A decision by the Western Cape High Court reignites a debate around the liability for medical expenses of road crash victims
When you sustain an injury on the road, the Road Accident Fund (RAF) is responsible for covering your medical expenses. But what happens when you have medical aid? Who is then responsible? In the legal system, there is some debate. We spoke with Raynold Tlhavani, Partner, and Micaela Pather, Senior Associate, at Webber Wentzel to get a better understanding.
RAF directed its staff to reject any claims for past medical expenses if these were already paid by medical aid schemes. In 2022, Discovery challenged this directive in the Pretoria High Court claiming that it was unlawful and inconsistent with the RAF Act 56 of 1996. The courts ruled in favour of Discovery. RAF appealed but was dismissed.
By 2024, RAF was still applying the directive despite the ruling. Discovery launched a second application with the Pretoria High Court. However, the court looked at the broader policy context and changed its ruling.
“The Court held that medical schemes do not have an automatic right of subrogation against the RAF and emphasised that the RAF is a public compensation fund, not a private insurer, and that its finite resources must be protected for the benefit of all road accident victims,” Raynold and Micaela share.
The court found that allowing the medical aid schemes to recover expenses “would deplete RAF resources and potentially disadvantage claimants who do not belong to a medical aid”. In two separate cases (Moss v RAF and Rahldeyah Esack v RAF), the Western Cape High Court held the RAF liable for a claimant’s past hospital and medical expenses, even if these were covered by a medical scheme. So, how did the two courts come to different decisions?
The team at Webber Wentzel explain: “On our reading, the Pretoria High Court approached the issue from a policy-oriented perspective. By contrast, the Western Cape High Court upheld the legal principle of res inter alios acta and held that the RAF is liable for the losses suffered by the claimant, including where a third party (like a medical aid) has stepped in to cover expenses,” Raynold and Micaela comment.
“The purpose of the RAF is to compensate all road users in South Africa who suffer loss or damage wrongfully caused by the driving of a motor vehicle. The RAF has a legal obligation to pay in terms of the RAF Act. A contract between the victim and [their] medical aid is a separate matter – a private agreement that has nothing to do with the RAF,” they continue.
“The RAF cannot use third party payments to reduce its own liability. The ongoing legal disputes reflect a tension between the RAF’s financial pressures and its legal obligations,” they add.
It is important to note that a judgement in one High Court does not have to be followed in others. The Gauteng High Court doesn’t need to agree or follow the rulings made in the Western Cape. Rulings are only binding when it is made by the Supreme Court of Appeals or Constitutional Court.
If you are in need of legal assistance, consider Webber Wentzel. The firm has deep expertise in insurance litigation, public interest law, and constitutional matters. They are well positioned to assist any organisation or medical aid scheme affected by RAF’s policies.
