We offer an update on Road Accident Fund (RAF) compensation for medical aid members. This follows an attempt by the RAF to exclude accident victims with medical aid from compensation for their medical expenses.
Does the Road Accident Fund compensate medical aid members for past medical expenses?
The RAF is liable for compensating all road accident victims in South Africa for medical expenses they incur (provided those injured weren’t solely responsible for causing the accidents).
From 1997, when it was first established, the RAF has compensated accident victims who have medical aid membership in the same way as all other claimants.
Currently, nothing in South African law suggests that individuals’ medical aid membership should remove or dilute the RAF’s responsibilities.
What prevents double payment of medical expenses?
It takes a long time for the RAF to issue compensation payments.
So where road accident victims are lucky enough to have medical aid, it’s typical for their medical aid schemes to cover their initial medical expenses.
As medical aid industry sources like this one confirm, it’s accepted that once accident victims’ claims are settled by the RAF, the medical aid schemes will then be reimbursed for medical expenses covered by the RAF.
2022 move by the RAF to stop paying medical aid members
In August 2022, the acting chief claims officer for the Road Accident Fund (RAF) sent an internal communiqué. It instructed regional managers to reject RAF claims for past medical expenses where claimants’ medical aid schemes had already paid for these expenses.
Here’s what the communiqué said:
“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.”
Discovery Health vs. RAF: High Court ruling
Discovery Health brought an urgent application against the RAF and the Minister of Transport in terms of the Bill of Rights, specifically the provisions of section 38 (“enforcement of rights”) of the Constitution.
Discovery Health contended that the directive was unlawful and inconsistent with the provisions of section 17 of the RAF Act, which obliges the RAF to pay a claimant’s proven damages. Past medical expenses are part of proven damages.
The medical aid company said the directive would result in a “…significant, unplanned loss of income” for medical schemes, which could lead to an increase in members’ premiums.
In October of 2022, Judge Mandla Mbongwe at the High Court in Pretoria interdicted the RAF from implementing the directive.
Judge Mbongwe added that the directive was a “flagrant disregard” of the provisions of the RAF Act and a “hopeless undermining” of provisions of the Constitution that seek lawfulness, justice and fairness in the exercise of administrative powers.
He said Discovery’s urgent application “could not be more justified” and had been “coerced” by the RAF’s directive. He said the RAF did not give notice of its intention to introduce the directive and invite comments from stakeholders, and said it “…chose to go rogue and arbitrary”.
RAF’s right to appeal dismissed, 2023
In January 2023, the High Court in Pretoria dismissed an application by the RAF for leave to appeal against Judge Mbongwe’s judgement, which declared the RAF directive unlawful.
Turning down leave to appeal, the court said the fact that medical aids reimburse their members for medical expenses had nothing to do with the RAF and did not exempt it from paying these expenses.
The RAF then turned to South Africa’s apex court, the Constitutional Court.
In October 2023, the Constitutional Court refused with costs the RAF’s application for leave to appeal the ruling.
Commenting on the outcome, Discovery Health CEO, Dr. Ryan Noach, noted that the RAF’s internal directive “…constituted clear discrimination against medical scheme members who are road users and pay the same fuel levies towards the RAF as all other road users.”
How compensation works if you’re a medical aid member
After a road accident, it’s common to need expensive medical care. Private hospitals and healthcare practitioners usually demand prompt payment, but a claim against the Road Accident Fund (RAF) can take several years to finalise.
It is legal to claim compensation for road accident-related medical costs from both your medical aid scheme and the RAF. However, you’re generally required to refund the medical aid scheme for expenses that are subsequently recovered from the RAF.
If the RAF does not compensate you for particular medical expenses, your medical aid scheme remains liable for those costs, depending on your level of cover and available benefits.
It’s worth noting that medical aid schemes don’t all take a uniform approach to the recovery of accident-related funds from the RAF.
Some medical aid schemes put the onus on their members to initiate claims against the RAF on their behalf. Other schemes use their own attorneys to claim medical expenses from the RAF.
How DSC Attorneys can help
At DSC Attorneys, we specialise in road accident claims. Our personal injury attorneys and medico-legal team can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve. We work on a no win, no fee basis.