When we previously reported on the above matter in December 2022, judgment was awaited on the RAF’s application for leave to appeal the judgment handed down by Judge Mbongwe in October 2022. [click here to view the full judgment]
In his judgment, Mbongwe, J held that the RAF’s directive to refuse claims for the past where such expenses were paid by medical schemes on behalf of their members, was unlawful. He ordered that the decision be reviewed and set aside and that the RAF is interdicted and restrained from implementing the directive.
The RAF brought an application for leave to appeal to which Discovery Health responded with a counter–application in terms of section 18(1) and 18(3) of the High Courts Act in which they asked the court to rule that the judgement handed down by Judge Mbongwe must be implemented, and not suspended as is usually the case when an application for leave to appeal is brought.
Judgment on the application for leave to appeal was handed down on 23 January 2023, when Mbongwe, J refused the RAF’s application for leave to appeal. Given that the application for leave to appeal was refused, he did not make a ruling on the application in terms of section 18(1) and 18(3) of the High Courts Act.
[click here to view the full judgment]
The RAF however proceeded with a direct application to the Supreme Court of Appeal for leave to appeal, which application again suspended the implementation of Mbongwe, J’s interdict and restraint from being enforceable.
Discovery Health therefore yet again brought an urgent application for a ruling on their application in terms of Section 18(1) and 18(3) of the High Courts Act. This application was heard on Friday 3 March 2023 before Justice Khumalo.
It was argued on behalf of Discovery Health that the RAF has, since the judgment by Mbongwe J continued to make offers to desperate claimants which excludes past medical expenses (paid for by Discovery) in full and final settlement of such claims. As a result, Discovery suffers a daily loss of R2 Million, which translates to a loss amounting to R500 Million a year. This loss, it was argued cannot be recovered and will eventually have to be carried by all of Discovery’s members in the form of increased premiums. It was further argued that the interdict by Mbongwe, J was granted to prevent such irreparable harm from occurring, but due to the pending application for leave to appeal that order has become nugatory. Discovery further offered an undertaking to hold payments made pending the hearing of the appeal (for which the application for leave to appeal is pending before the Appellate division) in a ringfenced account with the understanding that should they lose the appeal payments will be repaid to the RAF.
It was argued on behalf of the RAF that these monies are not legally due to the claimant, as it is Discovery and not the claimant who suffered the loss of the past medical expenses, and Discovery’s claim against its member for recovery of such monies is conditional upon the member recovering same from the RAF. This notwithstanding the fact that such past medical expenses have been included in claims since the inception of the Road Accident Fund, and it was only with the issuing of the directive in question in 2022 that the position was unilaterally altered by the RAF.
Judgment was reserved.
Nicolette de Witt
Director
DWM Attorneys