SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 18326/2019
In the matter between
JOHN MOSS PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
Date of hearing: 12 March 2025
Date of judgment: 1 7 March 2025
BHOOPCHAND AJ:
1. The Plaintiff, a 77-year-old male, was involved in an accident on 28
September 2017. He lodged a claim against the Defendant, the statutory body
established under the Road Accident Fund Act, 56 of 1996 (‘the RAF Act ’), to pay
compensation for loss or damages wrongfully caused by driving motor vehicles. The
Plaintiff was cycling when he was struck by a car.
2. The Plaintiff sustained a vertebral artery dissection and cerebellar infarction ,
which manifested later, but was attributed to the accident.1 There was no diffuse or
focal brain injury in the immediate aftermath of the accident. Sequelae from the
vertebral artery dissection have settled. The Plaintiff has experienced mild post -
traumatic stress disorder. The Plaintiff also su stained fractures to his right outer
clavicle and right f ourth rib and abrasions to the thigh, knee, and ankle . The parties
agreed that the claim for general damages should be settled at R650 000. The
Defendant has agreed to provide the Plaintiff with a section 17(4)(a) undertaking to
cover future medical and related expenses. The Defendant’s attorney, however, did
not have instructions to settle the claim piecemeal.
3. The only outstanding head of damages that could not be resolved was that of
past medical expenses. The Plaintiff claimed R34 286.59. He paid R4 173.80 of this
amount directly to the service providers, and his medical aid settled the balance of
R30 112.79 . The Plaintiff provided the n ecessary vouchers to support these
expenses. Defendant belatedly indicated its intention to oppose at least a part of
Plaintiff’s claim under this head of damages. The Defendant allegedly issued a
notice of intention to amend its plea and indicated that i t would seek a postponement
of the matter at the hearing scheduled to commence on 12 March 2025. None of
those papers were filed or placed before the Court, not that the Court would have
allowed them at this late stage of the proceedings .
4. The Defendant has recently taken to challenging claims for past medical
expenses made by claimants who are members of medical schemes.2 The
Defendant issued a directive on 12 August 2022 instructing its employees to reject
1 The vertebral artery supplies blood to the brain and spinal cord. It runs along the posterior
aspect of the neck. The cerebellum is the part of the brain that controls balance, coordination,
and movement. A dissection of an artery occurs when an inner laye r tears and can occur in
trauma, among other causes. An infarction occurs when tissues suffer a lack of blood supply.
2 See e.g., Machi v Road Accident Fund (2020 -12687) [2025] ZAGPJHC 78 (3 February 2025),
Discovery Health (Pty) Limited v Road Accident Fund and Another (2022/016179) [2022]
ZAGPPHC 768 (26 October 2022), Discovery Health (Pty) Ltd v Road Accident Fund and
Another (2023/117206) [2024] ZAGPPHC 1303 (17 December 2024) , Van Tonder v Road
Accident Fund (1736/2020; 9773/2021) [2023] ZAWCHC 30 5 (1 December 2023) (‘Van tonder’)
past medical expenses presented by claimants whose medical aid schemes had
already paid for them. The basis for the directive was that this group of claimants
suffered no loss, and the Defendant was not statutorily obliged to refund them. The
Defendant issued a second directive on 13 Ap ril 2023 to exclude refunds for
prescribed minimum benefits and emergency medical conditions. The third directive
issued on 2 November 2023 sought to enforce the Defendant’s interpretation of
section 19(d)(i) of the RAF Act relating to third-party payments .
5. It suffices to say that these directives raise numerous issues of common and
statutory law, champertous transactions, subrogation, insurance and medical
schemes law. The Court has no intention to deal with them further, except to say that
the Defendant ’s attempt to introduce them in such a haphazard manner is not only
ill-conceived but also deserves deprecation . The defendant’s attorney denied that the
relatively small amount claimed for past medical expenses justified the costs -to-
compensation ratio in volved in this matter. The Defendant’s stance meant that the
77-year-old Plaintiff would have had to await settlement of his claim whilst the
Defendant exhausted litigat ion challenging past medical expenses already paid by
medical aid schemes. Defendant had not conceptualised a defence nor prepared to
raise these defences in this matter timeously.
6. The Defendant has drastically reduced its reliance on Counsel to defend its
cases , choosing to overburden a select number of attorneys employed in the offices
of the State Attorney to shoulder its litigation obligations in this division. Previously
disadvantaged Counsel who relied upon this source of work are no longer briefed,
and the goals of transformation of the profession suffer. Ill -prepared attorneys often
scurry between courts , appearing in more than one case per day. The Court is not
directing any criticism towards them , for they are overburdened with the Defendant’s
work. The Defendant has little consideration for the inconvenience this causes to the
Court and the prejudice its multipronged attack on settling claims has for claimants
who must endure further delays as they await finalisation of their matters.
7. The Defendan t opposed the admission of the Plaintiff’s affidavit submitted
under Rule 38(2) instead of the Plaintiff testifying. No cogent reason was provided
for the opposition to the ad mission of Plaintiff’s affidavit, especially on whether
Defendant intended to cro ss-examine Plaintiff on its content . As Plaintiff was present,
the Court heard his testimony on the narrow issue of past medical expenses. He
confirmed the value of the vouchers contained in the bundle of documents and that
they concerned e xpenses directly related to his accident injuries and their sequelae .
The futility of Defendant’s stance was that Plaintiff was not cross -examined at all .
The Defendant was less prepared to raise any defence against the claim for past
medical expenses than it was in the Van Tonder matter heard in this division.3
8. The Court has no reason to deny any part of the Plaintiff’s claim for past
medical expenses . Costs are within the Court’s prerogative and shall be reflected in
the following order . There is no reason for awarding an adverse costs order in this
matter as it proceeded to a hearing as scheduled , and the Applicant did not have to
deal with the belat ed defence to his claim. The Court has not endorsed all aspects of
the draft order submitted by the Plaintiff.
ORDER
1. The Defendant shall p ay to the Plaintiff’s attorneys the sum of R684 286.59 ( six
hundred and eighty -four thousand two hundred and eighty six rand and fifty
nine cents only ) (“the capital”), by way of an electronic transfer into the
attorneys Trust Account, within 180 days of this order , the details whereof are
set out below.
2. Interest on the capital shall operate from fourteen days of this order to the
payment date . The Plaintiff shall not issue a writ of execution against the
Defendant before the expiry of 180 days of this order. The Plaintiff shall be
entitled to the costs attendant upon obtaining payment of the capital.
3. Defendant shall p rovide an undertaking in terms of Section 17(4)(a) of the Road
Accident Fund Act 56 of 1996 (“the undertaking”), to compensate the Plaintiff
for 100% of the c osts relating to the future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or rendering of a service or supplying
3 Van Tonder supra
of goods to the Plaintiff after the costs have been incurred and on proof thereof
and arising from the motor vehicle collision which occurred on 28 S eptember
2017 .
4. The Defendant shall pay the Plaintiff’s party and party costs . The Defendant
shall pay Counsel’s taxed or agreed fees on Scale B.
5. The Defendant shall pay the costs of the Plaintiff -appointed expert witnesses
reflected below within 180 days of being taxed or agreed upon. The costs shall
include the expert’s qualifying expenses, reservation fees and all costs
attached to the procurement of medico -legal reports, including addendum
reports where relevant, as well as x -rays and an y other related costs. The latter
costs shall also include attendance at Plaintiff’s and Defendant’s medico -legal
examinations .
5.1 The experts are:
5.1.1 Dr Rael Jaffe (Orthopaedic Surgeon);
5.1.2 Dr P Mukheiber (Kingsbury Radiology);
5.1.3 Dr Zayne Domingo (Neurosurgeon);
5.1.4 Dr Rosa Bredenkamp (Counselling Psychologist).
6. If costs are not agreed upon, Plaintiff shall serve the Notice of Taxation on
Defendant’s attorney of record.
7. It is recorded that there is a valid Contingency Fees Agreement in place
herein bet ween the Plaintiff and DSC Attorneys, and there has been full
compliance with all relevant provisions of the Contingency Fees Act 66 of
1997.
8. The Plaintiff’s attorneys’ trust banking account details are as follows:
Name of account holder: DSC Attorneys
Name of Bank: First National Bank
Branch: Greenpoint
Account number: 6[…]
Branch code 210651
________________________
Bhoopchand AJ
Judgment was handed down and delivered to the parties by e -mail on 17
March 2025
Plaintiff’s Counsel: I Ferreira
Instructed by : DSC Attorneys
Defendant’s Attorney: G Cerfontyne
Instructed by the State Attorney