Another blow for RAF

The Road Accident Fund (RAF) is wrong in insisting that it is not liable to compensate road accident victims for claims for medical expenses. Picture: EKATERINA BOLOVTSOVA/Pexels

The Road Accident Fund (RAF) is wrong in insisting that it is not liable to compensate road accident victims for claims for medical expenses. Picture: EKATERINA BOLOVTSOVA/Pexels

Published Feb 21, 2024


The Road Accident Fund (RAF) is wrong in insisting that it is not liable to compensate road accident victims for claims for medical expenses incurred by members of medical aid schemes, the Gauteng High Court, Pretoria said.

The court turned down an urgent application by the RAF brought in December to sidestep the payment of R33 million it owed a number of claimants for medical expenses paid to their medical aids following their injuries.

The court at the time turned the fund’s application down and slapped the already cash-strapped RAF with a punitive costs order against it.

The court this week issued its reasons - on the request of the fund - for its findings.

The RAF argued that it should not be liable for past medical expenses where the injured person is a member of a medical scheme. This is not the first time this argument has been advanced by the fund, Acting Judge I De Vos said.

“So far, the RAF has been unsuccessful in its argument,” the judge noted.

The issue of payment by the fund of past medical expenses where claimants are members of a medical aid scheme, had been the subject of numerous court applications and judgments against the fund.

Yet, the fund was back in court for a stay of a writ of execution by numerous claimants for the payment of a total of R33m in respect of their past medical aid bills.

All of them earlier obtained court orders that the RAF had to pay these expenses. The RAF did not pay and it now has to face the Sheriff who wants to take possession of the fund’s assets in a bid to recoup the expenses.

The fund asked the court to stay the execution of these writs pending applications - it has yet to launch - to rescind the court orders.

All those that claimed from the RAF suffered a physical injury. Some are rushed from the accident in an ambulance to a hospital. Many require surgery. Many have multiple follow-up visits to heal their injuries. The road to recovery is one aided by medical treatment.

If they are members of a medical scheme, their medical aid pays for these medical expenses. In time, they will claim these medical expenses (termed past medical expenses) from the RAF. If successful the RAF pays the person. The person then pays the medical aid back.

Judge De Vos commented that the legal relationship is a contractual one between the person and the scheme, which obliges the person to pay back the monies received from the RAF to the scheme.

There is also a statutory relationship between the RAF and the person which obliges the RAF to pay the injured person’s damages, which includes past medical expenses.

The judge said our courts have considered the legal relationships in the context of past medical expenses and it was found that there is no double compensation.

“The purpose of compensation is to place a person in the position they were in before the accident. If both the RAF and the medical scheme pays for the same expenses, then the injured person is not placed in the position they were before the accident, but in a better position – financially speaking.”

The judge added that this double compensation seems unfair, especially if it is being funded by the RAF levy. “But, this is not what happens. The agreements between the medical aid and the persons provide that when the RAF pays the person, the person must pay back the medical scheme.”

The claimants who now want their medical bills footed, told the court that they are all obliged to reimburse/refund the medical scheme for payments made to them. Thus they had to submit the claim to the RAF and then refund the medical aid scheme.

The judge said that practically, there is no double compensation as the injured person pays the money received from the RAF to their medical scheme.

The RAF, however, contends it ought not be liable to pay damages if a person has insurance for the damage.

The RAF claimed the matter was urgent as it was facing a stay of execution involving R33 million of its assets. The RAF contended that this was enough to interfere with its daily functioning.

The claimants, on the other hand, contended that the RAF has been aware of these writs for lengthy periods of time and that the judgments which underpin them were granted more than a year ago.

In turning down the RAF’s application and punishing it with a costs order, the judge said this court was presented with an urgent application premised on an argument rejected by various other courts and three existing judgments on this exact point.

Pretoria News

[email protected]