IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2540/2021
In the matter between:
JOHANN MARAIS
Plaintiff
And
ROAD ACCIDENT FUND Defendant
Coram: CLOETE J
Heard: 4 & 5 March 2025, 19 May 2025
Delivered: 30 July 2025 (Delivered electronically)
ORDER
1. The defendant shall pay to the plaintiff, in respect of personally paid past
medical, hospital and related expenses, a total sum of R1 465 152.18 (the
“capital sum”), being the sum of R723 332.95 not in dispute between the
parties, as well as the sum of R741 819.23;
2. Payment of the capital sum will be effected directly into the trust account of
the plaintiff’s attorneys of record by means of an electronic transfer within 180
(one hundred and eighty) calendar days from the date of this order (the first
due date). If the defendant fails to make payment as aforesaid, the defendant
will be liable for interest on any outstanding amount at the statutory rate per
annum calculated from 14 (fourteen) days of this order;
3. In respect of past medical and hospital expenses paid for by the plaintiff’s
hospital plan, this issue is postponed sine die for later determination (by
agreement between the parties);
4. In respect of future medical and rela ted expenses arising from the collision,
the defendant shall furnish the plaintiff with an undertaking, free of any
limitations, caveats, restrictions, and specifications, in terms of section
17(4)(a) of the Road Accident Fund Act 56 of 1996 for payment of 100% of the
cost of future accommodation in a hospital or nursing home, or treatment, or
rendering of services or supplying of goods in respect of accident -related
injuries, after such costs have been incurred and upon proof thereof.
5. The defendant is to deliver the undertaking referred to in paragraph 4 above
to the plaintiff’s attorney of record within thirty (30) calendar days of date of
this order;
6. Save to the extent provided in any prior order, the defendant is to pay the
plaintiff’s costs, including VAT, as between party and party on Scale B, and
including also the costs of Counsel and the qualifying fees, if any, of the
following experts:
a. Dr G Kirsten, General Practitioner
b. Dr F J D Steyn, Orthopaedic Surgeon
c. Dr R Martin, Radiologist
d. Ms Marion Fourie, Occupational Therapist
e. Dr Ed Baalbergen, Rehabilitation Practitioner
f. Dr Erika Steenberg, Clinical and Neuropsychologist
g. Ms Norma Colley, Industrial Psychologist
h. Mr Wim Loots, Actuary
i. Mr Barry Grobbelaar of Forensys Engineering Dynamics,
Accident Reconstruction Experts
j. Ms Petra Coetsee, Architect
k. Dr Ilse Breytenbach, Urologist
7. For purposes of paragraph 6 above, Mrs Janine Marais is declared a
necessary witness;
8. Payment of the taxed or agreed costs reflected above shall be effected within
180 (one hundred and eighty) days of agreement or taxation (the second due
date) and will likewise be affected by electronic transfer into the plaintiff’s
attorneys trust banking account; and
9. Should the taxed or agreed costs not be paid by the second due date the
defendant shall be liable for interest at the statutory rate per annum from the
second due date until date of payment.
JUDGMENT
Cloete J:
Introduction
[1] On 2 April 2019 the plaintiff, who was 29 years old at the time, sustained
injuries in a motor collision . On 10 February 2021 he issued summons against the
defendant (“RAF ”) for payment of damages and related relief in respect those
injuries and their sequelae. The RAF concede d liability on the merits , leaving
quantum in dispute. However, by the time the trial eventually commenced on 4
March 2025 , and after the parties held a further meeting during the course of
evidence at my request, all but 3 issues had been resolved. One of them, being the
plaintiff’s claim for past medical and hospital expenses paid for by his hospital plan,
has been postponed sine die by agreement , since there is currently an appeal
pending on this issue in a similar matter before the Supreme Court of Appeal.
[2] The two other issues are the following, and which fall to be determined. The
first is whether the RAF is lia ble for a disputed po rtion of the plaintiff’s claim for
privately paid past medical and similar or related expenses which it is now common
cause were incurred as a direct result of the collision (for convenience I will simply
refer to such expenses at times in this judgment as “medical expenses”) and which,
after the conclusion of evidence , the parties managed to further narrow down to
R741 819.23. This amount includes the difference between the sums paid by the
plaintiff’s hospital plan and what the RAF alleges it should have paid in each
instance as a prescribed minimum benefit (‘PMB’) or its sub -set of emergency
medical care (‘EMC’). The second is the terms of the statutory undertaking to be
furnished by the RAF under s 17(4)(a) of the Road Accident Fund Act 1 (‘RAF Act’).
In this regard the RAF agree s that the plaintiff is entitled to a s 17(4)(a) undertaking
in respect of all accident-related future medical expenses. It is only the terms thereof
that could not be agreed.
[3] The first issue, relating to past medical expenses, centres around the RAF’s
refusal to accept liability based on what it pleaded in its belatedly amended plea as
follows:2
‘6.4 The Plaintiff’s medical scheme is obliged to pay for the treatment of
emergency medical care that was provided by supplier and or service
providers, as it is a prescribed minimum benefit as envisaged in Section 29 of
the Medical Schemes Act for which the medical aid scheme [is] statutorily
obliged to pay and cannot be claimed back from the Defendant…
6.6 The Defendant further pleads that the personally incurred past medical
and hospital expenses in respect of the balance of the claim in the sum of
1 No 56 of 1996
2 In terms of its amended plea filed after the conclusion of evidence but before argument, to which the
plaintiff did not object.
R741 819.23 remains in dispute due to various internal policies and directives
issued by the Defendant.’
[4] It emerged during the trial that the RAF rejected the plaintiff’s claim for past
medical expenses currently before the court on 3 bases. First, the contention (not
pleaded) that where supporting invoices do not strictly comply with its in-house
requirements pertaining to International Classification of Disease (ICD) codes, such
claims will be rejected. In Fookwe v Road Accident Fund 3 this court found that
contention to be without merit. Fookwe was not appealed by the RAF and in closing
argument the RAF therefore did not persist with its reliance on that contention. The
second is that the parties agreed in closing argument that the only “Directive” which
now falls under scrutiny in the present case is what I will refer to as Directive 2 4,
apparently issued by the RAF to its employees on 13 April 2023, and again
apparently, in which it instructed its employees not to make any payments to
claimants for emergency medical care that was provided by a supplier , on the basis
that this is a prescribed minimum benefit as envisaged in s 29 of the Medical
Schemes Act5, and thus - according to the RAF - cannot be claimed back from the
RAF. I say “apparently” because Directive 2 was not made available to this court.
These “exclusions” were referred to during the trial as PMBs and EMCs. The third
was that – although it is undisputed this had never before been brought to the
plaintiff’s attention - certain expenses required ‘further motivation’.
The evidence
[5] The plaintiff and his wife , Mrs Janine Marais, testified in support of his case.
Mr Nizaamodien Abdool, who is the senior bill reviewer and field case manager at
the RAF’s Cape Town branch, testified on its behalf, and was also instrumental in
assisting the parties to narrow the areas o f dispute, for which I express gratitude. In
3 [2024] JOL 64365 [WCC]
4 The other Directives are Directive 1, apparently issued by the RAF on 12 August 2022, in which the
RAF instructed its employees not to make any payment to claimants if their medical aid scheme had
already paid for their medical expenses arising from a motor collisio n; and Directive 3, issued on 2
November 2023, in which the RAF informed its employees t hat s 19( d)(i) of the RAF Act applies in
respect of claims paid by a medical aid scheme on the basis that a medical aid scheme is not a
supplier. Directive 1 is the subject of the a ppeal currently pending before the Supreme Court of
Appeal referred to at para 1 of this judgment. The RAF did not specifically plead Directive 3.
5 No 131 of 1998
addition, the RAF admitted the contents of inter alia the clinical notes pertaining to
the plaintiff’s treatmen t and the contents of all of the plaintiff’s expert reports , which
meant these experts were excused from testifying.
[6] In light of the clinical notes and expert reports, the parties agreed that the
plaintiff sustained the following injuries as a direct result of the collision: a complete
facet fracture-dislocation of T6 to T8 resulting in complete paralysis; fracture of the
left scaphoid bone; contusion of the right hip with an avulsion injury of the iliopsoas
tendon attachment; soft tissue injury, multiple abrasions and lacerations of the right
ankle; soft tissue injury of the chest, collapse of one lung and rib fractures; resultant
chronic pain; and resultant depression.
[7] The parties also agreed that the sequelae of the plaintiff’s injuries included or
include the following:
(a) Following the collision, the plaintiff was transported by ambulance to
Netcare N1 Hospital, from where he was transferred to Christiaan Barnard
Hospital. He received medical treatment, including a posterior decompression
and fusion of T5 to T10. The plaintiff remained hospitalized until his discharge
on 24 April 2019, whereafter he was transferred to the Vincent Pallotti
Rehabilitation Centre, where he remained until 19 June 2019;
(b) Due to the magnitude of the plaintiff’s injuries, the left scaphoid fracture
was only diagnosed sometime after the accident, and in November 2019, the
fracture was reduced and stabilized by means of a cannulated screw;
(c) The plaintiff also experienced persistent discomfort of the right hip and
the inability to sit flat on both buttocks. Sub sequently, he underwent an
arthroscopic examination of the right hip in March 2021. A tenotomy of the
iliopsoas tendon was performed, as well as a debridement of the joint together
with capsule release. Post -surgery, the contracture of the soft tissues
surrounding the right hip was released and he was able to sit normally;
(d) He developed a significant bladder infection at the end of January
2022, which required hospitalization for one week . He also has complete
incontinence of the bladder and bowel and catheterizes his bladder every four
hours, although he has had repeated bladder infections which require
medication. Bowel incontinence is maintained with a specific programme;
(e) He presents with complete paralysis of both legs as well as of the
abdominal musculature distal to T6. He is confined to a wheelchair and is
unable to stand or walk on his own. Any movement of the legs elicits muscle
spasms, which is partially controlled with medication. There is a total lack of
sensation distal to T6;
(f) The plaintiff has complete neurogenic sexual dysfunction;
(g) He experiences chronic lower back and thoracic spine pain, but he
avoids using medication to avert long-term side effects;
(h) The plaintiff experiences pain in the left wrist;
(i) He presents with a 20 -degree flexion contracture of the ankle joints,
secondary to contracture of the Achilles tendons. All movements of the lower
limbs elicit muscle spasms;
(j) The injury was catastrophic and would have been associated with
severe emotional trauma , the plaintiff having been rendered permanently
paralyzed. The plaintiff experiences chronic pain, and he is visibly depressed;
(k) The plaintiff requires future medical treatment for urinary tract
infections, pressure sores, neurological complications, pathological fractures
of the lower limbs, spasticity, contractures, neurogenic heterotopic
calcification, gastrointestinal problems and bone -grafting of the left wrist. He
also requires psychological counselling due to the catastrophic nature of the
injuries sustained;
(l) The plaintiff requires home adaptations, a secondary wheelchair, a
standing frame, and other adaptive devices. He also requires an automatic
transmission vehicle, and assistance with household maintenance and
gardening; and
(m) The plaintiff currently employs a carer from Mondays to Fridays for 5
hours per day. He will require a carer on a permanent basis.
[8] The evidence of the plaintiff and his wife was as follows. The plaintiff is a
member of a Medihelp hospital plan and not a medical aid scheme. Essentially all
that is covered by the plan are in-hospital expenses. All other expenses have to be
paid by the plaintiff personally. Accordingly, as the plaintiff’s wife put it ‘so
unfortunately…everything out of hospital, your day-to-day stuff, your wheelchairs,
your medication, if you get certain operations …all of those costs we have to pay out
of our own pocket’.
[9] The plaintiff’s wife confirmed that all the expenses which remain i n dispute
were incurred as a direct result of the collision , were reasonably and necessarily
incurred and that they were paid by the plaintiff or by her on his behalf out of their
joint bank account. She also testified that after a lengthy battle with the hospital plan
representatives she eventually managed to persuade them to cover the plaintiff’s
bladder medication and catheters as a PMB . However, the hospital plan refused to
cover other expenses which quite obviously pertain directly to the plaintiff’s bladder
and bowel conditions and are ongoing expenses. Her approach to the hospital plan
representatives to cover the cost of one of the plaintiff’s wheelchair s was refused
and referred by her to the om budsman who confirmed that the hospital plan was not
obliged to cover this expense. There was also a doctor’s bill of about R53 000 which
the hospital plan did not cover. This was incurred in the following circumstances.
After the collision the plaintiff was transported by ambulance to the nearest hospital
which could not accommodate him. He was then transported by ambulance to a
hospital at N1 City . The young neurosurgeon who initially examined him there told
the plaintiff’s wife that he did not believe he had sufficient experience to perform the
required emergency operation and that in the circumstances the plaintiff would be
transferred to Christiaan Barnard Hospital. Accordingly, the expense was incurred as
one of necessity and not one of choice. Despite this the RAF refused to pay the
amount on the basis that the total cost should have been paid in full by the hospital
plan as a PMB.
[10] With reference to a detailed schedule, the plaintiff’s wife also testified about
the medication and equipment such as surgical gloves and lubricants which he
requires on an ongoing basis , as well as regular doctors ’ appointments, pathologist
expenses and the like necessary to monitor his condition . Other regular treatment
required includes physiotherapy, biokinetic therapy and hydrotherapy to build and/or
maintain sufficient strength for the plaintiff to manage himself daily , such as
transferring from bed to chair and chair to shower bench , and to pick up his
wheelchair when he is in his specially adapted vehicle. There are also other
expenses incurred from time to time, for example, replacement of his wheelchair
tyres in addition to which there are the carer’s expenses.
[11] Her evidence was further that at the time of the collision she was 28 weeks
pregnant with the couple’s first child , who was subsequently born and is healthy .
They had always planned to have another child as well . The plaintiff’s complete
neurogenic sexual dysfunction as a direct result of his paralysis caused by the
collision, confirmed by a specialist and not disputed by the RAF, meant that the
couple were forced to go the route of IVF treatment which despite two cycles failed
since the embryo transfers we re unsuccessful. She testified that the couple wish to
continue trying to have another child.
[12] When asked in cross -examination why she believed the RAF should be
liable for those items rejected by it on the basis that they were either PMBs or its
sub-set EMCs she replied ‘because it was related from the accident that left him a
paraplegic; so those costs are definitely reasonable and it was necessary. I paid it
from our joint account; there is an invoice and there is a proof of payment with my
name on it that I paid from our joint account’. Importantly she confirmed that what the
RAF refused to pay in each instance of a PMB /EMC defence is the difference
between the PMB /EMC paid by the hospital plan and the total amount which the
plaintiff paid. It was put to her that the stance of the RAF in rejecting these claims
was that ‘because you are part of a medical aid scheme, the medical aid scheme is
responsible for those expenses ’ to which she responded ‘like I’ve testified before its
a hospital plan. To be clear, if you’re in hospital those expenses they will pay…all out
of hospital expenses …they don’t pay for that. Its not a fully comprehensive medical
aid scheme; it’s a hospital plan only’.
[13] Mrs Marais confirmed that at no stage had the RAF requested a copy of the
hospital plan and its schedule of benefits applicable at the time of the collision way
back in 2019, and it was also confirmed on behalf of the RAF that despite this it had
approached the issue on the basis that the plaintiff was a member of a medical aid
scheme, notwithstanding its acceptance by the time of the trial that this was factually
incorrect, and that the basis for its rejection had neither been brought to the plaintiff’s
attention nor even pleaded until after the conclusion of evidence.
[14] The remaining disputed portion of the plaintiff’s claim of R741 819.23 was
rejected by the RAF for inter alia the following reasons6:
(a) Chairman Industries: Alto manual standing wheelchair: R110 900:
reason: ‘there is no clinical indication for the use of this device’;
(b) Enabled Sport: Sports wheelchair and harness gloves : R70 430.60:
reason: ‘the provider is not a medical professional’;
(c) Biokineticist account: R118 821.80: reason: ‘substantial overlap
between the physiotherapist and the biokineticist regarding treatment’;
(d) Physiotherapy account: amount claimed not stipulated : reason: ‘the
request for weekly physiotherapy is declined. An allowance for 6 treatments
will be allowed for pain management’; and
(e) Standing frame: R13 000: reason: ‘RAF revisited previously approved
standing frame and denied the amount on 26 March 2025 due to lack of
clinical evidence’.
6 This was contained in a letter dated 26 March 2025 from the plaintiff’s attorney together with various
annexures after the conclusion of evidence but prior to argument.
[15] The above amounts total R313 152.24 and the amount rejected for Enabled
Sport includes VAT in respect of the plaintiff’s claim for the sports wheelchair and
harness glove s. The difference between the amount still claimed of R741 819.23
and R313 152.24 is R428 666 99, which as I understand it was rejected as a PMB or
its subset of EMCs, or because there was either no ICD code or a non-specific ICD
code in respect of the item concerned despite proof of payment; and as far as the
claim fo r IVF treatment is concerned , the RAF advised the plaintiff that he is
required to provide the following for the ‘further assessment of the case: a detailed
gynaecologist report on the claimant’s wife’s fertility status [and] documentation
indicating that the facility where the IVF was conducted is accredited to provide the
service’.
[16] Prior to the collision the plaintiff was employed as a physical education
teacher at a primary school. He testified that he also coached rugby, and played
cricket, action cricket and action netball. He was a registered Western Province
rugby referee and coached cricket at his local club of which he was a member. The
sports or racing wheelchair (and harness gloves) as it was also called, the cost of
which was disallowed by the RAF, is the wheelchair that enables him to participate in
sport, including athletics and marathons. His evidence was that he also uses the
wheelchair on a daily basis for exercise and to participate in competitions. The
company from which he acquired the wheelchair was owned by Mr Ernst Van Dyk, a
former para -athlete and Paralympian. Given his p rior athletic prowess he was
obviously accustomed to regular physical activity before the collis ion. Having been
so active , the consequence s of his catastrophic injury have been devastating, not
only to his physical but also his mental and emotional well -being. For him to be as
mobile as possible has directly benefited him in this regard, and the racing
wheelchair is an integral part of helping him to cope.
[17] He also testified that the manual standing wheelchair purchased from
Chairman Industries (whose owner is also wheelchair bound) allows him to “stand” in
an upright position , which not only helps with his bowel routine but assists with
attempting to maintain healthy organ function given that he is otherwise sitting or
lying down 24 hours per da y. In addition , it helps him to be more mobile , for
example reaching to open cupboards and the like. Even though he is only able to
stand with this chair for a maximum of an hour at a time ‘it helps a lot’. His evidence
was further that part of his rehabilitation at the Vincent Pall otti unit, as well as his
biokinetic treatment, involved the use of such a chair.
[18] In relation to the wheelchair he purchased from Chairman Industries, this
claim was rejected by the RAF on the basis that it was too expensive when,
according to the RAF, the plaintiff had a number of cheaper options available to him.
It is noted in this r egard that the RAF did not tender any amount which in its view
was reasonable. I t simply disallowed the full amount. The plaintiff testified that he
chose this particular wheelchair ‘because of the weight of the wheelchair and to help
me when I’m driving and alone operating my vehicle. So the chair is easier to handle
and operate to get it into…and out of the vehicle’. His evidence was further that the
wheelchair weighs 4.5 kilograms as opposed to the weight of his previous wheelchair
of between 13 and 14 kilograms. Given that he is obliged to rely solely on upper
body strength, the benefit of a lighter chair is self -evident when getting into and out
of a vehicle since it is much easier to lift. He also testified that there are in fact
extremely limited options available to procure anything cheaper of the same or
similar weight. Currently it is the only chair of its type that can be purchased in South
Africa. The same applies to the standing manual wheelchair.
[19] His testimony was further that the standing frame, previous ly accepted by
the RAF as a valid claim but rejected at a much later stage ‘due to lack of clinical
evidence’ gives him the benefit of interacting physically with h is active, 5 year old
son, reduces the ev er present risk of pressure sores , and minimises his muscle
spasms. As far as the claims for physiotherapy and biokinetic therapy are
concerned, he had only been informed at the meeting held at my request during the
trial (ie, for the first time at that meeting) that the RAF required a formal motivation
for this treatment beyond a period of time which the RAF itself considers reasonable
(seemingly irrespective of the particular circumstances of the plaintiff ). Quite
obviously, given the elapse of about 6 years since the collision, this is a factual
impossibility in relation to the bulk of those expenses. He explained why he required
both types of treatment on an ongoing, regular basis:
‘The first year I started out you have to start getting your posture back, learn
how to sit, all that stuff, and I went for rehabilitation on my hand, the left
scaphoid injury. I had one operation, which I went to the physio, went back to
the doctor, it was unsuccessful. I had to go back for another sur gery, which
obviously kept the physio and bio work going. The second surgery was done,
I went for more physio and bio work, also to work with your upper body
strength and get all the necessary things from a bio in strength and
conditioning work to help you in your everyday living.’
[20] In cross-examination the plaintiff confirmed that there is no cheaper available
racing chair in South Africa . He was told the reason for rejection of the claim is that
Enabled Sport, which supplied it, is not registered as a healthcare provider with the
Health Professions Council of South Africa (HPCSA) and, in terms of the RAF ’s
internal policy this automatically disqualifies the claim , despite the common cause
fact that the chair was purchased as a direct result of the colli sion and was both
reasonable and necessary. Although the plaintiff was not receiving physiotherapy or
biokinetic treatment at the time of testifying, his undisputed testimony was that both
would nonetheless again be required from time to time in future.
[21] Given what is stated earlier in this judgment, it is only necessary to deal with
the evidence of the RAF’s witness, Mr Abdool , which is directly relevant to the
remaining disputed issues. He testified that despite the RAF being liable for
expenses ‘linked’ to a motor vehicle accident ‘all medical expenses should be
provided by a medical practitioner, someone who is registered with …the HPCSA.’
He clarified this by stating that ‘all service providers that provide medical health
services need to be registered’. His evidence was further, with regard to an expense
incurred due to an emergency medical condition ‘(t)he RAF is of the opinion and has
the stance because the nature of the injuries are linked to an emergency medical
condition, an EMC, therefore they are subject to the Medical Schemes Act …they
remain the responsibility of the medical aid scheme’ , (my emphasis) and the same
applies to any other expense qualifying as a PMB under a medical aid scheme.
[22] As far as further motivation for any expense item is concerned, Mr Abdool’s
evidence was that the RAF’s medical executive committee makes the decision on
whether an item should be allowed and that a motivatio n is usually required for a
costly or specialised item : ‘It is meant as a protective mechanism so that …the
claimant does not get something they don’t need and the RAF does not [make]
payment that they don’t need’. He accepted the uncontested evidence of the
plaintiff and his wife that this had never before been conveyed to them ; and that the
RAF did not dispute any of the contents of the expert reports . It must also of course
be emphasised that the RAF previously h ad no difficulty in accepting liability for the
plaintiff’s standing frame, despite no alleged ‘motivation’ having been requested, only
to reject it later (a) without requesting a motivation; and (b) ‘due to lack of clinical
evidence’. Moreover, Mr Abdool confirmed that what I will refer to as the secret
Directive 2 would not have been known to the plaintiff unless he had consulted with
‘someone from the RAF to get that information’. Of course, the plaintiff could not
reasonably have been expected to request information about something he had no
idea even existed ; and this court has already rejected the RAF’s argument that its
internal Directives apply retrospectively in Fookwe7.
[23] Mr Abdool did not dispute any of the following. Both occupational therapists
(ie, including the R AF’s own expert ) agreed in their joint minute that the plaintiff
requires, inter alia, the wheelchairs and standing frame about which he testif ied as
well as all the incontinence products referred to in the other expert reports. The
report of the clinical psychologist confirmed that he needs to actively engage in the
disabled sporting community and requires training with a biokineticist and coaches
for this purpose. This in itself indicates that the purposes of biokinetic treatment and
physiotherapy are different despite the belated attitude of the RAF that there is a
substantial overlap in these two types of treatment . He also accepted that an EMC
cannot exist on an indefinite basis since it is an emergency medical condition. He
stated that ‘clinically there is a case to be made ’ for all the expenses paid by the
plaintiff and which the RAF rejected; agreed that there is a difference between a
medical aid and a hospital plan for expenses covered; and that the only matter
standing in the way of payment are the RAF’s internal secret D irectives. But for
those, it would not have been necessary for the matter to proceed to trial.
7 At paras 22 to 27.
[24] His testimony was further that to the best of his recollection Directive 2 does
not contain a list of PMBs, but only refers to the list ‘that already exists within the
Medical Schemes Act’. He accepted however that paraplegia is not one of the listed
PMBs in the Act. According to him Directive 2 makes no mention of limiting the cost
of sequelae of a PMB to the acute phase only. The irrational attitude of the RAF is
aptly summed up in the following passage of his evidence:
‘MR ABDOOL: …so with regards to the injuries you’ve got the spinal cord
injury then you have the other two injuries. These all occur at the same
incident, right. So, the spinal cord is an emergency medical condition. The
other two are also conditions sustained in the accident.
MS HEERINK: Yes.
MR ABDOOL: So, we look at the patient as a whole.
MS HEERINK: …but what you do now is three years later when he goes for
an x-ray you disallow it and you take it right back to the accident and you say
it is a PMB which it is not because not even paraplegia is a PMB.
MR ABDOOL: Yes.
MS HEERINK: You would agree with me that is unreasonable? …
MR ABDOOL: The link is purely because of the injuries sustained in the
accident, remember.
MS HEERINK: Yes, but you are saying that, had Mr Marais had a medical aid,
which we know he does not. He has a hospital plan but the second secret
Directive says had he had a medical aid, look at what are the PMBs and other
acronyms and if it falls in ther e we are not going to pay because the medical
aid should have paid. Am I right?
MR ABDOOL: Yes.’
[25] It was also his evidence that this was the first time he has been confronted
with a hospital plan as opposed to a medical aid. He agreed that even in respect of
PMBs listed in the Medical Schemes Act, this is not a list cast in stone, since each
medical aid scheme could nonetheless have its own stipulations , such a s benefits
limited to rates charged by contracted-in medical professionals. Thus potentially,
even had a PMB relied on by the RAF applied, not every cent of the plaintiff’s claim
would have been paid. Mr Abdool was also referred to various portions of the RAF
website8, and agreed that no mention is made there of PMBs and the like. All that is
stated on this score is that the RAF will pay past medical expenses ‘which are
related to medical expenses that have already been incurred at the time of
settlement … [provided that they are] … reasonable, necessary and directly related
to the injuries sustained in the motor vehicle accident [and proven] ’. To sum up
therefore, on the evidence of Mr Abdool the RAF paid no regard , both to what it
communicates to the public on its website , and to the factual circumstances of the
plaintiff’s hospital plan cover but instead adopted a one size fits all approach based
on its own secret Directive 2. This only needs to be stated to be rejected as
misconceived.
[26] Turning now to the RAF’s statutory undertaking in respect of fut ure medical
expenses, coupled with a ‘basket of care’ which was handed in as Exhibit E , and
described by Ms Heerink (counsel for the plaintiff) as a ‘combination of the statutory
[s 17(4)] undertaking … and then this contractual, it almost looks like a medical aid ,
where they break up what treatment you can get for specific injuries ’. She pointed
out to Mr Abdool that the document makes provision for three of the plaintiff’s injuries
but not all of them , namely only for his paraplegia, the injury to his right hip and the
fracture of his left scaphoid (thus excluding the other admitted injuries to his right
ankle and chest and undisputed psychological treatment required). Mr Abdool also
agreed that the d ocument makes no mention of limitations in respect of ICD codes
for wheelchairs, medication and PMBs , including EMCs. He further agreed that the
document makes provision for many of the same expense items claimed by the
plaintiff which were at the same time disallowed by the RAF in respect of past
medical expenses. Although it was his understanding (he does not deal with future
medical expenses) that the expenses to be incurred by the plaintiff ‘would have to
meet the same administrative burden’ he fairly accepted that the document is entirely
silent on these being requirements for payment to be made by the RAF. He also
agreed that the plaintiff’s wife, as she had testified, has good reason to be extremely
concerned about the cost of his future medical expenses and the attendant risk that
the RAF might not cover them.
8 Exhibit C : ( https://web.facebook.com/RoadAccidentFund)
[27] As regards IVF tr eatment, Mr Abdool was referred to the expert report of
rehabilitation practitioner Dr Baalbergen (of the Vincent Pallotti Rehabilitation Unit) in
which he confirmed that due to the injuries sustained by the plaintiff (thus entirely
unrelated to the plaintiff’s wife as the RAF would now have it) IVF would be required,
and that allowance should be made for 3 attempts . Accordingly on the expert
evidence accepted by the RAF itself, the latter should (in addition to the previous two
failed attempts) cover the cost of the third attempt without any further motivation
being required. Mr Abdool also accepted that had there been other options available
to the plaintiff, Dr Baalbergen, who was involved in the management of the plaintiff’s
rehabilitation from the outset, would no doubt had said so. The report of the expert
urologist, Dr Breytenbach, dated 28 March 2024, supports the opinion of Dr
Baalbergen of the plaintiff’s condition from a clinical perspective. Although Mr Abdool
attempted to suggest pre-conditions and other potential options, he is not an expert
in the field, and the RAF adduced no evidence by an appropriate expert to contradict
the opinions of Dr Baalbergen and Dr Breytenbach. In these circumstances I am
persuaded that the RAF failed to advance a valid defence to this portion of the
plaintiff’s claim.
Discussion
[28] It is well established that as a general rule the patrimonial damages for
which a defendant is liable are calculated on an ordinary delictual basis : Erasmus
Ferreira and Ackerman v Francis9. In Dhanabakium v Subramanian & Another10 the
court restated the legal position that ‘it is a sound rule to construe a statute in
conformity with the common law rather than against it, except where and insofar as
the statute is plainly intended to alter the common law ’. The Dhanabakium decision
was followe d in Hlumisa Investments Holdings (RF) Ltd & Another v Kirkinis &
Others 11 where it was held that ‘[a] further factor to bear in mind is the presumption
that statutory provisions are not intended to alter or exclude the common law unless
they do so expressly or by necessary implication. Where possible, statutes must be
read in conformity with the common la w. This enhances legal certainty and
9 2010 (2) SA 228 (SCA) at para 16
10 1943 AD at 167
11 [2020] 3 All SA 650 (SCA) at para 44
recognises the value of the common law, which has developed systematically over
time’.
[29] Section 17(1) of the RAF Act obliges the RAF to compensate third parties
such as the plaintiff , for any loss o r damage suffered as a result of the negligent or
wrongful conduct of the driver of a motor vehicle. The Constitutional Court explained
the position as follows in Law Society of South Africa v Minister of Transport 12:
‘… the scheme insures road users against the risk of personal injury and their
dependants against the risk of their death caused by the fault of another driver
or motorist. It has retained the underlying common-law fault-based liability.
This means that an y accident victim or a third party who seeks to recover
compensation must establish the normal delictual elements. The claimant
must show that he or she has suffered loss or damage as a result of personal
bodily injury or the injury or death of a breadwinn er arising from the driving of
a motor vehicle in a manner which was wrongful and coupled with negligence
or intent.’
[30] The purpose of the RAF Act was elucidated by the unanimous decision in
Engelbrecht v Road Accident Fund and Another13 as follows:
‘...the stated primary concern of the Legislature in enacting these statutes is,
and has always been, “to give the greatest possible protection to persons who
have suffered through a negligent or unlawful act on the part of the driver or
owner of a motor vehicle”’.
[31] On the statutory obligation and liability to compensate a plaintiff in an RAF
claim the Supreme Court of Appeal in Road Accident Fund v Abrahams 14 clarified
the position as follows:
1212 2011 (1) SA 400 (CC) at para 25
13 2007 (6) SA 96 (CC) at para 23
14 2018 (5) SA 169 (SCA) at para 13
‘Section 21(1) abolishes the right of an injured claimant to sue the wrongdoer
at common law. Section 17(1), in turn, substitutes the [ RAF] for the
wrongdoer. It does not establish the substantive basis for liability. The liability
is founded in common law (delictual liability). Differently put, the claim
against the appellant is simply a common law claim for damages arising from
the driving of a motor vehicle, resulting in injury. Needless to say, the liability
only arises if the injury is due to the negli gence or other wrongful act of the
driver or owner of the motor vehicle.’
PMBs and EMCs
[32] What distinguishes the present matter from many others is that the plaintiff
does not claim reimbursement of any amounts paid directly to suppliers by his
hospital plan. That issue, as indicated at the commencement of this judgment , has
been postponed sine die pending a decision by the Supreme Court of Appeal in a
similar matter, albeit in the context of a medical aid scheme. It is therefore not
necessary to consider the many judgments handed down by our courts in respect of
the principle of subrogation versus the internal Directives of the RAF. Here the
defence of the RAF, despite its belatedly amended plea in respect of Directive 2, is in
truth different, as appears from the evidence summarized above. The defence is that
because the RAF considers, without more, that the plaintiff’s hospital plan (which it
has never had sight of at its own election ) should have covered some of his
expenses as PMBs and/or EMCs, he is therefore not entitled to payment. This
stance by the RAF, in the face of the undisputed testimony of the plaintiff and his wife
to the contrary, and the fairly made, significant concessions of Mr A bdool, flies in the
face of the basic principles of delictual liability at common law a nd explained by our
highest courts to fall on the shoulders of the RA F. Put differently, the RAF remains
liable under the common law for such expenses.
Section 17(4)(a) undertaking for future medical, similar and related expenses
[33] The RAF admits, or can no longer dispute, that the plaintiff requires future
medical and similar treatment and will have fu ture expenses, which include the
following:
(a) Treatment for urinary tract infections, pressure sores, neurological
complications, pathological fractures of the lower limbs, spasticity,
contractures, neurogenic heterotopic calcification, gastrointestinal problems
and bone-grafting of the left wrist;
(b) Psychological counselling due to the catastrophic nature of the injuries
sustained;
(c) Home adaptations, a secondary wheelchair, a standing frame and
other adaptive devices , as well as an automatic transmission vehicle and
assistance with household maintenance and gardening; and
(d) A carer on a permanent basis (currently from Mondays to Fridays for 5
hours per day).
[34] Section 17(4)(a) of the RAF Act provides that ‘where a claim for
compensation under subsection (1) includes a claim for the costs of the future
accommodation of any person in a hospital or nursing home or treatment of or
rendering of a service or supplying of goods to him or her, the Fund or an agent shall
be entitled, after furnishing the third party concerned with an undertaking to that
effect or a competent court has directed the Fund or the agent to furnish such
undertaking, to compensate the third party in respect of the said costs after the costs
have been incurred and on proof thereof, or the provider of such service or treatment
directly, notwithstanding section 19(c) or (d), in accordance with the tariff
contemplated in subsection (4B)’.
[35] In Knoetze obo Malinga v Road Accident Fund15 it was held that s 17(4)(a) is
designed to remove contingencies created by estimating the future costs of medical
and ancillary expenses and then to recalculate those costs to a present value, further
estimating that it would be sufficient to cover expenses over the lifetime of a
claimant. Such an undertaking thus envisages an “as-and-when” payment scheme of
15 [2022] JOL 57029 (GP) at para 13
actual expenses, removing all contingent permutations. Expenses are therefore paid
as they eventuate. The court also held16 that, once a plaintiff proves his/her claim as
contemplated in the subsection , he/she is entitled to claim an order catering for a
direction to the RAF to furnish such an undertaking and a court is entitled to grant
such an order.
[36] In Barnard NO v Road Accident Fund 17 it was held that ‘[t]he provision of an
undertaking serves not only to avoid the difficulties of quantification of such claims, it
serves also to provide a claimant who will require future treatment or the rendering of
services with a measure of security o f access to such services that payment of a
lump-sum award cannot provide . This, in my view, serves to protect the dignity of
claimants. That the statutory scheme of compensation for victims of road accidents
serves as a form of social security is well recognized. An interpretation of s 17(4)(a)
which is consonant with the values of human dignity and equality must be favored if
there is any ambiguity in the proper construction to be placed on the section ’. (my
emphasis)
[37] In Kubheka v Road Accident Fund18, the court, referring to Knoetze, ordered
the RAF to furnish the plaintiff with a s 17(4)(a) undertaking for payment of 100% of
the costs of future accommodation in a hospital or nursing home , or treatment , or
rendering of a service or supplying of goods to the plaintiff resulting from the motor
vehicle collision in question, and to compensate the plaintiff in respect of such costs
after the costs have been incurred and upon proof thereof.
[38] In Mathemelo v R oad Accident Fund 19 the court (also referring to Knoetze)
held that the content of such an undertaking must follow the wording of the
subsection. In reaching this conclusion it further had regard to Marine & Trade Inc.
Co. Ltd v Katz 20 in which it was held, albeit in the context of a statutory undertaking
in an insurance claim, that a court has no discretion to alter the wording of suc h an
undertaking in the absence of consent by both parties, since this ‘… could well give
16 fn 15 above, at paras 16 to 26
17 [2019] JOL 42656 (ECP) at paras 29 to 30
18 [2023] JOL 61455 (GJ)
19 [2023] JOL 60956 (GP) at paras 20 to 24
20 1979 (4) SA 961 (A) at 972 B-E
rise to lengthy expensive disputes between the parties … and in any event, may still
necessitate speculation or guesswork by the trial Court about what hospitalization,
treatment, etc will become necessary in the future ’. The court t hen concluded that
the RAF was to provide the plaintiff with an undertaking in line with the declaratory
order issued in Muller obo Human v Road Accident Fund to the following effect21:
‘It is declared that Respondent, when invoking section 17(4)(a) of the Ro ad
Accident Fund Act, Act 56 of 1996 as amended, and electing to compensate a
road accident victim with an undertaking, that such undertaking should adopt
the wording of section 17(4)(a) and must be free from any limitations,
caveats, restrictions and specifications ...’
[39] In this matter, rather than providing the plaintiff with the required s 17(4)(a)
undertaking, the RAF unilaterally opted for a “ basket of care ”-specified document
listing the treatment allowed in respect of only certain of the injuries sustained by the
plaintiff. The RAF Act does not provide for a unilateral ‘contractual’ undertaking,
particularly in circumstances where such undertaking limits the plaintiff’s access to
treatment and payment of ancillary expenses for accident -related injuries. The
‘undertaking’ which the RAF seeks to impose upon the plaintiff is simply wrong in
law, and he is not obliged to accept it.
[40] The following order is made:
1. The defendant shall pay to the plaintiff, in respect of personally
paid past medical, hospital and related expenses, a total sum of
R1 465 152.18 (the “capital sum”), being the sum of R723 332.95
not in dispute between the parties, as well as the sum of
R741 819.23;
2. Payment of the capital sum will be effected directly into the trust
account of the plaintiff’s attorneys of record by means of an
electronic transfer within 180 (one hundred and eighty) calendar
21 Para 1 of the order made on 8 September 2023 in Muller obo Human & 2 Others v The Road
Accident Fund [Case No 066777/2023], Gauteng Division, Pretoria.
days from the date of this order (the first due date). If the
defendant fails to make paymen t as aforesaid, the defendant will
be liable for interest on any outstanding amount at the statutory
rate per annum calculated from 14 (fourteen) days of this order;
3. In respect of past medical and hospital expenses paid for by the
plaintiff’s hospital pla n, this issue is postponed sine die for later
determination (by agreement between the parties);
4. In respect of future medical and related expenses arising from the
collision, the defendant shall furnish the plaintiff with an
undertaking, free of any limitations, caveats, restrictions, and
specifications, in terms of section 17(4)(a) of the Road Accide nt
Fund Act 56 of 1996 for payment of 100% of the cost of future
accommodation in a hospital or nursing home, or treatment, or
rendering of services or supplying of goods in respect of
accident-related injuries, after such costs have been incurred and
upon proof thereof.
5. The defendant is to deliver the undertaking referred to in
paragraph 4 above to the plaintiff’s attorney of record within thirty
(30) calendar days of date of this order;
6. Save to the extent provided in any prior order, the defendant is to
pay the plaintiff’s costs, including VAT, as between party and party
on Scale B, and including also the costs of Counsel and the
qualifying fees, if any, of the following experts:
a. Dr G Kirsten, General Practitioner
b. Dr F J D Steyn, Orthopaedic Surgeon
c. Dr R Martin, Radiologist
d. Ms Marion Fourie, Occupational Therapist
e. Dr Ed Baalbergen, Rehabilitation Practitioner
f. Dr Erika Steenberg, Clinical and Neuropsychologist
g. Ms Norma Colley, Industrial Psychologist
h. Mr Wim Loots, Actuary
i. Mr Barry Grobbelaar of Forensys En gineering Dynamics,
Accident Reconstruction Experts
j. Ms Petra Coetsee, Architect
k. Dr Ilse Breytenbach, Urologist
7. For purposes of paragraph 6 above, Mrs Janine Marais is declared
a necessary witness;
8. Payment of the taxed or agreed costs reflected above s hall be
effected within 180 (one hundred and eighty) days of agreement
or taxation (the second due date) and will likewise be affected by
electronic transfer into the plaintiff’s attorneys trust banking
account; and
9. Should the taxed or agreed costs not be paid by the second due
date the defendant shall be liable for interest at the statutory rate
per annum from the second due date until date of payment.
_____________________________
J I CLOETE
JUDGE OF THE HIGH COURT
Appearances
For Plaintiff: Adv A Heerink
Instructed by: Van der Spuy Cape Town (Ms L Willemse)
For Defendant: Mr F Goosen
Instructed by: State Attorney, Cape Town.