Written by Roy Cokayne | Published on 23 December 2024 | Moneyweb
The fund ‘achieved nothing in terms of escaping its financial liability’ – Prof Hennie Klopper.
The dismissal of Discovery Health’s High Court application against the Road Accident Fund (RAF) related to the payment of past medical expenses paid by medical schemes does not diminish the rights of road accident victims to claim medical costs from the RAF.
So says Emeritus Professor in the Department of Private Law at the University of Pretoria Hennie Klopper, who earlier this month was singled out together with Gert Nel of Gert Nel Inc attorneys by RAF CEO Collins Letsoalo for severe criticism at a RAF media briefing.
Letsoalo, among other things, said Prof Klopper was part of a campaign to “capture” the RAF.
Klopper said the RAF’s so-called high court victory came at a great expense to taxpayers and victims, who are left waiting for their medical costs to be paid.
“The RAF achieved nothing in terms of escaping its financial liability and will now face the challenge of ensuring that thousands of legitimate court orders are paid, as mandated by various court judgments,” he said.
Prof Klopper was referring to a judgment handed down last Tuesday by a full bench of the High Court in Pretoria by Gauteng Division Judge President Dunstan Mlambo, Judge Noluntu Bam and Judge Ingrid Opperman.
Judges Mlambo and Bam said Discovery Health claimed it is a standard requirement of medical schemes’ rules that their members reimburse the medical scheme for payments in respect of past medical expenses recovered from the RAF, but the rules published by Discovery Health are only for its members and the scheme and not third parties like the RAF.
Prof Klopper said the ongoing legal battle between Discovery Health and the RAF raises important questions about the legal standing of medical aids in relation to RAF claims but stressed that from the outset he has been sceptical about the merits of Discovery Health’s action despite its well-intentioned objective of ensuring that road crash victims are compensated for their medical expenses by the RAF.
He said the RAF Act is explicit about who may claim from the fund.
Claims can be made by the road crash victim, referred to as the third party, or by hospitals and medical practitioners as suppliers for their accounts, subject to the stipulations of the RAF Act, said Klopper.
But he stressed medical aids do not fall under either category, and thus “have no direct right of recourse against the RAF”.
Prof Klopper said recent media coverage seems to suggest the dismissal of Discovery Health’s application could impede road accident victims from recovering their medical costs from the RAF, but this is not the case.
Governed by common law
“The legal relationship between the RAF and road accident victims is governed by common law and remains intact.
“Under the common law collateral source rule, compensation from third parties – such as medical aid payouts – does not absolve the RAF of its liability to reimburse the victim for medical expenses incurred.
“The RAF liability remains intact, and this principle has been reaffirmed by several High Court judgments,” he said.
Prof Klopper said the RAF is liable for medical costs even if those costs were initially covered by a claimant’s medical aid.
Medical aids, in turn, derive their reimbursement rights from their contractual rules with members, which typically require members to claim from the RAF and refund the medical aid upon receiving payment, he said
“In short, the dismissal of Discovery Health’s application does not diminish the rights of road accident victims to claim medical costs from the RAF,” he said.
‘Broader realities’
Meanwhile, Nel noted that Letsoalo expressed delight in the outcome of Discovery Health’s application, stating: “We are delighted to be finally vindicated by the judgment.”
However, Nel said this celebration overlooks the broader realities of the RAF’s operations.
“While the judgment clarifies the legal standing of medical aids in relation to the RAF Act, it does not absolve the RAF of its statutory and common law duty to compensate road crash victims,” said Nel.
Discovery Health CEO Dr Ron Whelan said last week Discovery Health intends to apply for leave to appeal the judgment.
However, a personal injury attorney who did not want to be named, believed that Discovery Health should not apply for leave to appeal because the judgment does not affect the current status quo in that medical schemes were never permitted to claim past medical expenses directly from the RAF and the rights of road accident victims to claim road accident medical expenses from the RAF is unaffected by the judgment.
Letsoalo said last week the RAF is “happy with the judgment” and described it as “a watershed for South Africa and the RAF”.
He added that Discovery Health must know that “we are coming for our money they [Discovery] have claimed illegally from the RAF”.
Nel said the judgment does not address the systemic inefficiencies and ongoing neglect that continue to harm road accident victims.
He said the RAF has a troubling history of misquoting or misinterpreting the RAF Act “to sidestep its obligations”.
Nel said, for instance, RAF Board Notice 271 of 2022 introduced onerous documentation requirements, creating insurmountable barriers for financially vulnerable claimants, which contradicts the RAF Act’s intent of simplifying access to compensation and instead prolonged delays denied justice to victims.
Nel stressed the focus must remain on the RAF’s statutory duty to serve road crash victims with fairness and efficiency.
“Misleading public narratives and systemic failures cannot substitute for meaningful reform. South Africa’s road crash victims deserve a fund that fulfills its mandate with integrity and compassion,” he said.
Additional comment was requested from the RAF on the views expressed by Prof Klopper and Nel but a response has not yet been received.