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RAF appeals ruling that its non-payment of medical aid-covered claims is unlawful

Written by Roy Cokayne | Published 13 Mar 2023

The financially distressed Road Accident Fund (RAF) is appealing a judgment that declared unlawful its directive that no payments be made to claimants if their medical aid scheme has already paid for their medical expenses arising from a road accident.

Discovery Health CEO Dr Ryan Noach told Moneyweb the RAF applied to the Supreme Court of Appeal (SCA) on 20 February for leave to appeal the judgment.

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 Pretoria 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.

Responding to a request for comment, RAF senior manager media & PR Linda Rulashe said: “The RAF has no comment on this matter at this stage.”

Read:

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SA cuts Road Accident Fund liability by R305bn (Jun 2021)

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The RAF’s SCA application follows the High Court in Pretoria in January this year, 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, following an urgent application by Discovery Health.

There has been widespread condemnation of the directive.
Noach said Discovery Health’s successful litigation achieved protection for members of medical schemes against discrimination by the RAF, which sought to unlawfully discriminate against medical scheme members 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 sustained in a road 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 was implemented.

In addition, Discovery Health said the RAF Act did not allow the fund to refuse payment for the medical expenses a road accident victim had already incurred, and such a decision would have dire financial consequences for each medical aid scheme in the country.

Multiple court cases

A number of other court cases related to the RAF’s now suspended directive are set to possibly tighten the screws on the fund and its attempt to enforce the directive.

A constitutional issue was raised in a case lodged by Nelson Neo Themba to review the RAF directive.
Themba claims the RAF prescripts pertaining to medical aid claimants who are denied their claim for past medical expenses is unconstitutional and inconsistent with the Constitution.

Judge President of the Mpumalanga Division of the 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.

Read: High Court orders RAF CEO to pay legal costs ‘out of his own pocket’(Jan 2023)

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 medical expenses of such victims.
Whether the RAF has any workable suggestion to accommodate the victims of motor vehicle accidents 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 throughout the country, as is happening in the Discovery case and in 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 in Pretoria.

Judge Legodi also indicated that any interested or affected party impacted by the RAF directive may 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 requested the court’s indulgence to file affidavits at a later stage.

Krige said this was granted and the RAF CEO and chair were directed to file affidavits by no later than 12:00 on Wednesday, 8 March.

He confirmed that Discovery, with the support of several medical schemes, has brought applications to intervene and join Themba’s proceedings.

Read: Judge condemns attorneys and Road Accident Fund for not protecting child claimants

Krige said W.E Emergency Response (Pty) Ltd, which is based in Mbombela in Mpumalanga, had filed an affidavit in terms of Paragraph 7 of the court order and Mawila filed an application to be joined as animus curiae (friend of the court).

Paragraph 7 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.

Similar cases, but with differences

Explaining the difference between Themba’s case and the Discovery Health matter, Krige said the effect of the court order, should it be granted, may be similar to the Discovery matter but the matters are not exactly the same.

“There is no judgment within the jurisdiction area of Mpumalanga relating to the issue at hand,” said Krige.

“NN Themba [plaintiff in the main action] is the applicant in this matter who may rely on different legal principles and authorities.

“The applicant also relies on the judgment of Mawila vs RAF, wherein the Honourable Court set the RAF’s directive aside. The said judgment [Mawila matter] was never challenged by the RAF by way applying for leave to appeal.”

Listen/Read: Protecting assets arising from a Road Accident Fund or medical-negligence claim

* There were unconfirmed reports on Thursday 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.
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