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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 31 October 2025
CASE NO: 27384/2018
In the matter between:
BOTHA: WILLEM PETRUS ENGELBRECHT PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
ALLY AJ
[1] This matter came before this Court wherein the Plaintiff claimed past and
future hospital and medical expenses arising out of a motor vehicle collision which
occurred on 23 July 2017.
[2] The Plaintiff was represented by Adv. N. Adam and the Defendant by Mr L.
Klaas.
2
[3] At the outset Plaintiff’s Counsel moved for an amendment1 which had been
filed and served on 26 May 2025. Defendant had no objection to the amendment
and the amendment was granted.
[4] The Plaintiff’s Counsel then moved an application in terms of Rule 38(2) of
the Uniform Rules of Court for the Plaintiff to lead evidence by way of affidavit. After
hearing submissions from Plaintiff’s Counsel and no objection from the Defendant,
the application was granted.
[5] Plaintiff’s Counsel, as part of her introductory remarks, submitted that liability
had been settled at 80% in favour of the Plaintiff and that general damages and
loss of earnings had also been settled.
[6] Plaintiff’s Counsel submitted that an undertaking in terms of Section 17(4) of
the Road Accident Fund Act2, hereinafter referred to as ‘the Act’, in respect of
future hospital and medical expenses followed as of law when the Defendant
settled the issue of liability and general damages.
[7] Plaintiff’s Counsel submitted that the Defendant was liable for the past
hospital and medical expenses in terms of Section 17(1) of ‘the Act’.
[8] The issue of the liability of the Defendant for past hospital and medical
expenses where such expenses have been paid by a medical aid fund has received
considerable attention by our Courts.
1 CaseLines: Section 004 at pages 49-51
2 Act 56 of 1996 as amended
3
[9] Mr Klaas for the Defendant submitted that the defendant is not liable for the
past hospital and medical expenses of the plaintiff in circumstances where, as in
this case, plaintiff’s medical aid scheme, Discovery, has paid for such expenses.
[10] Mr Klaas’s first argument was that this Court should postpone this matter
until the Full Bench matter of Discovery 23 had been decided by the Supreme
Court of Appeal.
[11] It must be stated that the defendant did not file and serve a formal
application for a postponement but requested such postponement from the bar.
Furthermore, it should further be noted that defendant’s plea in this matter did not
deal specifically with plaintiff’s claim for past hospital and medical expenses except
to plead in paragraph 9 of the plea:
“The Defendant has no knowledge of the allegations contained in this paragraph,
accordingly denies same and the plaintiff is put to the proof thereof.”
[12] Mr Klaas for the defendant was asked whether he intends amending
defendant’s plea and he responded in the negative.
[13] Mr Klaas submitted, however, that the defendant was permitted to raise a
point of law even though the plea does not raise such an issue.
[14] Accordingly, the following issues need to be decided:
14.1. whether the defendant is entitled to have the matter postponed
pending the finalisation of the Discovery 2 matter by the Supreme Court of
Appeal?
3 Discovery Health (Pty) Ltd v Road Accident Fund [117206/23] 2024
4
14.2. whether the plaintiff has proved his claim for past hospital and medical
expenses and that defendant is liable to pay such expenses.
[15] In considering the application for postponement of the trial, it is my view that
a Court must consider the following:
15.1. the attitude of the respondent to such application;
15.2. the grounds for such postponement by the party applying for
postponement;
15.3. prejudice to the parties.
[16] The Plaintiff objected to the postponement and submitted that firstly, there
was no formal application for a postponement, secondly the plaintiff would be
prejudiced by a postponement and thirdly that the defendant approaches this
Court on the date of the trial for postponement.
[17] In my view, whilst a party is permitted to request a postponement, however,
where there is an objection from the other party, such request, in my view
must be in the form of a substantive application which can be dealt with in
detail by the opposing party.
[18] The defendant submits that the Discovery 2 case is relevant to this case
and this Court should exercise its discretion in favour of granting the
postponement especially where any prejudice to the plaintiff can be
ameliorated by a costs order.
[19] The problem with the submission of the defendant in respect of the
postponement is that on the papers before the Court, no plea except a bare
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denial by defendant exists and the defendant specifically abandoned any
application for amendment of its plea. It should be noted further that the
ground submitted for postponement was not to amend the plea to
incorporate the basis for denying the claim for past hospital and medical
expenses but rather as indicated above, to await a decision by the Supreme
Court of Appeal in Discovery 2.
[20] In my view, the plaintiff will suffer prejudice if the matter is not finalised today
taking into account that this litigation was commenced approximately 7 years
ago. The defendant has not applied for amendment of its plea and this Court
cannot see why a postponement should be granted to await a decision in a
different matter. This Court also aligns itself with the judgment of Daffue J in
Van Niekerk v Raf
4 in relation to denying a postponement requested by the
defendant.
[21] This brings me to the argument submitted from the bar by Mr Klaas
regarding the issue of subrogation.
[22] I have already indicated above that this issue was not pleaded by the
defendant. Mr Klaas submitted that a defendant need not plead subrogation
in order to rely on same.
[23] Mr Klaas further submitted that this Court is bound by the Full Bench
decision in Discovery 2 and accordingly plaintiff’s claim for past hospital and
medical expenses should be dismissed. In my view, whilst the principle of
stare decisis applies to a circumstance where a single judge is required to
4 FSHC [293/2022] 6 May 2025
6
follow a full bench decision, a party relying on same must show that the facts
of such full bench decision are on all fours with the facts before the single
judge. I repeat, the defendant has not come near pleading the facts as
pertained in Discovery 2 and on this basis alone cannot rely on this
judgment because it is distinguishable. Furthermore, the Discovery 2 matter
has not changed the law in respect of deductibility of payments made by
medical aid schemes from compensation to be paid to road accident
victims.
5
[24] I am of the view that the defendant has not made out a case for the refusal of
the claim by the plaintiff for past hospital and medical expenses for the
reasons set out above and furthermore has not made out a case for
postponement of the trial.
[25] In this matter, there is no reason why costs should not follow the result and
accordingly that defendant should pay the costs of the plaintiff.
[26] Accordingly, the following Order shall issue:
26.1. The defendant is liable for 80% of the plaintiff’s agreed or proven
damages;
26.2. The defendant shall pay to the plaintiff the sum of R137 307-13 [one
hundred and thirty-seven thousand three hundred and seven
rand and thirteen cents] within 180 days hereof, in respect of
plaintiff’s past hospital and medical expenses and 80% apportionment
having been applied;
5 Bane v D’Ambrosi 2010 (2) SA 539 SCA; Esack NO v Raf 2025 (4) SA 201 WCHC
7
26.3. In the event of the amount in paragraph 26.2. not being paid on 180
days from date of this Order, the defendant shall be liable for interest
on the said amount at the prevailing interest rate, calculated from the
15
th calendar day after the date of this Order to date of payment in line
with the prevailing legislation;
26.4. The defendant shall furnish the plaintiff with an undertaking in terms of
Section 17(4) of Act 56 of 1996 for payment of 80% of the costs of
future accommodation of the plaintiff in a hospital or nursing home or
treatment of or rendering of a service or supplying of goods to the
plaintiff resulting from a motor vehicle accident on 23 July 2017, to
compensate the plaintiff for such costs after the costs have been
incurred and upon proof thereof;
26.5. The defendant shall pay the plaintiff’s taxed or agreed party and party
costs on the High scale in respect of the past hospital and medical
expenses, up to and including 5 June 2025, and notwithstanding, and
over and above the costs referred to in paragraph 26.5.1.2 below,
subject thereto that:
26.5.1. In the event that the costs are not agreed:
26.5.1.1. the plaintiff shall serve a notice of taxation
on the attorney of record;
26.5.1.2. the plaintiff shall allow the defendant 180
days from date allocatur to make payment
of the taxed costs; and
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26.5.1.3. Should payment not be effected on 180
days from the date of allocatur, the plaintiff
will be entitled to recover interest at the
prevailing interest rate on the taxed or
agreed costs from 15 days from date of
allocatur to date of final payment;
26.5.2. Such costs shall include, as allowed by the Taxing
Master:
26.5.2.1. the costs incurred in obtaining payment of
the amounts mentioned in paragraphs 26.2
and 26.4. above;
26.5.2.2. the costs of and consequent to the
appointment of counsel, Adv. N. Adam, on
Scale B, including, but not limited to the
following: for trial, including but not limited
to counsel’s full fee for 5 June 2025, and
the preparation and reasonable
attendance fee of counsel for attending;
26.5.2.2.1. the drafting of heads of
argument;
26.5.2.3. the costs of Dr JP Marin [Orthopaedic
Surgeon] in consequence of preparing and
attending to the causation affidavit;
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26.5.2.4. the cost of Mr Tsholofelo Tshidi
[Administrator at Discovery Health
Recoveries Department] in consequence
of preparing and attending to the affidavit
in respect of past hospital and medical
expenses;
26.5.2.5. the costs of and consequent to the
plaintiff’s trial bundles and witness bundles,
including the costs of 2 copies thereof,
where applicable;
26.5.2.6. the costs of and consequent to the holding
of a pre-trial conference.
26.6. The amounts referred to in paragraphs 26.2 and 26.4 above shall be
paid to the plaintiff’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: M[…] G[…]
10
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 31 October 2025.
Date of virtual hearing: 5 June 2025
Date of judgment: 31 October 2025
Appearances:
Attorneys for the Plaintiff: A WOLMARANS INC
fran@awolmaransinc.co.za
Counsel for the Plaintiff: Adv. N. Adam
Attorneys for the Defendant: STATE ATTORNEY [JOHANNESBURG]
luthok@raf.co.za
Counsel for the Defendant: Mr L. Klaas