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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

REPORTABLE
Case No: 5213/2021

In the matter between:

LISA BASSON PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT

Neutral citation: Lisa Basson v Road Accident Fund (Case No. 5213/2021)
[2025] ZAWCHC … ( 30 May 2025)

Heard : 16 May 2025
Delivered electronically : 30 May 2025

SALIE AJ

INTRODUCTION:

1] The plaintiff instituted an action for damages against the defendant for
damages suffered in a motor vehicle collision that occurred on 9 March 2019
at or near Sandbaai, Hermanus, Western Cape.

2] The plaintiff suffered a pelvic fracture (CT scan showed multiple bilatera l
pelvic fractures involving the inferior pubic ramus, the left superior pubic
ramus, the right anterior acetabular wall, extending into the right hip joint,
together with a short fracture through the right sacral iliac; burns to the left
shoulder and an i njury to the left thigh.

3] At the commencement of proceedings, the parties informed the court that the
only issue for determination is the liability of the defendant to pay past and
hospital and medical expenses.

THE AMENDED PLEA:

4] At the hearing defendant introduced its amende d plea by consent between
the parties. It reads as follows :

a) “The defendant denies liability for these expenses (medical
expenses, past hospital and medical expenses) and the plaintiff
is put to the proof thereof.

b) The defendant pleads that in terms of the Medical Schemes Act
131 of 1998, which provides that a medical aid scheme is
compelled to pay certain expenses incurred by its members and
consequently he is unable to contract out of such obligation.

c) The defendant pleads that the plaintiff ’s medical aid, Discovery
Health, cannot contract out of such an obligation to pay these
expenses; by entering into an agreement with the plaintiff to
claim back the amount it has paid on behalf of the member.

d) The defendant pleads that the medical scheme is compelled to
disburse medical treatment to the plaintiff as a prescribed
minimum benef it and he is entitled to under the Medical
Schemes Act, hence no loss is suffered by the plaintiff as the
third party in the action.

e) The defendant pleads that these expenses claimed by the
plaintiff constitutes emergency medical care which falls within a
basket of care listed in Regulation 8 of the Medical Schemes
Act, which basket of care is further defined as prescribed
minimum benefits, which Discovery Health has undertaken to
pay on behalf of the members.

f) The defendant specifically pleads that Discovery is prohibited
from contracting out of its statutory obligations under Medical
Schemes Act, No. 131 of 1998, (The Medical Schemes Act ) in
terms of Section 29(o) and (p) of the same Act, which is
tantamount to an exclusi on of the defendant ’s liability in terms
of Section 19(d)(1) of the RAF Act. ”

5] The key question premised on the amended plea and later amplified in the
stated case which must be answered, in casu , is whether a case has been
made by the defendant based on policy consideration of fairness, equity and
reasonableness to disavow plaintiff’s claim for her past hospital and medical
expenses .

STATED CASE:

6] The parties presented a stated case in terms of Rule 33(1) of the Uniform
Rules . In essence, the stated case which I deem necessary to reproduce,
states the following:

1. “On or about 9 March 2019, the plaintiff sustained certain
injuries in a motor vehicle accident.
2. As a result of the injuries and the sequelae thereof, the plaintiff
incurred hospital - and medical expenses in the sum of
R265 609.97.
3. The parties agree that an amount of R60 756.63 is due and
owing to the Plaintiff . Thus, the amount of past medical and
hospital expenses in dispute is R204 853.34
4. The parties agree that for purposes of argument, the past
medical and hospital expenses in dispute and paid by
Discovery Medical Scheme, constitutes Prescribed Minimum
Benefits (PMB) and Emergency Medical Care (EMC ), in
accordance with the Medical Schemes Act, no. 131 of 1998 [“the
Act”].
5. At all material times:
5.1. the plaintiff was a member of a medical aid scheme, to
wit, Discovery;
5.2. the hospital - and medical expenses were paid by
Discovery;
5.3. the plaintiff has contracted with Discovery to reimburse
the scheme for any amount paid by the defendant for
past hospital - and medical expenses .
6. The defendant disputes its liability to compensate the plaintiff
for the past hospital - and medical expenses (Other than th e
agreed amount of R60 756.63) on the following grounds:
6.1. The Act provides that a medical aid scheme is
compelled to pay certain expenses incurred by its
members and is consequently unable to contract out of
such obligation;
6.2. Plaintiff ’s medical aid cannot c ontract out of the
obligation to pay these expenses by entering into an
agreement with its member to claim back the amount
paid on behalf of the member;
6.3. the medical aid scheme is compelled to disburse
medical treatment to Plaintiff as prescribed minimum
benefits that she is entitled to under the Act and hence
Plaintiff has suffered no loss as the third party in this
action;
6.4. the expenses claimed constitute emergency medical
care, which falls within the ambit of care listed in
Regulation 8 of the Act, which c are is further defines as
prescribed minimum benefits which the medical aid
scheme has undertaken to pay on behalf of its
members;
6.5. the medical aid scheme is prohibited from contracting
out its statutory obligations under the Act in terms of
Section 29(o) a nd (p), which is tantamount to an
exclusion of Defendant ’s liability in terms of Section
19(d)(i) of Act 56 of 1996.
7. In essence, the defendant pleads in relation to Section 19(d)(i)
that, because the plaintiff as a member of the medical aid
scheme (as opposed to an insurer) has agreed to reimburse
such scheme any amounts paid over by the scheme to service
providers, such amount or an agreement f alls within the
exclusionary provisions of the sub -section and outside the
scope of the principle of subrogation .” (emphasis added)

PLAINTIFF’S CONTENTIONS :

7] The plaintiff contends, by virtue of the provisions of Section 17 of the Road
Accident Fund Act, 56 of 1996 (“the RAF Act”) , as amended, and read
together with the proviso that the plaintiff contracted with Discovery to
reimburse the scheme with any amount paid by the defendant in relation to
past hospital and medical expenses.

8] The plaintiff als o relied on the minority judgment of Discovery Health (Pty)
Ltd v Road Accident Fund an d Another 2023 (2) SA 212 (GP)
(“discovery health 2”),1 in that the defendant is, in law, liable to
compensate the plaintiff in respect of past medical and hospital expenses
which the medical aid paid on behalf of the plaintiff . In this regard, t he
plaintiff had relied on a number of judgments in this Division ,2 enforcing her
claim .

DEFENDANT’S CONTENTIONS:

9] In short, defendant relies on the majority judgment in Discovery Health
(Pty) Ltd v Road Accident Fund and Another, Case No.: 2022/016179, 27
October 2022 (“discovery health 1), and the statutory obligation on the
Medical Aid Schemes Act, namely Section 29(o ) and (p), together with the
alleged exclusion of defendant’s liability in terms of Section 29(d)(a) of the
RAF Act, where the following is stated at [20] to [21]:

“[21] In terms of our law, benefits received by a claimant from the
benevolence of a third party or a private insurance policy are not
considered for purposes of determining the quantum of a claimant's
damages against the first respondent. The reason for this is merely
because a benefit that accrues or is received from a private insurance
policy origin from a contract between the insured and the insurance
company for the explicit benefit of the claimant and its receipt does not
exonerate the first respondent from the liability to discharge its
obligation in terms of the RAF Act. In Zysset and Oth ers v Santam Ltd
1996 (1) SA 273 (C) at 277H - 279C the set out the principle in the
following words: "The modern South African delictual action for
damages arising from bodily injury negligently caused is
compensatory and not penal. As far as the plaintif f'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

1 Discovery Health (Pty) Ltd v R oad Accident Fund , Case No. 2023/117206 [2024] ZAGPPHC
1303; [2025] 2 All SA 113 (GP); 2025 (3) SA 225 (GP) (17 December 2024)
2 Van Tonder v Road Accident Fund (1736/2020; 9773/2021) [2023] ZAWCHC 305 (1 December
2023); Fookwe v Road Accident Fund (23481/2016) [2024] ZAWCHC 115 (20 April 2024);
Ganthi v RAF, 6 June 2024; Essack NO v RAF, 4 February 2025; Jaffer v RAF, 20 March 2025;
Strubel v RAF, 10 April 2025
commission of the delict and the value it would have had if the delict
had not been committe d ... 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 Joss of
amenities of life is to compensate the plaintiff for his loss. It is not
uncom mon, 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."

[22) In Ntlhabyane v Black Panther Trucking (Pty) Limited and
Another2010 JDR 1011 (GSJ) the court expressed the principle in the
following terms: "a plaintiff's insurance, her indemnification in terms of
it, and the consequent subrogation of her insurer are all matters of no
concern to the third party defendant. ”

10] Defendant contends further that the expenses claimed constitute emergency
medical care, which falls within the ambit of care listed in Regulation 8 of the
Medical Schemes Act, 131 of 1998 (“the Act”) and ought not to be deducted
from the common law claim , and relies on the following passage :

“[92] The challenge facing Discovery Health and the medical
schemes it represents goes beyond questions of interpretation of its
rules. The rules published by the Disco very 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. Concei vably, GEMS accepts that it cannot recover what it is
statutorily required to pay by way of PMB’s and EMC’s from the RAF. ”

11] In addition to the above, d efendant contends that the medical aid scheme is
prohibited from contracting out of its statutory obligat ion under the Act, in
terms of Section 29(o) and (p), which is tantamount to an exclusion of
defendant ’s liability in terms of Section 19(d)(i) of the RAF Act.

DISCUSSION:

12] It is trite that a claim for patrimonial loss for bodily injury is compensatory in
nature and does not embody a punitive element.3

13] 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 fortuitous
event. Accordingly, plaintiff is entitled to compensation to the extent of the
reduction of his patrimony caused by the wrongful and negligent act of the
wrongdoer.


3 Union Government v Warneke 1911 AD 657 at 662 and 665 - 667
14] The approach to the deductibility of benefits has been restated on several
occasions and can now be settled, in that b enefits resulting from damage
caused event are generally deducted, however, there is no clear prudential
basis for deciding what benefits are collateral; the enquiry mainly involves
considerations of public policy and equity.4

15] It is common cause that Dis covery paid the past hospital and medical
expenses by virtue of a contractual arrangement between itself and the
plaintiff . By doing so, Discovery discharged its contractual obligation
towards the plaintiff in terms of law and the private contract entered into
between the parties. Such a contract is only binding between the parties to
the contract, and not third parties, such as the defendant in this matter.5

16] It bears emphasis that, pursuant to Section 29(2) of the Medical Aid
Schemes Act, the medical aid shall, in the event of a failure to repay any
debt due to the medical aid scheme, be entitled to cancel the contract of its
member.6 The defendant has accepted that plaintiff, upon a successfu l
prosecution of her claim, had contracted with Discovery to reimburse the
scheme for any amount paid by the defendant in relation to the past medical
expenses.7

17] The majority in Discovery Health 2 ,8 concludes that Discovery Health has
never claimed to be an insurer, much less an indemnity insurer, nor is it its

4 Road Accident Fund v Lechner (711/10) [2011] ZASCA 240 (1 December 2011) , at [12]; Zysset
v Santam Ltd 1996 (1) SA 273 (C) at 279 C; Standard General Insurance Co Ltd v Dugmore NO
1997 (1) SA 33 (SCA) at [41]
5 Stated Case, sub -paras 5.1 to 5.3
6 Section 29(2): “ (2) A medical scheme shall not cancel or suspend a member’s membership or
that of any of his or her defendants, except on the grounds of — (a) failure to pay, within the
time allowed in the medical scheme’s rules, the membership fees required in such rules; (b)
failure to repay any debt due to the medical scheme; (c) submission of fraudu lent claims; (~
committing any fraudulent act; or (e) the non -disclosure of material information .”
7 Stated Case, sub -para 5.3
8 Discovery Health 2023 (2) SA 212 (“Discovery Health 2”): “[23) The liability of the RAF is
excluded or limited in certain inst ances: 23.1 The provisions of section 18 expressly exclude
benefits received under COIDA or the Defence Act from the calculation of the claimant's
damages in terms of the RAF Act. This is in circumstances where the victim of a motor
vehicle accident is als o entitled to compensation under the Compensation for Occupational
Injuries and Diseases Act ·103 of 1993 ("COIDA"), or the Defence Act 42 of 2002 ("Defence
Act"). ”
case that it represents insurers. It bears emphasis, that inasmuch as
Discovery Health has not claimed to be an insurer, much less, an indem nity
insurer9 this matters not -as in my view i t remains an incorporated medical
aid society governed by its own rules and regulation, ie., that only a member,
duly registered, would be entitled or disentitled to its benefits as per the
terms of the contr act concluded.

18] I respectfully agree with the Minority Judgment in Discovery Health 2 ,10
where in Opperman J states :

“… Whether the payment by the medical aid scheme was made
pursuant to its contractual or its statutory obligations does not seem to
me to be relevant to what the RAF’s statutory obligations are, which is
to pay claims. To carve out from the term “expenses” the portions
labelled prescribed minimum benefit costs and emergency medical
condition costs and to contend that such lesser, ‘carved out’ costs are
excluded because they derive from another statute not a private
contract, in my view, cannot hold. ”

19] Further, Opperman J concludes that the Medical Aid Schemes Rules are
given statutory force and are binding upon a scheme and its members by
virtue of Section 32 of the Medical Aid Schemes Act :11

“[115] Medical aid schemes’ rules are given statutory force and are
binding upon the scheme and its members by virtue of section 32 of
the MSA. Discovery Health contends, and it was not disputed on the
papers before us, that it is a standard requirement of medical aid

9 Discovery Health v Road Accident Fund 2, at [46]: “ Certain benefits are considered while
others are not considered in the calculation of the claimant’s claim for damages against the
first respondent. It is trite that social -security benefits a claimant receives from the state are
deductible from compensation the first respondent is liable for. The reason for this is
founded on the principle that delictual damages are meant to restore the claimant to the
position he was in prior to the commission of the delict and that he should not unduly benefit
by receiving do uble compensation for his/her loss (see Zysset v Santam Ltd 1996 (1) SA 273
(C) at 277H -279C. ”
10 At [113]
11 Dissenting judgment of Opperman , at [115]
schemes’ rules for their members to reimburse the medical scheme for
payments in respect of past medical expenses recovered from the RAF,
which obligation does not arise until such t ime that there is a
successful recovery of the past medical expenses by the claimant from
the RAF. The statutory obligation on the medical aids to pay PMB’s
and EMC’s does not detract from the RAF’s obligation to do what its
statute obliges it to do as th e Mbongwe J decision12 affirmed. The
provisions of the MSA and the RAF Act should be interpreted together
and harmoniously in order to avoid conflicts. To interpret the MSA in
the manner suggested in the first judgment would lead to the result
that the o ne Act, the MSA, authorises reimbursement and the other, the
RAF Act, prohibits it. ”

20] In Lechner ,13 the SCA was called upon to characteriz e the benefit that the
claimant received from a foreign insurance company which, in essence, was
constituted in terms of the German Social legislation and in terms whereof
plaintiff in that matter was required to repay what she had claimed from the
RAF in the event of her being successful in a delictual claim. The SCA
concluded as follows:

“[19] I accept that the premiums paid by Ms Lechner bore no direct
relationship to the risk insured. In this sense the scheme to which she
belonged differed from the usual private medical schemes. But it is
beyond dispute that she enjoyed benefits as a voluntary member at the
time of her accident. The fact that she later at times became a
compulsory member after her accident, which was forced upon her
because of the in juries she sustained in the accident, cannot in my
view change the situation. Crucially, as I have mentioned, she received
her benefits in return for her contributions. Had she ceased paying
contributions, her benefits would also have ceased, or later been

12 Discovery Health (Pty) Ltd v Road Accident Fund and Another, Case No. : 2022/016179 , 27
October 2022 (“ Discovery Health 2 ”)
13 RAF v Lechner (711/10) [2011] ZASCA 240 (1 December 2011)
suspended. In my view this is sufficient to render the benefits received
from the KKH res inter alios acta as far as the Fund is concerned.

[20] Moreover, as Mr Potgieter accepted on behalf of the Fund, there is
no question of Ms Lechner receiving double compensation by virtue of
the German legislation referred to earlier. Instead he submitted that the
ultimate question in this matter is whether the Ms Lechner’s expenses
are to be paid for by the South African or German taxpayer. He further
submitted that it would be contrary to public policy for this country’s
taxpayers to reimburse the KKH for expenses incurred in the execution
of its statutory mandate. ”

21] Defendant ’s argument that the plaintiff ’s medical aid scheme was compelled
to settle plaintiff’s medical bills as prescribed minimum benefits , and having
done so, plaintiff had not suffered any loss as a third party , falls to be
rejected for the following reasons:

a) firstly, Discovery Health 114 conclusively dealt with the three
directives which deprived plaintiff s from claiming past medical
expenses . These arguments had been dealt by Mbongwe J who
concluded that plaintiff s were entitled to their past medical expenses.
That matter had become res judicata insofar as defendant is
concerned, as the SCA as well as the Constitutional Court refused
the RAF leave to appeal :

b) secondly, in casu , the RAF advanced the argument that it did not
rely on any directive dealt with in Discovery Health 1 ; hence I am
bound by the terms of the contractual relationship entered into
between the parties as ensconced in the stated case.

c) thirdly , plaintiff is entitled to damages against the defendant and
placed in the same financial position had the collision not occurred.

14 (2022/016179 ) [2022 ] ZAGPPHC 768 (26 October 2022) ( “Discovery 1”)
In my view RAF Act must trump the Medical Schemes Act which in
essence caters for the consolidation, registration of medical aid
schemes and the protection of the interests of its members. In
essence it is a regulatory body exercising oversight over medical
schemes.

The RAF’s ARGUMENT IN TERMS OF SECTION 19 OF THE RAF ACT :15

This argument had been dealt with authoritatively in Fookwe v Road Accident
Fund (23481/2016) [2024] ZAWCHC 115 (29 April 2024) , at [10] – [11]: in which the
court stated the following;

“[10] The RAF’s argument in relation to s 19(d)(i) is that because the
plaintiffs, as members of their medical aid schemes, agreed to
reimburse such scheme any amounts paid over by the scheme to
service provide rs, this amounts to an agreement falling within the
exclusionary provision of that subsection. In Road Accident Fund v
Abdool -Carrim and Others at issue was the proper interpretation of
s 17(5) read with s 19(d) of the RAF Act …

[12] Support for the ab ove interpretation is to be found in the
main purpose of the Act referred to earlier and also to the
accessory nature of the supplier’s claim. In my view, the Fund’s
interpretation of the effect of s 17(5) is incorrect. It is not
necessary to substitute ‘s upplier’ for ‘third party’ in s 19(d) to give
efficacy to the subsection. On the contrary the substitution places
it at odds with the Act’s purpose, and from the Fund’s
perspective, achieves nothing. For if a third party’s claim is valid
and enforceable an d the supplier’s is not, the Fund would still be
liable to compensate the third party who in turn remains
contractually liable to the supplier. The consequence is that a
third party may be faced with a claim with a supplier without

15 Road Accident Fund Act 56 of 1996 (“the RAF Act”)
having been paid and wou ld be denied the benefit of s 17(5)
without any fault on his or her part. This result could hardly have
been what the draftsman intended. Moreover it is illogical for the
third party claim to be valid and enforceable but the supplier’s
accessory claim not (except where the supplier has not complied
with the prescribed formalities).

[13] It is understandable that the legislature would seek to
protect third parties, many of whom are indigent, from entering
into champertous agreements , which is probably w hat s 19(d)
intends to achieve. But there is no apparent reason to restrict the
contractual freedom of suppliers, many of whom are professional
people, institutions or companies from contracting with whoever
they choose to process their claims. They should be capable of
looking after themselves.’ ” (my emphasis) (footnotes excluded)

22] I conclude that the defendant ’s Section 19(d) defence falls to be rejected ,
more particularly in light of the Abdool -Carrim judgment supra. I am of the
view that the provisions of Section 19(c) and (d) of the Raf Act are to be
read conjunctively which, in essence, prevents a person other than an
attorney from profiting in any manner from the handling of third party claims
against the Raf. I am fortified in my view in that on an objective reading of
the provisions of Section 19 (c) and (d) of the Raf Act , the contract entered
into between the plaintiff and Discovery Health is contractually and legally
valid and enforceable.

23] Plaintiff accordingly succeeds in her claim for her past medical expenses.
and in turn Discovery health would be entitled to reclaim the past medical
expenses from the plaintiff paid in terms of the policy governing their
contractual relationship.

COSTS:

24] In light of the misconceived argument s of the defendant, plaintiff is entitled to
her costs on the attorney and client scale and

25] I make the following Order:

(a) Defendant shall pay to the P laintiff the capital sum of R265 609.97
(Two Hundred and Sixty -Five Thousand Six Hundred and
Nine Rand Ninety -Seven Cents) by way of an electronic transfer
into her attorneys’ trust account, the details of which are set out
herein under , payment to be effected within 180 (one hundred and
eighty) days from date of this order;

(b) Defendant shall pay Plaintiff’s taxed or agreed costs on the High
Court Scale, as between attorney and client , including any taxed
or agreed costs incurred in the obtaining of payment of the capital
sum and/or costs and counsel’s fees for the hearing on 6 & 16
May 2025 on scale B;

(c) payment of the taxed or agreed costs shall be effected within 180
(one hundred and eighty) days from date of agreement or
taxation;

(d) Defendant shall be liable for interest on the taxed or agreed costs
from 14 (fourteen) days from date of agreement of allocator until
date of final payment at the relevant prescribed rate of interest
appli cable .

(e) Plaintiff’s attorney’s trust banking details are as follows:

BANK: First National Bank
ACCOUNT: Kruger & Co. Inc.
BRANCH: Parow
BRANCH CODE: 200 510
ACCOUNT NO: 5[…]


_____________________________
MOHAMED SALIE
ACTING JUDGE OF THE HIGH COURT


Appearances :

For plaintiff : Advocate Henry McLachlan
Instructed by: Kruger & Company

For defendant : Brett -Elliot Lategan
Instructed by: Office of the State Attorney , Cape Town