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

REPORTABLE
Case no: 20944/2022

In the matter between:
ADVOCATE ROXANNE VAN WYK N.O.
CATHERINE YIANNAKIS Plaintiff
and
ROAD ACCIDENT FUND Defendant

Neutral citation: Advocate Roxanne Van Wyk N.O . Catherine Yiannakis v
Road Accident Fund (Case no 20944/2022) [2026] ZAWCHC (7 May 2026)

Coram: LOUW AJ
Heard: 28 April 2026
Delivered: Electronically on 7 May 2026

Summary: The RAF refused to compensate the victim of a motor vehicle
accident for past hospital and medical expenses on the basis that these had
been covered by medical aid, despite binding full court authority in this
Division and SCA confirmation of its liability –The RAF relied on internal
directives already declared unlawful and inapplicable retrospectively, as well
as the speculative prospect of a future appeal against the full court judgment,
which had not been instituted and would in any event require condonation –
The court rejected this stance, held the RAF liable, and awarded punitive
costs.


ORDER

1. The defendant shall pay to plaintiff’s attorneys of record the sum of
R 2 231 081.34 (two million two hundred and thirty-one thousand and
eighty-one rand and thirty-four cents) which is in respect of the
patient’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 me ans of an electronic transfer of
funds, which amount is to be paid within 180 ( one hundred and
eighty) calendar days from date of this order.

3. The defendant shall pay plaintiff’s taxed or agreed costs in respect of
the plaintiff’s claim for past hospital a nd medical expenses on the
High Court Scale, which costs shall be on an attorney and client scale.

4. The costs shall include the taxed or agreed fees of plaintiff’s counsel,
including but not limited to his consultations, preparation of written
submissions and trial preparation, as well as his day fee in respect of
the trial on 28 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 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 date of this
order to date of final payment.

9. The defendant shall be liable for interest on the legal costs at the
prescribed rate of interest fro m 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. 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:

NAME OF BANK: NEDBANK LIMITED
BRANCH: CPT CENTRAL SUBURBS NCB
NAME OF ACCOUNT: SOHN AND WOOD TRUST
ACCOUNT ACCOUNT NO: 1[...]
BRANCH CODE NO: 198765

JUDGMENT



Louw AJ:

Introduction

[1] The plaintiff is Advocate Roxanne Van Wyk N.O. , acting in her
representative capacity as curatrix ad litem to Catherine Yiannakis
(‘the patient’). The defendant is the Road Accident Fund (‘RAF’), a
juristic person established under the Road Accident Fund Act 1 (‘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.


1 56 of 1996.

[2] The matter is a delictual action in which the plaintiff is suing RAF for
damages arising from bodily injuries which the patient sustained in a
motor vehicle collision on 12 February 2018 as a pedestrian.

[3] The merits were conceded and all heads of damages w ere settled
between the parties as per a court order dated 5 August 2024.
However, what remained in dispute was the quantum for the past
hospital, medical and related expenses . Plaintiff asserted the costs
amounted to a sum of R2 231 081.34, which the pla intiff claimed is
made up of an amount of R1 678 832.58 that is due to the plaintiff and
an amount of R 552 248.76 that is due to the medical aid scheme of
the patient, in this matter, Discovery Medical Scheme (‘ Discovery
Health’). RAF disputes it s liability to pay for the plaintiff’s past
hospital and medical expenses already paid by Discovery Health in
the amount of R 552 248.76.

[4] The matter was initially enrolled for trial on 19 August 2025. In light
of a pending appeal before a full court of thi s Division at the time ,
concerning, inter alia, the RAF’s liability to pay past hospital and
medical expenses covered by a patient’s medical fund, the parties
agreed to postpone the trial to 28 April 2026. The full court in th is
Division delivered its judgment on 9 February 2026 in Road Accident
Fund v Van Wyk (‘Van Wyk’).2

[5] In Van Wyk, the RAF appealed against an order requiring it to pay the
claimant’s past medical expenses. The RAF argued that because the

2 (1169/2020; A186/2025) [2026] ZAWCHC 39 (9 February 2026).

claimant’s medical insurance had already covered those costs, its
liability should be reduced. The full court disagreed. In short,
applying the doctrine of res inter alios acta , the court held that the
insurance contract was a private arrangement between the claimant
and their insurer and had no bearing on the RAF’s obligations. The
RAF therefore , remained liable for the full amount of past medical
expenses, regardless of who had paid them.

[6] Despite the ruling by the full court on this issue, t he trial proceeded
before this court on 28 April 2026 . The counsel for the plaintiff, Mr
Coughlan, called two witnesses, namely the daughter of the patient,
Ms Olga Eudoxia Yiannakis, and Ms Thanusha Tia Hoosen, a Team
Leader of Discovery Medical Scheme (‘employee of Discovery
Health’). Counsel, Mr Hindley, for RAF called no witnesses.

Factual background

[7] It is not necessary for the court to elaborate on the factual background
of the matter. For brevity , the background facts are merely that the
patient was seriously injured in a motor vehicle collision on 12
February 2018 as a pedestrian. It is common cause that the injuries
have severely impa cted her mental and physical capacity to the point
where she is no longer able to act for herself , look after herself or live
on her own . Accordingly, a curator bonis was appointed to assist the
patient to manage her finances.

[8] Since the accident, the patient has been unable to live independently
and has resided at St Anthony’s Home, a care facility dedicated to the
specialised long -term care and nursing of persons with chronic
psychiatric and mental disorders, since around July 2018.

[9] It is common cause that the patient is a member of Discovery Health ,
which covered her past medical expenses incurred as a result of the
injuries sustained in the accident.

[10] The settlement order, which addressed damages other than those
relating to past hospital , medical and related expenses, is not material
to the present matter and has no bearing on the issues before the court.

[11] The matter was first set down for trial on 19 August 2025. However,
because the full court of appeal in this Division in Van Wyk was
pending on R AF’s liability for past hospital and medical expenses
where same were paid by a victim’s (claimant’s) medical fund , the
trial was postponed by agreement to 28 April 2026. That appeal was
decided on 9 February 2026 in Van Wyk and its outcome now forms
part of the background to the current proceedings. Given this, it is thus
important, for the sake of conciseness, to pr ovide a short background
of what transpired prior to the Van Wyk judgment, particularly in
relation to the conduct of the RAF and its directives that it issued.

[12] The RAF had adopted the position that it was not liable where medical
aid schemes had settled past medical expenses. This led to the first
directive of 12 August 2022, which was reviewed and set aside in

Discovery Health (Pty) Ltd v Road Accident Fund and Another 3
(‘Discovery Health 1’) by Mbongwe J in October 2022. The judge
held that the RAF Act did not exclude benefits received from private
medical aid schemes, and interdicted the implementation of this
directive. The RAF’s applications for leave to appeal were refused by
both the Supreme Court of Appeal (‘SCA’) and the Constitutional
Court. Despite this, the RAF issued two further directives: the second
(13 April 2023) required exclusion of expenses categorised as
Prescribed Minimum Benefits (‘PMB’) or Emergency Medical
Conditions (‘EMC’), and the third (2 Novem ber 2023) excluded
claims where claimants ( plaintiffs) had agreed to reimburse their
medical aid schemes.

[13] These directives gave rise to Discovery Health (Pty) Ltd v Road
Accident Fund and Another4 (‘Discovery Health 2’), decided by a full
court of the Ga uteng High Court. The majority held that the later
directives were different and did not breach the order by Mbongwe J,
while the minority considered them squarely contrary, reiterating that
it was unlawful to reject claims merely because medical aid scheme
had paid.



Issues for determination

[14] The first issue concerns the p atient’s claim for reimbursement of the
patient’s own past hospital, medical and related expenses. These costs

3 2023 (2) SA 212 (GP).
4 2025 (3) SA 225 (GP).

represent the direct financial burden the patient personally incurred as
a result of the accident and form a central component of her damages
claim. The court must determine whether the RAF is li able to
compensate the patient for these expenses, which were asserted to
have been reasonably incurred and directly attributable to the injuries
sustained.

[15] The second issue , and the crux of this case, is whether the RAF is
liable for the past medical ex penses already paid by the patient’s
medical aid scheme, Discovery Health, a liability which the RAF
disputes.

Arguments and testimony before court

[16] Counsel for the plaintiff, Mr Coughlan, handed in Exhibit 1 which
constitutes a bundle setting out schedules of all past hospital and
medical expenses with relevant invoices and expenses from St
Anthony’s home from the period August 2018 to July 2024; the
medical expenses paid by Discovery Health related to the injury
caused by the motor vehicle accident; and related expenses in this
regard that the patient had to pay herself. Counsel for RAF, Mr
Hindley, did not object to Exhibit 1 being accepted as evidence.

[17] Counsel for the plaintiff called two witnesses. The first was the
patient’s daughter, Ms Olga Eudoxia Yiannakis, who testified
regarding the payments her mother had made to St Anthony’s Home
from her (the patient’s) own funds. She explained that, due to the

mental and physical incapacity caused by the accident, the patient (her
mother) could no longer live independently and had therefore required
full‑time institutional care from mid ‑July 2018, where she continues
to reside. Ms Yiannakis confirmed that all costs for the patient ’s
accommodation at the nursing home were detailed i n the payment
schedule to St Anthony’s, supported by invoices and proof of
payments contained in Exhibit 1, covering the period from mid ‑July
2018 to July 2024 and amounting to R1 554 503.88. 5 She further
testified that, from August 2024 onwards, these costs have been borne
by the RAF pursuant to the settlement agreement reached in respect of
other damages.

[18] Ms Yiannakis also testified regarding the past medical expenses the
patient had to pay from her own funds, amounting to R 114 742.12, as
detailed in t he schedule of expenses and supported by invoices and
proof of payment contained in Exhibit 1.6

[19] Ms Yiannakis further testified that the patient had to pay the shortfall
for the medical expenses that Discovery Health did not pay and which
amounted to R 9 586.58.

[20] She further stated that, prior to the accident, the patient had lived a
full and independent life and was able to drive herself. Finally, she
confirmed that a curator bonis had been appointed to manage the

5 Exhibit 1 at pages 1-77.
6 Exhibit 1 at pages 78-129.

patient’s financial affairs. Mr Hindly, appearing for RAF, elected not
to cross‑examine this witness.

[21] The second witness was Ms Thanusha Tia Hoosen, a Team Leader at
Discovery Health. She testified regarding the process Discovery
Health followed when injuries sustained in a motor vehicle accident
are reported. In summary, she explained how attorneys are en gaged
immediately, how the injuries are coded for expenses, and how claims
related to the accident are kept separate from unrelated medical
claims. She confirmed that all accident ‑related expenses were vetted
and that Discovery Health recovers costs where third parties
reimburse patients. Ms Hoosen deposed to an affidavit confirming that
all payments made by Discovery Health to the patient in this case, as
reflected in Discovery’s schedule, had been assessed and personally
verified by her as correct. 7 She testified that the total amount paid
was R 552 248.76. She further confirmed that although R 561 835.34
was claimed, only
R 552 248.76 was paid, with the patient covering the shortfall of
R 9 586.58. Finally, she verified that all expenses incurred by
Discovery Health were accurately reflected in their schedule of
payments and supported by vouchers and invoices contained in
Exhibit 1. 8 RAF’s counsel also elected not to cross ‑examine this
witness.



7 See the affidavit deposed by Ms Hoosen plus the attached Discovery Health schedule of payment attached
thereto in Exhibit 1.
8 Exhibit 1, third part after Ms Hoosen’s affidavit at pages 1-103.

[22] Counsel for the plaintiff argued that the RAF’s defence to the claim
for past hospital and medical expenses was not only fatally defective,
but also very vague . The RAF seemingly sought to rely on the three
internal directives referenced above and the Discovery Health 2 case,
but none of these were pleaded or produced in evidence. As
mentioned, the first directive, issued on 12 August 2022, stated that
where medical expenses had been paid by a medical aid scheme, the
plaintiff had suffered no loss and the R AF was not liable. The second
directive, issued on 13 April 2023, asserted that expenses relating to
PMB or EMC were statutorily payable by medical aid schemes under
the Medical Schemes Act, 9 thereby relieving the RAF of liability.
However, to sustain this defence, the RAF would have needed to lead
medical evidence to prove that the expenses fell within PMB or EMC,
which it did not intend to do. The third directive, issued on 2
November 2023, claimed that where plaintiff s had agreed to
reimburse their medi cal aid schemes, such agreement fell within the
exclusionary provision of section 19(d)(i) of the RAF Act.

[23] Counsel emphasised that none of these directives had been pleaded or
placed before the court to substantiate them. Accordingly, there was
no factual or legal basis for the court to apply or rely on the RAF’s
directives, and the plaintiff’s claim for past medical expenses
remained valid.

[24] Counsel further argued that neither Discovery Health 2 nor the
directives could assist the RAF in these circumstances, give n t he

9 131 of 1998.

cause of action in the present claim, which arose on 12 February 2018,
predates the issuance of the RAF directives. On that basis, the
principle against retrospectivity precludes reliance upon them. This
position is reinforced by Van Wyk , which held that the RAF’s
directives do not operate retrospectively. 10 Ultimately, it was argued
that this co urt is thus bound by the full court decision in Van Wyk ,
which affirmed the RAF’s obligation to pay past medical expenses.

[25] In a very detailed written submission, counsel for the plaintiff took the
court through the history and case law concerning RAF’s liability for
past medical expenses, even where such expenses had already been
paid by medical aid schemes. Reference was made to a number of
cases in which the RAF sought to evade its liability. This court will
not rehash the full submiss ion, as the full court in Van Wyk has
already addressed and settled the matter in this Division.

[26] Counsel referred to later authority including cases delivered by judges
in this Division, such as Esack v Road Accident Fund, 11 and Jaffer v
Road Accident Fund ,12 that criticised the majority in Discovery
Health 2 for failing to follow binding precedent . Reference was also
made to Bane v D’Ambrosi ,13 where the SCA confirmed that the
Medical Schemes Act does not extinguish a plaintiff’s delictual claim.
Accordingly, even where a medical aid scheme has paid medical
expenses on a plaintiff’s behalf, the claimant may still recover those
expenses in a delictual action.

10 Van Wyk above note 2 at paras 103-105.
11 2025 (4) SA 201 (WCC).
12 2025 JDR 1436 (WCC).
13 2010 (2) SA 539 (SCA).

[27] It is common cause that the full court in Discovery Health 2 granted
Discovery Health leave to appeal against the majority judgment . That
appeal remains pending. Plaintiff’s counsel submitted that, as the full
court in Discovery Health 2 neither considered nor decided the
deductibility of medical aid payments from compensation due to road
accident victims, the outcome of the appeal to the SCA may bear on
this matter. However, even if the RAF’s defences are upheld in that
appeal, the outcome will not affect the present case, given the
principle of retrospectivity. So, even if the SCA in Discovery Health 2
were to uphold the RAF’s reliance on its internal directives, such
directives cannot operate retrospectively.


[28] No written submissions were filed on behalf of the RAF. RAF’s
counsel nevertheless argued that, in accordance with his instructions,
the RAF denies liability for the medical expenses paid by Discovery
Health. The precise basis of the RAF’s defence is uncle ar; it appears
to rest not on any identifiable directive, but rather on the speculative
prospect of a future successful appeal against the Van Wyk judgment.

Applicable legal principles and discussion

[29] It is clear that RAF in this case is not disputing th at the expenses for
past hospital, medical and related expenses are related to the accident
referred to. If they did, these would have been disputed during the
testimony of the two witnesses. RAF does, however, deny liability for

having to pay the amount p ayable for the medical expenses already
paid by Discovery Health.

[30] No written submission was filed on behalf of the RAF. Counsel
argued in court that liability for the medical expenses paid by
Discovery Health should be denied.

[31] I agree with the plaintiff in this case that it remains unclear whether
RAF’s denial is based on the RAF directives or on the prospect of a
possible successful future appeal against the Van Wyk judgment. The
defence upon which the RAF seemingly relies is the speculative
prospect of such an appeal. Such reliance is misplaced and does not
constitute a valid ground to resist liability in the present matter and
accordingly must fail.

[32] I am bound by the decision in Van Wyk. The suggestion that liability
may be avoided through a prospective appeal in that matter, which has
not been instituted and would in any event require condonation, does
not constitute a defence . Courts decide cases on the law as it stands
when the matter is heard, not on speculative hopes of success in
hypothetical future proceedings.

[33] As in Van Wyk, the directives are irreleva nt here. Whether or not the
RAF relies on them, they have no consequence in this case. My
brother, Lekhuleni J, in Van Wyk, put it aptly when he said:14


14 Van Wyk above note 2 at para 89.

‘The parties have litigated to finality the issue of whether it is lawful for the RAF
to refuse claims for past medical 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.’

[34] Even if I were not bound by the Van Wyk precedent, which I am, I
would nonetheless be in full agreement with that judgment. In
addition, I, together with other judges in this Division, 15 am a
proponent of the minority judgment in the Discovery Health 2 case. In
Van Wyk it was noted that the dis agreement between the two
approaches in Discovery Health 2 is pending before the SCA. On 9
April 2025, the full court in Discovery Health 2 granted leave to
appeal against the majority judgment delivered on 17 December
2024.16 Counsel for the RAF informed this court that the appeal was
apparently heard in February 2026.

[35] In this Division, it is settled law that the RAF cannot refuse claims for
past medical expenses on the basis that they were paid by a road
accident victim’s medical scheme. That issue has been litigated to
finality. The RAF has failed to establish any proper ground to deny or
evade liability once the matter has been finally decided.


15 See, eg, Basson v Road Accident Fund (5213/2021) [2025] ZAWCHC 229 (30 May 2025); Jaffer v Road
Accident Fund 2025 JDR 1436 (WCC); and Esack Road Accident Fund 2025 (4) SA 201 (WCC).
16 Van Wyk above note 2 at para 56.

[36] I agree that the principle against retrospectivity finds application in
the present matter. The RAF directives cannot be invoked to regulate
a cause of action that arose prior to their issuance. This position
accords with the full court decision in Van Wyk, which confirmed that
such directives do not operate retrospectively. It is f urther supported
by the SCA in The Road Accident Fund v Mudawo and Others and
The Road Accident Fund v Lyton and Others,17 (‘Mudawo’) where the
court emphasised the limits of the RAF’s powers and underscored that
measures of this nature cannot be applied in a manner that undermines
established legal principles, including the prohibition against
retrospectivity.18

[37] It appears to have become a recurring practice for the RAF to attempt
to circumvent court orders and even statutory provisions in order to
avoid or diminish its liability through the issuing of directives. The
Van Wyk judgment provides a clear illustration of this approach and
Lekhuleni J goes as far as stating ‘[i]n 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.’19

[38] The present matter before me is no exception. A more recent example
is found in Mudawo. In Mudawo the RAF sought, by way of a
directive, to circumvent section 17(1) of the RAF Act by excluding
foreign nationals who were unlawfully in South Africa from claiming

17 [2026] ZASCA 54 (16 April 2026).
18 Mudawo above note 17 at paras 54-56.
19 Van Wyk above note 2 at para 107.

against the RAF. The RAF also purported to amend the prescribed
claim form (RAF 1 form) through a series of directives.20 The
respondents (claimants) contended that the RAF’s internal
management directives do not have the force of law and are therefore
not binding on members of the public or claimants.21

[39] Although the SCA in Mudawo did not definitively pronounce on the
legal force of such directives, it made several significant observations
that cast serious doubt on their status. The court emphasised that the
founding affidavit alleged that the RAF and the Minister (of
Transport) had effectively bypassed the parliamentary law -making
process, thereby offending the principle of legality and the rule of law.
It held that there was no rational basis for excluding unlawful foreign
nationals from submitting claims under the Act.22


20 This attempt has since failed and been decisively put to rest in Road Accident Fund and Others v Legal
Practitioners’ Indemnity Insurance Fund, NPC and Others (1106/2024 and 1479/2024) [2026] ZASCA 63
(30 April 2026) . The SCA examined the lawfulness of changes to the RAF 1 claim form introduced by
RAF and later endorse d by the Minister. The process began in 2021 with internal RAF directives and
external communications requiring claimants to submit additional documents. These requirements were
then formalised through a series of board notices published in the Government Gazette, including Board
Notice 58 of 2021 and a substituted RAF 1 form under Board Notice 66 of 2021. After these measures were
challenged and withdrawn following litigation, the RAF again attempted to introduce stricter requirements
through Board Notice 271 of 2022. Recognising that it lacked the authority to amend the form itself, the
RAF sought to have the revised RAF 1 form approved by the Minister. This led to the publication of Board
Notice 302 of 2022 in the Government Gazette, through which the Min ister formally incorporated the

revised form into the regulations. The SCA held that both the RAF’s and the Minister’s actions constituted
administrative action under the Promotion of Administrative Justice Act (‘PAJA’). The Minister’s decision
was unlawfu l because he failed to follow mandatory procedural requirements, including public
participation, and did not establish that the changes were necessary, expedient, or rational. Thus, Board
Notice 271 had no independent legal force and fell away with it. The revised RAF 1 form was therefore set
aside, and the position reverted to the 2008 regulations. Of particular interest, showing the behaviour of the
RAF, is that the SCA held that the Minister’s decision adversely affected claimants by imposing additional
documentation requirements for a valid RAF 1 form, thereby limiting access to compensation under the
Act, and that the RAF in practice rejected claims without providing reasons (para 31).
21 Mudawo above note 17 at para 28.
22 Mudawo above note 17 at para 44.

[40] The RA F’s contention in Mudawo that the impugned decisions
constituted an executive policy choice immune from judicial
interference was found to lack any evidential foundation. 23 There was
nothing in the answering affidavit to indicate that the Minister had
taken a policy decision either to issue the directive or to amend the
claim form. 24 The court accordingly held that the Minister’s powers
are confined to making regulations in terms of section 26 of the RAF
Act on the matters specified therein, and do not exte nd to excluding
any category of claimant from the statutory compensation scheme. 25
The SCA concluded that the impugned decisions were not rationally
connected to the RAF’s powers under sections 4(1) and 17(1) of the
Act and were therefore arbitrary. 26 It a lso rejected the RAF’s
interpretation that section 17(1) excludes such claimants, finding it to
be incorrect.27

[41] Even if the RAF’s contention in Mudawo were to be accepted, that the
impugned decisions constituted an executive policy choice immune
from judicial interference, it would remain untenable. As Opperman J,
in the minority judgment of Discovery Health 2 , correctly held ‘[a]
public body cannot insulate itself from the law by adopting a policy
not to comply with a court order’.28

[42] In Van Wyk, counsel for the claimant also submitted that the RAF’s
directives cannot acquire the force of law or conflict with the RAF

23 Mudawo above note 17 at para 45.
24 Ibid.
25 Mudawo above note 17 at para 48.
26 Ibid.
27 Mudawo above note 17 at para 53.
28 2025 (3) SA 225 (GP) para 137.

Act. Mr Coughlan contended that the Fund is not entitled to alter the
prevailing legal position to evade its statutory duty under section 17 of
the RAF Act to provide full compensation to road accident victims.29

[43] Although the force of the RAF’s directives was not directly at issue in
this matter, I nevertheless find that their legal status and effect remain
debatable and constitute an important consideration. In any event, and
as noted, the relevant directives issued relating specifically to the
payment of past medical expenses do not arise for determination in
this case for reasons already mentioned.

[44] In my view, the RAF’s reliance on the prospect of a future successful
appeal to avoid liability for past hospital , medical and related
expenses is untenable. A court is required to interpret and apply the
law as it stands at the time the matter is heard, not as it might be
determined in future. A similar approach was adopted in Van Wyk ,
relying on Franko Maphosa v RAF,30 where it was confirmed that the
core fun ction of the judiciary is to apply the law impartially,
irrespective of the possibility of appellate review. While appellate
review is a vital safeguard in our legal system, it does not relieve a
court of its duty to deliver a timely, reasoned judgment on the law as
it presently stands. Justice is not served by deferring a decision in
anticipation of a possible future ruling.31


29 Van Wyk above note 2 at para 107.
30 (1093/2022) [2024] ZAGPJHC 263 (7 March 2024) para 55.
31 Van Wyk above note 2 at para 56.

[45] I find that the plaintiff has discharged the onus of proving that the
RAF is liable to pay the full amount of R2 231 0 81.34 in respect of
past hospital , medical and related expenses. This l iability is
established notwithstanding the RAF’s dispute regarding the portion
already paid by Discovery Health. The total sum is comprised of
R1 678 832.58 due directly to the plainti ff and R 552 248.76 due to
the medical aid scheme provider, Discovery Health. Accordingly, the
RAF is held liable for payment of the entire amount.

Costs

[46] Counsel for the plaintiff submitted that, should judgment be granted in
the plaintiff’s favour, cos ts ought to follow the result and be awarded
on a punitive basis against the RAF, specifically as party and client
costs. His argument rested largely on the fact that the RAF’s liability
for past medical expenses paid by a patient’s medical aid scheme had
already been substantially settled by the full court decision in Van
Wyk.

[47] Counsel further contended that th e RAF, being funded from public
resources and ultimately taxpayers’ money, bears a duty to litigate
only where matters have merit. He argued that the RAF should refrain
from advancing frivolous claims or defences.

[48] As an alternative to a punitive costs ord er, counsel for the plaintiff
requested that the court award party and party costs on scale C,
relying on Rule 67 A, particularly subrule (3) (a), of the Uniform

Rules. In support of this request, he pointed to the fact that counsel
qualifies as a senior/jun ior advocate falling within scale C, the
complexity of the matter involved, and the substantial quantum
involved, exceeding R2.5 million.

[49] In contrast, counsel for the RAF submitted that a punitive costs order
would be inappropriate and denied that the RAF’s defence was
frivolous. He argued that, should the court find in favour of the
plaintiff, the proper order would be party and party costs on scale B
rather than scale C. His justification was that the matter was not
particularly complex, and that plaintiff’s counsel, being an
experienced RAF litigator, would not have encountered undue
difficulty in conducting the case. Counsel nevertheless conceded that
the claim involved a substantial amount exceeding R2.5 million.

[50] Costs lie within the discretion of the court ,32 and punitive awards are
rarely made, being reserved for conduct that is dishonest, fraudulent,
vexatious, or malicious. 33 In In re Alluvial Creek Ltd , Gardiner J
explained that such orders may also be justified where proceedings,
even if p ursued with upright intent, nonetheless impose unnecessary
trouble and expense on the other party ‘and expense which the other
side ought not to bear’.34


32 Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC).
33 Punitive costs are an exceptional measure to mark a court’s di spleasure, reserved for clearly vexatious,
reprehensible or scandalous conduct. As confirmed in Plastic Converters Association of South Africa
(PCASA) v National Union of Mineworkers Union of South Africa and Others (2016) 37 ILJ 2815 (LAC)
para 46, such orders are extraordinary and reflect strong judicial disapproval, a position reinforced i n
Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) paras 9 and 97.
34 1929 CPD 532 at 535.

[51] My sister Cloete J in Van Tonder v Road Accident Fund 35 correctly
held that, despite the Constitutional Court’s dismissal of RAF’s leave
to appeal on 18 October 2023 in that case , the RAF persisted in
refusing to pay claimants’ past medical expenses. This conduct,
driven by instructions from the RAF itself rather than its leg al
representatives, was found to be unjustifiable, wasteful of public
funds, and prejudicial to deserving claimants. On that basis, a punitive
costs order was warranted.36

[52] In my view, the RAF could not in good faith have opposed this matter
before me. Its conduct, reflected in a flimsy defence, refusal to accept
the binding full court decision in Van Wyk , and total disregard for
established obligations, warrants a punitive costs order. The issue of
liability for past medical expenses paid by a road acciden t victim’s
medical aid scheme had already been settled by the full court in this
Division, leaving no reasonable basis for the RAF to believe its
defence had merit. I agree with counsel for the plaintiff that
opposition on this ground was frivolous.

[53] Moreover, counsel for the RAF conceded during his opening address
that this court, sitting as a single judge, is bound by the full court
ruling in Van Wyk . He nevertheless indicated that his instructions
from the RAF were to oppose the matter on the basis that the RAF
intends to appeal the full court decision in Van Wyk , despite
acknowledging that no such appeal has yet been instituted and that

35 1736/2020; 9773/2021) [2023] ZAWCHC 305 (1 December 2023).
36 1736/2020; 9773/2021) [2023] ZAWCHC 305 (1 December 2023) para 15.

condonation for its late filing would likely be required. Proceeding in
these circumstances not only squanders pub lic funds through
unnecessary legal costs in defending a case already settled by a
binding authority, but also represents a futile attempt to sidestep that
authority.

[54] Even where a punitive costs order is granted against the RAF, the road
accident victim (claimant) of an accident does not recover all legal
expenses,37 thereby diminishing the compensation ultimately available
to defray such costs.


[55] I am presently seized with a similar matter in this Division, where the
RAF has once a gain adopted the same untenable stance. It is wholly
unacceptable that the RAF persists in defending these hopeless
matters, thereby wasting public resources, driving up legal costs for
both the RAF and claimants, and compelling claimants to incur
unnecessary expenses to enforce rights already established. This
approach not only exposes the RAF to further adverse costs orders
when claimants succeed, but also contributes significantly to delays
and backlogs in the finalisation of claims.

Order

[56] The following order is made:

37 See, eg, Nel v Waterberg Landbouwers Ko-operatieve Vereeniging 1946 AD 597 at 607; Eskom Limpopo
Legal Solutions v Eskom Holdings (Soc) Limited 2017 (12) BCLR 1497 (CC) para 35; and Mkhatshwa and
Others v Mkhatshwa and Others 2021 (5) SA 447 (CC) para 20.

1 The defendant shall pay to plaintiff’s attorneys of record the sum of
R 2 231 081.34 (two million two hundred and thirty-one thousand
and eighty-one rand and thirty-four cents) which is in respect of the
patient’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 date of this order.
3 The defendant shall pay plaintiff’s taxed or agreed costs in respect
of the plaintiff’s claim for past hospital and medical expenses on the
High Court Scale, which costs shall be on an attorney and client
scale.
4 The costs shall inclu de the taxed or agreed fees of plaintiff’s
counsel, including but not limited to his consultations, preparation
of written submissions and trial preparation, as well as his day fee in
respect of the trial on 28 April 2026.
5 The plaintiff shall, in the even t 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 bil l of costs, whichever
is applicable.
7 Payment of the capital and costs shall be effected directly to
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 date of this
order to 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 Plaintiff shall not proceed with a warrant of execution in respect of
the capital and costs prior to the expiry of the said 180 cal endar
days.
11 Plaintiff’s attorneys’ trust banking account details are as follows:

NAME OF BANK: NEDBANK LIMITED
BRANCH: CPT CENTRAL SUBURBS NCB
NAME OF ACCOUNT: SOHN AND WOOD TRUST
ACCOUNT ACCOUNT NO: 1[...]
BRANCH CODE NO: 198765





_____________________________
M LOUW
ACTING JUDGE OF THE HIGH COURT

Appearances

For plaintiff: Adv W Coughlan
Instructed by: Sohn and Woods Attorneys Inc, Cape Town


For defendant: C Hindley
Instructed by: State Attorney, Cape Town.