A recent legal case that will be of interest to people with disabilities concerns the possibility of doctors refusing to treat victims of road accidents.
The Road Accident Fund (RAF) is at it again. In an unreported decision in December 2006 at the High Court (Transvaal Provincial Division), RAF versus Abdool-Carrim & Others, the RAF lost the case, and a counter-claim by the respondents was successful.
This time, the case involves a company named A – Fact that gives services to doctors, hospitals, and other medical service providers. These services include the assessment of merits for recovering payment from the Road Accident Fund. The RAF declared that it is not obliged to pay the medical providers. It also queried the A – Fact’s attorneys instituting a court action against the Road Accident Fund for non-payment.
The Fund refused to settle these accounts – some of which had been outstanding for more than two years – on a legal basis, and based on their interpretation of the RAF Act. In the past, the RAF has been settling these accounts and acquiescing to these claims.
The RAF was willing to settle the accounts as long as the suppliers were not using the involved company (A–FACT) – to which they were contracted – to assist with risk management. The RAF launched an application to the courts alleging that the practice to use a third party to collect outstanding accounts was unlawful.
In short, the court dismissed the RAF’s case and ordered them to settle the outstanding accounts. More worrying was that the court ordered the Fund to pay costs on party and client scale. This is where the court voiced its displeasure by ordering the losing party to pay punitive costs.
The Fund, instead of abiding by the court decision, lodged an appeal against the judgement, using the legal process to stall, delay and protract the dispute. This gives rise to some serious implications for health professionals and the hospitals that render legitimate services to victims of motor vehicle accidents Essentially, they are not getting paid what is due to them for their services. There is a further risk that road accident victims may be refused treatment by the affected hospitals and health professionals.
The RAF is notorious for delays in payments to the health practitioners and hospitals, and also to the motor vehicle accident victims. Around the December holidays two years ago, the health professionals and medical industry issued a warning that motor vehicle accident victims would not be treated due to delays in payments.
Uncertainty about Employment Act
By Fanie du Toit
Role players feel some degree of uncertainty regarding the interpretation of the Equal Employment Act and the Code of Good Practice.
What is the status of the codes that should be read with the legislation?
Codes of Good Practice should not be seen as the codification of the act. They are rather guidelines to good practices in the private and public sectors. Furthermore, they have no control lists of compulsory formal steps. The non-compliance of a few conditions of a code does not automatically render an employer guilty of violating the whole code.
According to experts, the status of the Code of Good Practice: Key aspects of employment of people with disabilities can be described as follows: It is not an authoritative summary of the act, and does not create additional obligations.
However, when courts and tribunals consider a case and apply the Equal Employment Act, this code should be considered. The codes should also be read with the other applicable codes of practice issued by the Minister of Labour.
The code is purposely of a general nature, because each person with a disability is unique. The deviation from set guidelines can thus be justified in certain suitable circumstances. Employers, employees and their organizations should use this code to develop their policies and programmes around disability and equality.
Even though these codes are not legally binding, those involved should not ignore them. The Labour Relations Act, Article 188 (2) clearly directs that in considering the fairness of any reason for dismissal, the applicable Code of Practice should be taken into account.
South Africa can boast of a wonderful Constitution. This is the main reason why the interests of people with disabilities are protected by so many laws, codes and regulations.
Fanie du Toit is the Manager for Promotion & Awareness of the National Council for Persons with Physical Disabilities in South Africa (NCPPDSA). E-mail: firstname.lastname@example.org or P.O. Box 20027, Willows, 9320.