RAF tries to ‘make a mockery of the court’ in medical expenses dispute

The Road Accident Fund (RAF) has been accused of attempting to make a mockery of the courts by issuing directives related to past medical expenses of road accident victims – in conflict with a court interdict – to evade what the fund’s statute obliges it to do.

This is the view expressed in a judgment by a full court of the Western Cape High Court, which dismissed the RAF’s appeal against an order requiring the fund to pay R350 187.56 in past medical costs, plus interest, to Nicolaas van Wyk, who was injured when his motorcycle collided with a vehicle.

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Judge James Lekhuleni, with judges Constance Nziweni and Mokgoatji Dolamo concurring, said the RAF must pay the cost of the appeal.

“Despite the argument raised relating to its directives having been dismissed by the apex court, the RAF is still soldiering on in its resolve,” the judgment stated.

Judge Lekhuleni said Van Wyk’s counsel noted that allowing the RAF, which is a government organ, to escape the delictual liability in such a situation would be manifestly inequitable.

Counsel further submitted that the RAF’s directives cannot acquire the force of law and cannot impermissibly conflict with the provisions of the RAF Act.

The judge ruled that the RAF is not entitled to change the prevailing legal position to free itself of its statutory obligations under Section 17 of the RAF Act to pay full compensation to victims of motor vehicle accidents.

Directives in conflict with court orders

He said Van Wyk’s counsel also submitted the stratagem by the RAF of issuing subsequent directives on the same subject matter – to subvert the judgment of Judge Mandla Mbongwe and evade compliance with it – constitutes unlawful conduct by a public body and cannot be condoned.

“I agree with this proposition. It should be borne in mind that both the Supreme Court of Appeal (SCA) and the Constitutional Court have refused the RAF’s application for leave to appeal.

“Thus, the RAF’s subsequent directives cannot be issued to overrule the Constitutional Court’s decision,” he said.

“To do so would infringe the dignity and authority of the courts envisaged in … the Constitution and risk rendering our courts impotent and judicial authority a mere mockery.”

The judgment by Mbongwe in October 2022 to an application brought by Discovery Health declared unlawful the RAF’s 12 August 2022 directive refusing to pay past medical expenses on the grounds that those expenses had already been paid by the victim’s medical aid scheme, and interdicted the RAF from implementing the internal directive.

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Judge Lekhuleni said the issue relating to the RAF paying past medical expenses for claimants whose claims have been satisfied by their medical aid schemes has been the subject of debate and an avalanche of court decisions in recent times.

He said there is a difference of opinion on whether the RAF should be held liable to pay past medical expenses that have been paid by the medical aid pursuant to injuries sustained in motor vehicle accidents.

The RAF subsequently issued two further directives related to the payment of past medical expenses.

RAF must ‘desist from this conduct’

Discovery Health viewed these subsequent two directives as a refusal to comply with and a circumvention of the Mbongwe order, and demanded the RAF desist from this conduct.

The RAF refused, insisting that it had the right to issue and implement them, resulting in Discovery Health launching an application for a declarator that, among other things, the RAF was in breach of Mbongwe’s order.

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A judgment handed down in December 2024 by a full bench of the High Court in Johannesburg was divided on the reasoning and outcome of Discovery Health’s application, with a majority judgment by Gauteng Division Judge President Dunstan Mlambo and Judge Noluntu Bam, and Judge Ingrid Opperman dissenting.

This judgment is currently pending resolution before the SCA.

Judge Lekhuleni said RAF counsel submitted that the appropriate course would be to leave the decision in respect of payment of past medical expenses to the SCA.

“I respectfully disagree with this proposition. The core function of the judiciary is to interpret and apply the law impartially, regardless of the prospects of review by higher courts.

“It is not in the interest of justice that this court delay judgment or defer a finding in this matter solely because a higher court, in this case the SCA, might reach a different conclusion on the same issues.”

RAF’s ‘directives’ alter the approach applied since 1942 …

Lekhuleni said the RAF’s implementation of the directives resulted in a radical departure from over 100 years of legal precedent and practice, and also altered the approach to compensation that the RAF had followed and applied since 1942, when the compulsory motor vehicle insurance was introduced in South Africa through the Motor Vehicle Insurance Act 29 of 1942.

He said a settlement by a medical scheme of past medical expenses of a claimant does not relieve the RAF of any of its legal obligations to compensate the claimant for past medical expenses which it has incurred.

“If the RAF is allowed to set off any payments made by a claimant’s medical aid scheme on the plaintiff’s behalf, notwithstanding that the plaintiff has paid for the insurance, the RAF would be shirking its substitutionary obligation and instead appropriating that benefit to itself,” he said.

Lekhuleni said he did not agree with the finding of the majority in Discovery Health’s application for a declarator.

Ruling

He said he views the matter regarding the two directives issued by the RAF res judicata.

This means “a matter judged” and the principle that a cause of action may not be relitigated once there has been a final judgment on the merits.

Lekhuleni said the RAF may issue subsequent directives, provided they are not in conflict with a court order.

He said the parties have litigated to finality the issue of whether it is lawful for the RAF to refuse claims for past medical expenses on the ground that the victim’s medical scheme paid those expenses.

He said the RAF’s attempt to relitigate the same issues by issuing new directives is unlawful and violates the interdict granted by Judge Mbongwe.

Read: Mandatory mediation of RAF cases ‘a failure’

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