• Law Reports
  • Berend v Road Accident Fund (942/2022) [2025] ZANCHC …

Berend v Road Accident Fund (942/2022) [2025] ZANCHC 45 (30 May 2025)

82 Reportability
Personal Injury Law - Road Accident Fund
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Damages — Road Accident Fund — Claim for past medical expenses — Plaintiff's medical expenses paid by medical aid scheme — Defendant's argument of unjust enrichment rejected — Court held that benefits received from a medical aid scheme do not negate the plaintiff's right to claim damages from the Road Accident Fund — Defendant ordered to pay the full amount of past medical expenses incurred by the plaintiff.

Comprehensive Summary

Case Note


Case Name: Boitumelo Alfred Berend v Road Accident Fund

Citation: Case No. 94212022

Date: Heard on 01-02-2024 and Delivered on 30-05-2025


Reportability


This case is reportable because it addresses the significant issue of whether benefits received from a private medical aid scheme should affect the quantum of damages awarded under the Road Accident Fund Act. It explores the interplay between statutory obligations and third-party benefits, establishing an important precedent concerning the principles of compensatory damages and unjust enrichment. The judgment clarifies that the receipt of collateral benefits does not discharge the defendant’s statutory duty to compensate for proven expenses.


Furthermore, the case serves as a critical reference point for future disputes involving compensation for past medical expenses when a claimant is also receiving benefits from a private insurance or medical aid. The reasoning helps delineate the boundaries between contractual benefits and statutory liabilities. It underscores the importance for courts to consider established legal principles over contrived arguments that might otherwise undermine the rights of injured parties.


The decision’s reliance on prior judgments and statutory interpretation makes it a detailed study in the application of the delictual compensatory framework. This will serve both practitioners and scholars in understanding the nuances of damage quantification when multiple sources of payment are involved.


Cases Cited


Zysset and Others v Santam Ltd 1996(1) SA 273 (CPD)


Discovery Health (Ply) Ltd v Road Accident Fund and Another [2022] JOL 57493 (GP)


Van Tonder v Road Accident Fund (2023/013183) [2024] ZAGPJHC 1009 (7 October 2024)


Gunther v Road Accident Fund (24228/16) [2024] ZAWCHC 153 (6 June 2025)


Legislation Cited


Road Accident Fund Act 56 of 1996


Medical Schemes Act (including reference to section 32 regarding the binding nature of agreements)


Rules of Court Cited


No specific rules of court were cited by name. The judgment does, however, refer to costs assessments on a Party and Party High Court scale, reflecting the applicable procedural guidelines in awarding costs.


HEADNOTE


Summary


The case concerns a claim for damages arising from a motor vehicle accident where the plaintiff, Mr. Berend, incurred past medical and hospital expenses amounting to R175,148.70. The expenses had been fully paid by the GEMS medical scheme, as the plaintiff was covered as a dependant on his wife’s policy. The key issue for determination was whether the benefits received from the medical scheme should affect the defendant's obligation to reimburse the plaintiff.


This judgment reaffirms the compensatory nature of delictual claims by emphasizing that benefits from a third party, such as a private medical scheme, are collateral and must not be deducted from the compensation due. The court examined existing precedents and statutory provisions to conclude that the defendant’s statutory duty to compensate remains intact despite the payment made by the medical scheme.


The decision further highlights that any attempt to avoid this obligation by distinguishing between direct contractual benefits and the plaintiff’s actual loss is unfounded. The reasoning underscores the safeguarding of the injured party’s rights without allowing extraneous benefits to interfere with the computation of damages.


Key Issues


The judgment addresses the crucial issue of whether compensation should be reduced by the amounts that the plaintiff received from a medical aid scheme. It also examines whether the absence of a formal agreement between the plaintiff and the medical aid scheme eliminates the claimed loss. Additionally, the question of potential unjust enrichment and the relevance of subrogation in the context of a statutory duty was considered.


Held


The court held that the defendant, the Road Accident Fund, is obligated to pay the plaintiff the full amount of R175,148.70 for past medical and hospital expenses. It affirmed that benefits received from a private insurer or medical aid scheme are considered collateral and do not diminish the statutory duty of the Fund to compensate the claimant. Thus, the defendant's arguments to reduce the claim based on third-party beneficial payments were dismissed.


THE FACTS


The case arose from a motor vehicle accident in which Mr. Berend sustained injuries requiring medical and hospital treatment. The plaintiff’s wife, Mrs. Berend, was the primary member of the GEMS medical scheme at the time of the accident, and as a dependant, Mr. Berend’s treatment expenses were covered by the scheme. The total past medical and hospital expenses were verified to be R175,148.70, and this amount had been paid in full by GEMS.


Only Mr. Berend and his wife testified in support of the claim, establishing the fact that no additional compensation was needed beyond what was paid by the medical aid. The defendant argued that since the expenses were already settled by GEMS, the plaintiff did not suffer a net loss that warranted additional compensation. This fact pattern set the stage for the legal debate on the interaction between third-party payments and statutory compensation.


The factual matrix of the case also highlighted the absence of any indication that the plaintiff would be required to reimburse GEMS, thereby intensifying the focus on the ostensibly contrived argument presented by the defendant. The court thus had to reconcile these facts with established legal principles concerning collateral benefits.


THE ISSUES


The core issue was whether the payment made by GEMS on behalf of the plaintiff should be considered as having discharged or reduced the Road Accident Fund’s obligation to compensate for past medical and hospital expenses. The court had to decide if such third-party benefits should be deducted from the damages awarded to the claimant.


Another significant issue was whether the arguments regarding the absence of a direct agreement between the plaintiff and the medical scheme could serve as a basis to avoid compensation. The court also examined whether subrogation or the potential recovery by GEMS from the plaintiff could validly impact the claimant’s damages claim.


Lastly, the issue of applying established legal principles to ensure that the claimant is not unjustifiably enriched was addressed. This required balancing the statutory mandate of the Fund with the collateral nature of the medical scheme’s intervention.


ANALYSIS


The court’s analysis largely hinged on the established principle that delictual actions for damages are compensatory, not penal. By drawing on precedents such as Zysset and Others v Santam Ltd and the Discovery Health case, the court affirmed that benefits acquired from a third party do not reduce the compensatory amount due from the defendant. The reasoning underscored that any collateral benefit should be excluded from the calculation of damages since it is separate from the plaintiff’s direct loss.


In its detailed analysis, the court considered the defendant’s arguments regarding unjust enrichment and the alleged contractual relationship between Mrs. Berend and GEMS. The judgment reiterated that the nature of the agreement with the medical aid scheme, and the absence of direct contractual obligations on the part of the plaintiff, render any such arguments irrelevant to the statutory duty imposed on the Fund. The court meticulously dismissed the notion that the receipt of medical aid benefits could alter the compensation owed.


Furthermore, the reasoning showed a clear commitment to guarding against double compensation. It emphasized that while a claimant may receive collateral benefits, statutory terms and existing legal precedents ensure that such benefits do not influence the calculation of damages. This comprehensive analysis confirmed that the plaintiff’s loss, as documented by the expenses paid, remains fully compensable by the defendant.


REMEDY


The court ordered that the Road Accident Fund pay an amount of R175,148.70 to Mr. Berend in full and final settlement of his claim for past hospital and medical expenses. This sum was to be paid by direct transfer into the trust account of Adams & Adams, with the details to be provided by the plaintiff’s attorneys.


The payment was to be made within 180 court days from the date of the court order. Failure to do so would entitle the plaintiff to recover interest at the applicable legal rate. In addition, the defendant was ordered to pay the plaintiff’s taxed or agreed costs on a Party and Party High Court scale, as determined within the discretion of the taxing master.


This remedy ensures that the statutory obligation of the Fund is enforced without letting the collateral aspects of medical aid interventions affect the compensation due. It reinforces the precise calculation of damages based solely on the claimant’s demonstrable loss.


LEGAL PRINCIPLES


The judgment reinforces the principle that delictual actions for damages are solely compensatory in nature. It establishes that any benefits received from collateral sources, such as private medical schemes or insurance policies, must be disregarded in the assessment of damages. Compensation is to be determined by the actual loss suffered by the plaintiff, not mitigated by third-party payments.


Another key principle articulated is that the statutory duty imposed on the Road Accident Fund to indemnify all reasonable medical expenses cannot be circumvented by the involvement of a private insurer. The court thus affirms that even when collateral benefits are received, the defendant remains fully liable for the expenses incurred from the injuries sustained.


Finally, the judgment underscores that arguments based on subrogation or the lack of a direct agreement with a medical aid scheme are legally insufficient to alter the compensatory obligations of the defendant. This principle further ensures that the claimant receives complete redress as mandated by both statutory provisions and judicial precedents.

Reportable:
Circulate to Judges:
Circulate to Magistrates :
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
BOITUMELO ALFRED BEREND
and
ROAD ACCIDENT FUND
CORAM: WILLIAMS J
II JUDGMENT
WILLIAMSJ: Yes/No
Yes/No
Yes/No
CASE NO.: 94212022
Date heard: 01-02-2024
Date delivered : 30-05-2025
Plaintiff
Defendant
1. In this claim for damages against the Road Accident Fund as a result of
injuries sustained by the plaintiff, Mr B A Berend, in a motor vehicle
accident, all heads of damages have been settled between the parties
except for past medical and hospital expenses .
2. Only the plaintiff and his wife Mrs K Berend testified. Mrs Berend, was a
member of GEMS medical scheme at the time of the accident and the
subsequent treatment of the plaintiff. The plaintiff is covered by GEMS as
a dependant of Mrs Berend. II
2
3. It is not in dispute that the plaintiff's past medical and hospital expenses
amounted to R175, 148.70 and that these expenses have been paid in full
by GEMS.
4. The stance taken by the Fund is that the plaintiff has, as a result of being a
dependant on his wife's medical aid, suffered no loss in respect of the past
medical and hospital expenses which were paid by GEMS.
5. Whilst acknowledg ing the fact that the issue of compensating a
plaintiff/claimant for expenses paid by a medical aid scheme has been
addressed in the matter of Discovery Health (Ply) Ltd v Road Accident Fund
and Another[2022] JOL 57493 (GP), where the court found that the benefits
received by a claimant from a third party, whether a private insurance policy
or a medical aid scheme are not considered for purposes of determining the
quantum of a claimant's claim against the defendant, the argument by Mr
Mogano for the Fund is that the payment by GEMS was as a result of an
agreement between it and Mrs Berend and not the plaintiff. That the plaintiff
had no agreement with GEMs to pay the medical aid contributions and there
being no indication that the plaintiff will reimburse GEMS, he would be
unjustifiably enriched should the Fund be ordered to pay the claim for past
medical expenses.
6. The argument is further that in the absence of a cession between Mrs
Berend or GEMS and the plaintiff, there is no legal basis on which to find
that the plaintiff has suffered any loss.
7. The argument raised by the defendant is in my view somewhat contrived in
the light of the clear and unequivocal authority in this regard.
8. In Zysset and Others v Santam Ltd 1996(1) SA 273 (CPD), the legal position
relating to delictual claims was set out as follows at 277 H to 279 C thereof:
"The modem 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 , the liability of the defendant is no more
3
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 problem 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
coml)ensate the plaintiff for his loss. It is not uncommon, however, for a
plaintiff by reason of his injuries to receive from a third parl.y 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) moneys 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. Nor, it would seem, are these the only benefits which are to
be treated as res inter alios actae."
(own highlighting)
9. This principle was restated in the Discovery Health matter, where Mbongwe
J held at paragraph 21 thereof that:
"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
4
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 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.
10. The Discovery Health judgment also deals with the exclusions and
limitations of benefits as contained in the Road Accident Fund Act 56 of
1996 and concludes at paragraph 27 thereof that " ... the RAF Act does not
provide for the exclusion of benefits the victim of a motor vehicle accident
has received from a private medical scheme for past medical expenses. "
11. In the recent matter of Van Tonder v Road Accident Fund (2023/013183)
[2024] ZAGPJHC 1009 (7 October 2024), where the present issue was once
again raised, the court held at paragraph 107 thereof that:
"The RAF's statutory duty to compensate for past medical expenses , as
mandated by the Road Accident Fund Act, is not discharged by the
involvement of a private insurer. The Act ensures that a claimant is
indemnified for all reasonable medical costs incurred due to injuries
sustained in a road accident, and the fact that a medical aid has stepped in
to settle those costs does not alter the RAF's obligation to reimburse the
claimant."
12. See also the matter of Gunther v Road Accident Fund (24228/16) [2024]
ZAWCHC 153 (6 June 2025), at paragraphs 30 and 31 thereof, which state
as follows:
30. Furthermore , the submission that the medical aid has contracted out
of its obligation to pay medical expenses is nonsensical , to say the least. It
is clear that the defendant wishes to penalize the plaintiff for using her
medical aid at the time of the collision to cover her medical and
hospital expenses, yet the argument ignores the authority cited above
5
which states that her insurance is no concern of the defendant as it is
a collateral issue. Secondly, to emphasize, the benefits which the
plaintiff receives under the insurance contract (in this instance, the
medical aid scheme contract), are left out of the reckoning in the
determination of her claim for damages against the defendant.
31. Ultimately , the agreement between the plaintiff and GEMS is binding
and is sanctioned in terms of section 32 of the Medical Schemes Act
The issue of subrogation is not relevant and whether the medical aid
proceeds against the plaintiff at some later stage, is not the defendant's
concern anyway. The argument related to subrogation clearly ignores the
authorities and legal principles and is simply bad in law. The plaintiff has
proved that the medical expenses which she incurred were as a result
of and incurred due to the treatment she received for her accident
related injuries and the determination of her claim falls full square
within section 17 of the RAF Act, as correctly argued by the plaintiff's
counsel."
(own highlighting)
13. In light of the authorities cited above it appears to me that the distinction
which the Fund seeks to draw between the relationship between members
and dependants viz a viz a medical aid scheme, is artificial and an attempt
to renege on its statutory obligation to compensate the plaintiff for his
proven medical expenses. The agreement entered into between Mrs
Berend and GEMS is not only for the benefit of Mrs Berend but also for the
plaintiff. GEMS would be able to claim back its expenditure , upon payment
by the Fund, whether in terms of the agreement or on the basis of unjust
enrichment from the plaintiff. The fact that GEMS had covered the medical
expenses of the plaintiff is however a collateral issue which has nothing to
do with the Fund and should be ignored in the calculation of damages.
6
The following order is made:
1. The defendant shall pay an amount of R175 148.70 (ONE HUNDRED
AND SEVENTY-FIVE THOUSAND ONE HUNDRED AND FORTY­
EIGHT RAND AND SEVENTY CENTS) to the plaintiff in full and final
settlement of the Plaintiffs claim for past hospital and medical
expenses.
2. The aforementioned amount in the total sum of R175 148.70 (ONE
HUNDRED AND SEVENTY -FIVE THOUSAND ONE HUNDRED AND
FORTY-EIGHT RAND AND SEVENTY CENTS) shall be payable by
direct transfer into the trust account of Adams & Adams, the details
of which will be supplied to the Defendant by the Plaintiff's
attorneys.
3. The plaintiff shall allow the defendant 180 (ONE HUNDRED AND
EIGHTY) court days to make payment of the capital from date of
this court order, failing which the plaintiff will be entitled to recover
interest at the applicable legal rate.
4. The defendant is ordered to pay the plaintiff's taxed or agreed
costs with respect to the Plaintiff's claim for past hospital and
medical expenses on the Party and Party High Court scale, within
discretion of the taxing master inclusive of but not limited to:
4.1 The fees of Counsel on the High Court scale, inclusive of
counsel's full reasonable day fees for the 31st January, 1st
February and 2nd February 2024 and the reasonable cost
in respect of preparation of the Particulars of Claim and
Heads of Argument ;
4.2 The above costs will also be paid into the aforementioned
trust account,
7
5. It is recorded that the plaintiff's instructing attorneys do not act on
a contingency fee basis.
6. The following provisions will apply with regards to the
determination of the aforementioned taxed or agreed costs:
6.1 The plaintiff shall serve the notice of taxation on the
defendant;
6.2 The plaintiff shall allow the defendant 180 (ONE
HUNDRED AND EIGHTY) court days to make payment of
the taxed costs from date of settlement or taxation
thereof;
6.3 Should payment not be effected timeously, the plaintiff
will be entitled to recover interest at the applicable
interest rate on the taxed or agreed costs from date of
allocator to date of final payment.
6.4 The plaintiff shall not issue a writ prior to the expiry of the
180-day period.
CC WILLIAMS
JUDGE
For Plaintiff:
For Defendants: Adv D Jankowitz
Adams & Adams
c/o Stefan Greyling Inc
Mr Mogano
Office of the State Attorney

Back to Law Reports