• Law Reports
  • Discovery Health (Pty) Ltd v Road Accident Fund …

Discovery Health (Pty) Ltd v Road Accident Fund and Another (2022/016179) [2022] ZAGPPHC 795 (27 October 2022)

85 Reportability
Personal Injury Law - Road Accident Fund
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Road Accident Fund — Past medical expenses — Directive issued by Road Accident Fund to reject claims for past medical expenses paid by medical aid — Directive found to be unlawful and set aside — Section 17 of the Road Accident Fund Act 56 of 1996 imposes obligation to compensate claimants for proven damages, including past medical expenses regardless of prior payment by medical schemes.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings took the form of an urgent application brought in the Gauteng Division of the High Court, Pretoria, in terms of Uniform Rule 6(12). The applicant sought judicial intervention to review and set aside an internal directive issued within the Road Accident Fund, and to restrain its implementation.


The applicant was Discovery Health (Pty) Ltd, described in the judgment as a leading medical scheme administrator in South Africa. The first respondent was the Road Accident Fund (a juristic person established under the Road Accident Fund Act 56 of 1996), and the second respondent was the Minister of Transport, cited as the political representative responsible for the administration of the RAF Act.


The procedural impetus for the litigation was a written internal “communique” dated 12 August 2022 issued by the RAF’s Acting Chief Claims Officer, directing RAF offices to reject all claims for past medical expenses where the relevant expenses had already been paid by a medical scheme. Following that directive, RAF officials communicated repudiations of past medical expense claims in individual matters. The applicant then approached the urgent court seeking declaratory, review, and interdictory relief.


The general subject-matter of the dispute concerned the lawfulness of the RAF’s directive and, more specifically, whether the RAF could lawfully reject past medical expense claims on the basis that the claimant’s medical scheme had paid the expenses, resulting (according to the RAF) in no loss suffered by the claimant.


2. Material Facts


On 12 August 2022, the RAF’s Acting Chief Claims Officer circulated an internal directive to regional managers requiring “immediate implementation” and “100% compliance” with a process in terms of which RAF offices were to assess claims for past medical expenses and reject those medical expenses “if the Medical Aid has already paid for the medical expenses.” The directive specified that repudiation should be communicated using a prepared rejection-letter template, with the stated reason being that the claimant had sustained no loss and incurred no expense in relation to past medical expenses already paid by a medical aid scheme.


Discovery Health’s position, as accepted and relied upon by the court for purposes of the legal analysis, was that medical schemes routinely settle medical bills for members injured in motor vehicle accidents on the understanding (or contractual arrangement) that such expenses are refundable to the scheme by the member upon settlement of the member’s damages claim. On that basis, past medical expenses are ordinarily included as a head of damages in the claimant’s claim against the RAF.


The judgment treated as material to urgency and implementation that RAF officials began applying the directive in correspondence. The applicant attached letters reflecting that RAF officials were asking claimant attorneys for proof of agreements between claimants and medical aids, and that, absent such proof, the RAF would reject claims for past medical expenses on the basis that the claimant “did not suffer any loss.” One of the letters recorded a categorical repudiation: because Discovery medical scheme paid the past medical expenses, the claimant had not sustained loss and there was “no duty on the RAF to reimburse the claimant.”


In addressing urgency, the court recorded as common cause that the RAF is an organ of state, and that its decisions are subject to review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The court also relied on the directive’s stated requirement of immediate implementation and the evidence that repudiations were already being communicated to claimant attorneys.


3. Legal Issues


The central legal questions the court was required to determine were whether the RAF’s directive of 12 August 2022 was lawful and consistent with the RAF’s statutory obligations, particularly under section 17(1) of the Road Accident Fund Act 56 of 1996, and whether the RAF could reject claims for past medical expenses simply because those expenses had been paid by a claimant’s medical scheme.


The dispute was primarily one of law and the application of law to largely common-cause facts, namely the content and effect of the directive, and the statutory scheme governing RAF liability. It also engaged a public-law legality inquiry, because the directive was treated as an exercise of statutory authority by an organ of state, implicating administrative-law review principles under PAJA.


A further issue, ancillary to the merits but determinative of the manner of hearing, was whether the matter should be entertained as urgent under Rule 6(12), given that review proceedings are ordinarily brought in the ordinary course. The court had to decide whether the directive’s immediate implementation and consequences justified urgent intervention.


4. Court’s Reasoning


The court began by locating the RAF’s liability framework within both the common law of delict and the statutory scheme. It referred to authority explaining that the RAF Act, through provisions such as section 21, abolishes common-law claims against the wrongdoer, while section 17(1) substitutes the RAF for the wrongdoer, leaving the substantive basis of liability rooted in delictual principles. The court also relied on the Constitutional Court’s articulation of the RAF Act’s protective purpose, namely to give maximum protection to persons who suffer loss due to negligent or unlawful driving.


Against that backdrop, the court emphasised that section 17(1) obliges the RAF, subject to the Act, to compensate a third party for “any loss or damage” suffered as a result of bodily injury or death caused by the negligence or wrongful act of the driver or owner. It treated past medical expenses as forming part of the compensable damages within that statutory and delictual framework, subject to the Act’s express limitations and exclusions.


The court then considered how the law treats benefits received by an injured claimant from sources other than the wrongdoer (or, here, the RAF as substituted wrongdoer). It accepted as established principle that benefits received from private insurance or from the benevolence of third parties are generally regarded as collateral and are not deducted from delictual damages, because the law does not allow the wrongdoer to benefit from the claimant’s prudence in insuring or from third-party generosity. In this context, the court treated payments by a medical scheme as analogous to such collateral benefits for purposes of assessing the RAF’s liability for past medical expenses.


In addition, the court analysed the RAF Act itself for express exclusions or limitations that might permit the Fund to avoid payment in circumstances where a claimant has received other compensation. It noted that the Act expressly regulates exclusions and limitations in specific instances, such as benefits under COIDA or the Defence Act, and other statutory limitations mentioned in the judgment. The court’s reasoning placed weight on the absence of any provision in the RAF Act that expressly excludes or limits compensation for past medical expenses because those expenses were paid by a private medical scheme.


The judgment referred to decided cases stating the principle that medical aid benefits received for past medical expenses are not deductible from a claimant’s damages claim for past and future medical expenses, and that payment by a medical aid scheme does not relieve the RAF of its obligation to compensate the claimant for past medical expenses. On that footing, the court concluded that the directive attempted to achieve, through internal administrative instruction, an exclusion not found in the enabling statute.


From a public-law perspective, the court characterised the directive as an exercise of statutory authority by an organ of state and therefore reviewable under PAJA. It described the directive as an unlawful abrogation of the RAF’s statutory obligations, inconsistent with the express provisions of section 17, and therefore outside the authority conferred by the RAF Act. The court also criticised the absence of consultation and the directive’s immediate implementation as aggravating features in the assessment of urgency and legality.


On urgency, the court accepted that review is ordinarily the correct procedural route, but reasoned that the “sudden” implementation of a decision with immediate adverse consequences for claimants and medical schemes triggered urgency. It treated as material that the directive was already being applied in repudiations and that its effects would be imminent if left unchecked.


5. Outcome and Relief


The court granted final relief declaring the directive unlawful, reviewing and setting it aside, and interdicting and restraining the RAF from implementing it.


The order made was that the directive issued by the Acting Chief Claims Officer on 12 August 2022 was declared unlawful; it was reviewed and set aside; and the first respondent was interdicted and restrained from implementing it.


The judgment, as provided, does not record a separate, explicit order as to costs.


Cases Cited


Law Society of South Africa v Minister of Transport 2011 (1) SA 400 (CC)


Road Accident Fund v Abrahams 2018 (5) SA 169 (SCA)


Engelbrecht v Road Accident Fund and Another [2007] (6) SA 96 (CC)


Erasmus Ferreira & Ackermann v Francis 2010 (2) SA 228 (SCA)


Zysset and Others v Santam Ltd 1996 (1) SA 273 (C)


Ntlhabyane v Black Panther Trucking (Pty) Limited and Another 2010 JDR 1011 (GSJ)


D’Ambrosini v Bane 2006 (5) SA 121 (C)


Rayi NO v Road Accident Fund (9343/2000) [2010] ZAWCHC 30 (22 February 2010)


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 38


Road Accident Fund Act 56 of 1996, sections 17 and 21, and references to sections 18 and 19 in the judgment


Promotion of Administrative Justice Act 3 of 2000


Compensation for Occupational Injuries and Diseases Act 103 of 1993


Defence Act 42 of 2002


Public Finance Management Act (as referenced in the judgment)


Rules of Court Cited


Uniform Rules of Court, Rule 6(12)


Held


The court held that the RAF’s internal directive instructing officials to reject all claims for past medical expenses where such expenses had been paid by a medical scheme was inconsistent with section 17 of the Road Accident Fund Act and therefore unlawful.


It held further that the directive constituted an exercise of public power by an organ of state, was reviewable under PAJA, and impermissibly sought to introduce an exclusion not contained in the RAF Act.


The court held that the matter justified urgent determination because the directive required immediate implementation and was already being applied to repudiate claims, with imminent adverse consequences for claimants and medical schemes.


LEGAL PRINCIPLES


The RAF’s liability to compensate for loss or damage under section 17(1) operates within a delictual framework in which the RAF is substituted for the wrongdoer, and the Fund remains obliged to compensate proven heads of damages, including past medical expenses, subject only to the Act’s express limitations.


Benefits received by an injured claimant from private sources may constitute collateral benefits which do not reduce the RAF’s liability, and payment of past medical expenses by a claimant’s medical aid scheme does not, on the authorities relied upon in the judgment, relieve the RAF of the obligation to compensate for those expenses.


Where the RAF Act contains specific statutory exclusions and limitations, the RAF may not, through internal directives or administrative instructions, create additional exclusions not authorised by the enabling statute.


An internal directive issued by the RAF affecting the assessment and repudiation of claims constitutes an exercise of public power by an organ of state and is subject to administrative-law review under PAJA, including scrutiny for consistency with the empowering provision and statutory purpose.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2022
>>
[2022] ZAGPPHC 795
|

|

Discovery Health (Pty) Ltd v Road Accident Fund and Another (2022/016179) [2022] ZAGPPHC 795 (27 October 2022)

FLYNOTES:
RAF – PAST MEDICAL EXPENSES
Motor
collisions – Road Accident Fund – Directive within
Fund to reject claims for past medical expenses when
paid by
medical aid – Directive unlawful and set aside –
Road
Accident Fund Act 56 of 1996
,
s 17.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2022/016179
REPORTABLE:
OF
INTEREST TO OTHER JUDGES:
REVISED
26/10/2022
In
the matter between:
DISCOVERY
HEALTH (PTY) LIMITED
Applicant
and
ROAD
ACCIDENT
FUND
First
Respondent
MINISTER
OF TRANSPORT
Second
Respondent
JUDGMENT
MBONGWE
J:
INTRODUCTION
[1]
The Applicant has brought this application on urgency in terms or
rule 6(12) of the
Uniform Rules of Court seeking an order in terms of
which a directive issued by the first respondent on 12 August 2022
(‘’the
directive’’) is reviewed and set
aside. The directive communicates to managers of the first respondent
the immediate
introduction of the rejection of all claims for past
medical expenses made by claimants of damages arising out of motor
vehicle
accidents in instances where such expenses were paid by
medical schemes. The rationale behind the directive is that a
claimant
in such circumstances has not suffered any loss or incurred
those expenses.
[2]
The applicant is a company duly registered under the company laws of
South
Africa. It describes itself
as:
“
t
he
leading medical scheme administrator in South Africa, providing
administration and managed care services to over 3.3 million

beneficiaries, accounting for over 40% of the medical scheme
market
.’’
(It) “administers
18
restricted medical schemes and Discovery Health Medical Scheme
(‘’DHMS’’), the largest open medical scheme

in South Africa with an open market share of 57.1 % (according to the
Council for Medical Schemes (‘’CMS’’)
Annual
Report for the period ended 31 December 2020, covering a combined 3,
461,328 beneficiaries at 31 December 2020.’’
[3]
The first respondent is the Road Accident Fund, a juristic person
established in terms
of the Road Accident Fund Act 56 of 1996 (as
amended),’’RAF Act’’).
[4]
The second respondent is the
Minister of Transport cited herein in his capacity as the
National
Political representative responsible for the administration of the
RAF Act.
THE
APPLICANT’S CASE
[5]
This application has been
brought following an ‘Internal Communique’ dated
12
August 2022 distributed by the Acting
Chief Claims Officer of the first respondent to all regional
managers
of the RAF and reads thus:
“
Dear
colleagues
All
Regional Managers
must
ensure that their teams implement the
attached
process to assess claims for past medical expenses.
All RAF offices are required to assess claims for past medical
expenses and
rejec
t
the medical expenses claimed if the
Medical
Aid has already paid
for the
medical
expenses
.
The regions must use the prepared
template
rejection letter
(
see
attached
)
to communicate the rejection. The reason to be provided for the
repudiation will be that the claimant has sustained no loss or

incurred any expenses relating to the past medical expenses claimed.
Therefore, there is no duty on the RAF to reimburse the claimant.

Also
attached
is a
list
of Medical Schemes
.
Required
outcome: immediate implementation of the process and 100% compliance
to the process
.’’
(the
RAF’s own emphasis)
[6]
The applicant is the administrator of several medical aid schemes
which have and continue
to settle medical bills on behalf of their
clients for the services referred to above with a clear understanding
or agreement that
the expenses incurred are refundable by the
claimant to its medical aid scheme. It is on this basis that past
medical expenses
in motor vehicle accident claims are included as
part of the claim for damages and are payable to the medical aid
scheme by the
claimant upon settlement of its claim.
[7]
The applicant has brought this application in terms of the provisions
of section 38
of the Constitution of the Republic of South Africa,
1996:
7.1
in its own interest in terms of section 38(a);
7.2
in the interest of its clients as a class of persons in terms of
section 38(c), and;
7.3
in the public interest in terms of section 38(d).
[8]
The applicant opposes the directive by the first respondent
contending that
same is unlawful and
inconsistent with the provisions of
section 17
of the
Road Accident
Fund Act 56 of 1996
which impose an obligation on the first
respondent to pay a claimant proven damages, of which past medical
expenses are a part.
INFRINGEMENTS
[9]
Asserting the rights the directive will infringe, the applicant
states at para 46
of the founding affidavit;
“
Discovery
Health, its client medical schemes and their clients have a right to
have members’ claims assessed and processed
lawfully and in
accordance with the RAF Act. The RAF Act read together with the
common law make it quite clear that the schemes’
members who
meet the requirements in section 17 have a right to full compensation
from the RAF  for past medical expenses
regardless of whether
their medical aid has already paid for those expenses.
’’
[10]
The applicant lists the consequences that will visit it, its members
and their clients if the
directive is implemented as follows;
10.1
the rejection to pay past medical expenses to claimants means that
medical aid schemes will no longer be receiving reimbursement
for
past medical expenses incurred for medical treatment of their clients
whose rights to recover same from the RAF stand to be
unlawfully
taken away from them;
10.2
medical aid schemes will suffer a significant, unplanned loss of
income that will;
10.3
require that they re-assess and increase monthly premiums payable by
their clients to ensure the sustainability of the
schemes;
10.4
members will be prejudiced in that they contribute to the RAF fuel
levy, but will not receive full compensation from the RAF
in the
event of sustaining injuries caused by the wrong-doing of a negligent
driver;
10.5
medical aid schemes may find it viable to exclude claims for medical
expenses arising from motor vehicle accidents. This will
entitle RAF
claimants to claim for past medical expenses. This undermines the
very purpose of the schemes as members will be forced
to incur the
costs upfront and claim later.
URGENCY
[11]
Harm to claimants and medical aid schemes is
imminent and will soon be felt if the contents of the directive
are
anything to go by. To prove the urgency of this matter, the applicant
has attached a copies of a letters, annexures FA2, FA3
addressed by
senior claims officials of the RAF to attorneys of some claimants’
attorneys and which read;
11.1
On 12
August 2022 RAF officials forwarded the above
directive to certain firms of attorneys representing claimants and
adding:
“
Please
don’t kill the messenger as I am only obligated to follow our
directives.  Please advise if there are any specific
expenses
that the claimant paid himself/herself that was not covered by the
medical aid?
’’
(sic)
11.2
On 15 August 2022:
‘’
Your
claim for past medical expenses for the block settlement files refer.
Please provide me with the agreement between claimant
and medical aid
that confirms that the medical expenses need to be paid to the
medical aid. If the is no agreement between the
claimant and medical
aid the RAF will reject the claim for past medical expenses as the
claimant did not suffer any lost,’’
(sic).
11.3
On 15 August 2022 an litigation official of the first respondent
addressed a letter to a firm of attorneys which reads;
“
Dear
Sir / Madam
RE:
REJECTION OF CLAIM FOR PAST MEDICAL EXPENSES The above matter refers.
The RAF has assessed the claim for past medical expenses.
The RAF
takes note of the fact that the past medical expenses claimed were
paid by Discovery medical scheme. As a consequence,
the claimant has
not sustained any loss or incurred any expense in respect of the past
medical  expenses claimed and there
is therefore no duty on the
RAF to reimburse the claimant and the RAF hereby repudiate the claim
for past medical expenses.’’
THE
RELIEF SOUGHT
[12]
As a result of the above repudiations of the claimants’ claims
for past medical expenses,
the applicant has approached the court on
urgency seeking the following orders:
12.1
The ordinary times, forms and service prescribed in Rule 6 of the
Uniform Rules be dispensed with, and this application be
considered
urgently in accordance with the provisions of Rule 6(12).
12.2
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is declared unlawful.
12.3
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is reviewed and set
aside.
12.4
The first respondent is interdicted and restrained from implementing
the directive aforementioned.
12.5
That a rule nisi be issued calling upon the first respondent to show
cause. on a date to be arranged with the Registrar,
why a final order
should not be granted in the following terms;
[13]
In the alternative;
13.1
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is declared unlawful.
13.2
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is reviewed and set aside.
13.3
The first respondent is interdicted and restrained from implementing
the directive aforementioned.
13.4
Pending the return date of the rule nisi, the first respondent is
interdicted and restrained from implementing the directive
issued by
the Acting Chief Claims Officer of the first respondent on 12 August
2022.
THE
LAW -  LIABILITY OF THE RAF: - SECTION 17)6
[14]
It is apposite at this stage, in the light of the
dispute between the parties as set out above, to traverse
the law
and, in particular, the applicable provisions of
section 17
of the
Road Accident Fund Act 56 of 1996
, as amended.
[15]
In terms of the common law a victim of a motor vehicle accident would
have a claim for loss or
damages sustained against the negligent
driver of the motor vehicle or its owner. This situation has since
been altered by the
enactment of the Road Accident Fund Act 56 of
1996 (‘’the Act’’). In particular, section 21
of the Act
abolishes the common law delictual claim against the
negligent driver: -
Law Society of South Africa v Minister of
Transport
2011 (1) SA 400
(CC). In
Road Accident Fund v
Abrahams
2018 (5) SA 169
(SCA para 13, the court explained the
position as follows:
“
Section
21(1) abolishes the right of an injured claimant to sue the wrongdoer
at common law. Section 17(1), in turn, substitutes
the  appellant
for the wrongdoer. It does not establish the substantive  basis
for liability. The liability is founded
in common law (delictual
liability). Differently put, the claim against the appellant is
simply a common – law claim
for damages arising from the
driving of a motor vehicle, resulting in injury. Needless to say, the
liability only arises if the
injury is due to the negligence or other
wrongful act of the driver or owner of the motor vehicle
.’’
[16]
The purpose of the Act and similar legislation preceding it was aptly
described in
Engelbrecht v Road Accident Fund & Another
[2007]
(6) SA 96
(CC) as primarily to give the maximum protection to persons
who suffer loss or damage as a result of the negligent driving or
unlawful
conduct in the driving of a motor vehicle by the driver
thereof.
[17]
In line with the said purpose, the provisions of
section 17(1) of the Act impose the liability to compensate
victims
of motor vehicle accident on the RAF where bodily injuries have been
sustained or death has occurred as a result of the
negligent driving
of a motor vehicle. Section 17(1) reads as follows:
“
The
fund or its agent shall; Subject to this Act, in the case of a claim
for compensation under this section arising from the driving
of a
motor vehicle where the identity of the owner or the driver thereof
has been established;
(a)
Subject
to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving
of a motor
vehicle where the identity of neither the owner nor driver thereof
has been established; be obliged to compensate any
person (the third
party) for any loss or  damage which the third party has
suffered as a result of any bodily injury to himself
or herself or
the death of or any bodily injury to any other person at any place
within the Republic, if the injury or death is
due to the negligence
or other wrongful act of the driver or of the owner of the motor
vehicle or his or her employee in the performance
of the employee’s
duties as employee …’’
[18]
It is important to note the different periods within which claims for
compensation arising from
the circumstances described in section
17(1)(a) (‘’identified motor vehicle and/or driver and/
or owner’’
and those described in section 17(1)(b)
(‘’unidentified motor vehicle, driver and/or owner’’)
are to be
lodged with the RAF. Claims in the circumstances of section
17(1)(a) are to lodged within a period of three years from the date

of the occurrence of the accident and two years in respect of those
falling under the circumstances described in section 17(1)(b).
[19]
A claim for compensation against the RAF is a delictual claim and
therefore subject to the general
rules which require that the damages
for personal injury claimed be quantified.
EXCLUSIONS
AND LIMITATIONS OF RAF LIABILITY
[20]
Compensation for delictual damages a clamant is
entitled to comprise of the difference between his/her patrimonial

station before and after the delict has been committed. In
Erasmus
Ferreira & Ackermann v Francis
2010 (2) SA 228
(SCA) para 16
the court expressed the nature of an injured person’s claim
thus:
“
As
a general rule the patrimonial delictual damages suffered by a
plaintiff is the difference between his patrimony before and after

the  commission of the delict. In determining a plaintiff’s
patrimony after the commission of the delict advantageous

consequences have to be taken  into account. But it has been
recognised that there are exceptions to this general rule.’’
[21]
In terms of our law, benefits received by a claimant from the
benevolence of a third party or
a private insurance policy are not
considered for purposes of determining the quantum of a claimant’s
damages against the
first respondent. The reason for this is merely
because a benefit that accrues or is received from a private
insurance policy origin
from a contract between the insured and the
insurance company for the explicit benefit of the claimant and its
receipt does not
exonerate the first respondent from the liability to
discharge its obligation in terms of the RAF Act. In
Zysset and
Others v Santam Ltd
1996 (1) SA 273
(C) at 277H – 279C the
set out the principle in the following words:
“
The
modern South African delictual action for damages arising from bodily
injury negligently caused is compensatory and not penal.
As far as
the plaintiff’s patrimonial loss is concerned, the liability of
the defendant is no more than to make good the
difference between the
value of the plaintiff’s estate after the commission of the
delict and the value it would have had
if the delict had not been
committed…Similarly, and notwithstanding the problem of
placing a monetary value on a non-patrimonial
loss, the object in
awarding general damages for pain and suffering and loss of amenities
of life is to compensate the plaintiff
for his loss. It is not
uncommon, however, for a plaintiff by reason of his injuries to
receive from a third party some monetary
or compensatory benefit to
which he would not otherwise have been entitled. Logically and
because of the compensatory nature of
the action, any advantage or
benefit by which the plaintiff’s loss is reduced should result
in a corresponding reduction
in the damages awarded to him. Failure
to deduct such a benefit would result in the plaintiff recovering
double compensation which,
of course, is inconsistent with the
fundamental nature of the action.
Notwithstanding
the aforegoing, it is well established in our law that certain
benefits which a plaintiff may receive are to be
left out of the
account as being completely collateral. The classic examples are (a)
benefits received by the plaintiff under ordinary
contract of
insurance for which he has paid the premiums and (b) money and other
benefits received by a plaintiff from the benevolence
of third
parties motivated by sympathy. It is said that the law baulks at
allowing the wrongdoer to benefit from the plaintiff’s
own
prudence in insuring himself or from a third party’s
benevolence or compassion in coming to the assistance of the
plaintiff.”
[22]
In
Ntlhabyane v Black Panther Trucking (Pty) Limited and Another
2010 JDR 1011 (GSJ) the court expressed the principle in the
following terms:
“
a
plaintiff’s insurance, her indemnification in terms of it, and
the consequent subrogation of her insurer are all matters
of no
concern to the third party defendant.’’
[23]
The liability of the RAF is excluded or limited in
certain instances:
23.1
The provisions of section 18 expressly exclude benefits received
under COIDA or the Defence Act from the calculation
of the claimant’s
damages in terms of the RAF Act. This is in circumstances where the
victim of a motor vehicle accident
is also entitled to compensation
under the Compensation for Occupational Injuries and Diseases Act 103
of 1993 (‘’COIDA’’),
or the Defence Act 42 of
2002 (‘’
Defence Act’&rsquo
;).
[24]
Section 18(4)
limits the liability of the RAF to payment for the
necessary and actual costs of the burial or cremation of a deceased
victim of
a motor vehicle accident.
Section 19(g)
excludes claims for
emotional shock caused by the witnessing or being informed of the
death of a motor vehicle accident.
[25]
The Act precludes a claim for payment of interest
a
tempore morae
against the first respondent.
[26]
Certain benefits are considered while others are not considered in
the calculation of the claimant’s
claim for damages against the
first respondent. It is trite that social security benefits a
claimant receives from the State are
deductible from compensation the
first respondent is liable for. The reason for this is founded on the
principle that delictual
damages are meant to restore the claimant to
the position he was in prior to the commission of the delict and that
he should not
unduly benefit by receiving double compensation for
his/her loss. (see
Zysset and others v Santam Ltd
above)
[27]
As can be noted from the above exclusions and
limitations, the RAF Act does not provide for the exclusion
of
benefits the victim of a motor vehicle accident has received from a
private medical scheme for past medical expenses. The principle
was
expressed by the court in the matter of
D’Ambrosini v Bane
2006 (5] SA 121
(C) in the following words:
“
medical
aid scheme benefits which the plaintiff has received, or will receive
are not deductible from in determining his claim for
past and future
hospital and medical expenses
.’’
[28]
In
Rayi NO v Road Accident Fund
(9343/2000)
[2010] ZAWCHC 30
(22 February 2010) the court stated the principle thus:
“
payment
by Bonitas of the plaintiff’s past medical expenses does not
relieve the defendant of its obligation to compensate
the plaintiff
for past medical expenses.’’
[29]
It is apparent from the above statements of the
legal position that the first respondent is not entitled
to seek to
free itself of the obligation to pay full compensation to victims of
motor vehicle accidents. Thus the directive challenged
in the present
proceed is outside the authority given by the enabling statute. More
specifically the directive is inconsistent
with the express
provisions of section 17 and is, consequently, unlawful.
[30]
The social security protection the RAF Act
provides is in no way intended to impoverish medical schemes
who,
were the directive to stand, would face a one direction downward
business trajectory as a result of their members becoming
victims of
motor vehicle accidents. The levy paid on fuel provides the funds for
payment of compensation to motor vehicle accident
victims and nothing
in the law obliges medical aid schemes to contribute towards such
compensation by the payment, from the time
of hospitalisation and
treatment of a motor vehicle accident victim, of medical expenses
without a reasonable expectation of reimbursement
upon settlement of
the claimants’ claims in terms of the RAF Act.
[31]
It is for that expectation that medical schemes
enter into agreements with their members and provide relevant

invoices of medical expenses incurred to be considered in the
calculation of the claimants’ claims. Settlements of victims’

claim is in full and final settlement. This means that, unless the
past medical expenses form part or are included in the settlement

amount, medical aid schemes will not be reimbursed for the medical
expenses they paid. Worst still, medical schemes would have
no
standing to recover those expenses due to the claimant’s claims
having been settled in full and final settlement.
[32]
The only way to prevent their loss of expenses
incurred for the medical treatment of their client victims
of motor
vehicle accidents, would be for the medical schemes to institutes
concurrent claims against the RAF and in due course
seek the
consolidation of the hearing of the two matters. The costs of the
proceedings will be astronomical and unnecessarily incurred
by the
RAF which, in terms of the Public Finance Management Act, will
constitute wasteful expenditure.
[33]
The applicant has attached as annexure FA 9 a copy
of a press release by the Council for Medical Schemes
(‘’the
CMS’’) dated 12 March 2012. In addition to advising
members of medical schemes of their rights to
claim from the RAF in
the event of sustaining injuries in a motor vehicle accident caused
by the negligence of the driver. The
applicant refers to rule 14.5 of
the Model Rules of the CMS which states, in relation to past medical
expenses paid by the scheme,
that:
“
If
a member becomes eligible for a third party claim, the member
undertakes to submit same and refund the medical aid
scheme,’’
[34]
The applicant has made its own rule 15.6 (Annexure F10) in line with
the Module Rule 14.5 of
the CMS in terms of which members of the
applicant who have claims for damages may claim against third party
indemnifiers such
as the RAF, and are required to reimburse the
medical scheme for payments made in respect of their past medical
expenses that the
scheme has settled.
[35]
The issuing of the directive is an exercise of
statutory authority by an organ of State and is consequently

reviewable in terms of the provisions of the Promotion of
Administrative Justice Act 3 0f 2000. As indicated above, there can
be no doubt that the issuing of the directive by the respondent
amounts to an unlawful abrogation of its statutory obligations in

terms of the RAF Act – the enabling statutory instrument. Not
only is the exercise of the statutory powers in this manner
a
flagrant disregard of the provisions of the enabling statute, but a
hopeless undermining of provisions of the Constitution which
seek
lawfulness, justice and fairness in the exercise of administrative
powers.
[36]
The applicant’s approach to the court in the
manner it did could not be more

justified and, in fact coerced by the respondent’s directive.
What is more concerning is that the respondent so it fit to
not give
notice of its intention to introduce the directive and invite the
comments and impute of all interested parties or stake
stakeholders.
It chose to go rogue and arbitrary. Without any consideration of the
social benefit the Act is intended to serve
and the requisite
consultative public engagement of all stakeholders such as the
schemes which alleviate the plight of motor vehicle
accident victims.
The ill- conceived effort of the first respondent cannot stand in the
face of the muster of PAJA.
[37]
In addition to having been displaced from their normal lives as a
result of their        injuries,

claimants will have the further burden of having to settle their past
medical expenses first to be able to submit their complete
claims. An
inability to do so prior to prescription of the claims may force
claimants to abandon claims for past medical expenses
to avoid
prescription and settle their hospital bills after receipt of their
settlements for other heads of damages. This is an
absurd outcome the
respondent’s directive would result in.
URGENCY
[38]
In determining whether this matter should be
considered on urgency or not, I

particularly factor in the manner in which the decision to repudiate
the claimants’ claims for past medical expenses. It
is common
cause that the respondent is an organ of State and whose decisions
are subject to the provisions of the Promotion of
Administrative
Justice Act, 2003, and therefore reviewable. It is correct to state
that a review process would ordinarily be the
avenue open to the
applicant as opposed to a direct approach to the urgent court.
[39]
The sudden auctioning of an obviously adverse decision that affects
the         claimants
and
other stakeholders, such as the medical schemes triggers urgency by
any standard. It is unfathomable how the first respondent,
without
consultation, saw it fit to impose its authority without
consideration of the gravity and far reaching consequences to

claimants and medical schemes.
[40]
Not only is the impugned decision arbitrary, it is
a transgression of the enabling

statutory provisions and the dictates of PAJA. The action of the
first respondent
unfathomably
points to an oblivion that the schemes do not cover only
motor accident related matters of their clients, but their clients’

other health related aspects necessitating hospitalisation and
medical treatment for which the schemes are obliged to pay –
an
obligation that would be impossible to discharge were the decision of
the first respondent to be left unchecked. Worst still,
the decision
is unlawful for its variance with the provisions of section 17 quoted
above, which renders it irrational as well.
CONCLUSION
[41]
The purported immediate implementation of the unlawful decision on
its own
necessitated the
applicant’s launching of this application and rightfully
seeking urgent relief.
ORDER
[42]
Resulting from the findings in this judgment, the following order is
made;
42.1
The directive issues by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is declared unlawful.
42.2
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is reviewed and set
aside.
42.3
The first respondent is interdicted and restrained from implementing
the directive aforementioned.
MPN
MBONGWE, J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For
the Appellant     :
ADV WIM TRENGOVE SC
ADV
NICK FERREIRA
Instructed
by
:        ENS
AFRICA
gvanniekerk@ensafrica.com
For
Respondent       :         ADV
KENNEDY TSATSAWANE
SC
ADV REALEBOGA TSHETLO
Instructed
by
:        MALATJI
AND CO.
ATTORNEYS
tmalatji@mcinc.africa
seloff@mcinc.africa
JUDGMENT
ELECTRONICALLY TRANSMITTED TO THE PARTIES ON 27 OCTOBER 2022.

Back to Law Reports