SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 12926 /2017
In the matter between:
RAH LDEYAH ESACK N.O Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Coram: NUKU J
Heard on : 27 and 30 January 2025
Delivered on: 04 February 2025
JUDGMENT
NUKU, J
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[1] The late Mr Anwar Esack ( the deceased ) sustained bodily injuries on 11
December 2015 when the motor vehicle he was driving collided with another motor
vehicle. Pursuant thereto he lodged a claim with the defendant and upon the latter’s
failure to compensate him, he instituted this action.
[2] The deceased die d on 4 May 2020 before the finalization of the matter and he
was formally substituted as the plaintiff by the executrix of his estate, Ms Ra hldeyah
Esack who was also his spouse. The issue of defendant’s liability was determined as a
separate issue and only the quantum of damages remained in dispute by the time that
the matter came before me .
[3] At the commencement of the hearing I was advised by the parties’ legal
representatives that the parties had settled most of the heads of damages except the
claim for past hospital, medical and related expenses . I was also advised that the
parties had not reached agreement regarding the dat e from which the interest would
start running as well as costs.
[4] I was further advised that the quantum of the plaintiff’s claim for past hospital,
medical and related expenses was not disputed and that the defendant took issue with
its liability to pa y them because these expenses had been paid by the deceased’s
medical aid , an issue that had not been pleaded by the defendant.
[5] The parties’ legal representatives further informed me that none of the parties
intended to call witnesses and in fact plaintiff’s counsel commenced with his argument.
I, however, indicated my difficulty in adjudicating an issue that has not been pleaded,
and even worse without any evidence or stated case.
[6] The hearing of the matter adjourned to enable the parties’ legal representatives
to attend to the amendment of the pleadings to properly plead the defendant’s basis of
its denial of liability in respect of the claim for past hospital, medical and related
expenses. Additionally, the parties were to consider whether to prepare a stated case or
whether to lead evidence on the issue in dispute.
[7] The defendant amended its plea, and the plaintiff had no objection thereto. In the
defendant’s plea, the issue in dispute was pleaded as follows:
‘7.1 Defendant pleads that plaintiff was a member of a medical aid scheme
and that the said medical aid scheme paid plaintiff’s past hospital and
medical expenses.
7.2 Defendant further pleads in clarification that plaintiff pursuant to the above
suffered no loss in respect of this head of damages therefore defendant is
accordingly not liable to reimburse / compensate the plaintiff and / or the
medical aid scheme of the deceased.
7.3 Alternatively, and in the event that the above honourable court finds that
the plaintiff has suffered a loss and is entitled to compensation
notwithstanding the fact that the past hospital and medical expenses have
been paid by his medical aid scheme, defe ndant pleads that the past
hospital and medical expenses claimed herein constitute prescribed
minimum benefits (PMB) and / or treatment for emergency medical
conditions (EMC) for which the medical aid scheme of the deceased is
statutorily obliged to pay .’
[8] The parties also filed a statement of agreed facts the relevant part of which
records that:
8.1. Whilst the deceased was still alive and in hospital, he received medical
treatment and incurred medical expenses (“the medical expenses”) arising
from the injuries sustained in the collision.
8.2. A schedule of the medical expenses in the sum of R115 436.14 (showing
the service providers, t he account numbers, the dates that the services
were provided, the amounts claimed, and the amounts paid by Discovery
Health), is attached hereto marked “”.
8.3. The deceased, at the time of the collision and when receiving the
aforesaid medical treatment, was a member of the Discovery Health
Medical Scheme , (“Discovery”) with membership number 3[...].
8.4. Discovery paid the costs incurred in respect of the medical expenses in
the sum of R115 436.14 to the relevant service providers.
8.5. Discovery paid the aforestated medical expenses pursuant to the
deceased’s membership of Discovery and by virtue of the contractual
arrangement between itself and the deceased, as well as owing to its
statutory obligation in terms of Medical Schemes Act No. 131 of 1998 and
the Regulations thereto, and as further set out in the deceased’s Medical
Benefit Plan, and in accordance with the Rules of the Discovery Health
Medical Scheme Registered under the Medical Schemes Act No. 131 of
1998 , which were registered with the Registrar of Medical Societies on 19
November 2010 (“the Scheme Rules”).
[9] The agreed statement of facts curtailed the need for evidence except for the
issue whether the past medical and hospital expenses claimed constitute prescribed
minimum benefits or treatment for emergency medical conditions for which Discovery is
statutorily obliged to pay , an issue whi ch the plaintiff was not willing to concede.
Defendant’s legal representative indicated that defendant would have to call a bill
reviewer to testify on this issue but that he or she was not available . Plaintiff’s counsel,
solely for the purposes of avoidin g the postponement of the matter, advised that
although the issue is not formally conceded, the court can accept for the purposes of
adjudicating this matter only, that past medical and hospital expenses claimed
constitute prescribed minimum benefits or tr eatment for emergency medical conditions
for which Discovery is statutorily obliged to pay .
[10] Having taken care of the necessary pleading s as well as the facts on the basis of
which the matter is to be adjudicated upon, plaintiff’s counsel proceeded to address the
court on why the defendant is liable to compensate the plaintiff. On the issue of whether
the plaintiff had suffered any loss in relation to the past hospital and medical expenses,
plaintiff’s counsel submitted that the de ceased incurred these expenses and the fact
that they were paid by Discovery is a private matter between him and Discovery. In this
regard, plaintiff’s counsel referred to a number of authorities to the effect that medical
aid scheme benefits are a form of indemnity insurance that should be disregarded for
the purpose of an award for damages in accordance with the common law principle of
res inter alios acta .1
[11] The submissions on behalf of the defendant were to the effect that plaintiff
suffered no loss in relation to past hospital and medical expenses. To the extent that he
did, it was submitted that fairness, equity and reasonableness dictates that the plaintif f
should not be compensated for these expenses because they were paid by Discovery
which was statutorily obliged to do so. In this regard, plaintiff’s legal representative
relied heavily on a majority judgment in Discovery Health (Pty) Ltd v Road Accident
Fund and another2 (Discovery Heath ). In the defendant’s view, Discovery Health
changed the legal landscape in so far as the common law principle of res inter alios acta
such that benefits from a medical aid schem e in circumstances where the medical aid
scheme is statutorily obliged to pay fall to be deducted in the computation of a claim for
past hospital and medical expenses. The question therefore is whether Discovery
Health indeed changed the legal landscape in so far as the common law principle of res
inter alios acta .
1 Thomson v Thomson 2002 (5) SA 541 (W) at 547H -I, Mooideen v Road Accident Fund , an unreported
judgment under case number 17 737/2015 delivered on 11 December 2020 , Road Accident Fund v
Malgas , an unreported judgment of Van Zyl DJP in an application for leave to appeal under case number
126/2020 Eastern Cape Local Division, Gqeberha, delivered on 5 March 2024, Banda v Road Accident
Fund (5168/2021) [2024] ZA GPJHC 483 (09 May 2024 at para [15] , Van Tonder v Road Accident Fund
(1736/2020; 9773/2021) [2023] ZAWCHC 305 (01 December 202 3, Fookwe v Road Accident Fund
(23481/2016) [2024] ZAWCHC (29 April 2024); Gunther v Road Accident Fund (24228/16) [2024]
ZAWCHC 153 (06 June 2024)
2 Discovery Health (Pty) Ltd v Road Accident Fund and Another (2023/117206) [2024] ZA GPHC1303 (17
December 2024)
[12] The majority judgment in Discovery Health contains an interesting discussion on
the development and incorporation of the common law principle of res inter alios acta
starting with the decision of the Appellate Division in Santam
Versekeringsmaatskap py Bpk v Byleveldt3 (Byleveldt ) which the judgme nt suggests
is the authority for the proposition that “the question of which collaterals are deductible
must be determined by reference to equity, reasonableness and public policy .4” The
majority judgment proceeds to discuss another decision of the Supreme Court of Appeal
in Standard General Insurance Co Ltd v Dugmore N.O5 (Dugmore ) where the
Supreme Court of Appeal made the point that “it now seems to be generally accepted
that there is no single test to determine which benefits are collaterals and which are
deductible .” To further elucidate this point the majority judgment then refers to the
decision of the Supreme Court of Appeal in Erasmus Ferreira & Ackerman v Francis6
(Francis ) where Cachalia JA stated:
‘In light of the aforegoing I agree with Neethling, Potgieter & Visser Law of Delict
5 ed (2006) at p 215 -16 that ‘(q)uestions regarding collateral benefits are
normative in nature; they have to be approached and solved in terms of policy
principl es and equity’, and that in dong so ‘there should always be a weighing -up
of these interests of the plaintiff, the defendant , the source of the benefit as well
as the community in establishing how benefits resulting from a damage -causing
event should be tr eated’ .’
[13] Having discussed the cases referred to above, the majority judgment proceeds to
discuss a decision of the Supreme Court of Appeal which restated the principle without
deciding whether the benefits had to be deducted from the award , and states :
‘This, the Supreme Court of Appeal confirmed in Road Accident Fund v Cloete
NO and Others7, a mere ten days later after Bane v D’Ambrosi ,8 which, as we
3 1973 (2) SA 146 (A)
4 At para [70]
5 1997 (1) SA 33 (SCA)
6 2010 (2) SA 228 (SCA) at para [17]
7 2010 (6) SA 120 (SCA)
8 2010 (2) SA 539 (SCA)
know, concluded that payment made by a claimant’s medical scheme is res inter
alios acta .’
[14] Finally the majority judgment poses the question “ Whether there are any policy
considerations in favour of excluding collateral benefits received by a claimant from a
medical scheme by way of payment of PMB’s and EMC’s, on the basis of res inter alios
acta?” Immediat ely thereafter the majority judgment proceeds stating that “We raise the
following considerations without necessarily answering the question…” Having raised
various considerations, the judgment concludes as follows:
‘Given the myriad of social challenges facing this developing country, is there
justification based on policy considerations, fairness and reasonableness , for the
government to concern itself with protecting the interests of medical schemes?
The contestation before us is simply about whether RAF’s funds should continue
being used to replenish the coffers of medical schemes. The subrogation
principle perpetuates the lie that a road accident victim has a claim against the
RAF when in truth and in fact, that claim was satisfied by the medical scheme .’
[15] In my view Discovery Healt h has not changed the legal landscape for the
reasons that follow. The first problem that the majority judgment would fall foul of the
doctrine of stare deci sis, a fundamental principle of our law that requires High Courts to
follow decisions of the Supreme Court of Appeal and the Constitutional Court. The issue
of deductibility of medical -aid scheme benefits was dealt with by the Supreme Court of
Appeal in Bane which concluded that “ the Medical Schemes Act did not have the effect
of depriving plainti ffs of their claims for hospital and medical expenses in delictual
actions .”
[16] Whilst Bane did not deal specifically with the deductibility of PMB’s and EMC’s
but the deductibility of medical -aid benefits in general terms, I can see no basis to
differentiate between the two. I say this because the argument in Bane appears to have
been based on the fact that medical schemes are obliged to accept members upon
application , an argument that is not so dissimilar to an argument that claimants should
not be compensated in respect of PMB’s and EMC’s because the medical schemes are
statutorily obliged to pay these.
[17] The other difficulty with the majority judgment in Discover y Health is that the
court was not required and in fact did not decide the issue of deductibility of payments
made by medical aid schemes from compensation to be paid to road accident victims.
This, the majority acknowledged when it stated that “ We raise the following
considerations without answering the question .” That said, it must follow that Discovery
Health lends no support to the defendant’s argument that it is not liable to compensate
the plaintiff in respect of past hospital and medical expenses th at have been paid by the
deceased’s medical -aid scheme as part of the PMB’s or EMC’s.
[18] Lastly, accepting for a moment that the deductibility of collaterals is a matter that
should be determined with regard to public policy consideration, fairness, equ ity and
reasonableness no such considerations were brought to the court’s attention. All that
the defendant’s legal representative did was to restate the principles discussed in
Discovery Health without presenting any evidence in support of the proposition that the
public policy considerations, fairness, equity and reasonableness dictate that the
defendant should not be held liable to compensate a road accident victim in respect of
past medical and hospital expenses which have been paid by the victim’s medi cal-aid
scheme as part of its obligation to pay for PMB’s and EMC’s.
[19] To conclude on the issue, the deceased incurred past medical and hospital
expenses. These were paid by the deceased’s medical -aid scheme, and I have been
asked to assume, only for the purpose of deciding the issue in this matter, that the past
hospital and medical expenses paid by the deceased’s medical aid scheme relate to
PMB’s. On the application of the common law principle of res inter alios acta , the
defendant is liable to compensate the plaintiff as such payment is a matter between the
deceased and hi s medical aid -scheme. Having regard to all of the above, I am satisfied
that the plaintiff’s claim for past hospital and medical expenses must succeed.
[20] The only other issue that the parties could not agree on is the date from which
the interest starts running , a matter provided for in section 17 ( 3) of the Road Accident
Fund Act 56 of 1996 ( the Act ), as well as costs of suit. Section 17 (3) (a) of the Act
provides that “ No interest calculated on the amount of any compensation which a cou rt
awards to any third party by virtue of the provisions of subsection (1) shall be payable
unless 14 days have elapsed from the date of the court’s relevant order .” In the absence
of an agreement between the parties varying the statutory position , the court enjoys no
authority to order otherwise, and I was not referred to any authority to the contrary. The
interest will, thus, be calculated on the amounts awarded to commence after the expiry
of 14 (fourteen) days from the date of judgment.
[21] As regards costs, the plaintiff has been successful and as such the usual rule
that costs should follow the result must apply. There was a debate between the legal
representatives about the scale of such costs with the plaintiff contending for scale C
whils t defendant contended for scale A. One of the issues that were relied upon by
plaintiff’s counsel was the fact that it was not an easy task computing the deceased’s
past loss of income as he had been a self -employed businessman , an aspect that
required not only the involvement of an industrial psychologist but also an earnings
expert, in the computation of his claim for past loss of earnings.
[22] Claims for past loss of earnings usually involve what one may call, for lack of a
better word, mathematical calculation. This, however, is not always the case in respect
of self-employed businesspeople whose earnings are sometimes complicated by the
fact that they usually structure same in a cost efficie nt manner that does not always
make it readily discernible how much the person actually earns. That the plaintiff has
had to engage the services of an earnings expert lends support, in my view, that the
computation of the deceased’s past loss of earnings was not a straight forward matter.
In my view the costs on scale B are warranted and will be awarded until 27 January
2025.
[24] There was also a further debate regarding further costs incurred post 27 January
2025, this being the date when most heads of damages were settled except for past
hospital and medical expenses. It was contended on behalf of plaintiff that a punitive
costs order is warranted in this regard because the defendant, in essence pursued a
hopeless case contrary to established l egal principles. It was submitted on behalf of the
defendant that there should be no separate order in respect of events post 27 January
2025.
[25] The matter could have been finalised on 27 January 2025 when most of the
heads of damages were settled. Wha t remained unresolved, mainly, was the plaintiff’s
past hospital and medical expenses, an issue that the defendant raised in court without
it having been pleaded. As a result, the matter had to stand down to afford the
defendant an opportunity to consider its position and to decide whether it would seek an
amendment of its plea.
[26] Clearly , in my view, the defendant was not prepared to proceed with its defence in
respect of past hospital and medical expenses. This is extraordinary when one
considers that actions against the Road Accident Fund have to go through certification
by two judges before they are allocated a hearing date. The fact that t he issue of the
plaintiff’s claim for past hospital and medical expenses was not pleaded can only be an
indication that the issue arose after the matter was certified by both judges, thus an
afterthought. As a matter of fact, it appears that the defendant’ s stance was based on
the majority judgment In Discovery Health which was delivered on 17 December 2024.
[27] However one may be tempted to adopt a sympathetic attitude to wards the
defendant in the sense that the defendant may have thought that the majori ty judgment
in Discovery Health changed the legal landscape on the application of the common law
principle of res inter alios acta , on any proper reading of the judgment that was not an
issue that the court had to decide . By proceeding with the contrived defence which
incidentally mirrors one of the internal directives issue d by the defendant , this resulted
in the plaintiff incurring additional expenses that could have been totally avoided and in
my view the plaintiff should not be out of pocket because of the avoidable conduct of the
defendant.
[28] It may well be that the defendant may one day bring a case which calls for proper
reconsideration of the application of the common law principle of res inter alios acta , but
the defendant was evidently not even prepared to properly advance that case in the
present matter. Having regard to all of the above, I am of the view that attorney client
costs are warranted for costs incurred post 27 January 2025.
[29] In the result I make the following order:
29.1. The Defendant shall, by agreement between the parties, pay to Plaintiff's
attorneys of record the sum of R 935 477.28 (Nine Hundred and Thirty -
Five Thousand Four Hundred and Seventy -Seven Rand and Twenty -Eight
Cents) in respect of the deceased’s past loss of earnings.
29.2. The Defendant shall pay the Plaintiff’s attorneys the further sum of R
115 436.14
(One Hundred and Fi fteen Thousand Four Hundred and Thirty -Six Rand
and Fourteen Cents) in respect of the deceased’s past hospital and
medical expenses.
29.3. The capital amounts referred to in paragraph 1 and 2 above shall be paid
to Plaintiff's attorneys of record by means of a n electronic transfer of
funds, which amount is to be paid within 180 (One Hundred and Eighty)
calendar days from date of this Order.
29.4. The Defendant shall pay Plaintiff’s taxed or agreed costs on the High
Court Scale to date hereof, including but not limit ed to, the costs as set out
hereunder, and which costs are to include :
29.5. The costs incurred by Plaintiff’s attorneys in instituting and prosecuting
this action, as well as all costs attendant upon the obtaining of payment of
the capital amount referred to a bove;
29.6. The taxed or agreed fees, expenses and allowances incurred in relation to
Plaintiff’s experts, including their preparation and qualifying fees and all
reasonable and necessary costs attached to the preparation and
procurement of their expert reports, as we ll as other related costs such as
X-rays, Form 4 (serious assessment), addendum reports, collateral
procurement, and consultations.
29.7. The taxed or agreed fees of Plaintiff’s Counsel, on scale B where
applicable, including but not limited to Counsel’s trial preparation,
including the preparation of written submissions, and his day fees in
respect of the hearing of the trial on 2 7 and 30 January 2025.
29.8. The Plaintiff’s experts are:
29.8.1. Dr Theo Le Roux (orthopaedic surgeon);
29.8.2. Dr Domingo (neurosurgeon);
29.8.3. Dr Ostrofsky (maxilla -facial and oral surgeon);
29.8.4. Dr Hunter (industrial psychologist);
29.8.5. Jean Beelders (earnings specialist);
29.8.6. Munro Forensic Actuaries (actuary).
29.9. The Plaintiff shall, in the event that costs are not agreed, serve the notice
of taxation on the Defe ndant.
30. The scale of the Plaintiff’s costs in the matter shall be on a party and party scale,
save that the costs incurred in relation to the hearing on 27 and 30 January 2025
respectively, which related exclusively to argument on the past hospital and
medi cal expenses, shall be paid on an attorney and client scale.
31. The payment of the legal costs shall be payable 180 (one hundred and eighty)
calendar days following settlement or the taxing master’s allocator, in the event of
taxing the bill of costs, which ever is applicable.
32. Payment of the amounts reflected in paragraphs 1, 2 and 3 above shall be effected
directly to Plaintiff’s attorneys of record by means of an electronic transfer into the
trust account mentioned below.
33. The Defendant shall be liable for i nterest on the capital sum at the prescribed rate
of interest from 14 (fourteen) days from date of this Order to date of final payment.
34. The Defendant shall be liable for interest on the legal costs, referred to in
paragraph 4, at the prescribed rate of int erest from 14 (fourteen) days following
settlement of the costs or the taxing master’s allocator, in the event of taxing the
bill of costs, whichever is applicable.
35. Plaintiff shall not proceed with a warrant of execution in respect of the capital and
costs prior to the expiry of the said 180 calendar days.
36. It is further recorded that Plaintiff has concluded a contingency fee agreement with
his attorneys and that Plaintiff and her attorney have complied with section 4(1)
and (2) of the Contingency Fees Act 6 6 of 1997, having filed the required affidavits
with the Court.
37. Plaintiff’s attorney's trust banking account details are as follows: -
NAME OF BANK:
BRANCH:
NAME OF ACCOUNT:
ACCOUNT NO.:
BRANCH CODE NO.:
__________________________
L.G. Nuku
Judge of the High Court
APPEARANCES
For applicant: Adv. Wayne Coughlan
Instructed by: Messrs Sohn & Wood Attorneys
For the defendant: Mr Craigh Hindley: State Attorney