Louis Case Reports

RAF – PAST MEDICAL EXPENSES

Motor collisions – Road Accident Fund – Directive within Fund to reject claims for past medical expenses when paid by medical aid – Directive unlawful and set aside – Road Accident Fund Act 56 of 1996, s 17.

Discovery Health v Road Accident Fund [2022] ZAGPPHC 768 at [20]-[42]

Facts: The Acting Chief Claims Officer of the Road Accident Fund sent a notice to all regional managers that past medical expenses are to be rejected if the medical aid has paid for the expenses. A template rejection letter was attached to communicate the rejection.

Application: Discovery seeks to review and set aside the directive in terms of section 38 of the Constitution.

Discussion: The consequences put forth by Discovery, including that medical aid schemes will no longer be receiving reimbursement for past medical expenses and will suffer unplanned losses and will have to increase the monthly premiums paid by clients; the liability of the Road Accident Fund and section 17 of the Road Accident Fund Act 56 of 1996 (RAF Act); and the exclusions and limitations of the Fund’s liability.

Findings: The RAF Act does not provide for the exclusion of benefits the victim of a motor vehicle accident has received from a private medical scheme for past medical expenses. The Fund is not entitled to seek to free itself of the obligation to pay full compensation to victims of motor vehicle accidents. The directive is outside the authority given by the enabling statute, specifically the express provisions of section 17 and is unlawful. It was unfathomable how the Fund, without consultation, saw it fit to impose its authority without consideration of the gravity and far reaching consequences to claimants and medical schemes. 

Order: The directive is declared unlawful, reviewed and set aside. The Fund is interdicted and restrained from implementing the directive.

MBONGWE J

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DIVORCE AND FINANCIAL DISCLOSURE FORM

Family – Divorce – Financial Disclosure Form – Failure to properly complete form – Prejudicing fair trial rights of plaintiff – Abuse of court procedures as a device to debilitate and out-litigate the other party should be discouraged by special cost orders.

JEH v AB [2022] ZAGPJHC 823 at [24]-[53]

Facts: After acrimonious divorce proceedings, both parties made various allegations against each other, including the failure to file the Financial Disclosure Form (FDF); failure to pay maintenance; and refusal to allow contact with the daughter.

Application: Each party seeks to hold the other in contempt of court for failing to comply with court orders and directives issued during the course of case management.

Discussion: The principles applicable to contempt applications; an earlier order finding that the defendant (father) posed a risk to their daughter and effectively suspending all contact with her; the misconceived application to suspend High Court civil proceedings involving the interests of the child pending the outcome of criminal charges initiated by the defendant; that the defendant was a practicing advocate with some 20 years’ legal experience; and that the defendant failed to file the FDF and then failed to properly complete it.

Findings: The FDF is a mandatory document required to be properly completed and commissioned in all divorce proceedings. The failure to make proper disclosure as required in the FDF strikes at the very core of trial preparation. The defendant cannot be permitted to use his failure to make proper financial disclosure either as a means to delay the trial or to force the other party to accept something less than required just to get the matter to trial. The defendant believes that he can, with impunity, take advantage of the processes of the court in order to undermine their purpose and function.

Order: The defendant’s applications (and counter-applications) are dismissed with costs on the attorney-and-client scale. Defendant is ordered to properly complete the FDF. If he fails to, he will show cause in open court why he should not be held in contempt of court. He is held to be in contempt of the Rule 43 order and is ordered to make payment with interest. He is to pay the plaintiffs costs of the application on the attorney-and-client scale.

SPILG J

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CONFLICT OF INTEREST AND DISMISSAL

Labour – Conflict of interest – Duty of good faith to employer – Government employee securing business from department for her guesthouse – Requirements of SMS Handbook – Transgression serious enough to justify dismissal.
HoD of Sports, Free State v NEHAWU obo Masekoa [2022] DA 9-21 (LAC) at [26]-[37]

Facts: Ms Masekoa was employed by the Department as Chief Director: Arts, Culture and Heritage. She concluded a business deal on behalf of her guesthouse, Maisy’s Guesthouse, for accommodation for artists participating in the Macufe annual arts and culture event, initiated and financed by the Department. The guesthouse was paid R288,000. A disciplinary hearing followed with two counts of misconduct and she was dismissed.
Appeal: The arbitrator at the bargaining council found in favour of Ms Masekoa in respect of the substantive fairness of the dismissal. The department now appeals the Labour Court’s dismissal of their application to review and set aside the arbitration award.
Discussion: That the SMS Handbook required senior managers to exhibit the highest ethical standards in carrying out their duties; the arbitrator’s finding that there was no conflict between Ms Masekoa’s official position and her guesthouse concluding business with the agent for the department; how the event came about; and how Ms Masekoa caused the quotation for the accommodation to be presented to the subcommittee on accommodation.
Findings: The accommodation deal was a specific incident of potential conflict, or actual conflict, of interests that Ms Masekoa was obliged to bring to the attention of her employer, disclosing all details, and she had to take steps to avoid the conflict. That she did not do. The transgression was serious enough to justify dismissal. She was in a position of trust and breached that trust.
Order: The appeal is upheld. The order of the Labour Court is replaced with one setting aside the arbitrator’s award and replacing it with an order dismissing the claim.
COPPIN JA (Kathree-Setiloane AJA and Tokota AJA concurring.)

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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