LSSA challenges RAF medical tariffs

June 1st, 2023

Through its Professional Affairs and Members’ Benefit department, the Law Society of South Africa (LSSA) participates in several professional interest and public interest cases. In the matter discussed below, the LSSA challenged the introduction of the Road Accident Fund’s (RAF) medical tariffs, which will preclude injured road accident victims, who are without medical aid or financial means, from accessing private health care.

The LSSA was the second applicant in National Council of and for Persons with Disabilities and Another v Minister of Transport and Others (GJ) (unreported case no 039100/2022, 15-12-2022) (Tolmay J). The matter was a constitutional challenge to the medical tariffs promulgated by the Minister of Transport in GN R2395 GG46747/19-8-2022 (the tariffs). In terms of the tariffs, the RAF would not be required to pay the actual medical costs of road accident victims, but only the costs according to the tariffs, which are far lower than what most services needed by road accident victims actually cost in the private sector. The application was divided into two parts: Part A, which seeks an interim interdict restraining the implementation of the tariffs, pending the outcome of Part B, which is for review proceedings to set aside the tariffs. It was the applicants’ case that the tariffs were unlawful and unconstitutional for the following reasons:

  • They are so low that road accident victims without means, or medical aid will no longer be able to obtain the care they need in the private sector. Given that the public sector cannot provide this care – either at all or at a sufficient quality or urgency – the result of the implementation of the tariffs is that many thousands of road accident victims will die or be permanently disabled. This means that road accident victims have no option but to submit to treatment at public hospitals, which are already overburdened. This impacts not only on road accident victims but on all public health patients. These tariffs also do not cover certain critical services – such as air ambulances by helicopter – which places road accident victims at serious risk.
  • This renders the tariffs irrational, unreasonable and an unjustified limitation of the rights of access to healthcare and bodily integrity.
  • Of note is that, in November 2010, the predecessor to the tariffs was struck down on a similar basis in Law Society of South Africa and Others v Minister for Transport and Another 2011 (1) SA 400 (CC), when the Constitutional Court held that the tariff was incapable of achieving the purpose the Minister was seeking to achieve, namely to enable innocent road accident victims to obtain the health services they require.
  • They were promulgated without complying with various stipulated and compulsory procedures. They would also apply retrospectively, which in these circumstances is unlawful. Prior to publishing the tariffs, a draft tariff was published for comment. The LSSA submitted comments pointing out that any tariff that had the effect of denying poor road accident victims’ access to private health care would be in contravention of the 2021 Constitutional Court judgment.

Part A of the application was heard on an urgent basis on 15 December 2022, Tolmay J delivered an ex tempore judgment granting the relief sought by the LSSA and its co-applicant for an interim interdict to prohibit the implementation of the tariffs pending the outcome of the review application. Tolmay J also awarded a punitive costs order against the RAF and ordered it to pay the applicants’ cost of Part A of the application on an attorney-and-client scale on account of the contemptuous way the RAF conducted its opposition to the application by filing its answering affidavit only days before the urgent court hearing and much later than the date directed by the court.

The RAF applied to Tolmay J for leave to appeal her order of which the application was refused. The main review proceedings brought to set aside the tariffs were initially set down to be heard in May 2023. However, the RAF failed to produce documents, which throw light on the decision-making process and the factors that were at play in the mind of the Minister of Transport when approving the decision to promulgate the tariffs. The Minister claimed that these documents were not in his possession and had to be sought from the RAF, which in turn, refused their disclosure.

The LSSA and National Council of and for Persons with Disabilities (NCPD), therefore, had to pursue the production of these documents by way of an interlocutory application.

In the build-up to the hearing of this interlocutory application, Opperman J issued directives ordering the RAF to file papers explaining their recalcitrance. The RAF persisted in its refusal.

After hearing argument in the interlocutory application on 11 May 2023, Opperman J granted an order on 18 May 2023 directing the RAF to produce the documents within five days, on the basis that the documents are relevant to explain the decision-making process by the Minister of Transport to approve the tariffs.

Opperman J expressed her displeasure with the RAF’s conduct as ‘not only discourteous and unprofessional, but also the very opposite of rule-abiding’. Opperman J also granted a punitive costs order against the RAF and, furthermore, encouraged the Chief Executive Officer and Board Chairperson of the RAF to file affidavits to explain why they should not each be held personally liable to pay the costs of the interlocutory application and/or be joined personally to these proceedings for this purpose.

It is important to note that the 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.

The RAF has since applied for leave to appeal to the Supreme Court of Appeal, which has dismissed the RAF’s application for leave to appeal the interdict order, which was granted by Tolmay J in December 2022.

This article was first published in De Rebus in 2023 (June) DR 3.