SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2020/12687
In the matter between :
NTOKOZO FRANCINA MACHI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
NGENO , AJ
[1]Plaintiff’s claim against the defendant is for damages suffered as a result of personal injuries sustained in a motor vehicle accident that occurred on 13 April 2019 at N2,
Main Harding Road, Izingolweni KwaZulu Natal Province. Plaintiff sues herein in her personal capacity. (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED: NO
________________
DATE 03/02 /2025 SIGNATURE
2
[2]At the time of the accident, the plaintiff was a passenger in a motor vehicle bearing
registration numbers: N […] driven at the time by her husband Vusumuzi Abednigo
Machi (the insured driver).
[3]The sole cause of the accident was as a result of the negligent driving of the insured driver who lost control of the motor vehicle while he was driving.
[4]Following the accident, the plaintiff was taken by ambulance from the scene to
Hibiscus Hospital. She was diagnosed to have suffered bodily injuries which included
Orif Fermus, Debridement compound wounds, Bilateral Orif Tibias and External fixation on the right ankle. She was hospitalised for two months.
[5]At the time of the accident, she was 52 years and was self -employed and owned a
spaza shop. She also had a scholar transport business.
[6]The defendant conceded liability on merits on the basis that it was liable to pay the
plaintiff 100% of proven or agreed damages.
[7]The parties have already settled loss of earnings and the defendant has also provided
the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act
1 for payment of future medical and related expenses.
[8]The only issue that remains to be resolved between the parties is the issue relating to
general damages and past medical expenses. Accordingly, this court is called upon to determine the appropriate award, if any, that the defendant will be liable to pay the
plaintiff for these specific head of damages.
[9]In determining the award , regard will be had to the nature and extent of injuries as
borne out by hospital records, expert reports and comparable decided cases on similar
injuries.
1 56 of 1996.
3
[10]In support of her claim, the plaintiff appointed various experts which include an
Orthopaedic Surgeon, Plastic Surgeon, Occupational Therapist, Industrial
Psychologist and an Actuary. The summary of their findings will be discussed below.
[11]The defendant did not file any expert reports nor did it call witnesses to testify on its
behalf. Accordingly, the defendant has no version and does not dispute the evidence
contained in plaintiff’s expert reports.
[12]The plaintiff made an application for the factual evidence contained in her affidavit and
the reports of her experts to be admitted into evidence in terms of rule 38(2) of the Uniform rules.
[13]Although the defendant had initially entered a notice to oppose the rule 38(2)
application, at the commencement of the trial, counsel for the defendant made
submissions to the effect that the defendant was no longer persisting with its
opposition to the application.
[14]In the absence of opposition to the application and after having considered and
satisfied myself that a proper case had been made, I, accordingly, granted the
application.
[15]The plaintiff also testified in person. The issues relating to the date and place of the
accident are largely common cause.
[16]The plaintiff testified that as a result of the accident, she has and is still experiencing challenges with her ankles and her feet are no longer flexible as she is no longer able
to walk on her own. She testified that she feels continuous pain because of the iron rods that have been put in her knees.
[17]She testified that she asked the doctor to remove the iron rod from her knees but was told by the doctor that she will be severely paralyzed if the rods were to be removed.
4
[18]She testified that before the accident, she was a busy person who owned a spaza
shop and she has now been negatively affected by the accident. After the accident, she cannot do anything and is supported by her sisters.
[19]She testified further that she experiences severe pain at night and sometimes uses
pain tablets. She can walk using crutches for a short distance. She also uses a walker
and a wheelchair.
Orthopaedic surgeon
[20] According to Dr Mjuza , the orthopaedic surgeon appointed by the plaintiff ,
following the accident the latter suffered multiple injuries which include lacerations on
the right elbow medial, fractures of both femurs, injuries on both ankles, fractures of
both legs and blunt abdominal injuries.
[21] The sequelae of the injury inc lude severe right knee pains, she will no longer be
able to walk or stand without support due to severe pain on both legs and ankles and
has pain in the left hand middle and ring fingers and the right thigh.
[22] In his report, Dr Mjuza states that the medical treatment the plaintiff received
includes ana lgesics, x- rays, CT scans, ICU care, multiple operations to lower limbs,
mobilization with a wheelchair and four leg walker.
[23] He concludes by stating that the septic abdominal scar, scars to the lower limbs
and femoral structures are healed. The equin us on the left ankle was fixed and
arthrodesis was also performed as well on the same ankle.
Occupational Therapist
[24] In the report prepared by Thembisile Mahlangu, the occupational therapist
appointed by the plaintiff , it is stated that the plaintiff had an external fixator on the
right lower leg which was later removed. She also states that the plaintiff was issued
with a wheelchair and a walking frame.
5
[25] She states that the plaintiff continues to take pain medication over the counter.
She notes that although the plaintiff denied taking any chronic medication, she had
been taking anti -retroviral medication since 2016.
[26] In her report, Ms Mahlangu also states that the plaintiff was admitted at ICU on
13 April 2019 and was moved to the ward on 17 April 2019. She also notes that the
plaintiff had a colostomy bag and catheter when she was hospitalised.
[27] She further states that the p laintiff has and experienc es challenges when
walking and must use a walki ng frame for balance. She cannot sustain standing for a
long time and has difficulties in executing daily activities.
[28] She also notes that the pl aintiff has scars on the lateral part of each knee,
lateral and medial part of each ankle, abdomen and the right upper limb. She states
that the plaintiff uses a basin to wash herself and cannot take a shower. She sits on
the toilet seat when she bathes.
Plastic and Reconstructive Surgeon
[29] According to Dr Lalbahadur , the plastic and reconstructive surgeon, the plaintiff
had multiple operations to surgically reduce and internally fix the fractures of both the
femurs and the legs.
[30] She has extensive scarring involving the arm, elbow, abdomen, thigh and legs
together with the left ankle.
[31] The scars cannot be improved by surgical revision and should be accepted as a
serious permanent disfigurement.
[32] On the modified Oswestry Low Pain Disability Questionnaire, a score of 66%
shows that the plaintiff is crippled.
General Damages
6
[33] In her partic ulars of claim, the plaintiff claimed an amount of R800 000.00 for
pain and suffering, partial and chronic disability and loss of amenities of life.
[34] On 16 October 2024, the plaintiff issued a notice to amend her particulars of
claim in respect of general damages to an amount of R1 300 000.00.
[35] The defendant did not object to the said amendment within the ten- day period
referred to in rule 28(2) after receipt of the notice to amend
2. The ten -day period within
which to raise an objection by the party affected by the amendment expired on 30 October 2024.
[36] What would have followed after the lapse of the ten- day period contemplated in
rule 28(2) was for the plaintiff to effect the amendment in terms of rule 28(5)
3.
[37] It is apposite to mention that the amendment is effected by delivery of each
relevant page in its amended form
4. It should follow that if the relevant pages in the
amended form are not delivered or if there is no application for leave to amend made to the court, the consequences are that the notice to amend would become ineffectual.
[38] At the commencement of the trial, counsel for the defendant made an
application for postponement of the trial on the basis that the matter was not ripe for hearing as the amendment afforded them an opportunity as a party affected by the amendment to make any consequential adjustment to the documents filed by them as contemplated in rule 28(8).
[39] The plaintiff opposed the application for postponement and viewed the attempt
by the defendant as a dilatory tact ic. I refused the applicat ion for postponement. The
2 Rule 28(2) of the uniforms rule reads: “The notice referred to in sub rule (1) shall state that unless
written objection to the proposed amendment is delivered within 10 days of delivery of the notice, the
amendment will be effected”.
3 Rule 28(5) of the uniform rule reads: “If no objection is delivered as contemplated in sub rule (4), every
party who received notice of amendment and the party who gave notice of the proposed amendment may, within 10 days after the expiration of the period mentioned in sub rule (2), effect the amendment
as contemplated in sub rule (7).
4 Rule 28(7) of the uniform rules.
7
reasons for refusal of the application for postponement were that the defendant did not
appoint any experts, its plea contained bare denials and did not offer a version.
[40] As at the date of commencement of trial, the amendment of the plaintiff’s
particulars of claim relating to quantum on the general damages as contemplated in
rule 28(5) had not been effected. Worse, even during the trial, there was never an
application made by the plaintiff to seek leave of the court to effect the amendment .
[41] I am aware that the fact of the amendment of the plaintiff’s particulars of claim
never being effected is not of her making but the negligence of her legal
representatives. I am, however, constrained by the knowledge that amendment of pleadings is effected in terms of the rules of court and failure to comply renders the amendment ineffectual.
[42] In view of the fact that the amendment of pleadings in relation to the quantum
on general damages was never effected, this court will not be in a position to consider
the proposed amount of R1 300 000.00 referred to in the notice to amend in respect of
general damages. Accordingly, the matter will be determined on the basis of the
particulars of claim unamended.
[43] What follows below is the assessment of damages that the plaintiff suffered in
respect of general damages, regard being had to the nature and extent of injuries
sustained and comparative cases.
[44] The nature of injuries that the plaintiff sustained as a result of the collision are
not in dispute. The injuries, and there is no doubt, are very serious. The plaintiff
suffered multiple orthopaedic injuries which resulted in severe pain and multiple
operations.
[45] The plaintiff was hospitalised from 13 April 2019 to 08 June 2019. This is a
period of almost two months. From 13 April 2019 to 17 April 2019, she was placed in
the intensive care unit of the hospital.
8
[46] As already indicated above, the plaintiff was diagnosed to have suffered blunt
abdominal injuries, laceration on right elbow, closed fractures on both femurs, left tibial
plateau fracture, open fracture on the right leg and fracture dislocation of the left ankle.
[47] The plaintiff had an external fixator on the right lower leg even though it was
later removed. According to the orthopaedic surgeon the whole person impairment
(WPI) is 60%.
[48] According to the Plastic and Reconstructive Surgeon, plaintiff had multiple
operations to surgically reduce and internally fix the fractures of both the femurs and
the legs. She has extensive scarring involving the right arm, elbow, abdomen, thighs
and legs together with the left ankle. The Plastic and Reconstructive Surgeon states
that the scars cannot be improved by surgical revision and should be accepted as a
serious permanent disfigurement.
[49] The Plastic and Reconstructive Surgeon also states that on the modified
Oswestry Low Back Pain Disability Questionnaire, a score of 66% shows that she is crippled.
[50] She underwent operations to fix her ankles and had a laparotomy performed for
his abdominal injuries.
[51] She received acute care in casualty and later admitted for definitive care of her
injuries.
[52] She continues to suffer pain on her back and lower limbs and uses a walking
frame and a wheelchair. She was mobilised in a wheelchair for many months and later prescribed a four -leg walker which she uses to date.
[53] When it comes to bathing, she still experiences difficulties as she uses a basin
and can no longer take a shower. She must sit on the toilet seat when bathing.
9
[54] She has difficulties with executing daily activities and cannot carry or move
objects around the house. She can only perform some of the activities while sitting
down. She still uses the wheelchair when going to the shops.
[55] She cannot sustain standing for long and can only use warm water on her left
foot as it is sensitive. She suffers both emotional and physical challenges. She feels
very sad as she has become dependent on others.
[56] Since there is no evidence to the contrary from the defendant, I have no
difficulty in accepting the evidence from all the experts appointed by the plaintiff. I also
have no difficulty in accepting the plaintiff’s evidence as it was uncontested.
[57] On the conspectus of all the evidence as contained in the experts ’ reports, I
come to the conclusion that the accident has had a serious impact on the livelihood of
the plaintiff. This is so, because the uncontested evidence points to the fact that as a
result of the accident, the whole person impairment (WPI) is 60%, a percentage that is double the threshold set by the Road Accident Fund in order to qualify for general damages.
[58] It is trite that the court has a general discretion on the amount it should award
for damages. Such discretion must be exercised judiciously and not arbitrarily. In
exercising its discretion, the court must be guided by what is fair and just in the
circumstances of a particular case.
[59] In assessing damages, the court must have regard to comparable cases. In
Protea Assurance Co Ltd vs Lamb
5, the court had the following to say:
“Comparable cases , when available should rather be used to afford some
guidance, in a general way , towards assisting the Court in arriving at an award
which is not substantially out of general accord with previous awards in broadly
similar cases, regard being had to all the factors which are relevant in the
assessment of general damages.”
5 1971(1) SA 530 A .
10
[60] It must be emphasized that comparable cases merely serve as a guideline as
each matter must be assessed and determined on its own merits. They are in no way binding on the court when it makes a determination of a fair and reasonable
compensation. They only serve as a useful reference for what the other courts have
deemed appropriate but their significance is restricted to that purpose alone
6.
[61] Counsel for the plaintiff has referred me to the matter of Fouche v R AF7, in that
matter plaintiff was awarded R1 400 000.00 and the current value is R1 954 249.00.
Although the injuries sustained by the plaintiff in that case are substantially similar to
those sustained by the plaintiff in this case, this case is distinguishable from that case
in that the plaintiff was not found to have suffered any brain injury, loss of teeth,
contusion of chest, laceration of spleen, laceration of liver and other lacerations I have not mentioned herein. [62] I was also referred by the plaintiff’s counsel to the matter of Tsotetsi v Road
Accident Fund
8 where the plaintiff was awarded an amount of R850 000.00 for general
damages. The current value of the award is R1 263 631.00. This matter even though
the injuries are not exactly the same as in casu , is substantially similar to the matter
under consideration. The pl aintiff was hospitalised for three months and had multiple
operations. The plaintiff in this matter was hospitalised for almost two months and had
multiple operations. I have also compared the injuries sustained by the plaintiff s in
both cases and I am of the view that the injuries sustained by the plaintiff in the matter
under consideration are more serious.
[63] I have found the matter of Noble v Road Accident Fund
9 to be instructive in the
determination of a fair and just compensation to be awarded to the plaintiff. In that
matter , the plaintiff was found to have sustained various fractures in the ankle, right
foot with scarring, right femur, right hand. These fractures are substantially similar to
6 Minister of Safety and Security v Seymour 2006(6) SA 320 SCA ; Allie v Road Accident Fund Allie v
Road Accident Fund [2003] 1 SA 144 (C); [2003] 1 SA 144 (C) .
7 (9619/2015) [2017] ZAGPPHC 1253 (16 August 2017).
8 (7510/2013) [2016] ZAGPPHC 463 (1 June 2016).
9 (39254/2008) [2011] ZAGPJHC 6 (24/02/2011).
11
those sustained by the plaintiff in this matter. The award was R600 000.00 and the
current value is R1 212 000.00.
[64] The defendant’s counsel referred me to the matter of Schmidt vs Road Accident
Fund10 and contended that the amount of R6 00 000.00 awarded in that matter was fair
and just. The current value of that award is R1 200 000.00. By suggesting this amount,
defendant’s counsel was conceding that the injuries are serious.
[65] I have taken into account multiple impairments and plaintiff’s residual
functioning which came as a result of the accident together with the fact that the accident has left the plaintiff with permanent scars which should be taken as
permanent disfigurement. I have also taken into account the plaintiff’s emotional state
following the accident.
[66] In the circumstances and in view of the nature of the injuries sustained by the
plaintiff and the sequelae thereof, I come to the conclusion that the fair and just amount of compensation for injuries sustained by the plaintiff for general damages would have been R1 300 000.00. I, however, and for the reasons I have stated above
when I dealt with plaintiff’s notice to amend, cannot award more than what plaintiff has asked for in her particulars of claim. Accordingly, plaintiff is entitled to compensation of an amount of R800 000.00 for general damages.
Past Medical Expenses
[67] I now turn to deal with the damages relating to past medical expenses incurred
by the plaintiff due to the injuries sustained. It is common cause that following the
accident, plaintiff had received medical treatment.
[68] During the trial and in order to prove damages for past medical expenses,
plaintiff wanted to rely on the affidavit by Ms Olga Isolde Scott who is a senior manager at Medscheme. Ms Olga Isolde had in the affidavit referred to a list of
10 2006 JDR 1065 (W) .
12
vouchers as evidence that plaintiff was treated for the injuries sustained as a result of
the accident and those vouchers were settled by the medical scheme, Bonitas.
[69] Counsel for the defendant objected to the determination of the damages
relating to past medical expenses on the basis that first, there was no application in
terms of rule 38(2) for the evidence contained in the affidavit of Olga Isolde Scott to be
admitted as real evidence and second, the vouchers relied upon by the plaintiff were
never formally discovered in terms of rule 35 of the uniform rules.
[70] Even though the vouchers were not discovered, evidence points to the fact that
the list of vouchers w as sent to the defendant by email on 26 July 2021. The
defendant has therefore been in possession of the vouchers for more than three years
and would not have been taken by surprise when the said vouchers were used as evidence to prove the plaintiff’s claim.
[71] The defendant insisted that the plaintiff ought to have followed the court rules
as contemplated in rule 35 of the Uniform rules if she wanted to use the vouchers as evidence to prove past medical expenses. When the court enquired how the
defendant would be prejudiced by the evidence relating to the vouchers, counsel for
the defendant could not show any prejudice that the defendant would suffer.
[72] The object of discovery as contemplated in rule 35 of the uniform rules is to
make sure that all the parties involved in litigation are aware of the documents that are
going to be used in the trial. The purpose is to eliminate surprise.
[73] The court, in the exercise of its discretion and after satisfying itself that there
was no prejudice occasioned by the non- discovery of the vouchers on the defendant,
allowed the plaintiff to lead evidence on the vouchers.
[74] In proving her claim, the plaintiff called Olga Isolde Scott, referred to above, to
testify on her behalf. She testified that she is responsible for identifying motor vehicle
claims for Medscheme.
13
[75] She testified that the plaintiff is a registered member of Bonitas, a medical
scheme that is administered by Medscheme. She testified that Bonitas paid all the
medical expenses as evidenced by vouchers that were submitted to this court to prove plaintiff’s claim. The total amount of the plaintiff’s claim as evidenced by the vouchers
is R 1 425 849.74.
[76] I have earlier referred to an affidavit in respect of which no application was
brought in terms of rule 38(2) for it to be accepted as real evidence. She confirmed that she was the deponent to the said affidavit.
[77] She testified that there is an agreement between the medical scheme and its
members that the amount paid by the medical scheme for the treatment of the
member’s injuries arising out of negligent driving of a motor vehicle shall be repaid by
that member to the medical scheme upon the member receiving compensation from
the defendant. That agreement applies to the plaintiff as well.
[78] She testified that the vouchers presented as evidence and which form part of
the plaintiff’s claim were all paid by the medical scheme. There is no dispute that the
medical expenses incurred by the plaintiff were as a result of the treatment she received for her accident related injuries.
[79] In terms of section 17 of the Road Accident Fund Act, the defendant is liable to
compensate claimants for all proven damages including past medical expenses.
[80] The question that the court must ask itself is whether vouchers already paid by
the medical scheme should form part of the damages that have been suffered by the
plaintiff. If the vouchers have already been paid by the medical scheme, can it be said that the plaintiff really suffered damages under those circumstances?
[81] The issue of whether the defendant is liable to pay disputed past medical
expenses already paid by the medical scheme notably came up in our courts at the
14
Pretoria High Court in the litigation matter of the defendant and Discovery Health (Pty)
Limited.11
[82] The applicant therein, Discovery Health (Pty) Ltd, sought an order setting aside
the defendant’s directive dated 12 August 2022 which was communicating to the managers of the defendant to reject all claims of past medical expenses already settled by medical schemes. In his judgment, Mbongwe J s tated the following
12:
“The applicant is the administrator of several medical aid schemes which have
and continues to settle medical bills on behalf of their clients for the services
referred to above with a clear understanding or agreement that the expenses
incurred are refundable by the claimant to its medical aid scheme. It is on this
basis that past medical expenses are included as part of the claim for damages and are payable to the medical aid scheme by the claimant upon settlement of
its claim.”
[83] The clear understanding or agreement referred to in the passage above quoted
from Mbongwe J’s judgment is the same understanding or agreement that this
judgment refers to in paragraph 81 above wherein the plaintiff entered into an
agreement with Bonitas to the effect that once the defendant has settled the claim
relating to past medical expenses, same will be repaid to the medical scheme.
[84] In his judgment, Mbongwe J makes it unequivocally clear that the defendant is
liable to pay a claim relating to past medical expenses which the claimant has incurred
for treatment of injuries arising out of the negligent driving of a motor vehicle even
though the medical expenses had already been settled by the medical scheme. In his
judgment and quoting from D’Ambrosini v Bane 2006(5) SA 121 (C), Mbongwe J
states the following:
11 Discovery Health (Pty) Limited v Road Accident Fund and Another (2022/016179) [2022] ZAGPPHC
768 (26 October 2022) .
12 Discovery Health (Pty) Limited v Road Accident Fund and Another at para 6.
15
“medical aid scheme benefits which the plaintiff has received, or will receive are
not deductible from (sic) in determining his claim for past and future hospital
and medical expenses.”
[85] Mbongwe J also quoted from Rayi NO v Road Accident Fund (9343/2000)
[2010] ZAWCHC 30 as follows:
“payment by Bonitas of the plaintiff’s medical expenses does not relieve the
defendant of its obligation to compensate the plaintiff for past medical expenses.”
[86] The ratio of Mbongwe J in his judgment was influenced largely by the reasoning
adopted by Van Zyl J in D’Am brosini v Bane matter who reasoned as follows:
“This is a fallacious argument in that it ignores the established fact that, at the time he suffered such injuries, the plaintiff was, and still is, a member of a medical aid scheme, which has , in fact , raised his premiums in return for all
embracing cover. He has not received, nor is it envisaged that he will , in future,
receive any benevolent or ex gratia payments from such scheme. There is
hence no question that any payments made to him by the scheme are in the nature of deductible social insurance benefits. I am in respectful agreement with Gautschi AJ in the Thomson case (par [41] above) that a medical aid scheme, such as that of which the plaintiff is a member, is , in substance a form of
insurance. In my view , it is no different from any other form of indemnity
insurance which offers cover against injury or damage in return for premium payments.”
[87] In his reasoning, Mbongwe J also adopted the principle which was set out in
Zysset and Others v Santam Ltd 1996(1) SA 273 (C) at 277H -279C which stated as
follows:
“The modern South African delictual action for damages arising from bodily
injury negligently caused is compensatory and not penal. As far as the plaintiff’s
patrimonial loss is concerned, the liability of the defendant is no more than to
make good the difference between the value of the plaintiff’s estate after the
commission of the delict and the value it would have had if the delict had not
16
been committed…Similarly, and notwithstanding the problem of placing a
monetary value on a non- patrimonial loss, the object in awarding general
damages for pain and suffering and loss of amenities of life is to compensate
the plaintiff for his loss. It is not uncommon, however, for a plaintiff by reason of
his injuries to receive from a third party some monetary or compensatory
benefit to which he would not otherwise have been entitled. Logically and
because of the compensatory nature of the action, any advantage or benefit by
which the plaintiff’s loss is reduced should result in a corresponding reduction in
the damages awarded to him. Failure to deduct such a benefit would result in
the plaintiff recovering double compensation which, of course, is inconsistent
with the fundamental nature of the action.
Notwithstanding the aforegoing, it is well established in our law that certain
benefits which a plaintiff may receive are to be left out of the account as being
completely collateral. The classic examples are (a) benefits received by the
plaintiff under ordinary contract of insurance for which he has paid the
premiums and (b) money and other benefits received by a plaintiff from the
benevolence of third parties motivated by sympathy. It is said that the law
baulks at allowing the wrongdoer to benefit from the plaintiff’s own prudence in
insuring himself or from a third party’s benevolence or compassion in coming to
the assistance of the plaintiff.”
[88] There can be no doubt that the reasoning of Mbongwe J and the authorities
that he quotes from to get to his conclusion make it abundantly clear that payments
made by the medical scheme on behalf of its member can never be in the nature of
deductible social benefits. This is so, because such benefits and obligations arise from his membership of the scheme which constitutes a type of indemnity insurance and are matters between the member and the scheme alone.
[89] The issue of disputed past medical expenses already paid by the medical
scheme also came up in the recent judgment of the full court in Discovery Health (Pty)
17
Ltd v Road Accident Fund and Another13. The dispute also involves the same parties,
namely, Discovery Health (Pty) Limited and the defendant.
[90] In paragraph 45 of the full court’s judgment penned by Judge President Mlambo
J, the court stated the following:
“paragraphs 30- 34 of Mbongwe Judgment are no authority for the proposition
that medical schemes have a right of recovery from the RAF, through their
members, what they have paid in discharge of their statutory obligation to pay
PMBs and EMC in full as required by the MSA and its regulations 7 and 8. If
anything, these paragraphs demonstrate that the MSA and its regulations
carrying the statutory duty placed on schemes to pay PMBs and EMCs in full
was not drawn to the attention of Mbongwe J. To suggest otherwise would
simply mean that the Court, in dereliction of its duty, failed to uphold the law. ”14
[91] In reading the passage quoted from the full court’s judgment, there is no doubt
that the full court does not agree with the reasoning of Mbongwe J and the
interpretation of the authorities he relies on. The reasoning behind the disagreement is
simply that medical schemes cannot be compensated through their members what
they have paid in discharge of their contractual and statutory obligations. The other
reason for the disagreement is that the principle of subrogation does not apply to medical schemes as they are not insurance companies. [92] The reasoning of the full court on the agreement concluded between the
medical scheme and its member , which agreement has an effect of the application of
the principle of subrogation is addressed in paragraph 46 of the judgment where the
court relies on the following:
“Discovery Health has never claimed to be an insurer, much less an indemnity
insurer, nor is it its case that it represents insurers. The RAF makes this
13 (2023/117206) [2024] ZAGPPHC 1303 (17 December 2024).
14 Discovery Health (Pty) Ltd v Road Accident Fund and Another (2023/117206) [2024] ZAGPPHC 1303
(17 December 2024) .
18
submission in its answering affidavit, including the fact that the Fund itself is not
an insurer. While it may be permissible in everyday exchanges to refer to medical scheme benefits as health insurance, they are in fact a distinct entity from insurance; the nature of the contract between an insured and insurer is
different from that between a scheme member and a medical scheme; the
institutions that offer these two are governed by separate and distinct
legislation. In fact, to equate a medical scheme and its benefits to an indemnity insurer is to cause all over again the very mischief that the Demarcation regulations were meant to address.”
[93] In coming to the conclusion that the defendant is not bound by the agreement
concluded between the medical scheme and its member, the full court further
reasoned at par agraph 92 as follows:
“The challenge facing Discovery Health and the medical schemes it represents goes
beyond questions of interpretation of its rules. The rules published by the Discovery
Medical scheme are only for its members and the scheme and not third parties like the
RAF. The rule dealing with recovering from the RAF what the scheme has paid in
discharge of its contractual and statutory obligations is a rule of Discovery Medical
Scheme's own making. It cannot bind third parties, including the RAF. The
Government Employees Medical Scheme (GEMS), the third largest scheme in the
country, does not oblige members in its rules to claim any past medical expenses from
the Fund. Conceivably, GEMS accepts that it cannot recover what it is statutoril y
required to pay by way of PMB’s and EMC’s from the RAF.”
[94] The ratio of Mbongwe J and the judgments he relies on, is simply that the
settlement of medical expenses by the medical scheme on behalf of its member cannot be taken into account when determining the appropriate amount of
compensation relating to past medical expenses. The reasoning as I understand it, is
that the premiums that a member pay s to a medical scheme entitles that member to
certain benefits and those benefits accrue for the benefit of the member alone and not
for third parties such as the defendant.
19
[95] The judgment implies that if the defendant were to refuse to pay for the
disputed past medical expenses, the refusal would amount to the defendant arrogating
to itself a benefit that it otherwise is not entitled to.
[96] In the matter before me, I am not persuaded that such benefits would accrue to
the member of the medical scheme for the simple reason that once the defendant has
settled the claim relating to past medical expenses already paid by the medical scheme, the plaintiff is bound in terms of the agreement entered into by her and the medical scheme to pay the settled claim to the medical scheme. For that reason, I am
of the view that the benefit accrues to the medi cal scheme and not the plaintiff .
[97] It is for the above reason that I align m yself with the judgment of the full c ourt
as penned by Mlambo J P that medical schemes are simply discharging an obligation
placed upon them by the legislation and the contracts they enter into with their
members. The contracts could only be binding inter partes and of c ourse, if they are
subjected to and pass legal scrutiny.
[98] I would have been prepared to award this claim pertaining to past medical
expenses to the plaintiff had there been no agreement between her and the medical
scheme. I am not prepared to award this claim, for the simple reason that I do not
consider the payment of such award to the medical scheme upon settlement by the
defendant as a benefit that accrues to the plaintiff as reasoned in the cases I quoted
above.
[99] In any event, I, as a single judge, am bound by the doctrine of precedent to
follow the decision of the full court . It is trite that a decision of a full bench of a division
is binding on a single judge of the same division unless it is found to be clearly wrong.
The decisions I have also referred to on this head of damages are decisions of single
judges which rank lower than the decision of the full court.
[100] For the reasons I have set out above, the plaintiff’s claim in respect of past
medical expenses cannot succeed.
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[101] I now come to the issue of costs. The plaintiff has been substantially successful
in her claim against the defendant and for that reason the costs should follow the
cause.
[102] In the result, I make the following order:
106.1. With regard to general damages, defendant is ordered to pay plaintiff an
amount of R800 000.00;
106.2. The aforesaid amount must be paid within 180 days from the date of this order
into the following Trust Bank Account:
Account Holder : T[…] D[…]
Bank : Nedbank
Account Number : 1[…]
Branch : A[…]
106.3. The claim with regard to past medical expenses is dismissed.
106.4. Defendant is ordered to pay plaintiff’s taxed or agreed costs on the High Court
scale B including costs of the following experts:
106.4.1. Dr EA Mjuza (Orthopaedic surgeon);
106.4.2. Dr AM Lalbahadur (Plastic surgeon)
106.4.3. Ms T Mahlangu (Occupational Therapist);
106.4.4. Mr T Tsiu (Industrial Psychologist);
106.4.5. One Pangaea Actuaries
106.5. Plaintiff shall allow the defendant 180 days to pay the agreed or taxed costs
after date of agreement or taxation failing which Plaintiff shall be entitled to recover
interest on the costs at the rate of 11, 25% per annum from the date of the agreement
or allocator.
T NGENO
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
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APPEARANCES
Heard on: 05 & 06 November 2024
Judgment delivered on: 03 February 2025
For the Plaintiff: Adv AE Smit
Instructed by Tsietsi -Dlamini & Mahlathi Attorneys
Alberton
For the Defendant: Mr TM Madasele
Instructed by State Attorney, Johannesburg