SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER Y2021/55540
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
15 Sep 2025
In the matter between:
BRUTON RUSSEL FREDERICK Applicant
on behalf of Estate Late Bergmann
Walter Ray Gerhard
and
ROAD ACCIDENT FUND
Respondent
J U D G M E N T
PILLAY, AJ
Introduction
1. The applicant, the estate of the Mr Bergmann, is the plaintiff in the main action
for damages against the defendant arising from the death of Mr Bergmann
(“the deceased”) who died from bodily injuries sustained in a motor vehicle
collision.
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2. On 8 February 2022, the defendant offered the plaintiff a compromise which
was formulated as follows:
“The Road Accident Fund (RAF) has considered the available evidence
relating to the matter in which the motor vehicle accident giving rise to this
claim has occurred. The RAF has concluded that the collision resulted from
the sole negligence of the RAF’s insured driver.
Consequently, without prejudice, the RAF offers to settle the issue of
negligence vis-à-vis the occurrence of the motor vehicle collision on the basis
that the insured driver was solely negligent in causing the motor vehicle
collision.
This offer is limited to the aspect of negligence as to the way in which the
collision occurred. This offer may not be interpreted or construed in a manner
that would have the RAF concede any other aspect of the claim. To avoid
doubt, the RAF reserves all its rights in law with regards to all other
procedural and substantive aspects of the claim.”
3. This compromise was accepted by the applicant who now brings this
application for past medical and hospital costs and expenses which were
reasonably expended to treat/ameliorate the deceased’s injuries after the
collision and until his demise.
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4. Initially, the applicant sought this relief in the form of an interim payment
pending the determination of its claim for other heads of damages. However,
by the time the application was argued, all other heads of damages had
become settled between the parties. Both parties thus approached the matter
on the basis that the applicant sought final relief and not an interim payment.
5. The respondent raised three points in limine. These are dealt with below.
Points in limine
Hearsay
6. The respondent contends that paragraphs 8 and 9 of the founding affidavit
deposed to by the applicant’s attorney of record constitutes hearsay
allegations.
7. Paragraphs 8 and 9 of the founding affidavit states that:
“8 As a result of the bodily injuries sustained by the deceased in the
aforementioned motor vehicle accident, the deceased received
hospital and medical treatment and incurred expenses in connection
thereof. The Past Hospital and Medical Expenses were incurred as a
direct result of the injuries sustained and the sequelae thereof
following the accident. A confirmatory affidavit from the Medical Aid
Scheme's administrator confirming these medical expenses as well as
a confirmatory affidavit from the Executor of the deceased estate
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confirming the amount due to the Estate is attached hereto as
Annexure "CC3a and b" respectively.
9 The Executor of the deceased estate, Russel Frederick Bruton, ceded
the right to recover the p ast hospital and m edical expenses to the
Applicant/Plaintiff by way of deed of cession. The Deed of Cession is
attached hereto as Annexure "CCA".
8. These allegations are thus supported by the confirmatory affidavits of the
medical scheme administrator and the executor of the deceased’s estate.
9. There is thus no merit to the hearsay complaint.
Stay / postponement
10. In its answering affidavit, the respondent contended that it implemented a
policy change which dictated that it w ould no longer reimburse claimants for
past medical expenses where same was paid over to the service provider by
a medical aid.
11. The respondent however advised that t he legality of this policy was
challenged successfully in the High Court and in the Supreme Court of
Appeal. The answering affidavit records that t he respondent has applied for
leave to appeal to the Constitutional Court. On this basis, i n its answering
affidavit and heads of argument, the respondent sought a postponement of
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this matter pending the determination of this appeal by the Constitutional
Court.
12. However, during oral argument, Ms Tivana who appeared for the respondent ,
informed the Court that the application for leave to appeal had been
summarily dismissed by the Constitutional Court . As a consequence, t he
request for postponement as raised in the respondent’s answering affidavit
and heads of argument, fell away.
13. Ms Tivana, however informed the Court from the bar of a majority decision of
this Court in Discovery Health (Pty) Ltd v Road Accident Fund and Another
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which upheld the respondent’s policy. She indicated however that leave to
appeal had been granted in that matter and that an appeal to the Supreme
Court of Appeal was pending. Ms Tivana indicated from the Bar that the
respondent sought a stay of this application pending the final determination of
that appeal.
14. However, given the nature and impact of the relief sought, it was incumbent
on the respondent to have brought a substantive application for a stay of
these proceedings. The interests of justice and fairness required that the
applicant have a fair opportunity to respond to the allegations which
underpinned an application for stay, particularly where these differed from
what was contained in the respondent’s answering affidavit and heads of
argument. It was simply not adequate or appropriate for the respondent to
1 2025 (3) SA 225 (GP)
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raise these issues for the first time during argument. In the absence of a
substantive application for the stay of this matter, the request for a stay of
proceedings was declined and I proceeded to hear argument on the merits of
the application.
Requirements for interim payment not met
15. The respondent argued in its answering affidavit and heads of argument that
the requirements for an interim payment were not met given that the merits of
the claim had not been admitted by the respondent in writing . However,
during oral argument, Ms Tivana accepted that application had since morphed
into one for final relief. She accordingly withdrew this point in limine.
The merits
16. The sole basis upon which the respondent opposed this matter on the merits
is the contention that the respondent cannot in law be held liable for past
medical expenses in instances where these have been paid by a medical aid
scheme and not by the plaintiff.
17. To bolster this point, the respondent relied exclusively on the majority
judgment of Mlambo JP and Bam J in Discovery Health (Pty) Ltd v Road
Accident Fund and Another
2 However, as indicated above, the court in that
2 2025 (3) SA 225 (GP).
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matter granted leave to appeal against its judgment and an appeal to the
Supreme Court of Appeal is currently pending.
18. The effect of this is that the legal position continues to be as set out in Bane v
D'Ambrosi3 , where the SCA held that payments made by a medical scheme
on behalf of a member constitute a discharge of the medical scheme’s
contractual obligation towards that member and thus constitute res inter alios
acta. The respondent may not claim the benefits thereof. Thus, a plaintiff on
whose behalf a medical scheme made payments towards medical expenses,
may still claim those past medical expenses in delictual actions.
19. Given that this judgment binds this Court, it renders further discussion on this
issue unnecessary.
20. In the circumstances, and given that the parties have settled all the other
heads of damages, the applicant’s claim for final payment must succeed.
21. As to question of costs, no argument was raised as to why costs should not
follow the result.
Order
22. I make the following order:
3 2010 (2) SA 539 (SCA)
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1. The respondent shall pay to the a pplicant the sum of R4 341 700.92 (Four
million, three hundred and forty -one thousand, seven hundred rand and
ninety-two cents), in respect of the a pplicant's claim against the r espondent
for past hospital and medical expenses.
2. In the event of the aforesaid amount not being paid timeously, the
respondent shall be liable for interest on the outstanding amount at the
prevailing interest rate, calculated from the 15 th calendar day after the date
of this order to date of payment.
3. The respondent shall pay the costs of the application on high court scale B
including, for the sake of clarity, but not limited to
3.1. The costs incurred in obtaining payment of the amount mentioned
above;
3.2. The costs of and consequent to the appointment of counsel, on scale
B, including, the preparation and reasonable attendance fee of
counsel for attending:
3.2.1. the Pre-Trial conference held on 21 June 2024;
3.2.2. the interlocutory application heard on 23 August 2023;
3.2.3. the drafting and settling of the practice note; and
3.2.4. the drafting and settling of the heads of argument.
3.3. The costs of all medico- legal, radiological, MR, sonar, pathologist,
actuarial and addendum reports and/or forms obtained, as well as
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such reports and/or forms furnished to the respondent and/or its
attorneys, as well as all reports and/or forms in their possession
and all reports and/or forms contained in the applicant 's bundles,
including, but not limited to the following:
3.3.1. Mr G Jacobson, Actuary.
3.4. The reasonable and taxable preparation, qualifying and reservation
fees, if any, in such amount as allowed by the Taxing Master, of the
above expert
4. The amounts referred to above will be paid to the a pplicant's attorneys, A
Wolmarans Incorporated, by direct transfer into their trust account, details
of which are the following:
NAME OF ACCOUNT HOLDER: A WOLMARANS INC
NAME OF BANK & BRANCH: ABSA BANK, NORTHCLIFF
ACCOUNT NUMBER: 4[…]
BRANCH CODE: 6[…]
TYPE OF ACCOUNT: CHEQUE (TRUST)
REFERENCE: MS ANNA KORDAS/MAT13067
______________
K PILLAY
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
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For the Applicant:
Adv B Molojoa instructed by A
Wolmarans Inc
For the Respondent:
Ms T Tivana instructed by The Road
Accident Fund
Date of hearing:
21 July 2025
Date of judgment:
15 September 2025