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

WC Case No:1169/2020
Case No: A186/2025


In the matter between:

ROAD ACCIDENT FUND Appellant

and

NICOLAAS JOHANNES VAN WYK Respondent

Neutral citation: Road Accident Fund v Nicolaas Van Wyk (Case No: A186/2025)
[2026] ZAWCHC… (09 February 2026)
Coram: DOLAMO J, LEKHULENI J et NZIWENI J
Heard: 12 September 2025
Delivered: Electronically on 9 February 2026

Summary: Appeal against payment of past medical expenses – Court setting aside
the RAF’s first directive to reject claims for past medical expenses settled by medical
aid scheme – The RAF issuing two subsequent directives – The RAF contending
that two subsequent directives do not breach the court order setting aside the first
directive – res inter alios acta principle discussed – Appeal Court finding that the two
subsequent directives breach ed the court order setting aside the first directive –
Appeal dismissed.

ORDER


1. The appeal is hereby dismissed.

2. The RAF is ordered to pay the costs of the appeal on a party and party scale
including the costs of two counsels where so employed on scale C.


JUDGMENT


LEKHULENI J: (DOLAMO et NZIWENI JJ Concurring)

Introduction

[1] This is an appeal by the RAF against the judgment and order handed down by
Mthimunye AJ in respect of a delictual claim in whic h the appellant was directed to
pay the respondent’s past medical expenses in the sum of R350 187,56 plus interest
thereon at the prescribed rate of interest 14 days from the date of judgment to the
date of final payment. On 18 December 2018, the responden t was involved in a
motorcycle accident in which he collided with another vehicle driven by an insured
driver as envisaged in the Road Accident Fund Act 56 of 1996 ('the RAF Act'). As a
result of that collision, the respondent sustained bodily and multiple orthopaedic
injuries to his body and was admitted for medical treatment at Milnerton Mediclinic.

[2] Pursuant thereto, on 3 June 2019, the respondent lodged a motor vehicle
claim against the appellant (‘the RAF’) for compensation for the bodily injuries he
sustained in the accident. The respondent sought to hold the RAF liable for his claim
for past and f uture medical expenses, past and future loss of earnings, and general

damages. The RAF defended the action and disputed that the insured driver was the
sole cause of the collision.

[3] In the alternative, the RAF pleaded that, if the court finds that the insured
driver was negligent as alleged by the respondent, the RAF denied that such
negligence contributed causally to the collision. In the further alternative, the RAF
pleaded that in the event the trial court fi nds that the insured driver was causally
negligent, then in that event, the RAF averred that the collision was caused partly
through the negligence of the insured driver and partly as a result of the respondent's
negligence; the respondent having been negl igent in not keeping a proper look out
and having driven at an excessive speed. In its Plea, the RAF did not impugn the
payment of past medical expenses paid by the respondent’s medical aid scheme in
line with the directives issued by the Acting Chief Clai ms Officer to all regional
managers.

[4] The matter was enrolled for trial on merits and quantum for 19 June 2024. At
the hearing of the matter, merits and quantum were not separated. At the
commencement of the trial, the court was informed that the RAF's witness, the
insured driver, was not available and was in Zimbabwe. The RAF's attorney
requested leave from the court to lead the evidence of the insured driver through the
virtual platform. However, the court a quo refused the request. Subsequent thereto,
the RAF applied for a postponement of the trial. The trial court also refused the
application for a postponement and finalised the matter after hearing only the
respondent's evidence.

[5] The court thereafter granted an order on the merits and found t hat the RAF
was liable for 100 per cent of the respondent's proven damages. The court also
ordered that the RAF must provide an undertaking in terms of s 17(4)(a) of the RAF
Act in which it undertakes to compensate 100 per cent of the respondent's future

Act in which it undertakes to compensate 100 per cent of the respondent's future
medical expenses and costs arising from the said motor vehicle accident -related
injuries. In addition, the court ordered the RAF to pay R350 187,56 in respect of the
respondent's past medical expenses, plus interest thereon at the prescribed rate of
interest. The trial court also ordered the RAF to pay the respondent's agreed or
taxed costs on scale C for counsel's fees.

[6] Thereafter, on 25 July 2024, the RAF applied for leave to appeal against the
judgment and orders made by the trial court. In terms of the application for leave to
appeal, the RAF submitted that the trial court erred in its finding, specifically in not
allowing the RAF to present the evidence of the insured driver virtually and further
that the court erred in finding that the RAF was 100 per cent liable to pay the
respondent's proven damages. On 3 September 2024, the application for leave to
appeal was heard. The trial court dismissed the RAF's application for leave to appea l
on 9 September 2024, on the grounds that there were no prospects of success on
appeal.

[7] The RAF thereafter considered the decision handed down on 27 October
2022, by Mbongwe J in Discovery Health (Pty) Ltd v Road Accident Fund and
Another,1 in which the RAF issued its directive on 12 August 2022 (the first directive),
which instructed the RAF employees to reject road accident victims' claims for the
disputed past medical expenses. This directive was to the effect that all claims for
past medical expenses lodged by claimants whose medical aid schemes had already
settled them should be rejected on that basis alone. The reasoning underpinning this
directive was that those claimants did not suffer any loss, and that the RAF therefore
had no duty to reimb urse them. Mbongwe J reviewed and set this directive and,
amongst others, interdicted the RAF from relying on the directive to reject claims for
past medical expenses.

[8] The RAF also considered the subsequent decision of the majority in
Discovery Health (Pty) Ltd v Road Accident Fund and Another,2 in which the full court
of the Gauteng Division found that two subsequent directives, issued by the RAF on
13 April 2023 (the second directive) and on 2 November 2023 (the third directive)
respectively, were not unlawful and not in breach of the order issued by Mbongwe J
on 27 October 2022. For completeness, the second directive required the RAF’s

on 27 October 2022. For completeness, the second directive required the RAF’s
employees to first ascertain whether a claim fell within the prescribed minimum
benefits (PMBs ) or emergency medical conditions (EMCs), and only where it was
neither would a claim be processed and honoured if successful. The third directive

1 2023 (2) SA 212 (GP) (‘Discovery Health 1').
2 2025 (3) SA 225 (GP) (‘Discovery Health 2’).

was based on s 19(d)(i) of the RAF Act, which provides that: ‘the Fund or an agent
shall not be obliged to co mpensate any person in terms of s 17 for any loss or
damage –
‘...
(d) where the third party has entered into an agreement with any person other
than the one referred to in paragraph (c)(i) or (ii) in accordance with which the
third party has undertaken to pay such person after settlement of the claim –
(i) a portion of the compensation in respect of the claim.’

[9] After considering these two cases and other decisions in these division
dealing with the RAF’s stance on the payment of past medical expen ses, on 5
December 2024, the RAF applied for leave to appeal for the second time before the
trial court seeking to impugn the Court a quo’s order directing the RAF to pay the
respondent the sum of R350 187, 56 as his past medical expenses and interest. The
trial court summarily dismissed the RAF’s second application for leave to appeal,
holding that the RAF’s application was an abuse of power and abuse of the Court’s
time. The Court subsequently ordered the RAF to pay the costs of the second
application for leave to appeal on an attorney-and-client scale.

[10] Aggrieved by this decision, on 25 January 2025, the RAF petitioned the
Supreme Court of Appeal in terms of s 17(2)(b) of the Superior Courts Act 10 of 2013
(‘the Superior Courts Act’). The RAF sought leave from the Supreme Court of Appeal
(‘the SCA’) to appeal against paragraphs 3 and 4 of the trial court’s orders, which
directed the RAF to pay the respondent past medical expenses in the sum of R R350
187, 56 and interest. On 04 April 2025, the SCA gr anted the RAF leave to appeal to
the full Court of this division against paragraphs 3 and 4 of the orders of the Court a
quo, namely the payment of past medical expenses plus interest thereon at the
prescribed rate of interest.

Factual Background

[11] Before I can consider the matter on the merits, it is instructive to set out the

[11] Before I can consider the matter on the merits, it is instructive to set out the
background facts that led to the respondent’s claim against the RAF. As
foreshadowed above, the respondent was involved in a motor vehicle accident on 16

December 2018 on the N1 National Road. At the trial, the respondent testified that
on Sunday, 16 December 2018, he rode his motorbike from Mossel Bay, where he
had visited his ex-wife and son, to his home in Lagoon Beach, Cape Town. He is well
experienced in riding motorb ikes. While travelling, just after passing Paarl, it was
around 20h00 and the sun had just set. He was riding his motorbike in the fast lane
because the left-hand lane was quite congested.

[12] According to the respondent, there were no cars in front of him for about 300
meters. While riding between 110 and 120 kilometres per hour, he noticed a bakkie
driven by the insured driver moving from the left -hand lane into the right -hand lane,
directly in his path. The said vehicle did not have its lights on. The respondent tried
to brake and swerved to avoid the accident, but it was too late. His motor bike’s front
wheel collided with the right side of the bakkie’s rear bumper . He lost control of the
motorbike, fell to the ground and lost consciousness. He stated that he suffered
serious bodily and orthopaedic injuries and was admitted to Milnerton Mediclinic for
medical attention. The respondent further gave evidence of a schedule of medical
expenses amou nting to R350 187,59 incurred in respect of this motor vehicle
accident. During cross examination, he denied that he did not keep a proper lookout.

[13] At the conclusion of his testimony, the respondent formally closed his case on
the merits. Thereafter, the RAF’s legal representative informed the Court that their
witness, the insured driver, was available to provide his evidence via Microsoft
Teams, as he was based in Zimbabwe . The respondent’s legal representative
opposed the application and submitted that a substantive application on notice
should have been made timeously. The respondent’s counsel asserted that the
RAF’s application from the bar was prejudicial to the respondent and a waste of the

RAF’s application from the bar was prejudicial to the respondent and a waste of the
Court’s time. In addition, the respondent’s counsel imp lored the Court to dismiss the
RAF’s request to lead evidence through the virtual platform.

[14] After considering the arguments presented, the Court dismissed the RAF’s
application to lead evidence through the virtual platform.

[15] Subsequently, the RAF applied for a postponement of the matter to secure the
attendance of its witness at Court. The trial court refused the application and found

that it would not be in the interest of justice to postpone the matter. The Court also
found that the respondent had ample time to make the necessary arrangements to
secure the attendance of its witness at Cour t. Without giving the parties an
opportunity to address it on the merits as envisaged in Rule 39(10) of the Uniform
Rules, the Court a quo subsequently endorsed a draft order prepared by the
respondent’s counsel in which the RAF was, inter alia, held to be 100 percent liable
for the respondent's still to be proven damages arising from the motor vehicle
accident that occurred on 16 December 2018 and that the RAF must pay the
respondent past medical expenses of R350 187, 56 plus interest thereon at the
prescribed rate of interest 14 days from date of judgment to date of final payment.

[16] Subsequent thereto, the parties reached a settlement in respect of general
damages and in respect of past and future loss of earnings. The agreement between
the parties in this regard was reduced to writing and made an order of the Court. The
RAF only disputed the trial court's ruling regarding the payment of past medical
expenses and interest thereon. As foreshadowed above, the application for leave to
appeal this head of damages was dismissed. On 12 December 2024, the respondent
issued a warrant of execution against the RAF’s property for the payment of R350
187,56 in respect of past medical expenses, together with interest thereon at the rate
of 11,25 per annum from 9 July 2024 to the date of final payment.

[17] On 20 December 2024, the RAF brought an urgent application for the
suspension of the writ of execution pending the hearing in part B, in which the RAF
sought to suspend the operation of the court order granted by the Court a quo on 19
June 2024, insofar as it related to the payment of past medical expenses. The RAF’s
application to stay the warrant of execution was premised on the judgment the
delivered on 17 December 2024 by the full court of the Gauteng High Cou rt

delivered on 17 December 2024 by the full court of the Gauteng High Cou rt
(Discovery Health 2) on the lawfulness of the subsequent directives issued by RAF
on 13 April 2023 and 2 November 2023 which excluded payment of past medical
expenses in instances where a medical aid scheme has paid the claimants’ past
medical expenses.

[18] The RAF’s first urgent application was removed from the roll on 20 December
2024. The RAF thereafter brought a second urgent application on exactly the same

papers on 20 January 2025, which was set down for hearing on 23 January 2025.
This urgent ap plication was dismissed by Holderness J on 24 January 2024. The
RAF thereafter brought a third urgent application to suspend the execution of the
warrant, which was a duplication of its previous urgent applications in which urgent
relief was sought. The application was enrolled for hearing on 28 January 2025. The
third urgent application to suspend the warrant was argued before Mangcu -
Lockwood J on 28 January 2025 and was dismissed with costs on an attorney and
client scale. The RAF subsequently petitioned the SCA for leave to appeal against
the trial court’s order relating to past medical expenses.

[19] In the interim, on 30 January 2025, the RAF paid the respondent’s past
medical expenses, together with interest. Notwithstanding, the RAF contends that it
is not liable for the respondent’s hospital and past medical expenses due to those
expenses having been paid by the respondent’s medical aid scheme. As discussed
in paragraph 10 above, the SCA granted the RAF leave to appeal against the past
medical expense in the sum of R350 187, 56 and the order relating to the payment of
interest on this amount. Before I can consider the appeal concerning the payment of
past medical expenses and interest, it is essential that I clearly set out the grounds
for appeal raised by the RAF in this matter.

Grounds of Appeal

[20] The RAF raised various grounds of appeal against the court a quo’s findings.
The grounds of appeal as discernible from the notice of appeal may, concisely, be
summarised as follows:

[21] The RAF submitted that the court a quo erred in its application of the law
relating to postponements and, in doing so, infringed on the RAF’s right to a fair trial.
The RAF contended that its request to have its witness tes tify virtually , was not
uncommon. It has been employed during the COVID -19 years and is now provided

uncommon. It has been employed during the COVID -19 years and is now provided
for in the directives of the various divisions of the High Court throughout South
Africa. The RAF further submitted that its application for a postponement was
brought as an alternative to its request for leave to have its witnes s testify virtually.
When such a request was refused, fundamental fairness and the interests of justice

favoured granting a postponement. Accordingly, the RAF submitted that the trial
court erred in not allowing its witness to testify through the virtual p latform,
alternatively in refusing its application to postpone the matter.

[22] The RAF further contended that, by denying its request to allow its witness to
testify virtual ly and by refusing to postpone the matter, the trial court essentially
decided the matter in default. Concerning the payment of past medical expenses, the
RAF submitted that, at the time this matter was heard, it was involved in litigation in
the Gauteng Division in Discovery Health II . Judgment in that matter was delivered
on 17 Dece mber 24. The crux of the judgment, on RAF’s understanding, is that the
two directives on which the RAF relies for its refusal to pay past medical expenses in
circumstances where medical aid scheme has covered them are not misplaced or
unlawful. Based on th e full court's views in Discovery Health II, the RAF submitted
that the trial court could not make the order it did in respect of the past medical
expenses.

Issues for determination

[23] From the discussion above, this court is enjoined to determine three critical
questions. The first question is whether the court a quo was correct in refusing the
RAF leave to present the evidence of its witness through Microsoft Teams. Secondly,
and incidental to the first question, is whether the court a quo was correct in finding
that on a conspectus of all the facts placed before it, it was not in the interest of
justice to postpone the matter after refusing the RAF’s application to have its witness
testify through the virtual platform. Thirdly, whether the court a quo was correct in
making an order directing the RAF to pay the respondent R350 178,56 as past
medical expenses, notwithstanding the decisi on of the full court in Discovery Health
II. Incidental to this question is whether the application of the RAF’s two subsequent

II. Incidental to this question is whether the application of the RAF’s two subsequent
directives was res judicata and whether these directives applied retrospectively.

Applicable legal principles and discussion

[24] It is settled law that in a matter such as the present, this court's powers to
interfere on appeal with the findings of fact of the trial court are limited in the

absence of demonstrable and material misdirection. Where there is no misdirection
on fact, th e presumption is that its findings are correct, and the appellate court will
only interfere with them if it is convinced that they are wrong. This principle was
restated in S v Jochems,3 as follows:

‘It is a time-honoured principle that once a trial court has made credibility findings, an
appeal court should be deferential and slow to interfere therewith unless is convinced
on a conspectus of the evidence that the trial court was clearly wrong. R v
Dhlumayo and Another 1948(2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310
(SCA) para12. As the saying goes, he was steeped in the atmosphere of the trial.
Absent any positive finding that he was wrong, this court is not at liberty to interfere
with his findings.’

[25] However, in Minister of Safety and Sec urity & others v Craig & others NNO ,4
Navsa JA, stated that although courts of appeal are slow to disturb findings of
credibility, they generally have greater liberty to do so where a finding of fact does
not essentially depend on the personal impression made by a witness’ demeanour,
but predominantly upon inferences and other facts and upon probabilities. In such a
case, a court of appeal with the benefit of a full record may often be in a better
position to draw inferences.

[26] Against this backdrop, I turn to evaluate the merits of this appeal. However,
for completeness, I will address the issues for determination discussed above,
sequentially. The first two contested issues are inextricably intertwined, and for
brevity’s sake, I will address them jointly.


Was the court a quo correct in refusing the RAF's request to present evidence
virtually and its application for a postponement?

[27] I am mindful that the RAF limited its application for leave to appeal against the
payment of past medical expenses and the payment of interest thereon wh en it

3 1991(1) SACR (A) at 211 E-G.
4 2011 (1) SACR 469 (SCA) para 58.

applied for leave to appeal in the SCA. The SCA granted the RAF leave to appeal in
accordance with its request in the Notice of Motion . However, I must state that in its
founding affidavit in support of its application for leave to appeal in terms of s
17(2)(b) of the Superior Courts Act, the RAF raised the issue of being denied the
right to a fair trial when the Court a quo refused it leave to present the evidence of its
witness through the Microsoft Teams platform.

[28] The RAF also impugned the t rial court’s decision to refuse it a remand of the
matter after its application to present evidence virtually was denied. To this end, the
RAF contended that its right in terms of s 34 of the Constitution was infringed. These
two aspects also form part of the RAFs grounds of appeal in this matter. Whilst this
appeal mainly relates to the payment of past medical expenses and interest pursuant
to the two directives issues by the RAF, I am of the view that the issues raised by the
RAF are pertinent and must be considered by this Court before I can deal with the
appeal on the past medical expenses and the payment of interest, for which the SCA
granted the RAF leave to appeal.

[29] Accordingly, it is common cause that at the hearing of the matter on 19 June
2024, the RAF witness was not physically present in court. The witness was in
Zimbabwe. However, he was available to testify on that day virtually. During the
proceedings, the Court sought certainty regarding the witness’s availability to testify,
and the Court was informed that the witness was available and ready to testify. As
foreshadowed above, after considering the submissions from both parties, the Court
a quo held that the R AF should have made a substantive application and thereafter
dismissed the application to present evidence virtually and found that it would not be
in the interest of justice to postpone the matter. Accordingly, the application for a
remand was also dismissed.

remand was also dismissed.

[30] The Court a quo's decision not to permit the RAF’s witness to present his
evidence through the virtual platform in these circumstances was fundamentally
flawed. Significantly, it was known that the witness was not available in South Africa
and was in Zimbabwe. The witness was available and consented to testify virtually.
The Court was made aware of this fact. From the record, the witness was waiting to
be called to connect virtually so that his evidence could be heard. While I

acknowledge that t he RAF did not meticulously follow the Uniform Rules and
Practice Directives of this Division in arranging for the presentation of its witnesses’
evidence virtually, I firmly believe that the pursuit of justice and the cumulative
factors placed before the Court a quo weighed heavily in favour of granting the order
sought by the RAF as envisaged in Practice Directive 56 of this Division.

[31] Granting permission for the insured driver's evidence to be presented virtually
would have ensured that all the relevant facts are placed before the court a quo to
enable it to make an informed decision on the question of liability after hearing from
both parties. Such an approach, in my view, was crucial to fostering a setting where
fairness and justice prevail. Notably, it is now trite that video conferencing is an
efficient and effective way of providing oral evidence both in chief and in cross -
examination and that this is simply another tool for securing effective access to
justice.5

[32] I am cognisant that the general rule is that all witnesses should be examined
in the presence of the court, viva voce. However, it is apposite to remind ourselves
that the Superior Courts Act was amended by the Criminal and Related Matters
Amendment Act 12 of 2021, which introduced s 37C to the Act. This section allowed
the leading of evidence through an audiovisual link in civil proceedings. In terms of
this section, a court may, on application by any party to proceedings before that court
or of its own accord, order that a witness, irrespective of whether the witness is
within or outside the Republic, if the witness consents thereto, give evidence by
means of audiovisual link. The relevant parts of s 37 C (2) of the Superior Courts Act
provide as follows:
‘(2) A court may make an order contemplated in subsection (1) only if —
(a) it appears to the court that to do so would —
(i) (aa) prevent unreasonable delay;
(bb) save costs;
(cc) be convenient; or

(i) (aa) prevent unreasonable delay;
(bb) save costs;
(cc) be convenient; or
(dd) prevent the likelihood that any person might be prejudiced or harmed if he or
she testifies or is present at such proceedings; and

5 Uramin (Incorporated in British Colombia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA
236 (GJ) para 35.

(ii) otherwise be in the interests of justice;
(b) facilities therefor are readily available or obtainable at the court; and
(c) the audiovisual facilities that are used by the witness or at the court enable —
(i) persons at the courtroom to see, hear and interact with the witness giving
evidence; and
(ii) the witness who gives evidence to see, hear and interact with the persons at
the courtroom.
(3) The court may make the giving of evidence in terms of subsection (1) subject to
such conditions as it may deem necessary in the interests of justice.
(4) …….
(5) For purposes of this Act, a witness who gives evidence by means of audiovisual
link, is regarded as a witness who was subpoenaed to give evidence in the court in
question.
(6) For purposes of this section ‘audiovisual link’ means facilities that enable both
audio and visual communications between a witness and persons at a courtroom in
real-time as they take place.

[33] Section 37C must be read together with Rule 38(9) of the Uniform Rules of
Court, which was introduced with effect from 1 February 2022. Rule 38(9) primarily
provides that a court may, on application on notice by any party and where it appears
convenient or in the interests of justice, make an order for evidence to be taken
through an audiovi sual link. Both s 37C and Rule 38(9) give effect to the right of
access to courts as contemplated in s 34 of the Constitution. Both provisions
envisage that where it appears convenient or in the interests of justice, the court may
make an order for evidenc e to be taken through an audiovisual link. In my view, the
overriding considerations in deciding whether to grant a request for an audiovisual
link are convenience and the interests of justice.

[34] It is incontestable that the insured driver's evidence was critical to the RAF's
defence. According to the RAF's Plea, the respondent was the sole cause of the
collision, in that, inter alia, he did not keep a proper lookout and turned into the

collision, in that, inter alia, he did not keep a proper lookout and turned into the
insured driver's path of travel when it was dangerous and inopport une to do so. In
the alternative, the RAF pleaded contributory negligence against the respondent. In
these circumstances, in determining whether to grant or to refuse the request for a
virtual hearing, s 34 of the Constitution was of fundamental importance.

[35] In other words, the court a quo had to be satisfied that in making the order,
effect would be given to the parties' right to have the dispute between them decided
in a fair public hearing before the court. The corollary thereto is that in refusing the
order, in circumstances where the witness was available to testify through the virtual
platform and was outside the borders of South Africa, was an apparent infringement
of the RAF's constitutional right in terms of s 34 of the Constitution to have th e
dispute between the RAF and the respondent decided in a fair public hearing before
the court.

[36] There is no doubt that the evidence of the insured driver was vital to the RAF
in response to the respondent's claim. Importantly, considering the accide nt report,
the insured driver disputed that he was the cause of the accident. According to the
report, the insured driver stated he was driving straight when he saw a motorcycle
approaching at high speed. Later, he heard a loud knock at the back of his veh icle
and saw the motorcycle spin on the side of the road. Without that evidence under
oath, the respondent's evidence remained unrebutted. Accordingly, for the court to
decide the question of liability fairly and in an objective manner, the court had a dut y
to consider and evaluate the evidence of the insured driver and the respondent
whose vehicles were involved in the collision. The negligence, if any, on the part of
the respondent or any contributory negligence that could be imputed on the
respondent could have been determined from the evidence in its totality.

[37] Importantly, the court a quo held that the RAF was 100 per cent liable to pay
the respondent his still -to-be-proven damages. Pursuant thereto, the respondent
received 100 per cent of his proven damages. The respondent found himself in a
fortunate position, as his evidence was not countered by the insured driver's
evidence. It is my firm view that a fair and objective assessment of the matter

evidence. It is my firm view that a fair and objective assessment of the matter
required a conspectus of all the evidence to enable the court to make a
dispassionate and informed decision. Undoubtedly, without the evidence of the
insured driver who was readily available to testify virtually, the RAF was prejudiced
and gravely handicapped in the conduct of its defence. In my view, the court a quo
erred in failing to consider the requirements of justice broadly.

[38] The main reason advanced by the trial court in refusing the RAF’s application
to lead evidence of the insured driver virtually was that there was no substantive
application made and that there was no compliance with the Practice Directive s of
this division. It must be stressed that court procedures and the rules that govern
them are designed to administer justice, and not to hamper it.6 Fairness and justice
are ensured by allowing proper participation by the parties and the full ventilation of
issues.7 The Rules of Court facilitate the litigation process that invariably underpins
the expression of the right of access. Erasmus II explains this as follows:8

‘The object of the rules is to secure the inexpensive and expeditious completion of
litigation before the courts: they are not an end in themselves. Consequently, the
rules should be interpreted and applied in a spir it which will facilitate the work of the
courts and enable litigants to resolve their disputes in as speedy and inexpensive a
manner as possible. Thus, it has been held that the rules exist for the court, not the
court for the rules. Formalism in the appli cation of the rules is not encouraged by the
courts.’9

[39] Significantly, Rule 39(20) of the Rules of Court establishes that if it appears
convenient to do so, the Court may at any time make any order regarding the
conduct of the trial as it seems meet, and thereby vary any procedure laid down by
the rule. The sub rule contemplates an order regarding the conduct of the trial which
will vary any procedure laid down by this rule. The paramount test laid down by this
subrule is convenience to the parties, the witnesses, and the Court. The
convenience envisaged in this rule also involves the hearing of the matter through an
audiovisual link.

[40] In summary, the Court a quo, in my view, erred in rejecting the RAF’s
application to lead the evidence of the insured driver virtually. Furthermore, it could

application to lead the evidence of the insured driver virtually. Furthermore, it could
not be said that the subsequent application by the RAF for a postponement to secure
the attendance of its witness was mala fide. It was for the first time that the RAF
sought a remand. The insured driver was in Zimbabwe. Undoubtedly, the RAF was

6 Republikeinse Publikasie (Edms) Bpk v Afrikaanse Pers Publikasie (Edms) 1972 (1) SA 773 (A) at
783A.
7 Social Justice Coalition and Others v Minister of Police and Others [2022] ZACC 27 para 54.
8 Erasmus Superior Court Practice 2 ed (Juta & Co Ltd, Cape Town 2018) vol 2 (Erasmus II).
9 At D1-7 to D1-8.

prejudiced by the Court a q uo’s order. Consistent with the principles of natural
justice, fundamental fairness and justice demanded that the RAF be afforded the
opportunity to present its evidence to counter the evidence of the respondent. On the
other hand, any prejudice that the r espondent could have suffered if the matter was
postponed could have been compensated by an appropriate order of costs.

[41] Notwithstanding these findings, in my view, to set aside the proceedings
before the Court a quo based on the above will be tantamount to unscrambling a
scrambled egg, which, in my view, will have far -reaching consequences. The parties
reached an agreement on various heads of damages even before the matter was
finalised. I must also mention that from the record of proceedings of the Court a quo,
at the beginning of the trial, the RAF’s legal representative indicated to the trial Court
that the RAF would soon make an offer on general damages and loss of earnings.
The parties eventually reached an agreement on these heads of damages, wh ich
was subsequently made an order of the Court by agreement. What remained in
dispute between the parties was the past medical expenses, which the RAF
disputed, basing its refusal to pay on the full Court's decision in Discovery Health II.

[42] Furthermore, the RAF limited its application for leave to appeal at the SCA to
the payment of past medical expenses and interest thereon only. The RAF did not
raise the refusal for a remand and the dismissal of its application to present evidence
virtually as a ground of appeal. The SCA granted the RAF leave to appeal on the
grounds requested by the RAF. To go beyond what leave to appeal was granted for
would be prejudicial to the respondent and, above all, against the interest of justice.
Moreover, the heads of argument for the respondent dealt only with the issue of past
medical expenses and interest, for which the SCA granted leave to appeal.

medical expenses and interest, for which the SCA granted leave to appeal.

[43] In summary, the findings above aim to guide courts in avoiding a rigid or
inflexible approach when consider ing applications for virtual hearings; instead, they
should consider these applications with a thoughtful mind, always prioritising the
pursuit of justice as their guiding principle. As the maxim goes, many things are

forbidden in law to be done, which yet, when done, hold good.10 With that framework,
I turn to consider the third issue in dispute.



Was the Court a quo correct in ordering the RAF to pay the respondent's past
medical expenses?

[44] The issue relating to the RAF paying past medical expenses for claimants
whose claims have been satisfied by their medical aid schemes has been the subject
of debate and an avalanche of court decisions in recent times. There is a difference
of opinion on w hether the RAF should be held liable to pay past medical expenses
that have been paid by the medical aid pursuant to injuries sustained in motor
vehicle accidents.

[45] To give context to the order I propose hereunder, it is necessary to briefly
summarise the litigation that arose from the RAF’s attitude towards the payment of
past medical expenses since 2022. It is common cause that on 12 August 2022, the
RAF issued a directive instructing its employees to reject road accident victims’
claims for the dis puted medical expenses. The directive was that all claims for past
medical expenses lodged by claimants whose medical schemes had already settled
them should be rejected on that basis alone. The reasoning underpinning this was
that those claimants did not suffer any loss, and that the RAF therefore had no duty
to reimburse them.

[46] On 19 August 2022, Discovery Health (Pty) Ltd initiated urgent proceedings to
review and set aside the said directive , on the basis that it was unlawful (Discovery
Health I).11 On 26 October 2022, Mbongwe J ruled in favour of Discovery Health and
found that it was unlawful for the RAF to refuse to pay past medical expenses on the
grounds that those expenses had already been paid by the victim’s medical aid
scheme and interdicte d the RAF from implementing the internal directive. 12 In

10 See NW Civil Contractors CC v Anton Ramaano Inc & Another 2020 (3) SA 241 (SCA) para 19.

10 See NW Civil Contractors CC v Anton Ramaano Inc & Another 2020 (3) SA 241 (SCA) para 19.
11 See Discovery Health (Pty) Ltd v Road Accident Fund and Another 2023 (2) SA 212 (GP).
12 At paras 31, 32 and 42.

upholding the Discovery Health's application, Mbongwe J relied on various
authorities, inter alia, D’Ambrosini v Bane 2006 (5) SA 121 (C); Zysset and Others v
Santam Ltd 1996 (1) SA 273 (C); and stated as follows:

‘The applicant is the administrator of several medical aid schemes which have and
continues to settle medical bills on behalf of their clients for the services referred to
above with a clear understanding or agreement that the expenses incurred are
refundable by the claimant to its medical aid scheme. It is on this basis that past
medical expenses are included as part of the claim for damages and are payable to
the medical aid scheme by the claimant upon settlement of its claim.’

[47] The learned justice concluded that the RAF Act does not provide for the
exclusion of benefits received by the victim of a motor vehicle accident from a private
medical scheme for past medical expenses. The court concluded that the medical
aid scheme benefits which the plaintiff has received or will receive are not deductible
in determining his claim for past and future hospital and medical expenses. 13 It is
common cause that the RAF’s application for leave to appeal failed before Mbongwe
J, the SCA and the Constitutional Court.

[48] Notwithstanding, the RAF subsequently issued the second and the third
directives. The second directive required the RAF’s employees to first ascertain
whether a claim fell within the prescribed minimum benefits (PMBs) or emergency
medical conditions (EMCs), and only if it did not would a claim be processed and
honoured, if successful. The third directive was based on s 19(d)(i) of the RAF Act
which in short provides that the Fund or an agent shall not be obliged to compens ate
any person in terms of s 17 for any loss or damage where the third party has entered
into an agreement with any person other than an attorney practicing as such in the
Republic or a representative of the state in accordance with which the third party h as

Republic or a representative of the state in accordance with which the third party h as
undertaken to pay such person after settlement of the claim a portion of the
compensation in respect of the claim.

[49] Discovery Health viewed the issuance of these subsequent two directives as
a refusal to comply with and a circumvention of the Mbong we J order in Discovery

13 At para 27.

Health I. It demanded that the RAF desist from this conduct. The RAF refused,
insisting that it had the right to issue and implement them. Faced with this stance,
Discovery Health launched an application for a declarator, amongst ot hers, that the
RAF was in breach of the order handed down on 27 October 2022, by Mbongwe J.
The matter was heard by the full court of the Gauteng Division presided over by
Mlambo JP .14 The full court was divided on the reasoning and outcome of Discovery
Health’s application.

[50] The judgment of the full court in Discovery Health II can roughly be divided
into two schools of thought, both in terms of reasoning and outcome. The first school
of thought articulated by the majority decision posits that, despite Judge Mbongwe's
ruling on 27 October 2022, which reviewed and set aside the i nitial directive of the
RAF issued in August 2022, in which RAF instructed its employees to reject past
medical claims that a medical scheme had paid, the two subsequent directives the
RAF issued regarding the rejection of similar claims do not fall foul o f Mbongwe J's
order or interdict. The first school of thought further posits that the issues decided in
the Mbongwe J order are not the same as those dealt with in the second and third
directives.

[51] Put differently, the first school of thought holds th at the subject matters
addressed in the two subsequent directives do not fall within the scope of the
Mbongwe J order. Furthermore, this school of thought opines that medical schemes
cannot be compensated through their members for what they have paid in di scharge
of their contractual and statutory obligations. To this end, the court stated:

‘paragraphs 30 -34 of Mbongwe Judgment are no authority for the proposition that
medical schemes have a right of recovery from the RAF, through their members,
what they have paid in discharge of their statutory obligation to pay PMBs and EMC
in full as required by the MSA and its regulations 7 and 8. If anything, these

in full as required by the MSA and its regulations 7 and 8. If anything, these
paragraphs demonstrate that the MSA and its regulations carrying the statutory duty
placed on schemes to pay PMBs and EMCs in full was not drawn to the attention of

14 Discovery Health (Pty) Ltd v Road Accident Fund and Another 2025 (3) SA 225 (GP) “ (Discovery
Health II)”

Mbongwe J. To suggest otherwise would simply mean that the Court, in dereliction of
its duty, failed to uphold the law.15

[52] The views of this school of thought were also quoted with approval in Machi v
the Road Accident Fund ,16 in which t he court found that it was not persuaded that
such benefits (payment of medical expenses) would accrue to the member of the
medical scheme for the simple reason that once the RAF has settled the claim
relating to past medical expenses already paid by the medical scheme, the plaintiff is
bound in terms of the agreement entered into by her and th e medical scheme to pay
the settled claim to the medical scheme. For that reason, the court found that the
benefit accrues to the medical scheme and not the plaintiff.17

[53] On the other hand, the second school of thought is expressed by the minority
judgment in Discovery Health II. It believes that the issues raised in the second and
third directives fall within the reach of Mbongwe J’s order and are thus res judicata.
The second school of thought believes that there is a single primary ratio which
underpinned the entirety of Mbongwe J’s judgment and determines the meaning of
its orders, including the interdict, namely that it is unlawful for the RAF to reject a
claim f or past medical expenses on the ground that a medical aid scheme has
already paid for those expenses. The minority stated:

‘In my view, this Court should not condone the RAF’s stratagem of using subsequent
directives on the same subject matter to subver t the judgment of Mbongwe J, upheld
as it was by the Highest Court . A public body cannot insulate itself from the law by
adopting a policy not to comply with a court order . It is not open to an organ of state
whose conduct has been found to be unlawful by the courts to repeat that conduct in
smaller parts if it can conjure up a new justification for doing so . If this were possible,
it would enable organs of state to perpetually evade compliance with judgments of

it would enable organs of state to perpetually evade compliance with judgments of
our courts by repeating their unlawful decisions and generating new justifications…’18

[54] The minority concluded as follows:


15 At para 45.
16 See Machi v RAF (2020-12687) [2025] ZAGPJHC 78 (3 February 2025).
17 At para 96.
18 At para 137

‘I find that the phantom and third directives, created as they were to be kept away
from public scrutiny, have no legal consequence in these proceedings other than
evidencing breaches of the Mbongwe J order and judgment.’19

[55] The views of the second school of thought have been quoted with approval in
various decisions of this division.20

[56] I will return to the views of the two schools of thought later in t his judgment
when I consider the question of res judicata . However, I must highlight that the
disagreement between the two schools of thought is currently pending resolution
before the SCA. On 9 April 2025, the full court in Discovery Health II granted
Discovery granted leave to appeal to the SCA against the majo rity judgment and
orders, handed down on 17 December 2024. At the hearing of this appeal, Mr Filton,
counsel for the RAF, submitted that, considering the views expressed by the full
court in the Discovery Health II and other matters decided in this court, it is
instructive that the appropriate course would be to leave the decision in respect of
payment of past medical expenses to the SCA for decision.

[57] I respectfully disagree with this proposition . As stated in Franko Maphosa v
RAF,21 the core function of the judiciary is to interpret and apply the law impartially,
regardless of the prospects of review by higher courts. While appellate review is
integral to the legal system, it should not compromise the lower court’s obligation to
deliver timely and well-founded judgments based on the evidence and relevant legal
principles. It is not in the interest of justice that this court d elay judgment or defer a
finding in this matter solely because a higher court, in this case the SCA, might reach
a different conclusion on the same issues.

[58] The RAF impugns the decision of the Court a quo, predicating its grounds on
the majority decision of the court in Discovery Health II. It must be st ressed that

the majority decision of the court in Discovery Health II. It must be st ressed that
throughout, the RAF had always paid the hospital and me dical expenses incurred by
the medical aid scheme of a claimant. It was not until recently, in April 2022, when

19 At para 139.
20 Basson v Road Accident Fund (5213/2021) [ 2025] ZAWCHC 229 (30 May 2025) ; Jaffer v Road
Accident Fund 2025 JDR 1436 (WCC); Esack Road Accident Fund 2025 (4) SA 201 (WCC).
21 (1093/2022) [2024] ZAGPJHC 263 (7 March 2024) para 55.

the RAF decided that it would no longer pay claims lodged by the victims of road
accidents for past medical expenses where those expenses had al ready been paid
by the victim’s medical aid scheme, by issuing the three directives discussed above.
As foreshadowed above, the stance that the RAF adopted is that the claimant
sustained no loss relating to past medical expenses, as the medical aid scheme had
paid for them and that there is therefore no duty on the RAF to reimburse the
claimant.

[59] Clearly, as pointed out by the respondent, the RAF’s implementation of the
directives resulted in a radical departure from over 100 years of legal precedent and
practice and also altered the approach to compensation that the RAF had followed
and applied since 1942, when the compulsory motor vehicle insurance was
introduced in South Africa through the Motor Vehicle Insurance Act 29 of 1942. Mr
Eia, counsel for the respondent, who appeared with Mr Coughlan, argued that the
principle that medical aid scheme benefits are a form of indemnity insurance and
accordingly are disregarded in an award of damages against the wrongdoer as being
res inter alios acta, has been recognised by our courts for over a century. Counsel
submitted that in McKenzie v S.A Taxi-Cab Co,22 the principle of res inter alios acta
was first applied by the court regarding hospital charges and doctors' fees which had
been paid by an insurance society to which the plaintiff had contributed. Following
the leading case of Bradbun v Great Western Railway Co (1874) LR 10 Ex 1, the
court held that the sum which the plaintiff was enti tled to recover as damages for
bodily injury was not subject to deduction in respect of the amounts paid by the
insurance society.

[60] This principle was succinctly articulated in this court by Scott J in Zysset and
Others v Santam Ltd,23 where the learned justice stated:

‘The modern South African delictual action for damages arising from bodily injury negligently

‘The modern 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 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. See Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904

22 1910 WLD 232.
23 1996(1) SA 273 (C).

(A) at 917B. 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 compensate the plaintiff for his loss. It is not uncommon, however, for a
plaintiff by reason of his injuries to receive from a third party some monetary or compensatory
benefit to which he would not otherwise have been entitled. Logically and becaus e 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 recoverin g 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 account as being completely collateral. The classic
examples are (a) benefits received by the plaintiff under ordinary contracts 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 i nsuring 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 .’24
(emphasis added)

[61] The rationale for th e collateral source rule is that the defendant should not
benefit from the plaintiff’s foresight in acquiring insurance. Expressed differently, the
plaintiff should reap the benefit of the bargain he or she has made for insurance. This
collateral source ru le requires the party responsible for causing the injury to

collateral source ru le requires the party responsible for causing the injury to
compensate the victim for all the harm caused, not merely the net loss suffered by
the victim. In other words, a wrongdoer can have no concern with th e transaction
between a plaintiff and his insu rer, and there is no equitable ground to grant the
wrongdoer a windfall by allowing him a credit for the payments that the insurer made.

[62] In terms of the common law doctrine of res inter alios acta, articulated above,
the RAF is not entitled to claim for itself the benefit of a road accident victim’s
medical scheme insurance. The doctrine of res inter alios acta does not permit the
RAF to deduct the amount paid by the medical scheme from the quantum payable to
claimants in respect of past medical expenses. In other words, the relationship

24 At 277H – 278D.

between a claimant and the medical aid scheme is contractual and of no concern to
the RAF.25

[63] I find the view expressed by Zondi J, as he then was, in Rayi NO v Road
Accident Fund, 26 very pertinent and apposite in this matter. The court had to
determine whether the RAF was liable to the plaintiff for the payment of past medical
expenses in the amount of R58 736 -94. The relevance of this question arose
because Bonitas had already paid the plaintiff's medical expenses. The plaintiff
asserted that the RAF was liable to pay her the amount of R58 736.94 in terms of the
doctrine of subrogation. While the RAF, on the other hand, contended that it was not
liable to pay the plaintiff the amount of R58 736.94 as this would amount to
enrichment, and that Bonitas must claim the amount from the defendant, whose
claim had prescribed. The court rejected the RAF’s argument that the plaintiff cannot
claim for the past medical expenses after payment of such expenses by Bonitas. The
court stated:

‘[15] In my view, settlement by Bonitas of the plaintiffs past medical expenses does
not relieve the defendant of its obligation to compensate the plaintiff for the past
medical expenses he incurred. Payment by Bonitas was made in terms of the
undertaking made by the plaintiff to Bonitas in terms of which Bonitas agreed to settle
the plaintiffs past medical expenses on the understanding that upon a successful
recovery from the defendant, the plaintiff would reimburse Bonitas for all the cost s it
incurred on plaintiffs behalf in connection with the claim against the defendant.

[16] The obligation which the undertaking imposes on the plaintiff towards Bonitas
does not arise until such time that there is a successful recovery of the past medical
expenses by the plaintiff from the defenda nt. The defendant primarily remains liable
to the plaintiff for the payment of the past medical expenses and the liability of
Bonitas to the plaintiff for the past medical expenses is secondary to that of the

Bonitas to the plaintiff for the past medical expenses is secondary to that of the
defendant. The defendant should pay the past me dical expenses to the plaintiff who
should upon receipt of payment account to Bonitas in terms of the undertaking,

25 Gunther v Road Accident Fund (24228/16) [2024] ZAWCHC 153 (6 June 2024) para 31.
26 (343/2000) [2010] ZAWCHC 30 (22 February 2010).

[17] The undertaking given by the plaintiff to Bonitas creates a contingent liability
which is enforceable on the happening of some future e vent. Bonitas' right of
recourse against the plaintiff for reimbursement does not arise until the plaintiff has
received payment from the defendant. The defendant's liability to the plaintiff for the
payment of the past medical expenses is not affected by Bonita’s payment on behalf
of the plaintiff.

[64] Similar sentiments were echoed by Davis J in Mooideen v Road Accident
Fund,27where he observed that the settlement by Discovery of the deceased’s past
medical expenses did not relieve the RAF of any of its legal obligation to
compensate the plaintiff in a represented capacity for the past medical expenses
which the deceased in that matter incurred. David J stated further that the RAF is not
entitled to raise Discovery’s medical aid scheme indemnification as a defence and
therefore benefit from the payment.

[65] In addition to the above, i t bears emphasis that the object of the RAF Act is to
establish the Fund to pay compensation for loss or damage to an injured claimant s
wrongfully caused by the negligent driving of motor vehicles. The Act constitutes
social-security legislation whose primary object has been described as ‘to give t he
greatest possible protection to persons who have suffered loss through a negligent
or unlawful act on the part of the driver or owner of a motor vehicle’.28 The Act can be
employed by anyone who is injured in consequence of the negligent driving of a
vehicle to claim compensation for any loss sustained. To this end, s 17(1) of the RAF
provides for compensation to third parties, for any damages or losses incurred due to
the negligent or unlawful actions of the driver of the motor vehicle. The Act regulates
the tripartite relationship of a negligent driver, the victim, and the RAF by designating
the RAF as a substitute for the wrongdoing driver. The protection afforded is against

the RAF as a substitute for the wrongdoing driver. The protection afforded is against
the possibility that the victim will be unable to recover his damages due to the
original wrongdoer being unable to financially meet the victim’s claim for
compensation of his damages.


27 (17737/2015) (11 December 2020) At page 10.
28 Mvumvu and others v Minister for transport and another 2011 (2) SA 473 (CC) para 20; Engelbrecht
v Road Accident Fund and Another 2007 (6) SA 96 (CC) para 23

[66] In Road Accident Fund v Abrahams ,29 Makgoka AJA, as he then was, writing
for a unanimous court, provided an admirable exposition on the statutory obligations
and liability of the RAF to compensate third parties injured in the negligent driving of
motor vehicles. The learned justice stated:

A useful starting point is to consider the effect of s 17(1), read with s 21(1). As stated
already, the latter section abolishes the right of an injured claimant to sue the
wrongdoer at common law. Section 17(1), in turn, substitutes the appellant 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 negligence or other wrongful act of the driver or owner of the motor
vehicle.30

[67] Considering the substitutionary obligation entrusted upon the RAF to
compensate injured claimants, in my opinion, the RAF is not entitled to claim for itself
the benefits of a road accident victim’s medical scheme insurance. If the RAF is
allowed to set off any payments made by a claimant’s medical aid scheme on the
plaintiff’s behalf, notwithstanding that the plaintiff has paid for the insurance, the RAF
would be shirking its substitutionary obligation and instead appropriating that benefit
to itself. In Standard General Insurance CO Ltd v Dugmore NO,31 the SCA held that
the object of awarding Aquilian damages is to place the plaintiff in the position in
which he would have been had the delict not been committed, thereby redressing the
diminution of his patrimony caused by the defendant's delict.32

[68] Our courts have recognised that there exists no reason to make any
distinction between an ordinary insurance contract, and the contract which exists

distinction between an ordinary insurance contract, and the contract which exists
between a medical scheme and its members. A medical aid is simply another form of
insurance.33 In D’Ambrosi v Bane and Others,34 the court rejected the argument that

29 2018 (5) SA 169 (SCA).
30 At para 13.
31 1997 (1) SA 33 (A) 48.
32 At 41C-D.
33 Malgas v Road Accident Fund (126/2020) [2022] ZAECQBHC 50 (1 December 2022) para 10.
34 2006 (5) SA 121 (C) at para 45.

payments received from a medical aid scheme should be treated as a benefit that
must be d educted from the plaintiff’s claim for compensation for future medical
expenses. It found that a medical aid scheme, like the one the plaintiff in that case
was a member of, was in substance a form of insurance.

[69] The SCA confirmed the High Court’s finding on appeal in Bane and Others v
D’ Ambrosi.35 The SCA rejected the argument that medical scheme benefits are a
form of social insurance that could reduce delictual damages and confirmed the
principle that payments which the medical aid was and is obli ged to make to the
respondent constitute the discharge by the medical aid of contractual obligations
flowing from the contract concluded between it and the respondent. As such, they
constitute res inter alios acta and the appellants cannot claim the benefit of them.

[70] In the present matter, the RAF relies on the decision of the majority in
Discovery Health II that the two subsequent directives issued by RAF on 13 April
2023 and 2 November 2023 respectively, by the RAF instructing its officials to
repudiate claims for past medical expenses where the claimant’s medical aid
scheme has paid those expenses do not f all foul of the Mbongwe J’s judgment. I will
shortly deal with these directives individually hereunder. However, I must mention
that the RAF did not plead or raise the contents of those directives in its plea.

[71] Concernedly, at the trial, when the mat ter was heard, the RAF did not place
those directives before the trial court during the hearing of evidence. In the RAF’s
cross-examination of the respondent, the past medical expenses as testified to and
confirmed by the respondent went completely unchall enged. The RAF failed to
cross-examine the respondent and failed to dispute the respondent’s version in
respect of the past medical expenses. The RAF raised the issue of past medical
expenses only when a second application for leave to appeal was filed.

expenses only when a second application for leave to appeal was filed.

[72] It is fitting to remind ourselves that the object of pleading is to define the
issues, and that the parties are to be kept strictly to their pleas, where any departure
would cause prejudice or prevent full enquiry. But within those limits, the Court ha s a

35 2010 (2) SA 539 (SCA).

wide discretion. 36 Pleadings need to clearly articulate, set out and substantiate the
claim and the defence thereto. The RAF failed to do so. This, in my view, is fatal to
the RAF’s appeal. Simply put, the RAF cannot be allowed to appeal on an issue th at
was not raised before the trial court nor borne out by its pleadings.

[73] Notwithstanding, I turn to consider the two directives and the subsequent
decisions addressing them.

The RAF’s second directive

[74] The second directive of the RAF required the RAF’s employees to first
ascertain whether a claim fell within prescribed minimum benefits (PMBs) or
Emergency Medical Conditions (EMCs), and only where it was neither would a claim
be processed and honoured if successful. In Discovery Health (Pty) Ltd I, Mbongwe
J found and correctly so, in my view, that it was unlawful for the RAF to refuse to pay
past medical expenses on the grounds that those expenses had already been paid
by the victim’s medical aid scheme a nd interdicted the RAF from implementing the
internal directive.

[75] The ratio underpinning Mbongwe J’s judgment is that s 17 of the RAF Act
obliges the RAF to compensate road accident victims for all proven damages arising
from the accident, including medical expenses paid by their medical scheme.
Furthermore, the ratio in Discovery Health (Pty) Ltd I is that medical scheme benefits
received are not deductible from their claim against the RAF for past and future
hospital and medical expenses. This is be cause the benefit originates from a
contract between the claimant and the medical aid scheme for the explicit benefit of
the claimant.

[76] Considering the discussion raised above, I am of the view that the second
directive contradicted the findings of Mbongwe J. Mbongwe J found that the RAF Act
read together with the common law, gives medical scheme members the right to full
compensation from the RAF for past medical expenses regardless of whether their

compensation from the RAF for past medical expenses regardless of whether their

36 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198.

medical scheme has already paid for those expenses. In my view, that applies
irrespective of whether they constitute a prescribed minimum benefit under the
Medical Schemes Act.

[77] Importantly, the second directive offended the res inter alios acta principles,
which were clearly articulated in Mbongwe J’s judgment as articulated by the SCA in
the Bane and Others v D’Ambrosi decision. The medical scheme's liability to pay its
members' medical expenses remains a contractual liability. Consequently, a
claimant’s right to compensation from the RAF for past medical expenses is
unaffected by the fact that a medical aid scheme paid those expenses. When a
medical aid scheme pays the plaintiff compensation, it is of no concern to the RAF.37

[78] In summary, a settlement by a medical scheme of past medical expenses of a
claimant does not relieve the RAF of any of its legal obligations to compensate the
claimant for past medical expenses which it has incurred.

[79] In any event, the RAF cannot rel y on this directive in this appeal because to
sustain its defence based on PMB and EMC, the RAF would of necessity need to
lead evidence of an expert at the trial to establish that the actual medical expenses
in question constituted the payment in whole or in part of the PMB and/or EMC. The
RAF failed to lead any such evidence at the trial. Consequently, the RAF cannot rely
on the directive in this matter. I now turn to consider the third directive.

The RAF’s Third Directive

[80] The RAF’s third directive is based on s 19(d)(i) of the RAF Act. Section 19 of
the RAF Act provides that the RAF is not obliged to compensate a claimant if they
have entered into an agreement with any person [other than an attorney or a state
representative] in accordance with which the claimant has undertaken to pay such
person after settlement of the claim a portion of the compensation in respect of the
claim. Section 19(d)(i) of the RAF Act would render a plaintiff’s claim unenforceable

claim. Section 19(d)(i) of the RAF Act would render a plaintiff’s claim unenforceable
against the RAF if the plaintiff entered into an agreement with someone other than

37 Gunther v Road Accident Fund (24228/16) [2024] ZAWCHC 153 (6 June 2024) para 31.

an attorney or a state representative as defined in s 19(c)(ii) of the RAF Act. In Road
Accident Fund v Abdool Carrim and Others ,38 the SCA held that s19(d) protects
claimants, many of whom are indigent, from entering into champ ertous agreements
and does not target arrangements that protect claimants (in that matter arrangement
with medical service providers).


[81] A champertous agreement is a ny agreement in which an outsider provide s
finance to enable a party to litigate in return for a share of the proceeds of the action
if that party was successful.39 Such agreements were condemned at common law on
the basis that they undermine the integrity of the judicial system and threaten to give
rise to abuse such as the inflation of damages, the suppression of evidence, and the
suborning of witnesses. However, the Courts acknowledged one exception : It was
accepted that if anyone, in good faith, gave financial assistance to a poor suitor and
thereby helped him to prosecute an action in return for a reasonable recompense or
interest in the suit, the agreement would not be unlawful or void.40

[82] As discussed above, s 19(d)(i) must be interpreted as excluding liability only
where the agreement in question truly resembles a champertous agreement and
undermines the public policy interests the provision was designed to safeguard.
Section 19(d)(i) of the RAF was never intended to encompass medical aid scheme
reimbursement arrangements, w hich lack the defining features of a champ ertous
bargain. Medical aid schemes neither financed their members ’ claims nor share in a
portion of the compensation for the claim as required by s 19 (d)(1) of the RAF Act .
When a medical aid scheme covers medical expenses, it is fulfilling its contractual
duties to the road accident victims. Claimants have a corresponding obligati on to
reimburse their medical scheme for the full amount of their claim, not just a portion.

[83] Section 19(d) of the RAF Act finds no application whatsoever to the

[83] Section 19(d) of the RAF Act finds no application whatsoever to the
agreement between the claimants and their medical aid scheme. To hold otherwise

38 2008 (3) SA 579 (SCA) paras 7, 8, 13 and 14.
39 Price Waterhouse Coopers Inc v National Potato Co -operative Ltd [2004] 3 AII SA 20 (SCA) para
30; Ronald Bobroff & Partners Inc La Guerr; South African Association of Personal Injury Lawyers v
Minister of Justice and Constitutional Development 2014 (3) SA 134 (CC) at fn 8.
40 Price Waterhouse Coopers Inc v National Potato Co -operative Ltd [2004] 3 AII SA 20 (SCA) para
27.

would be contrary to the legal principle discussed above that the benefit which the
claimant receives from an agreement with her insurance company does not
exonerate the RAF from discharging its obligation to the claimant in terms of the RAF
Act. The third directi ve is clearly legally incompetent and offends Mbongwe J’s
judgment.


[84] Finally, with respect to these directives, it is common cause that the RAF's
liability is excluded or limited in certain instances. The provisions of s 18 of the RAF
Act expressly exclude benefits received under Compensation for Occupational
Injuries and Diseases Act 103 of 1993 (‘COIDA’) or the Defence Act 42 of 2002 from
the calculation of the claimant's damages in terms of the RAF Act. 41 This is in
circumstances where the victim of a motor vehicle accident is also entitled to
compensation under COIDA or the Defence Act.

[85] In Coughlan NO v Road Accident Fund ,,42 the Constitutional Court had to
determine whether foster child grants paid to the foster parents of three children, on
behalf of whom the applicant ( the Curator ad litem) acts, after the death of their
mother as a result of a motor vehicle accident, are deductible from compensation
payable by the RAF for loss of support to those children. The Curator, on behalf of
the children, contended that the foster ch ild grants are not deductible. The RAF, on
the other hand, contended that they are, for failure to do so would amount to double
compensation. The Constitutional Court dismissed the argument raised by the RAF
and stated as follows:

‘The purpose of the RAF is to give the greatest possible protection to claimants . A
deduction of either foster child or child support grants would undermine that purpose.
A reading of the RAF Act suggests that those grants should not be deductible. The
RAF Act expressly provides that double compensation for persons who are entitled to
claim under the Compensation for Occupational Injuries and Diseases Act should be

claim under the Compensation for Occupational Injuries and Diseases Act should be

41 See Discovery Health I at para 23.
42 2015 (4) SA 1 (CC).

deducted from compensation by the RAF but there is no equivalent reference to
social grants.’43 (emphasis added and footnotes omitted)

[86] By parity of reasoning, on a reading of s 18 of the RAF Act, it does not
expressly, or by implication, provide for the exclusion of benefits a plaintiff for
compensation in terms of the RAF Act had received fro m a Medical Aid Scheme for
past medical and hospital expenses. There is no equivalent reference to any other
form of benefit which may be considered to be double compensation, other than
those set out in the Act.44


Res Judicata

[87] In Discovery Health II, the majority noted and correctly so, in my view, that the
doctrine of res judicata entails that where there is a previous judgment involving the
same parties which finally determined an issue based on certain grounds between
them, then neither of those parties can approach a different Court on those same
issues and grounds seeking a different outcome. 45 This applies even in
circumstances where the previous judgment may be incorrect. 46 The purpose of this
principle is to ensure finality of matters by preventing endless litigation and abuses of
court processes arising from the re-litigation of issues between the same parties that
a court has finally decided.47

[88] As foreshadowed above, the majority in Discovery Health II found that the
RAF’s subsequent two directives were not in breach of the Mbongwe J’s judgment
because Mbongwe J dealt with the first directive issued by the RAF, whereas the
RAF was seeking to rely on the two subsequent directives of 13 April 2023 and 02
November 2023, which had not been set aside as unlawful. With respect, and for the
reasons that follow, I do not agree with the finding of the majority. In my view, the

43 At para 59.
44 See also Malgas v Road Accident Fund (126/2020) [2022] ZAECQBHC 50 (1 December 2022) para
13.
45 Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others 2020 (1) SA

327 (CC); (CC) at paras 71 and 111.
46 African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 564C-D.
47 Mkhize NO v Premier of the Province of KwaZulu-Natal and Others 2019 (3) BCLR 360 (CC) para
36.

matter regarding the two dire ctives issued by the RAF is res judicata. The RAF may
issue subsequent directives provided they are not in conflict with a court order.

[89] The parties have litigated to finality the issue of whether it is lawful for the
RAF to refuse claims for past me dical expenses on the ground that the victim’s
medical scheme paid those expenses. The RAF's attempt to relitigate the same
issues by issuing new directives is unlawful. It violates the interdict granted by
Mbongwe J. This is incompatible with the doctrine of res judicata. That matter had
become res judicata insofar as the SCA and the Constitutional Court refused the
RAF leave to appeal.

[90] The primary finding in Mbongwe J’s judgment was that it is unlawful for the
RAF to reject a claim for past medical expenses on the ground that the claimant’s
medical aid has already paid those expenses. Consistent with the SCA’s decision in
Bane and Others v D’Ambrosi , a claimant’s right to compensation from the RAF for
past medical expenses is unaffected by the fact that those expenses were paid by
medical aid scheme. In my view, the decision of the minority in Discovery Health II
was correct in holding that there is a single primary ratio which underpins the entirety
of the Mbongwe judgment and determines the meaning of its orders, including the
interdict: it is unlawful for the RAF to reject a claim for past medical expenses on the
ground that a medical scheme has already paid those expenses.

[91] In my view, the RAF's reliance on subsequent directives is of no moment. The
issues raised in the second and third directives fall within the reach of the Mbongwe
J’s order and are thus res judicata. It is simply not open to the RAF to repeat, on a
different basis, essentially the same decision, in circumstances where the decision
has been finally found to be unlawful. When an issue has been litigated to finality
between the parties, it is not permissible for a litigant to see k to obtain a reversal of

between the parties, it is not permissible for a litigant to see k to obtain a reversal of
the decision of the same question by advancing different reasons.

[92] The respondent's counsels submitted that the stratagem of issuing
subsequent directives on the same subject matter to subvert the judgment of
Mbongwe J and to evade compliance with it constitutes unlawful conduct by a public
body, which cannot be condoned. I agree with this proposition. It should be borne in

mind that both the SCA and the Constitutional Court have refused the RAF’s
application for leave to appe al. Thus, the RAF’s subsequent directives cannot be
issued to overrule the Constitutional Court’s decision. To do so would infringe the
dignity and authority of the courts envisaged in s 165 of the Constitution and risk
rendering our courts impotent and judicial authority a mere mockery.

[93] Significantly, and the final nail in the RA F’s coffin is the fact that subsequent
directives particularly the t hird directive was dealt with by Cloete J in Van Tonder v
Road Accident Fund. 48 Cloete J noted that at the eleventh hour prior to the hearing
before her, the RAF raised a new defence based on s 19(d)(i) of the RAF Act. 49 The
defence was to the effect that due to an internal policy or instruction, the RAF had
decided to reject all claims for past medical expenses paid by a medical aid scheme
on the basis that such a claim are excluded by virtue of s 19(d)(i) of the RAF Act
and/or regulations 7 and 8 of the Medical Schemes Act 131 of 1998.50

[94] Cloete J considered the decision in RAF v Abdool -Carrim discussed above
and held that, ‘by parity of reasoning, this puts paid to the RAF’s s 19(d)i)
argument.51 Cloete J found that the RAF was unable to refer the court to a single
authority holding that, d espite the long line of decisions to the contrary on the
doctrine of subrogation, regulations 7 and 8 of the Medical Schemes Act
nevertheless override the well-established legal position. Cloete J concluded that the
RAF’s argument on this score is contrived and appears to be an attempt to avoid the
consequences of the Constitutional Court’s refusal of leave to appeal in the
Discovery Health I matter dealt with by Mbongwe J.52

[95] Cloete J also found that the RAF was clutching at straws and, in the process,
depriving deserving claimants of their lawful claims, and that in doing so, it was
shamefully wasting yet more public funds which should be directed at the settlement

shamefully wasting yet more public funds which should be directed at the settlement

48 (1736/2020; 9773/2021) [2023] ZAWCHC 305 (1 December 2023).
49 At paras 6 and 7.
50 At para 7.
51 At para12.
52 At para 14.

of worthy claims.53 Cloete J directed the RAF to pay the plaintiff for his past medical
expenses, together with interest thereon at the prescribed legal rate.

[96] The RAF applied for leave to appeal against Cloete J’s order. Cloete J
subsequently refused the RAF’s application for leave to appeal. The RAF afterwards
approached the SCA for leave to appeal on the basis that the common law doctrine
of res inter alios acta did not apply to the RAF where a medical aid scheme had paid
a claimant’s past medical expenses. On 13 June 2024, the SCA, per Makgoka JA
and Masipa AJA, dismissed the application for leave to appeal on the basis that
there was no reasonable prospect of success on appeal and that there were no other
compelling reasons why an appeal should be heard.

[97] The RAF thereafter brought an application to the president of the SCA for a
reconsideration, in terms of s 17(2)(f) of the Superior Courts Act. The Presi dent of
the SCA did not agree with any of the RAF's arguments. The application for
reconsideration was dismissed with costs on 30 August 2024 because no
exceptional circumstances warranting a reconsideration or variation of the decision
refusing the application for leave to appeal had been established.

[98] I must stress that the Van Tonder judgment was cited with approval in Road
Accident Fund v Sheriff of the High Court for the District of Centurion East and
Another,54 and in Road Accident Fund v Malgas. 55 In Fokwe v Road Accident Fund
Cloete J observed that following a refusal of leave to appeal in Road Accident Fund v
Sheriff of the High Court for the District of Centurion East and Another a petition by
the RAF to the SCA was unsuccessful. Simply put, the issues which were raised by
the RAF before the full court in Discovery Health II were considered by the SCA in
Van Tonder and Road Accident Fund v Sheriff of the High Court for the District of
Centurion East and Another and were dismissed.

Centurion East and Another and were dismissed.

[99] The majority in Discovery Health II briefly references the Van Tonder
judgment, noting that it was decided by a single judge. However, it is important to

53 At para 15.
54 [2024] ZAGPPHC 149 (19 February 2024) at paras 28 and 30.
55 Unreported judgment of Van Zyl DJP in application for leave to appeal, case no 126/2020 Eastern
Cape Local Division, Gqeberha, delivered on 5 March 2024 at para 18.

recognise that the arguments presented by the RAF before the full Court in
Discovery Health II were thoroughly considered and subsequently dismissed by the
SCA in the Van Tonder and Road Accident Fund v Sheriff of the High Court for the
District of Centurion East and Another judgment . This aspect does not appear to
have been adequately considered by the majority. Had it been, it is my firm view that,
in accordance with the principle of stare decisis, the majority would have dismissed
the RAF's proposition.

[100] In addition to the above, in Esack v Road Accident Fund ,56 Nuku J in this
division, considered a similar question and found that the majority judgment in
Discovery Health II the other difficulty with the majority judgment in Discovery Health
II is that the court was not required and in fact did not decide the issue of
deductibility of pay ments made by medical aid schemes from compensation to be
paid to road accident victims.57 In other words, the majority decision did not have the
effect of reversing the Mbongwe J’s order. Nuku J found that it must follow that
Discovery Health lends no support to the RAF ’s argument that it is not liable to
compensate claimants in respect of past hospital and medical expenses that have
been paid by their medical-aid scheme as part of the PMB’s or EMC’s.

[101] Nuku J emphasised that the common law princi ple of res inter alios acta is
firmly entrenched in our law in respect of medical aid scheme benefits which
claimants have received or will receive, and which are not deductible from their
claims against the RAF. Nuku J refused a subsequent application for leave to appeal.
An application for leave to appeal before the SCA suffered the same fate. An
application for reconsideration by the President of the SCA in terms of s 17(2)(f) of
the Superior Courts Act was also dismissed with costs on 1 November 2025. T he
President of the SCA found that the applicant has not established that the decision to

President of the SCA found that the applicant has not established that the decision to
refuse leave to appeal is not reconsidered or varied, a grave failure of justice would
result, or the administration of justice would be brought into disrepute.

[102] From the foregoing, the issues raised in the second and third directives have
been decided and are thus res judicata.

56 2025 (4) SA 201 (WCC).
57 At para 17.

Do the two directives apply retrospectively?

[103] It is common cause that the respondent was involved in the motor vehicle
accident on 16 December 2018 and that summons was issued against the RAF on
25 August 2020. Both events occurred before any of the RAF’s impugned directives
were issued. Even if the RAF's defence is upheld by the SCA in the Discovery Health
II matter, in my opinion, this will not affect the judgment in this case based on the
principle of retrospectivity. The RAF’s directives do not have a retrospective effect.
The three directives issued by the RAF were issued long after the respondent's claim
was lodged with the fund and the respondent's summons was issued and served.

[104] In S v Mhlungu and Others ,58 the Constitutional Court, per Kentridge AJ,
observed that there is a strong presumption that new legislation is not intended to be
retroactive. By retroactive legislation is meant legislation that invalidates what was
previously valid, or vice versa, i.e., legislation that affects transactions completed
before the new stat ute came into operation. The court also noted that there is a
presumption against reading legislation as being retrospective in the sense that,
while it takes effect only from its date of commencement, it impairs existing rights
and obligations, e.g., by i nvalidating current contracts or impairing existing property
rights.

[105] The Constitutional Court also noted that there is another well -established rule
of construction, namely that even if a new statute is intended to be retroactive insofar
as it affe cts rights and obligations, it is nonetheless presumed not to affect matters
that are the subject of pending legal proceedings. Therefore, the general rule is that
a statute is as far as possible to be construed as operating only on facts that come
into existence after its passing.59 The directives issued by the RAF were issued long
after the respondent's claim was lodged with the fund . Pursuant to the above

after the respondent's claim was lodged with the fund . Pursuant to the above
considerations, it is my firm view that even if the RAF's appeal to the S CA should be
successful, that outcome can have no bearing on the outcome of this matter for

58 1995 (3) SA 867 (CC) para 65 -67.
59 Kaknis v Absa Bank Ltd and Another 2017 (4) SA 17 (SCA) para 10.

various reasons, one of which is that the impugned RAF directives cannot apply
retrospectively.

Costs

[106] The respondent sought costs against the appellant for two counsels on an
attorney and client scale . Mr Filton opposed the application and submitted that the
complexity of the issues in this matter did not warrant the employment of two
counsels. It is a trite principle of our law that a court con sidering an order of costs
exercises a discretion. 60 The court’s discretion must be exercised judicially. 61 The
decision a court takes is a matter of fairness to both sides. 62 The court is expected to
take into consideration the circumstances of each case, carefully weighing the issues
in each case, the conduct of the parties as well as any other circumstances which
may have a bearing on the issue of costs and then make such an order as would be
fair in the discretion of the court.

[107] In the present matter, the RAF has sought to make a mockery of the courts by
issuing directives in conflict with a court interdict to evade what its statute obliges it
to do. Despite the argument raised relating to its directives having been dismissed by
the apex court, the RAF is still soldiering on in its resolve. As Mr Coughlan noted that
allowing the RAF, which is a government organ, to escape the delictual liability in
such a situation would be manifestly inequitable. Counsel submitted that t he RAF’s
directives cannot acquire the force of law and cannot impermissibly conflict with the
provisions of the RAF Act. The RAF is not entitled to change the prevailing legal
position to free itself of its statutory obligations under s 17 of the RAF Act to pay full
compensation to victims of motor vehicle accidents.

[108] On a conspectus of all the facts discussed above, I am of the view that the
RAF must pay the costs of appeal, including the costs of two counsels. The issues
raised in this matter are complex and, in my view, deserve the employment of two

raised in this matter are complex and, in my view, deserve the employment of two

60 Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC).
61 Motaung v Makubela and Another, NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O) at 631A.
62 Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) at 1055F- G.

counsels. However, I am of the view that costs must be paid on a party and party
scale.

Order

[109] In the result, I would propose the following order:

109.1 The appeal is hereby dismissed.

109.2 The RAF is ordered to pay the costs of the appeal on a party and party
scale including the costs of two counsels where so employed on scale C.




___________________________
LEKHULENI JD
JUDGE OF THE HIGH
COURT

I agree:


_____________________________
NZIWENI
CN
JUDGE OF THE HIGH
COURT

I agree and it is so ordered:


_____________________________
DOLAMO MJ

JUDGE OF THE HIGH
COURT



APPEARANCES

For the Appellant: Adv M Filton
Instructed by: The State Attorney

For the Respondent: Adv P Eia
Adv W Coughlan
Instructed by: A Batchelor & Associates