National Council for and of Persons with Disabilities and Another v Minister of Transport and Others (GJ) (unreported case no 039100/2022, 15-12-2022) (Tolmay J)

/in /by

The Law Society of South Africa (LSSA) is pleased by the judgment and order of the High Court of South Africa (Gauteng Division, Pretoria) in the matter of National Council for and of Persons with Disabilities and Another v Minister of Transport and Others (GJ) (unreported case no 039100/2022, 15-12-2022) (Tolmay J).

The LSSA is the second applicant in the matter, which is a constitutional challenge to the medical tariffs promulgated by the Minister of Transport on 19 August 2022 in GN R.2395 of Government Gazette 46747 (the impugned tariffs).

The effect of the impugned tariffs is that the Road Accident Fund 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 is divided into Part A which seeks an interim interdict restraining the implementation of the impugned tariffs, pending the outcome of Part B, which is for review proceedings to set aside the impugned tariffs.

It is the applicants’ case that the impugned tariffs are patently unlawful and unconstitutional for at least 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 impugned tariffs is that many thousands of road accident victims will die or be permanently disabled.
  • This renders the impugned 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 impugned tariffs was struck down on a similar basis in Law Society of South Africa v Minister of Transport [2010] ZACC 25; 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.
  • The impugned tariffs are unlawful for other reasons as well. They were promulgated without complying with various stipulated and compulsory procedures. They would also apply retrospectively – which in these circumstances is unlawful.

Part A of the application was heard on an urgent basis on 15 December 2022, when the honourable Madam Justice Tolmay 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 impugned tariffs pending the outcome of the review application which is currently enrolled for hearing in May 2023.

Madam Justice Tolmay notably 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 manner in which 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 court also expressed its displeasure with the RAF’s refusal to acquiesce to the applicants’ repeated request made for an undertaking by the RAF not to implement the impugned tariffs pending the outcome of Part B of the application (Part B) especially in circumstances where the Minister of Transport withdrew its opposition to Part A of the application and thereby effectively agreeing to the interim relief sought by the LSSA and its co-applicant.

The court invited the CEO of the RAF, Mr Collins Letsoalo and its Chairperson, Ms Thembelihle Msibi, to file affidavits in the next part of the application to explain why they should not be held liable personally to pay the punitive costs order made against the RAF in the course of opposing Part A of the application.

Although the Minister of Transport and the RAF are empowered by the Road Accident Act 56 of 1996 to set tariffs governing the medical costs payable by the Road Accident Fund in respect of road accident victims, the LSSA believes that the impugned tariffs are wholly inadequate and deny injured road accident victims who are without medical aid or financial means access to private health care. This means that these 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. Prior to the promulgation of the impugned tariffs there were many private hospitals and health care practitioners who were willing to treat road accident victims in the knowledge that they would eventually be paid in full. In addition, road accident victims’ lives, and possible disabilities will be put further at risk if they must be transported to a public hospital further than the nearest private hospital which, as indicated, has more resources and capacity.

Prior to publishing the impugned 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. Notwithstanding the admonishment in the 2010 judgment by the Constitutional Court and despite objections from civic organisations, including the LSSA, the Minister of Transport published the 2022 tariff.

The compensation scheme created by the RAF Act is an important part of the South African social safety net. In the words of the Constitutional Court in the 2011 Law Society judgment:

‘The RAF Act is itself a social security measure directed at protecting the victims of motor vehicle accidents. It may properly be seen as part of the arsenal of the state in fulfilling its constitutional duty to protect the security of the person of the public and in particular of victims of road accidents. Its principal object is to ameliorate the plight of victims rendered vulnerable by motor accidents.’

President of the LSSA, Mabaeng Lenyai, noted: ‘We are grateful on the granting of the interim interdict and are confident that this medical tariff will also be struck down as it frustrates the very purpose of the RAF Act, which is to enable innocent victims of road accidents to obtain the treatment they require’.

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MABAENG LENYAI

LSSA Communications:

Mapula Oliphant: mapula@lssa.org.za 

Tel: (012) 366 8800 or 076 026 5997