The Road Accident Fund (RAF) has now appealed to the Supreme Court of Appeal to overturn a judgment declaring its directive that no payments be made to claimants if their medical aid scheme had already paid for their medical expenses arising from a road accident.
This follows a failed appeal bid in the Gauteng High Court (Pretoria) which had declared the directive unlawful following an application by Discovery Health.
Discovery Health CEO Dr Ryan Noach, told Moneyweb the RAF applied to SCA on 20 February for leave to appeal. “Discovery has filed its answering affidavit and expects a ruling from the SCA within four to six weeks,” he said.
In addition, on 3 March, Discovery Health applied to the High Court in terms of Section 18 (3) of the RAF Act to compel the enforcement of the unlawfulness of the RAF’s directive, Noach added.
RAF senior manager media and PR Linda Rulashe said: “The RAF has no comment at this stage.”
The RAF’s SCA application follows the High Court in January dismissing its application for leave to appeal against the court’s judgment, declaring the directive unlawful and interdicting and restraining the RAF from implementing it.
The directive was issued by the RAF’s acting chief claims officer on 12 August 2022, and declared unlawful on 27 October 2022, after an urgent application by Discovery Health.
There has been widespread condemnation of the directive.
Noach said Discovery Health’s successful litigation achieved protection for medical scheme members against discrimination by the RAF, which sought to unlawfully discriminate against them by excluding them from RAF payments.
Discrimination
The RAF was set up as a public entity to pay compensation to victims of road accidents and the medical expenses associated with treating these injuries. It is funded by a special fuel levy on petrol and diesel, which is currently R2.18 per litre.
This levy is paid by everyone who buys petrol or diesel, irrespective of whether they are members of a medical aid or not.
Members of medical aids would be prejudiced by the directive because they contribute to the RAF fuel levy but would not receive full compensation from the RAF for the treatment of injuries after an accident.
Discovery Health argued, during the RAF’s unsuccessful application for leave to appeal the judgment, that medical aid schemes would be out of pocket if the new directive to reject claims for past medical expenses already paid were implemented.
In addition, Discovery Health said the RAF Act did not allow the fund to refuse payment for the medical expenses already incurred by a road accident victim, and the decision would have dire financial consequences for all medical aid schemes.
Numerous other court cases related to the RAF’s now-suspended directive are likely to possibly tighten the screws on the fund and its attempt to enforce the directive.
Catalyst
A case lodged by Nelson Neo Themba to review the RAF directive had claimed the RAF prescripts pertaining to medical aid members being denied their claims for past medical expenses was unconstitutional.
Judge President of the Mpumalanga High Court Francis Legodi issued a court order in February postponing Themba’s unopposed application until later in the month, but ordering the RAF CEO and chair to file affidavits by 28 February.
In the court order, Legodi said the RAF is required to deal with a number of questions, including:
• How long the RAF expects the appeal process, if pursued in the Discovery case, to take before it is finalised.
• What implications the long period of waiting for the appeal process to be finalised is likely to have on victims of motor vehicle accidents, particularly where there is a need for urgent medical attention and the possible refusal by medical aid companies to foot the bill for their medical expenses.
• Whether the RAF has any workable suggestion to accommodate motor vehicle accident victims and save lives while waiting for the finalisation of the appeal process.
• Whether it is the intention of the RAF to refuse to pay past medical expenses in every case countrywide, as is happening in the Discovery case and in another cae, the Phineas Mawila matter, pending finalisation of the appeal process in the Discovery case, if such appeal is being pursued.
Mawila was seriously injured in a road accident and is also challenging the RAF directive in the High Court.
Legodi also indicated that any interested or affected party affected by the RAF directive could bring an application to be joined in Themba’s pending application.
Reuben Krige of Du Toit-Smuts Attorneys told Moneyweb that attorneys appointed to this case by the RAF have asked the court if it could file affidavits at a later stage.
This was granted and the RAF CEO and chair were directed to file affidavits by Wednesday, 8 March.
He confirmed that Discovery, with the support of several medical schemes, has brought applications to intervene and join Themba’s proceedings.
Krige said WE Emergency Response, based in Mbombela in Mpumalanga, had filed an affidavit under paragraph sseven of the court order and Mawila filed an application to be joined as amicus curiae (friend of the court).
Paragraph seven of Legodi’s order authorised any party affected by the RAF directive – including medical aid schemes and emergency medical services – to provisionally submit, file and serve affidavits setting out how their members are adversely affected by the RAF directive policy, irrespective of whether there is an intention to join the proceedings, by 24 February.
* There were unconfirmed reports last week that the RAF in Pretoria was refusing to accept the serving of notices and pleadings because its “ink and stamps are finished” and it did not know when it would get stock because it did not pay its suppliers.
Moneyweb article – RAF appeals ruling medical aid payment judgment (Open access)
See more from MedicalBrief archives:
Triumph for medical schemes as RAF denied leave to appeal payment ruling
RAF heads for Appeal Court over medical aid payout ban ruling
Accident victim challenges RAF decision on medical aid payments