

It is also important to note that the fund failed to join the claimants in the proceedings, which failure the court held was a fatal defect and that it itself compromised the fund’s case, rendering the application dismissible. The relevant parties must always be cited (and correctly) in proceedings.