Judges reprimand Road Accident Fund

CEO and board chairperson told to file affidavits explaining why they should not be personally held liable

By Tania Broughton

25 May 2023

Pretoria High Court Judge Ingrid Opperman has told the Road Accident Fund to provide documents requested by the Law Society of South Africa and the National Council of and for Persons with Disabilities. Archive photo: Ashraf Hendricks

The Road Accident Fund (RAF) is refusing to hand over crucial documents required in a court challenge by the Law Society of South Africa (LSSA) and the National Council of and for Persons with Disabilities (NDPD) against drastic changes to what the fund will pay road accident victims.

Pretoria High Court Judge Ingrid Opperman has now told the fund to provide the documents, and has instructed CEO Collins Letsoalo and the chair of the board, Thembelihle Msibi, that when the application is finally heard, they must file affidavits explaining why they should not be personally held liable for the costs.

Judge Opperman, in expressing her displeasure with the RAF’s conduct, said it was “not only discourteous and unprofessional, but also the very opposite of rule-abiding”.

The court battle has its roots in the promulgation by the Minister of Transport of new medical tariffs in August last year. According to the applicants, this meant that the RAF would pay much less than costs incurred, leaving victims out of pocket. The tariffs also did not cover certain critical services, such as air ambulances.

The LSSA and the NCPD are challenging the constitutionality of these tariffs on the basis that they are irrational, unreasonable and unjustifiably limit the rights of access to healthcare.

The application was brought in two parts: In Part A, Pretoria High Court Judge Ronel Tolmay granted an interim interdict, suspending the operation of the tariffs until the outcome of Part B – a judicial review.

In Part A, Judge Tolmay granted a punitive costs order against the RAF because of the “contemptuous” manner in which it opposed the interdict proceedings. She also invited the CEO and board chairperson to file affidavits explaining why they should not personally pay the costs order.

The RAF applied for leave to appeal her order, which was refused. The fund has since applied for leave to appeal to the Supreme Court of Appeal, which is still pending.

The main review proceedings were initially set down to be heard this month. But the RAF did not produce the necessary documents to shed light on the decision-making process.

The Minister claimed he did not have the documents, and the RAF refused to disclose them.

Read the full judgment here

The LSSA and NCPD then launched proceedings to compel disclosure which came before Judge Opperman.

In her judgment, she said it was the applicants’ case that the tariffs were unlawful because they were so low that road-accident victims would no longer be able to obtain the care they needed in the private sector.

“They contend that given that the public sector cannot provide this care, either at all or at a sufficient quality or urgency, the result of the tariffs will be that many thousands of road accident victims will die or be permanently disabled.”

The judge said in spite of an agreement between the parties at a case management meeting in April, setting deadlines for the filing of the answering papers and the record, the RAF had “stayed quiet” and had only filed its answering papers 17 days late, three days before the hearing.

Judge Opperman said the records of the decision, which the RAF had still not produced, were necessary for the court to examine the issues in Part B.

“The RAF, as its central defence, has claimed that the impugned tariffs are not too low because they are based on the average of medical scheme’s tariffs … that the private sector is happy to accept them.”

She also disagreed with the claim made by the RAF that the documents were not relevant.

“The RAF has refused to disclose the relevant documents that it has a clear obligation to disclose. A pattern emerges from the conduct of the RAF: the default reaction to a letter or a notice appear to be simply ignored. The RAF’s behaviour … appears to be a continuation of its behaviour in Part A, which attracted a punitive costs order from (Judge) Tolmay and which she described as ‘contemptuous’.”

Judge Opperman granted an order directing the RAF to produce the documents within five days and granted a further punitive costs order against the fund.

LSSA president Eunice Masipa said, “The LSSA is pleased with the judgment and orders granted and awaits production of the documents by the RAF in order to progress the review proceedings to finality.

“It is important to note that the impugned medical tariffs remain suspended in terms of the binding interdict obtained by the LSSA and NCPD until such time as the review proceedings have been concluded.”