A medical scheme member whose claim against the Road Accident Fund (RAF) was denied has been granted leave to appeal the decision.
The High Court in Johannesburg granted the application because the issue of whether the RAF is obliged to compensate road accident victims whose medical expenses have been covered by their medical schemes has yet to settled by the Supreme Court of Appeal (SCA).
The application was a sequel to a decision by the High Court in February this year to dismiss a claim by Ntokozo Francina Machi against the RAF for past medical expenses.
Machi, who was injured in a motor vehicle accident in 2019, was awarded R800 000 for general damages. But the court rejected her claim for R1 425 849.74 in respect of medical expenses, which had been paid by Bonitas Medical Fund.
The High Court noted that Bonitas members whose injuries arise from the negligent driving of a motor vehicle must pay over to the medical scheme any compensation they receive from the Fund in respect of the scheme’s treatment of their injuries. In the court’s view, this would result in the benefit accruing to Bonitas, not Machi.
The court reasoned that Bonitas discharged a statutory and contractual obligation when it paid for Machi’s medical expenses. It could not recover these expenses from the RAF through its member for discharging these obligations.
It further reasoned that payments made by medical schemes on behalf of their members cannot be deductible social benefits, because such payments arise from membership of the scheme, which constitutes a type of indemnity insurance, and such matters are between the member and the scheme alone. Any benefit that would be derived from such membership accrues for the benefit of the member alone.
Discovery’s appeal against the Full Bench’s judgment
The High Court relied heavily on the majority decision of the Full Bench of the High Court in Pretoria in February this year. The Full Bench dismissed an application by Discovery Health to declare the RAF in breach of an order relating to the Fund’s liability for medical expenses incurred by medical scheme members.
Discovery Health brought the application for a declarator that the RAF was in breach of an order handed down in October 2022. In that order, Judge Mandla Mbongwe declared unlawful a directive issued in August 2022 in which the RAF instructed its employees not to make any payments to claimants if their medical scheme has already paid for their medical expenses arising from a road accident.
The medical scheme administrator also sought a pronouncement that the RAF’s reliance on two directives it issued subsequent to the Judge Mbongwe’s order perpetuated its breach of that order.
The majority decision – by Judge Dunstan Mlambo, the Judge President of the Gauteng Division of the High Court, and Judge Noluntu Bam – found no evidence that the RAF’s directives constituted a breach of Judge Mbongwe’s order.
In a dissenting judgment, Judge Ingrid Opperman said the RAF violated its constitutional obligations by failing to comply with Judge Mbongwe’s order.
Read: Discovery to appeal ‘far-reaching’ judgment in favour of RAF
In April this year, Judge Mlambo granted Discovery leave to appeal the decision in the SCA.
Machi, in her appeal application, said Judge Mlambo’s decision supported her assertion that there is a reasonable prospect that her case will succeed on appeal.
She also contended that until the SCA rules on the matter, the question of whether medical scheme payments preclude recovery by a member remains an open legal question.
The High Court, in a decision delivered on 9 May, agreed that the outcome of the appeal before the SCA will affect Machi’s case. It also agreed there are grounds for believing that another court is likely to reach a different conclusion.
Cape courts’ view of the Full Bench’s decision
The High Court in Johannesburg, when it rejected Machi’s claim in February, said it was bound by the doctrine of precedent to follow the decision of the Full Court. “It is trite that a decision of a Full Bench of a division is binding on a single judge of the same division unless it is found to be clearly wrong.”
The High Court in Cape Town has upheld three claims against the RAF by medical scheme members for past medical expenses since the Full Bench’s decision. The three judgments were handed down in February and March – before the SCA granted Discovery leave to appeal.
In all three cases, the RAF’s defence relied substantially on the Full Bench’s decision. But the judges in the Cape Town courts disagreed that the decision overturned Judge Mbongwe’s findings.
Read: Court orders RAF to pay medical scheme members’ claims
In two of the cases, the judge said the RAF’s arguments went against the “long-established” precedent set in similar cases heard by the Western Cape Division of the High Court.
