If a negligent driver puts you in hospital, the Road Accident Fund is supposed to cover your medical bills. Since 2022 it has been refusing to whenever your medical aid paid first. On Friday the Supreme Court of Appeal, in a unanimous judgment, told it to stop with immediate effect.
The way it is meant to work is simple. Your medical aid pays the hospital, and when your claim against the fund is settled, you pay the medical aid back. Schemes write that into their rules as standard, and the Medical Schemes Act gives those rules the force of law. The court was clear that this is reimbursement, not the scheme taking a share of your payout.
In August 2022 the fund changed course. Its acting chief executive told claims officers to reject medical expense claims wherever a medical aid had already paid. Discovery Health, which administers 18 restricted medical schemes including the Discovery Health Medical Scheme, went to court, and in October that year the High Court blocked the directive.
Two directives built to get around a court
The fund then lost twice on appeal, and each time it came back with a new directive. Two days after it was told the appeal court had refused it leave to appeal, in April 2023, it issued a second one. Less than two weeks after the Constitutional Court turned it down that October, it issued a third. The reasoning changed each time, and the result did not: claims a medical aid had already paid still got rejected.
Judge Tati Makgoka, who wrote the judgment, found both later directives were "clearly contrived to circumvent the High Court's judgment". The court went further: "It is difficult to imagine more reprehensible conduct by an organ of state." It declared the fund in breach of the 2022 order and gave it 14 days to take every step needed to comply, and to report back in writing.
Where the money ends up
For most claimants this is not a windfall. Where scheme rules require it, the part of a payout that covers bills the medical aid already paid goes back to the scheme. Discovery Health chief executive Dr Ron Whelan said people "should not be disadvantaged because they have medical scheme cover", and pointed out that scheme members pay into the fund through the fuel levy like every other motorist. Discovery says the recoveries will stop costs the fund is legally responsible for from landing on schemes and their members.
How much money is involved is still unclear. The court did not put a number on it, and Discovery has not said how many previously rejected claims it will now revisit. The fund had not commented by the time Moonstone published, and its 14 days started running on Friday.
