IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 8418 /2020
In the matter between:
ABDULLAH JAFFER Applicant
and
ROAD ACCIDENT FUND Respondent
Case No.: 4092 /2021
In the matter between:
IAN HENRY RUDMAN Applicant
and
ROAD ACCIDENT FUND Respondent
________________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 20 MARCH 2025
_______________________________________ _________________________________
MANGCU -LOCKWOOD, J
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A. INTRODUCTION
[1] These two matters were heard together although they are not consolidated . Both matters
are claims against the Road Accident Fund (RAF) based on road accident s in respect of which it
is claimed that, but for the provisions of the Road Accident Fund Act 56 of 1996 (“the RAF Act” ),
the drivers would have been liable for damages incurred by the plaintiffs.
[2] In both matters, the plaintiffs’ claims were for damages under the following headings: (a)
past hospital and medical expenses; (b) f uture medical expenses; (c) p ast and future loss of
earnings / earning capacity; and (d) g eneral damages. By the time the matter s were heard, all that
remained for determination is the claim in respect of past medical expenses, the rest having been
settled between the parties.
B. Jaffer /RAF
[3] In the case of Abdullah Jaffer ( “Jaffer ”), a collision occurred on 2 February 2019 when an
unknown driver of a motor vehicle collided with him (Jaffer) whilst he was cycling. In paragraph
8 of the particulars of claim it is claimed that he suffered past hospital and medical expenses , in an
amount reflected in a schedule attached to the particulars , which was to be amend ed should further
vouchers become av ailable. The plaintiff did indeed update the schedule, and by the time of the
hearing the expenses claimed amounted to R786 620 .71.
[4] The defendant ’s plea to paragraph 8 of the particulars of claim was set out as follows:
7.1 The Defendant bears no knowledge of the allegations contained herein does not
admit same and the plaintiff is put to the proof thereof.
7.2 Defendant reserves the right to lead evidence in rebuttal of any of these allegations.
7.3 Defendant specifically pleads that Plaintiff i s not at this stage entitled to non -
pecuniary loss (general damages) in that defendant has not had an opportunity to
correctly assess his claim under this head of damage and is accordingly not able to
admit or reject it is a ‘serious injury’ claim as conte mplated by the Act.
7.4 Defendant has a reasonable time to invoke the provisions of Regulation 3(3)(d)(ii)
to the Act and in the premises defendant requires that Plaintiff submit himself, at
the cost of Defendant to a further assessment to ascertain wheth er Plaintiff’s
injuries are serious to be determined in terms of the method set out in the
Regulations by a medical practitioner designated by the Defendant.
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7.5 Defendant contends that this matter cannot proceed until Plaintiff has submitted
himself to the further assessment as referred to herein, and as such that his matter
be stayed pending the further assessment.
[5] A few days before the trial the plea was amended , unopposed, to add paragraphs 7. 6 to 7. 8
as follows:
“7.6 The defendant further pleads if the past medical and hospital expenses were paid
by a medical aid the defendant will not be liable to compensate the plaintiff as the
plaintiff suffered no loss by the indemnification of the medical aid.
7.7 The medical scheme is obliged to pay for the emergency medical care that was
provided by a supplier, as it is a prescribed minimum benefit as envisaged in
section 29 of the Medical Schemes Act and cannot be claimed back from the
defendant.
7.8 The defendant further pleads that section 19( d)(i) o f the Act applies in respect of
claims paid by a medical aid, as a medical aid is not a supplier .”
[6] Mr Jaffer was the only wit ness called in his case. He confirmed that he was born on 26
April 1979 , and that he was involved in an accident on 2 February 2 019 when a motor vehicle
collided with him whilst he was cycling . He confirmed the injuries which are set out in his
particulars of claim, the period of his hospitalization, as well as the surgery and treatment he
received. On 6 June 2019 he lodged a claim with the RAF . His summons was issued on 10 July
2020, and the plea was received on 1 February 2021. He confirmed all the injuries he suffered as
a result of the collision, namely :
6.1 Degloving injury to right ear, nose and scalp;
6.2 Left proximal humerus fracture;
6.3 Right fibula fracture;
6.4 Laceration on right upper arm;
6.5 Right radial nerve injury resulting in wrist drop and decreased function of
right hand;
6.6 Cardia contusion;
6.7 Soft tissue injury to left leg;
6.8 Head injury .
[7] He confirmed all the amounts , descriptions and dates reflected in the updated schedule of
past hospital and medical expenses and vouchers, and that the medical personnel reflected in the
schedule did indeed attend to him and issue invoices in the amounts refl ected in the schedule . The
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total amount of all those invoices is R786 620.71 , and a ll the accounts relate to the same collision.
None of his evidence was disputed. Mr Jaffer confirmed that he belongs to the medical aid ,
Bonnitas, and that they covered most of the expenses , save for an insignificant amount. In cross
examination he testified that he was not aware that the RAF does not pay in circumstances where
a medical aid has covered the losses.
C. Rudman/ RAF
[8] Mr Rudman similarly gave the only evidence in his case. He confirmed that he was born
on 4 August 1961, and that the accident in his case occurred on 1 January 2018. He confirmed the
injuries which are set out in his particulars of claim, as well as the period of his hospitalisation and
surgery which was conducted upon him. He confirmed that an RAF claim was lodged on his
behalf on 21 October 2020, and summons was issued on 9 March 2021. The RAF delivered a plea
on 11 April 2022.
[9] An updated schedule was similarly submitted on his behalf, which set out his medical
expenses, and he confirmed the amounts supported by the vouchers included in the bundle. He
also confirmed treatment by the various medical personnel whose names are mentioned in the
schedul e, as well as treatment by them on the dates mentioned in the schedule. He confirmed that
all the amounts reflected in the updated schedule, sa ve for three amounts totaling approximately
R2000.00, were covered by his medical aid, Discovery Aid. In total, the expenses reflected in the
updated schedule amounted to R107 158.87. None of his evidence was disputed.
[10] As regard s the heading of medical expenses, the damages in Rudman’s case were set out
in similar terms as those in Jaffer , save for differing amounts . Likewise, the RAF’s plea was
initially in the same terms as the plea in Jaffer, and it was later amend ed by inserting three
paragraphs in similar terms as the amendment in Jaffer. Accordingly, the RAF’s defence in both
cases is identical.
D. ARGU MENT
[11] The argument between the parties resolved itself into the issues introduced by the
amendment s to the plea s, the main one being whether t he RAF is liable to compensate the plaintiffs
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in light of the fact that the ir medical and hospital expenses were , in the main, already paid by their
medical aid scheme s. Secondly, whether the medical schemes are obliged to pay for the emergency
medical care that was provided by a supplier, as it is a prescribed minimum benefit as envisaged
in section 29 of the Medical Schemes Act and cannot be claimed back from the defendant. Thirdly,
that section 19(d)(i) of the Act applies in respect of claims paid by a medical aid, as a medical aid
is not a supplier.
[12] The RAF relies exclusively on the recent majority decision of the Pretoria full bench in
Discovery Health (Pty) Ltd v Road Accident Fund and another (“Discovery Health 2”) .1 In that
case, Discovery Health had brought an application, for firstly, a declarator that the RAF was in
breach of a court order handed down in October 2022 by Mbongwe J of the Pretoria High Court
Division in Discovery Health (Pty) Ltd v Road Accident Fund and Another (“Discovery Health
1”) 2. The Mbongwe J order had declared unlawful an RAF directive, issued in August 2022, in
which the RAF instructed its employees not to make any payments to claimants if their medical
scheme has already paid for their medical expenses arising from a road accident. Discover y Health
also sought a declarator that the RAF’s reliance on two further directives it issued subsequent to
Mbongwe J’s order perpetuated its breach of that order. The majority held that there was no breach
of Mbongwe J’s order.
[13] The court in Discovery Health 2 , however, made a few pronouncements on which the RAF
now relies in this case for its amended plea. How ever one may construe that judgment, its one
significant feature is a detailed discussion of what were termed ‘ the second and third directives ’,
which were apparently issued by the RAF on 13 April 2023 and 2 November 2023 , respectively.
On a reading of the majority judgment, those directives provided the impetus for its conclusions
on the issues now relied upon by the RAF in these proceedings. It was in the context of deciding
whether or not the second and third directives fell foul of the Mbongwe J order that the remarks
were made. Neither of those directive s are before me. Neither was pleaded or produced in
evidence. In fact, upon my inquiry, I was informed that the RAF refused to make the m available
1 Discovery Health (Pty) Ltd v Road Accident Fund & another (2023/117206) [2024] ZAGPHC 1303 (17 December
2024). (“Discovery Health 2”)
2 Discovery Health (Pty) Ltd v Road Accident Fund and Another [2022] ZAGPPHC 768; 2023 (2) SA
212 (“Discovery Health 1” ).
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to the Court, on account of their confidentiality. There is accordingly no basis in this judgment to
apply those directives or to rely on them .
[14] As for the first directive which was the subject of Discovery Health 1 , it too find s no
application in these proceedings. It was not disputed before me that its application was with effect
from 2 August 2022 to 28 November 2022.3 The two present matters pre -date that timeframe
because the accident in the case of Rudman occurred on 1 January 2018 and his RAF claim was
lodged on 21 October 2020, whilst in the case of Jaffer the accident was on 2 February 2019 and
his RAF claim w as lodged on 6 June 2019. The result is that the RAF cannot rely on any of the
directives discussed in Discovery Health 1 and Discovery Health 2.
[15] Furthe rmore, Discovery Health 2 did not overturn the findings in Discovery Health 1 . In
fact, both the SCA and the Constitutional Court4 refused to grant the RAF leave to appeal against
the order and judgment in Discovery Health 1 , and a result, its conclusions are final and res
judicata. Discovery Health 2 itself is the subject of an appeal to the Supreme Court of Appeal,
although it is not clear when the determination will take place.
[16] Some of the key findings in Discovery Health 15 were the following : (a) that section 17 of
the RAF Act imposes an obligation on the RAF to compensate victims of motor vehicle accidents
where bodily injuries have been sustained or death has occurred as a result of the negligent driving
of a motor vehicle; (b) that a claim for compensation against the RAF is a delictual claim and is
therefore subject to the general rules concerning the quantification of damages for perso nal injury;
(c) that the compensation to which a claimant is entitled is the difference between their patrimonial
situation before and after the delict has been committed; (d) that the benefits received by a claimant
from a private insurance policy are not considered for the purposes of determining the quantum of
a claimant's damages against the RAF. This is because a benefit that accrues or is received from
a private insurance policy originates from a contract between the insured claimant and the insurer
for the explicit benefit of the claimant. The receipt of such a benefit by the claimant does not
exonerate the RAF from the liability to discharge its obligation in terms of the RAF Act; (e) that
3 See Discovery Health 2 , footnote [97].
4 On 31 March 2023 the SCA refused leave to appeal on the grounds that there were no prospects of success, and the
Constitutional Court’s refusal of leave to appeal was on 18 October 2023.
5 See para [109] of Discovery Health 2 and the footnotes mentioned therein.
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the RAF Act excludes or limits the RAF's liability in certain instances. It does not, however,
provide for the exclusion from its liability where benefits for the same injuries have been received
by victims of motor vehicle accidents from a private medical scheme for payment of past medical
expenses arising from those injuries; (f) that medical aid scheme benefits which a claimant has
received, or will receive, are not deductible from their claim against the RAF for past and future
hospital and medical expenses; and ( g) that the RAF is not entitled to seek to free itself from its
obligation to pay full compensation to victims of motor vehicle accidents under section 17 of the
RAF Act.
[17] These findings in Discovery Health 1 were premised, not only on section 17 of the RAF,
but on the common law , as is evident from the judgment ’s application of Erasmus Ferreira &
Ackermann v Francis6, Zysset and Others v Santam Ltd7, Ntlhabyane v Black Panther Trucking
(Pty) Limited and Another8; D’Ambrosini v Bane9 and Rayi NO v Road Accident Fund10.
[18] Barely a week before this trial resumed, th e same issues that are raised in these proceedings
were raised before Nuku J of this Division, in the matter of Esack N.O. v R oad Accident Fund11.
There, the RAF similarly introduced amendments to its plea which are in similar terms to those
introduced in th ese proceeding s, placing substantial reliance on Discovery Health 2 . And similar
to the present matters , the RAF argued that the plaintiff had suffered no loss in respect of past
hospital and medical expenses because he was compensated by his medical aid which was
statutorily obliged to do so. Rejecting th ese argument s, the court had regard to the development
of the common law principle of res inter alios acta12 which is fully developed in our law, in terms
6 Erasmus Ferreira & Ackermann v Francis 2010 (2) SA 228 (SCA). See para [20] of Discovery Health 1 .
7 Zysset and Others v Santam Ltd 1996 (1) SA 273 (C). See paras [21] and [26] of Discovery Health 1.
8 Ntlhabyane v Black Panther Trucking (Pty) Limited and Another 2010 JDR 1011 (GSJ) See para [2 2] of Discovery
Health 1 .
9 D’Ambrosini v Bane 2006 (5] SA 121 (C). See para See para [27] of Discovery Health 1 .
10 Rayi NO v Road Accident Fund (9343/2000) [2010] ZAWCHC 30 (22 February 2010). See para [28] of Discovery
Health 1 .
11 Esack N.O v Road Accident Fund (12926/2017) [2025] ZAWCHC 27 (4 February 2025) .
12 Literally meaning ‘ a matter between others is not our concern’ .
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of which a claimant's right to compensation arising from the RAF Act may not be diminished by
third -party payments, in this instance a medical aid .
[19] The court in Esack, declined to follow the majority Discovery Health 2 decision for several
reasons , one of which was that it did not follow the stare decisis principle by following decisions
of the Supreme Court of Appeal and the Constitutional Court . Notable amongst those was the
Supreme Court of Appeal decision of Bane v D ’Ambrosi13, which had concluded that the Medical
Schemes Act did not have the effect of depriving plaintiffs of their claims for hospital and medical
expenses in d elictual actions . And t o the extent that the Discovery Health 2 decision went against
that authority , it gave no reason therefor . But in any event, as the judgment in Esack indicates14
the case in Discovery Health 2 was not required to, and in fact did not , decide the issue of
deductibility of payment s made by a medical aid scheme from compensation to be paid to road
accident victims. It is therefore clear , based on the very re cent authority from this Division, that
the defen ces raised by the RAF , which w ere introduced by way of the amendment s, cannot avail
it.
[20] Moreover, t here is considerable authority emanating from this Division on the lawfulness
of RAF directives which purport to reject medical expense claims in respect of which medical aid
schemes had already paid. Two such judgment s are Van Tonder v Road Accident Fund15 and
Gunther v Road Accident Fund16. In both cases , the RAF re lied on the first directive already
adverted to earlier . The court in Van Tonder traced the case law regarding th e RAF’s reject ion of
medical expense claims in respect of which medical aid schemes had already paid , and concluded
that the case authorities went against the position adopted by the RAF in th e directive. And, despite
applications for leave to appeal al l the way to the Consti tutional Court, the RAF was unsuccessful.
It is worth noting that in Van Tonder the same arguments raised in Esack and now before me were
raised17, and the court deprecated the attitude of the RAF in the litigation given that the
13 Bane v D’Ambrosi 2010 (2) SA 539 SCA.
14 At para 17.
15 Van Tonder v Road Accident Fund (1736/2020; 9773/2021) [2023] ZAW CHC 305 (1 December 2023) Cloete J.
16 Gunther v Road Accident Fund (24228/16) [2024] ZAWCHC 153 (6 June 2024) Pangarker AJ .
17 See paragraphs 6 onwards.
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Constitutional Court had refused its application for leave to appeal by 18 October 2023 and that
there was ample authority against the position adopted in the first directive .
[21] The same arguments were raised in Gunther , and the court similarly dismissed the RAF’s
defence which also relied on the Discovery Health 2 majority decision as well as Regulations 7
and 8 of the Medical Schemes Act read with section 19(d)(i) of the RAF Act , which are the bases
of the plea amendments in the present cases. That case too set out a ver y comprehensive study of
the case law , including Van Tonder , which went against the RAF’s position adopted in the first
directive .
[22] There is accordingly no doubt that the arguments raised by the RAF in the present matters
go against long -established authorities , and that they must accordingly fail. As for the RAF’s
reliance on the Discovery Health 2 majority judgment , as indicated earlier, not only does that
judgment go against these established authorities, but this Division has declined to follow it . I
consider myself bound by these authorities.
[23] The claims for medical expenses in both matters have otherwise been proved by the
plaintiffs , and they must accordingly succeed.
[24] There is also no reason why costs should not follow the result. I accordingly grant orders
in the terms of the draft orders handed up on behalf of the plaintiffs , the conten ts of which are set
out below.
E. JAFFER ORDER
[25] In the result, the following order is granted :
CAPITAL (PAST MEDICA L EXPENSES):
1. Pay to the Plaintiff’s attorneys the sum of R786 620,71 (Seven Hundred & Eighty -
Six Thousand Six Hundred & Twenty Rand & Seventy -One Cents) (“the
capital”) by way of an electronic transfer into the Trust account, details of which
are set out in paragraph 8 hereunder.
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2. The Defendant shall be liable for interest on the above capital amount from 14
(fourteen) days from the date of this Order being granted until date of final payment
at the relevant prescribed rate of interest applicable.
COSTS:
3. The Defendant shall pay the Plaintiff’s taxed or agreed costs on High Court
Attorney -Client scale.
4. Any taxed or agreed costs incurred on the obtaining of payment of the amount and
costs referred to in paragraphs 1, 2 and 3 above.
PAYMENT PROVISIONS:
5. Payment of the taxed or agreed costs reflected above shall be paid within 180 (One
Hundred and Eighty) days from date of settlement of the costs.
6. The Defendant shall be liable for interest on the taxed or agreed costs from 14
(fourteen) days of the date o f allocatur until date of final payment at the relevant
prescribed rate of interest applicable.
TAXATION OF COSTS:
7. The parties agree that the Plaintiff will be entitled to have the costs provided for in
this Order taxed by the Taxing Master of the High C ourt. Plaintiff shall, in the event
that costs are not agreed, serve a Notice of Taxation on the Defendant’s
representative.
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F. RUDMAN ORDER
CAPITAL (PAST MEDICA L EXPENSES):
1. Pay to the Plaintiff’s attorneys the sum of R107 158,87 (One Hundred & Seven
Thousand One Hundred & Fifty -Eight Rand & Eighty -Seven Cents) (“the
capital”) by way of an electronic transfer into the Trust account, details of which
are set out in paragraph 8 hereunder.
2. The Defendant shall be liable for interest on the above capital amount from 14
(fourteen) days from the date of this Order being granted until date of final payment
at the relevant prescribed rate of interest applicable.
I. COSTS:
3. The Defendant shall pay the Plaintiff’s taxed or agreed costs on High Court
Attorney -Client scale.
4. Any taxed or agreed costs incurred on the obtaining of payment of the amount and
costs referred to in paragraphs 1, 2 and 3 above.
i. PAYMENT PROVISIONS:
5. Payment of the taxed or agreed costs reflected above shall be paid within 180 (One
Hundred and Eighty) days from date of settlement of the costs.
6. The Defendant shall be liable for interest on the taxed or agreed costs from 14
(fourteen) days of the date of allocatur until date of final payment at the releva nt
prescribed rate of interest applicable.
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i. TAXATION OF COSTS:
7. The parties agree that the Plaintiff will be entitled to have the costs provided for in
this Order taxed by the Taxing Master of the High Court. Plaintiff shall, in the
event that costs are not agreed, serve a Notice of Taxation on the Defendant’s
represen tative.
_____________________________
N. MANGCU -LOCKWOOD
Judge of the High Court
APPEARANCES
For the applicants : Adv P Eia
Instructed by : A Batchelor & Associates Incorporated
A Batchelor
For the respondent : State’s Attorney Office
RAF Attorney
C Thomas