IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION , GQEBERHA )
Case No: 2533 /2019
Reportable
Yes / No
In the matter between:
DESIRE VAN SENSIE PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
TILANA -MABECE AJ
[1] The plaintiff instituted an action for damages against the defendant for
damages suffered in a motor vehicle collision that occurred on 18 January 2016 in
Uitenhage, Eastern Cape . At the commencement of the proceedings, the parties
advised the court that most of the heads of damages have been finalised save for
the claim in respect of past hospital and medical expenses.
I _I
[2] The matter came before me as a stated case in terms of Rule 33 (1) of the
Uniform Rules. Below I set out the stated case as placed before me:
‘The following facts are common cause
2.1 P laintiff was involved in a motor vehicle accident on 18 January 2016 at
the corner of Union Avenue and Van der Stel Avenue, Uitenhage, Eastern
Cape.
2.2 On 4 November 2022 an order was granted by the above Honourable
court that , inter alia, d efendant is liable to pay to Plaintiff 100% of her
damages arising f rom the bodily injuries which she sustained in the mo tor
vehicle accident which occurred on 18 January 2016.
2.3 Defendant admits that as a result of the collision Plaintiff sustained severe
bodily injuries, inter alia:
2.3.1 A neck shoulder and back inj ury
2.3.2 A head injury
2.3.3 Various bruises and abrasions of the head
2.4 As a result of her injuries, Plaintiff:
2.4.1 She immediately lost consciousness after the impact .
2.4.2 Plaintiff received treatment at the scene of the collision by
ambulance staff and was transported from the scene of the collision by
ambulance to Cuyler Hospital in Uitenhage where she was stabilized
and referred for x -ray and received a drip and medication and was
admitted as an in -inpatient. (sic)
2.4.3 Plaintiff was initially seen by a general practitioner and later
transferred to an Orthopaedic Surgeon for further care and treatment.
2.4.4 As an in -patient, Plaintiff received various medication in the form
of analgesics and anti -inflammatories and was contentiou sly referred
for x-rays and CT scans
2.4.5 A neck brace was placed on Plaintiff’s neck to stabilize it.
2.4.6 Plaintiff received physiotherapy and on -going in -patient treatment
until her discharge on 25 January 2017.
2.4.7 Plaintiff received medical tre atment by various medical providers.
(The aforesaid medical treatment received by Plaintiff as a
consequence o f the injuries she sustained in the collision are
hereinafter collectively referred to as “the medical treatment”).
2.5 In terms of the Disc overy Rules:
2.5.1 Discovery Health was obliged to pay the hospital and medical
expenses in respect of the medical treatment which Plaintiff received
as a consequence of the injuries that she sustained in the motor
vehicle collision on 18 January 2016.
2.5.2 By virtue of Plaintiff’s membership of the Discovery Health, she is
bound by the Discovery Health Rules.
2.5.3 Plaintiff was obliged to lodge a claim with the Defendant.
2.5.4 Plaintiff is obliged to reimburse the Discovery Health, any
amounts recovered from Defendant which were paid by the Discovery
Health
2.6 Plaintiff received medical treatment and incurred medical expenses (“the
medical expenses arising from the injuries sustained in the collision on 18
January 2016.
2.7 A schedule of the medical expenses claimed in the sum of R37 792.83
(showing the service providers, the account numbers, the dates that the
services were provided, the amounts clamed and the amounts paid by Plaintiff
and Discovery Health) is attached hereto and marked “A”.
2.8 Plaintiff, 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 5636890.
2.9 Discovery paid the costs incurred in res pect of the medical expenses in
the sum of R34 534.27 to the relevant service providers.
2.10 Discovery paid the aforestated medical expenses pursuant to Plaintiff’s
membership of Discovery and by virtue of the contractual arrangement
between itself and P laintiff as well as owing to its stat utory obligation in terms
of the Medical Schemes Act No. 131 of 19198 and the Regu lations thereto,
and as further set out in Plaintiff’s Medical Benefit Plan and in accordance
with the Rules of the Discovery health Medi cal Scheme registered under the
Medical Schemes Act No.131 of 7998,which were registered with the
Registrar of Medical Societies on 19 November 2010 (“the Scheme Rules”)
2.11 Defendant admits that past medical and hospital expenses in the sum of
R34 534.2 7 were paid in respect of Plaintiff’ s medical treatment by Dis covery
to service providers.
2.12 Defendant admits that past medical and hospital expenses in the sum of
R3 258.56 were paid over by Plaintiff personally to service providers.
2.13 Defendant a dmits that the medical treatment paid by Plaintiff personally
and by Discovery to service providers was reasonable and necessarily
incurred in respect of plaintiff’s injuries.
2.14 Defendant admits being liable to pay to Plaintiff the sum of R3 258.56 in
respect of Plaintiff’s claim for past hospital and medical expenses which were
paid by Plaintiff personally to service providers.
SUBMISSIONS
3. Plaintiff contends that by virtue of the provisions of Section 17 of the Road
Accident Fund Act,56 of 1996 a s amended:
3.1 Defendant is liable to compensate all victims of motor vehicle accide nts
when injuries have been sustained as a result of the negligent driving of a
motor vehicle, that this includes past hospital and medical expenses.
3.2 Plaintiff contends that the benefits that she received from her private
medical aid scheme, Discovery, in respect of her past medical and hospital
expenses do not exclude Defendant’s liability to compensate a third party in
terms of the Road Accident Fund Act.
3.3 Defendant contends that the Discovery Health Scheme was obliged in
terms of Regulation 8 of the Medical Schemes Act, 131 of 1998 to render full
payment, without deductible in respect of all prescribed minimum benefits and
all emergency medical se rvices as defined in Regulation 7 of the Medical
Schemes Act.
3.4 As a consequence of the Discovery Health Scheme having made payment
of Plaintiff’s past hospital and medical expenses in terms of its statutory
obligation, defendant is not in law liable to compensate Plaintiff for such
relevant portion of the claim as were paid by the Discovery Health Scheme.
4. Defendant as a consequence of what is set out in paragraph 3 above
denies being liable to Plaintiff in the sum of R34 534.27 in respect of Plainti ff’s
claim for past hospital and medical expenses paid by the Discovery Health
Scheme to service providers .
DECISION REQUIRED
5. The Honourable court is accordingly requested to decide whether
Defendant is liable to pay to Plaintiff the admitted amount o f R34 534.27 for
past medical and hospital expenses paid by Discovery Health.
6. The parties have agreed to the appropriate costs order on the facts of this
matter to be on the scale as between party and party, with counsel’s costs
being allowed on Scale C in terms of Rule 69(7) of the Uniform Rules. ’
[3] During argument , Counsel for the Plaintiff submitted that the decisions in this
division with regards to the claim for past hospital and medical exp enses have
always favoured the plaintiff and that there is no reason for the court to deviate from
that. He referred to a number of cases and also provided copies of judgment s mostly
from this division , for which I am grateful. No further material submissions were
made other than the breakdown of the proposed order sought by the plaintiff.
[4] The defendant, r elying on the latest judgment in Discovery Health (Pty) Ltd vs
Road Accident Fund and another1, denies being liable to the plaintiff for the payment
of R34 534.27 f or plaintiff’s past hospital and medical expenses. According to t he
defendant Discovery Health Scheme was obliged in terms of Regulation 8 of the
Medical Schemes Act 131 of 1988 to render full payment, without co -payment and
without deductibles in respect of all prescribed minimum benefits and all emergency
medical services as defined in Regulation 7 of the Medical Schemes Act.
Consequently, Discovery, having paid the Plaintiff’s past hospital and medical
expenses in compliance with its statutory obligation , defendant is not liable to
compensate the plaintiff for the part already paid by the medical aid.
[5] I am required to determine whether the Defendant is liable to pay the plaintiff
the admitted amount of R34 534.27 for past medical and hospital expenses already
paid by Discovery to the service providers based on the stated case and without
hearing oral evidence.
1 (2023/117206) [2024] ZAGPHC1303 (17 December 2024) .
[6] It is general ly accepted that rule 33 of the Uniform Rules of Court seeks to
facilitate the expeditious disposal of litigation . Regrettably, it has been noted the
application of the rule often produce s the opposite results. Notably, subrule 33(1)
provides that the parties to the dispute may agree upon a written statement of facts
in the form of a special case for adjudication. In such circumstances the court is
obliged to adjudicate the special case presented to it.
[7] The rule provides as follows:
‘(1) The parties to any dispute may, after institution of proceedings, agree
upon a written statement of facts in the form of a special case for the
adjudication of the court.
(2)(a) Such statement shall set forth the facts agreed upon, the questions of
law in dispute between the parties and their contentions thereon. Such
statement shall be divided into consecutively numbered paragraphs and there
shall be annexed thereto copies of documents necessary to enable the court
to decide upon such questions. It s hall be signed by an advocate and an
attorney on behalf of each party, or where a party sues or defends personally,
by such party.
(b) …………………………………………………………………………………..
(c) ………………………………………………………………………………..… ’
[8] The general principle governing the c onduct of a stated case in civil
proceedings is that the parties are limited to the four corners of the stated case and
without regard to the pleadings or oral evidence. The parties may not raise issues
not agreed upon in the stated case and introduce new argument outside their stated
case2. Likewise , the court is also confined to what is set out in the stated case.
2 Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd [2015] ZACC 34; 2016 (1) SA
621 (CC) .
[9] The p erusal of the stated case as presented indicates that the document was
not signed by both an advocate and an attorney on behalf of each party as stipulated
in the rules . Instead, it was signed by the parties’ attorneys only , Boqwana Burns Inc
as plaintiff’s attorneys of record and the State Attorney on behalf of the defendant.
This is contr ary to what Rule 33(2) (a) provides. Clearly the document presented as a
stated case falls short of what the rule provide s. The rule couched in peremptory
terms and the failure to have the stated case signed by an advocate breached a
peremptory provision . Notwithstanding, in the interest of justice, and in view of what I
regard as substantial com pliance in absence of prejudice I am compelled to exercise
my discretion and condone the non -compliance.
[10] My approach is buttressed by the princip les articulated by the court in
Ncoweni v B ezuidenhout3 where the court held:
‘The rules of procedure of this Court are devised for the purpose of
administering justice and not of hampering it, and where the rules are
deficient I shall go as far as I can in granting orders which would help to
further the administration of justice. ’
The court went on to say:
‘[I]t is desirable to repeat what is of general application, namely, that the Court
does not exist for the Rul es but the Rules for the Court. ’
[11] In Trans -African Insurance Co Ltd v Maluleka ,4 in upholding the dismissal of
an application to cancel an admittedly defective summons, the court held:
‘But on the other hand technical objections to less than perfect procedural
steps should not be permitted, in the absence of prejudice, to interfere with
the expeditious and, if possible, inexpensive decision of cases on their real
merits. ’
3 1927 CPD 130 at 130.
4 Trans -African Insurance Co Ltd v Maluleka 1956 (2) ALL SA 382 A .
[12] The above stated dicta emerged from general principles of our common law
applied prior to the coming into effect of the Constitution. In my view, t hey accord
with the principles of the Constitution and supports the constitutional right to have
disputes adjudicated in a fair public hearing.5 It is generally accepted that o verly
technical approaches to hinder the courts deciding of genuine disputes between
parties are to be strongly discouraged. In my view, the present matter clearly falls
within the ambit of a peremptory requireme nt whose breach can be condoned.
[13] It is trite that a claim for patrimonial loss for bodily injury is compensatory in
nature and does not embody a punitive element .6 In principle a plaintiff is not entitled
to receive double compensation, and the wrongdoer ought not to be relieved of
liability by reason of some gratuitous event. Accordingly, a plaintiff is only entitled to
compensation to the extent of the reduction of his patrimony caused by the wrongful
and negligent act of the wrongdoer.
[14] The above stated principle was articulated i n Zysset and Others v Santam
Ltd7 was articulated 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, t he liabili ty 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 been committed . ... Similarly, and notwithstanding the prob lem
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 hi s 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 red uced should result in a
5 Section 34 of the Constitution.
6 Union Government v Warneke 1911 AD 657 at 662 and 665 -667.
7 1996 (1) SA 273 (C) at 277 .
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.
[15] This has been the attitude adopted by our courts and in particular this division,
in dealing with a claim for past hospital and medical expenses . In this case the
defendant admits the past hospital and medical expenses paid by the medical aid in
respect of the plaintiff’s medical treatment b ut denies liability to reimburse plaintiff for
same. The plaintiff placed its reliance on Section 17 of the Road Accident Fund Act
and the previous judgments of this division supported by various judgments of the
SCA.
[16] In this division there is a lengthy list of decisions on this issue against the RAF
where the court found in favour of the plaintiff and ordered the defendant to pay to
the plaintiff the medical costs based on the principle of subrogation and res inter
alios acta . I have been provided with copies of judgments but for the present
purposes reference will be made to a few. One of the cases is the unreported
judgment in Noxolo Lynette Malgas v The Road Accident Fund8 where van Zyl DJP
made the followi ng remarks :
‘The question raised by the plea is whether the payment of the plaintiff’s
medical expenses by the medical aid relieve the Fund from paying
compensation to the plaintiff in respect of her past medical expenses. There
exists no reason to make any distinction between an ordinary insurance
contract and the contract which existed between a medical scheme and its
members. A medical aid is in essence simply another form of insurance . In
D’Ambrosi v Bane (2006 (5) SA 121 (C) and others the court rejected the
argument that payments received from a medical aid scheme should be
treated as a benefit that must be deducted from the plaintiff’s claim f or
compensation for future medic al expenses. It found that a medical aid
scheme, like the one the plaintiff in that case was a member of, was in
substance a form of insurance. The court quoted with approval the following
8 (126/2020) [2022] ZAECQBHC 50 (1 December 2022) .
passage in Thomson v Thomson (2002 (5) SA 541 W) : A medical aid scheme
is, if not in law then in substance a form of insuran ce. One pays a premium
against which there may be no claim or claims less than the value of the
premiums, or claims which far excee d the value of premiums. Were this a
claim for damages, whether in delict or in contract, there is little doubt that the
defendant would not have been entitled to rely on the payments received from
the medical aid scheme. ’
[17] Similarly in Charlene Magdalene Minnies v Road Accident Fund9 the court as
per Eksteen J held that a contract between the scheme and the member is in
substance an indemnity insurance as explained in Thomson v Thomson above. The
court went on to state (par 27):
‘In the case of indemnity insurance agreements, such as that which existed
between Ms Minnies and the scheme, three basic rules of law have emerged:
that the wrongdoe r is not entitled to benefit from the fact that the person
wronged was insured; that the insured may not be enriched at the expense of
the insurer by receiving both the insurance indemnity and the damages from
the wrongdoer; and t hat the insurer replaces the insured; ie that the insured is
subrogated by the insurer which entitles the insurer to claim the loss from the
wrongdoer. The effect of these rules is that once the scheme has paid out the
medical expenses, as it is obliged to do in terms of its contrac t with its
member, it acquires the right under the principle of subrogation to recover its
loss form the wrongdoer .’’
[18] The same sentiments were echoed by Noncembu J in the unreported case of
Lulama Somia Manyathela v Road A ccident Fund case number 254/2021 , also in the
Eastern Cape Division . It should be noted that the common feature in the cases
referred to above is the application of the common law principles applicable to
insurance law and in particular the res inter alio s acta and subrogation . It is clear
from the reasoning in these cases that the court found no reason to differentiate
between insurance and medical schemes. Notably, the above stated judgments
9 (2675/2022) [2024] ZAECQBHC 18 (27 Fe bruary 2024) .
emanate from a court presided by a single judge. Unfortunately, a diligent search for
a full court decision on this aspect from this division, did not yield positive results.
[19] I have not come across a judgment in this division or anywhere in the country,
where a clear distinction was drawn between medical schemes and insurers save for
the recent majority judgment in Discovery Health (Pty) Ltd vs Road Accident Fund
and another10( “Discovery judgment”) . Like in the present case, a t the heart of the
matter was the RAF’s liability to pay past medical and hospital expenses for road
accidents victims that were already settled by medical aid scheme and the court had
the following to say :
‘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 mischie f that the Demarcation regulations were meant to
address. ’11
The court went on further to state that:
‘It is time that we confront the reality that the principle of subrogation, which
applies to insurance, does not apply in the context of medical schemes. In
further considering the issue, one must take into account that the RAF is not an
insurance entity and its sole means of income is not premiums as is the case
with insurers but a fuel levy. ’
[20] Medical schemes are governed by Act 131 of 19 98 and are regulated by the
Council for Medical Schemes. They derive their income from member contributions
and investment returns. Whilst indemnity insurance is primarily governed by the
Short -term Insurance Act 53 of 1998 (SITA) and their source of income comes from
10 Footnote 1 .
11 Discovery, fn 1, para 46.
the premiums paid by its members. Conversely, the defendant is not an insurance
and derives its income from the fuel levy .
]21] It is common cause that Discovery paid the past hospital and medical expenses
by virtue of the contractual arrangement between itself and the plaintiff . By so doing,
Discovery discharged the obligation, towards its member, in terms of the law and the
private contract entered into betw een the pa rties. Such a contract is only binding
between the parties and not third parties like the defendant in this case . Therefore,
Discovery cannot be compensated through the member what has been paid in
discharge of its contractual and statutory obligation. This can be deduced from what
the court said at paragraph 92 of the Discovery judgment, where it stated:
‘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 rul e 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 statutorily
required to pay by way of PMB’s and EMC’s from the RAF. ’12
[22] Most importantly , the findings of the court relating to res inter alios acta,
subrogation and the transplantation of insurance law principles to medical scheme
are hard to ignore . Consequently, I align myself with the majority decision in the
Discovery judgment . I am saying this not losing sight of the principle of stare decisis .
It is important to note that the practice of the doctrine of precedent does not negate
the need for the courts to reach decisions on the basis of sound legal reasoning and
value judgment and in particular, where circumstances have changed necessitat ing
a departure from the long well-established principle . Sometimes a more flexible
12 Paragraph 92 discovery judgment .
approach to the practice of precedent is warranted. Moreover, in my approach , I
have also taken into consideration the provisions of section 39 and 173 of the
Constitution of the Republic of South Africa and various case law as it will appear
below .
[23] In dealing with the issue of stare decisis the Constitutional Court in Turnbull -
Jackson v Hibiscus Coast Municip ality and Others13 had this to say:
“The doctrine of precedent decrees that only the ratio decidendi of a
judgment, and not obiter dicta , have binding effect . The fact that obiter
dicta are not binding does not make it open to courts to free
themselves from the shackles of what they consider to be unwelcome
authority by artificially characterising as obiter what i s otherwise
binding precedent. Only that which is truly obiter may not be f ollowed.
But, depending on the source, even obiter dicta may be of potent
persuasive force and only departed from after due and careful
consideration .”
[24] Whilst i n S v Ndhlovu14 the court observed as follows:
‘[t]he doctrine of stare decisis is such an easy haven in which to take refuge
that it often stultifies any attempt to reconsider an old established principle
which may be wrong. ... I would prefer to consider (counsel’s) ... argument on
its merits, and if, in the circumstances, I was persua ded that his argument
was right, I would think this Court should have no hesitation but to adopt it,
notwithstanding the vast body of opinion against his argument ’.
[25] Also, in National Chemsearch (SA) (Pty) Ltd v Borrowman15 the court noted :
“[i]nfunctioning under a ‘virile, living system of law’, a judge must not be
fainthearted, and when he is morally convinced that justice requires a
13 [2014] ZACC 24.
14 1979 4 SA 208 (ZR) 215.
15 1979 3 SA 1092 (T) 1101.
departure from precedent he will not hesitate to do so; but on the other hand
he must guard carefully against be ing over -bold in substituting his own
opinion for those of others, lest there be too much chopping and changing and
uncertainty in the law”.
[26] As indicated earlier in this judgment, the decisions of this division emanate from
single judges and as a si ngle judge , I am entitled to differ from the judgments of
other single judges. In this instance, I am persuaded by the Discovery judgment that
the earlier decisions in this division are now wrong and the correct approach is to
follow in the steps of the full court in the Discovery judgment . In terms of that
judgment there is a difference between medical schemes and insurers, and
therefore, insurance law principles ought not to be automatical ly transplanted to
medical schemes. Additionally, an agreement between a medical scheme and a
member is only binding inter partes . In my view, the findings in the Discovery
judgment suggest that the precedent s no longer fit the present and that necessitate s
a deviation from the norm . Consequently, the plaintiff’s claim for past hospital and
medical expenses cannot succeed.
[27] Turning to the issue of costs, the parties agreed that costs be awarded on a
party and party scale with Counsel’s fees being allowed on Scale C in terms of Rule
69(7) of the Uniform Rules. The general principle is that costs should follow the
cause unless there is a reason to deviate. I have indicated at the beginning of the
judgment the inherent challenges that come with the stated case. Taking into
consideration the shortcoming s in respect of Rule 33(2) and the need for guidance
and authority in the light of conflicting judgments on the matter, it is fair that each
party pays its own costs .
[28] In the result, I make the following order :
28.1 The non-compliance with Rule 33(2)(b) is condoned.
28.2 The plaintiff’s claim for past hospital and medical expenses is dismissed .
28.3 Each party to pay its own costs .
_______________________
S TILANA -MABECE
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
Date Heard: 13 February 2025
Date Delivered: 13 May 2025
Appearances
For the plaintiff: Mr Frost
Instructed by: Boqwana Burns Inc .
GQEBERHA
For the Defendant: Ms Naidoo
State Attorney
GQEBERHA