One late afternoon twenty years ago, we heard a loud commotion on the main thoroughfare directly opposite our home.

There was a dreadful accident where a taxi had ignored a red light and collided with a pedestrian. This pedestrian was the husband of our domestic worker. He survived the collision and was airlifted by helicopter to Milpark Hospital. He never really recovered from the accident and sadly had to abandon his promising building and construction business.

We had to procure the services of a lawyer to assist with the Road Accident Fund (RAF) claim to ensure he received the necessary treatment and care over the next few years. This was our first encounter with this state institution.

All South African road users contribute to the RAF in the form of a fuel levy. The RAF fuel levy provides personal insurance cover (general damages, funeral cover, loss of support, loss of income and past and future medical expenses) to road accident victims, or their families, and indemnity cover to wrongdoers (who cause accidents). The RAF receives more than R45 billion per year through this fuel levy.

When a medical scheme covers treatment related to a road accident, these claims can be recovered from the RAF to ensure that member reserves are protected.

In October 2022, the RAF issued a directive to reject all claims for medical expenses where these expenses were paid by medical schemes, not by the claimants.

Discovery Health Medical Scheme, the largest administrator of medical schemes in South Africa, opposed the directive and brought an urgent application in the Pretoria High Court against the RAF and transport minister Fikile Mbalula to interdict the RAF from implementing the directive.

In January 2023, the High Court in Pretoria interdicted the RAF from implementing this directive. The RAF brought an application for leave to appeal against the decision, which was dismissed by the High Court with costs. The decision provides medical schemes and their administrators with assurance that they can continue to claim from the RAF on behalf of their members. The setting aside of this unlawful directive protects medical scheme members from having to pay twice for protection against medical expenses associated with road accidents – through the fuel levy and then again through their medical scheme contributions . In court papers submitted when it brought its application last year, Discovery said the RAF’s directive could result in medical schemes losing about R500 million a year.

You may have noted media coverage around the proposed changes to the Road Accident Fund Act, which has specific implications for all members of medical schemes.

The proposed changes suggest that medical scheme members be treated differently from those who do not belong to medical schemes – despite contributing equally to the RAF fuel levy. The changes include, amongst many others, that medical scheme members would no longer be eligible to claim back past medical expenses. This would affect injured members and all members of medical schemes because the Scheme reserves will not be replenished. These reserves help ensure the sustainability of the Scheme and keep contribution increases affordable.

The medical scheme industry is lobbying to prevent the promulgation of these proposed legislative changes.

As of going to print, it has just come to light that the Constitutional Court has rejected the RAF application to appeal against a High Court ruling compelling it to resume payments to medical schemes.

Let’s hope that this decision will affect the outcome of the passing of the RAF Amendment Bill and sense will prevail.