SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 18884/2021
In the matter between:
DEBRA LEE ROZOWSKY Plaintiff
and
ROAD ACCIDENT FUND Defendant
Neutral citation: Debra Lee Rozowsky v Road Accident Fund (Case no:
18884/2021) [2026] ZAWCHC ( 7 May 2026)
Coram: LOUW AJ
Heard: 29 April 2026
Delivered: Electronically on 7 May 2026
Summary: The RAF refused to compensate the plaintiff for past hospital
and medical expenses incurred in respect of her deceased husband, who died
in the accident, on the basis that these had been covered by his medical aid,
notwithstanding binding authority from th e full court in this Division and
confirmation by the SCA of the RAF’s liability – The RAF appeared to rely
on unlawful, non -retrospective directives and the speculative prospect of a
future appeal not yet instituted and requiring condonation – The court
rejected this stance and held the RAF liable.
ORDER
1 The defendant shall pay to plaintiff’s attorneys of record the sum of
R 268 850.85 ( two hundred and sixty -eight thousand eight hundred
and fifty rand and eighty -five cents) , which is in respect of the
plaintiff’s past hospital and medical expenses.
2 The capital amount referred to in paragraph 1 above shall be paid to
plaintiff’s attorneys of record by means of an electroni c transfer of
funds, which amount is to be paid within 180 ( one hundred and
eighty) calendar days from the date of this order.
3 The defendant shall pay the plaintiff’s taxed or agreed costs on the
High Court scale as between party and party, including, for the sake of
clarity, but not limited to, the costs as set out hereunder.
4 The costs shall include the taxed or agreed fees of plaintiff’s counsel,
including but not limited to her consultations, preparation of written
submissions and trial preparation, as well as her day fee in respect of
the postponement of trial on 18 March 2026 and the trial on 29 April
2026.
5 The plaintiff shall, in the event that the costs are not agreed, serve the
notice of taxation on the defendant.
6 The payment of the legal costs shall be payable 180 (one hundred and
eighty) calendar days following settlement or the taxing master’s
allocatur, in the event of taxing the bill of costs, whichever is
applicable.
7 Payment of the capital and costs shall be effe cted directly to the
plaintiff’s attorneys of record by means of an electronic transfer into
the trust account mentioned below.
8 The defendant shall be liable for interest on the capital amount at the
prescribed rate of interest from 14 (fourteen) days fro m the date of
this order to the date of final payment.
9 The defendant shall be liable for interest on the legal costs at the
prescribed rate of interest from 14 (fourteen) days following
settlement of the costs or the taxing master’s allocator, in the even t of
taxing the bill of costs, whichever is applicable.
10 The plaintiff shall not proceed with a warrant of execution in respect
of the capital and costs prior to the expiry of the said 180 calendar
days.
11 Plaintiff’s attorneys’ trust banking account details are as follows:
Bank: ABSA BANK
Account Holder: LOWE & PETERSEN
Branch: Adderley Street, Cape Town
Account Number: 4[...]
Branch Code: 312-109
Ref: L/ROZ1/0001
JUDGMENT
Louw JA:
Introduction
[1] The plaintiff is the wife of the deceased, Mr Paul Zeev Rozowsky
(‘the deceased’) , who was involved in an accident on 22 January
2021. The defendant is the Road Accident Fund (‘RAF’), a juristic
person established under the Road Accident Fund Act (‘RAF Act’), as
amended. In terms of that Act, the RAF serves as the statutory insurer
tasked with compensating persons injured in motor vehicle collisions
arising from negligent driving.
[2] The deceased was a pedestrian when he was struck by a motor vehicle
driven by an insured driver. The plaintiff alleges that the collision was
caused solely by the insured driver’s negligent driving. As a result of
the collision, the deceased sustained fatal injuries and passed away on
27 January 2021.
[3] The plaintiff’s summons initially included claims for pas t medical
expenses and funeral costs. The merits were, however, settled in the
plaintiff’s favour, and the claim for funeral expenses has since been
resolved between the parties. The matter accordingly proceeds only on
the remaining quantum.
[4] The plaintiff initially claimed a higher amount for past hospital and
medical expenses. The parties have since agreed on the quantum of
the plaintiff’s loss, leaving only the issue of the RAF’s liability. The
agreed amount is R 268 850.85, representing hospital and med ical
expenses paid by Discovery Medical Scheme (‘Discovery Health’) ,
the plaintiff’s and the deceased’s medical aid scheme. The RAF
disputes its liability to reimburse this amount on the basis that it has
already been paid by the medical aid scheme and the plaintiff not
being out of pocket.
[5] The matter was set down for trial on 18 March 2026, but was later
postponed and the trial took place on 29 April 2026.
Factual background
[6] In the past, the RAF compensated claimants for proven past hospital
and medical expenses, irrespective of whether such expenses had been
paid by their medical aid schemes. It subsequently adopted the
position that it was not liable where those expenses had been settled
by medical aid schemes. This shift gave rise to the first directive,
issued on 12 August 2022, which was reviewed and set aside in
Discovery Health (Pty) Ltd v Road Accident Fund and Another 1
(‘Discovery Health 1’) by Mbongwe J in October 20 22. The court
held that the RAF Act does not exclude benefits received from private
medical schemes and interdicted the implementation of the directive.
Applications for leave to appeal were refused by both the Supreme
Court of Appeal and the Constitutional Court.
[7] Notwithstanding this, the RAF issued two further directives. The
second, dated 13 April 2023, required the exclusion of expenses
classified as Prescribed Minimum Benefits or Emergency Medical
Conditions. The third, dated 2 November 2023, excluded claims
where claimants had undertaken to reimburse their medical schemes.
[8] These directives culminated in Discovery Health (Pty) Ltd v Road
Accident Fund and Another 2 (‘Discovery Health 2 ’), which served
before a full court of the Gauteng High Court. The majority held that
the subsequent directives were distinguishable and did not contravene
the order of Mbongwe J. The minority disagreed, finding them to be
1 2023 (2) SA 212 (GP).
2 2025 (3) SA 225 (GP).
in direct conflict with that ord er and reaffirming that it is unlawful to
reject claims solely because a medical aid scheme has paid the
expenses. It is common cause that leave to appeal against the majority
judgment was granted to Discovery Health, and that appeal remains
pending.
[9] The f ull court of this Division in Road Accident Fund v Van Wyk
(‘Van Wyk’)3 confirmed that the RAF remains liable for past hospital
and medical expenses, notwithstanding payment by a claimant’s
medical scheme. Applying the doctrine of res inter alios acta , th e
court held that such payments arise from a private arrangement and do
not affect the RAF’s statutory obligations. The Van Wyk and
Discovery Health decisions are accordingly relevant as background to
the present matter.
Issue for determination
[10] The question before th is court is whether the RAF remains liable to
compensate the plaintiff for past medical expenses notwithstanding
their payment by Discovery Health. Put differently, the issue is
whether the RAF is liable for medical costs already covered by the
medical aid scheme.
Arguments before court
3 (1169/2020; A186/2025) [2026] ZAWCHC 39 (9 February 2026).
[11] Given that there was consensus on the day of the trial regarding the
quantum, and that the only issue for the court was to decide on the
liability, no witnesses were called as initially planned.
[12] Counsel for the plaintiff, Ms Slingers, submits that the RAF has failed
to provide any particulars to justify the position it has adopted. The
RAF’s plea amounts to a bare denial: it places the plaintiff to the
proof of the allegations, avers a lack of kno wledge, reserves the right
to adduce rebutting evidence, and asserts that its refusal to
compensate is justified. Counsel contends that, in these circumstances,
it is unclear on what legislative provision, RAF directive, or other
legal basis the RAF denies liability.
[13] Plaintiff’s counsel also submitted written submissions to the court.
Counsel relies on the full court judgment in this Division in Van Wyk,
which settled the question of whether the RAF is liable for past
hospital and medical expenses paid by a claimant’s medical scheme.
In that matter, the RAF contended that its liability should be reduced
because the claimant’s medical insurance had already covered the
costs. The full court rejected this argument. Applying the doctrine of
res inter alios act a, it held that the insurance contract is a private
arrangement between the claimant and the insurer and does not affect
the RAF’s statutory obligations. The RAF accordingly remains liable
for the full amount of past medical expenses, irrespective of who p aid
them.
[14] Counsel for the plaintiff further pointed out that the RAF’s
applications for leave to appeal to the Supreme Court of Appeal
(‘SCA’) and the Constitutional Court in Discovery Health 2 were
unsuccessful. Counsel also emphasised that the full court in Discovery
Health 2 was divided: the majority held that the later RAF directives
were distinguishable and did not breach the order of Mbongwe J,
whereas the minority found them to be in dire ct conflict with that
order and reaffirmed that it is unlawful to reject claims solely because
a medical scheme has paid the expenses. In support of this latter
position, the court was also referred to Basson v Road Accident Fund,4
Jaffer v Road Accident Fund 5 and Esack v Road Accident Fund ,6 all
decisions of this Division in which the majority approach in Discovery
Health 2 was not followed.
[15] Counsel for the plaintiff further submitted that this Division has
settled the issue in Van Wyk , and referred me to the following
passage: ‘In summary, a settlement by a medical scheme of a
claimant’s past medical expenses does not relieve the RAF of its legal
obligation to compensate the claimant for those expenses.’7
[16] Plaintiff’s counsel further submi tted that Discovery Health 2 is of no
assistance to the RAF and does not constitute authority for the present
matter. While counsel for the RAF noted that leave to appeal had been
granted to Discovery in Discovery Health 2 and that the matter was
4 (5213/2021) [2025] ZAWCHC 229 (30 May 2025).
5 (8418/2020; 4092/2021) [2025] ZAWCHC 136 (20 March 2025)
6 [2025] ZAWCHC 27; 2025 (4) SA 201 (WCC) (4 February 2025).
7 Van Wyk fn 3 above at para 78.
supposedly argued before the SCA in February 2026, counsel for the
plaintiff submitted that the outcome of that appeal would, i n any
event, be of limited relevance. This is so because all three RAF
directives relied upon were issued after the accident on 22 January
2021, and the principle against retrospectivity precludes reliance on
them.
[17] No written submissions were filed on beh alf of the RAF. Counsel
nevertheless submitted, on instructions, that the RAF denies liability
for the medical expenses paid by Discovery Health. It was, however,
made clear that the RAF does not dispute that the amount of
R 268 850.85 is injury -related and was paid by the medical scheme;
its dispute is confined to whether it is liable to reimburse that amount.
The precise basis of the defence is difficult to discern. It appears to
rest largely on a proposed appeal against the full court judgment in
Van Wyk, on which considerable reliance was placed, as well as on the
suggestion that the outcome of the appeal in Discovery Health 2 may
be of assistance to the RAF’s case. RAF’s c ounsel indicated that
instructions to pursue an appeal in Van Wyk have been recei ved,
although no papers have yet been prepared. No such appeal has been
instituted and, in any event, it would be out of time and require
condonation.
Applicable legal principles and discussion
[18] It is evident that the RAF does not dispute that the past hospital and
medical expenses of R 268 850.85 arose from the accident, but only
denies liability to pay them.
[19] Counsel for the plaintiff submitted that the RAF’s denial of liability
for the medical expenses paid by Discovery Health is unsustainable. I
agree. It remains unclear whether the denial is founded on the RAF’s
directives, the prospect of a future appeal in Van Wyk , or the
anticipated outcome of the appeal in Discovery Health 2 . On any
view, the defence appears to rest on the speculative possibility of such
appeals. Such reliance is misplaced and does not constitute a valid
basis to resist liability in the present matter, and must accordingly fail.
The suggestion that liability may be avoided through a prospective
appeal in Van Wyk, which has no t been instituted and would in any
event require condonation, does not constitute a defence. Courts
determine matters on the law as it stands at the time of hearing, not on
speculative prospects of success in future proceedings. This accords
with the submi ssion advanced by counsel for the plaintiff. It is also
aligned with the view in Van Wyk.8
[20] I am bound by the decision of the full court in this Division in Van
Wyk and, in any event, I am in full agreement with it. It is settled law
in this Division that the RAF may not refuse claims for past medical
expenses on the basis that they were paid by a claimant’s medical
8 Van Wyk fn 3 above at para 56 and Franko Maphosa v RAF (1093/2022) [2024] ZAGPJHC 263 (7 March
2024) para 55.
scheme.9 That issue has been finally determined, and the RAF has
established no proper basis to avoid liability. T he lawfulness of the
RAF’s refusal to pay past medical expenses on the basis that they
were covered by a medical scheme has already been finally
determined in Van Wyk and cannot be revisited through the issuance
of new directives, as the issue is res judicata.10
[21] I agree with the plaintiff that, as in Van Wyk, the directives are of no
relevance. The principle against retrospectivity applies, and the RAF
cannot invoke directives to regulate a cause of action that arose before
their issuance. This accords with Van Wyk11 and is supported by the
SCA in Road Accident Fund v Mudawo and Others and Road
Accident Fund v Lyton and Others ,12 which emphasise that such
measures cannot operate retrospectively or undermine established
legal principles.
[22] I find that the plaintiff has discharged the onus of proving that the
RAF is liable for the full amount of R 268 850.85 in respect of past
hospital and medical expenses. It is common cause that this amount
was paid by Discovery Health. The RAF is accordingly liable for
payment of the full amount.
Costs
9 See also Bane and Others v D’ Ambrosi 2010 (2) SA 539 (SCA) , where the SCA confirmed that the
Medical Schemes Act 113 of 1998 does not extinguish a plaintiff’s delictual claim, and that a claimant may
recover medical expenses even if they were paid by a medical scheme.
10 Van Wyk fn 3 above at para 89.
11 See Van Wyk fn 3 above paras 103-105.
12 [2026] ZASCA 54 (16 April 2026).
[23] Counsel for the plaintiff submitted that, should judgment be granted in
the plaintiff’s favour, costs ought to follow the result. Counsel argued
for costs on a party-and-party basis.
[24] As an observation, although a punitive costs order was not sought, this
is a matter in which such an order would likely have been warranted.
The RAF’s continued disregard of settled law, the insubstantial nature
of its defence, and its persistence in litig ating an issue already finally
determined have resulted in an unnecessary waste of legal costs,
judicial time, and have contributed to delays affecting litigants. While
this court retains a discretion to grant a punitive order mero motu,13 it
would not be fair to d o so without having afforded the RAF an
opportunity to address the Court on that issue. Therefore, no such
order will be made.
Order
[25] The following order is made:
1 The defendant shall pay to the plaintiff’s attorneys of record the sum
of
R 268 850.85 (two hundred and sixty -eight thousand eight hundred
13 See section 173 of the Constitution. Punitive costs are awarded to mark a court’s displeasure at a
litigant’s conduct and are reserved for truly exceptional cases. As held in Plastic Converters Association of
South Africa (PCASA) v National Union of Mineworkers Union of South Africa and Other s (2016) 37 ILJ
2815 (LAC) para 46, an attorney -and-client costs order is an extraordinary measure, justified only where a
party’s conduct is clearly vexatious and reprehensible, and intended to express strong judicial censure. This
approach is reinforced in Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) where the
Constitutional Court held that punitive costs are appropriate only where conduct is plainly scandalous or
objectionable (para 9), and may be granted to signify the court’s disa pproval even absent a specific request
(para 97).
and fifty rand and eighty -five cents) , which is in respect of the
plaintiff’s past hospital and medical expenses.
2 The capital amount referred to in paragraph 1 above shall be paid to
plaintiff’s attorneys of record by means of an electronic transfer of
funds, which amount is to be paid within 180 (one hundred and
eighty) calendar days from the date of this order.
3 The defendant shall pay the plainti ff’s taxed or agreed costs on the
High Court scale as between party and party, including, for the sake of
clarity, but not limited to, the costs as set out hereunder.
4 The costs shall include the taxed or agreed fees of plaintiff’s counsel,
including but n ot limited to her consultations, preparation of written
submissions and trial preparation, as well as her day fee in respect of
the postponement of trial on 18 March 2026 and the trial on 29 April
2026.
5 The plaintiff shall, in the event that the costs are not agreed, serve the
notice of taxation on the defendant.
6 The payment of the legal costs shall be payable 180 (one hundred and
eighty) calendar days following settlement or the taxing master’s
allocatur, in the event of taxing the bill of costs, whichever is
applicable.
7 Payment of the capital and costs shall be effected directly to the
plaintiff’s attorneys of record by means of an electronic transfer into
the trust account mentioned below.
8 The defendant shall be liable for interest on the capital amount at the
prescribed rate of interest from 14 (fourteen) days from the date of
this order to the date of final payment.
9 The defendant shall be liable for interest on the legal costs at the
prescribed rate of interest from 14 (fourteen) days following
settlement of the costs or the taxing master’s allocator, in the event of
taxing the bill of costs, whichever is applicable.
10 The plaintiff shall not proceed with a warrant of execution in respect
of the capital and costs prior to the expiry of the said 180 calendar
days.
11 Plaintiff’s attorneys’ trust banking account details are as follows:
Bank: ABSA BANK
Account Holder: LOWE & PETERSEN
Branch: Adderley Street, Cape Town
Account Number: 4[...]
Branch Code: 312-109
Ref: L/ROZ1/0001
________________________
M LOUW
ACTING JUDGE OF THE HIGH COURT
Appearances
For plaintiff: Adv G Slingers
Instructed by: Lowe & Petersen Attorneys, Town
For defendant: C Hindley
Instructed by: State Attorney, Cape Town.