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SAFLII Note: Certain personal/private 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/Not Reportable
Case No: 7108/2021
In the matter between:
ANDISWA MADINDA Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Coram: Adams AJ
Heard: 11 September 2026
Delivered electronically: 14 September 2026
Summary: Personal injury - Road Accident Fund – past medical and hospital
expenses – medical scheme payments – collateral benefits – res inter alios acta –
RAF liability – internal directives – retrospectivity – RAF v Van Wyk followed -
claim upheld
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______________________________________________________________________
JUDGMENT
______________________________________________________________________
ADAMS AJ:
A. Introduction
[1] The plaintiff, Ms Andiswa Madinda, instituted an action against the Road
Accident Fund (the RAF) for damages arising from bodily injuries sustained in a
motor vehicle collision on 12 August 2019. The parties resolved the plaintiff's
claims for loss of earnings, general damages, and future medical and hospital
expenses by offer and acceptance. A draft order recording that agreement was
presented at the hearing to be made an order of court. The only issue remaining for
determination is whether the RAF is liable for the plaintiff's past hospital and
medical expenses.
[2] The plaintiff claims payment of the amount of R106 890,42 in respect of
those expenses. The quantum is not disputed. Nor is it disputed that the expenses
were reasonable, necessary and directly related to the injuries sustained in the
collision. The RAF resists liability because Discovery Health Medical Scheme paid
R92 216,41 of the claimed expenses on the plaintiff's behalf.
[3] At the commencement of proceedings, and apparently based on a last-minute
instruction to counsel, the defendant sought a postponement on two grounds. First,
it submitted that general damages still had to be determined by the Health
Professions Council of South Africa (HPCSA). Secondly, it submitted that it was
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awaiting the outcome of Discovery Health (Pty) Ltd v Road Accident Fund and
Another 2025 (3) SA 225 (GP) (Discovery Health 2). The application for an
indefinite postponement pending the outcome of that process was considered
together with the parties' arguments on the merits of the remaining issue.
[4] Of direct relevance is paragraph 91 of Van Wyk, where the Full Court held:
"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 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 seek to obtain a reversal of the decision of the same question
by advancing different reasons."
[5] In considering the postponement application, the most pertinent
consideration is that, notwithstanding the outcome that is being awaited in respect of
Discovery Health 2, the very issue on which the defendant relies has since been
adjudicated by the Full Court in Van Wyk. The reasoning in paragraph 91 directly
rejects the RAF's attempt to revive, through the second and third directives, the
substance of a decision already found to be unlawful. The mere fact that the
outcome application in Discovery Health 2 is awaited does not, without more,
justify postponing this trial for an indefinite period. Proceeding with the matter
would not prejudice the parties, and it is not in the public interest to delay the
determination of the plaintiff's proven claim in the hope that a higher court might, at
some future stage, reach a different conclusion.
[6] The application for a postponement therefore falls to be refused.
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B. The evidence
[7] The plaintiff placed before the Court an affidavit by Ms Tanusha Tia
Hoosen, a team leader employed by Discovery Health Medical Scheme. Ms
Hoosen considered the Discovery Health schedule and the supporting vouchers
relating to membership number 6[ …]. She confirmed that the claims were
submitted by healthcare practitioners and health establishments for treatment
necessitated by the collision.
[8] Ms Hoosen confirmed that the schedule reflects a claimed amount of R106
890,42; that Discovery assessed the claims; and that the amount actually paid by
the medical scheme was R92 216,41. Having compared the line items in the
schedule with the billed and paid amounts recorded in the vouchers, she confirmed
that the entries were true and correct and related directly to the accident injuries.
[9] The RAF did not challenge Ms Hoosen's evidence. It called no evidence to
dispute the schedule, the vouchers, the necessity or reasonableness of the
treatment, or the causal connection between the expenses and the collision. The
amount claimed is accordingly proved and common cause.
C. The issue and the RAF's defence
[10] The narrow legal issue is whether payment by the plaintiff's medical scheme
relieves the RAF of its statutory obligation to compensate her for the past hospital
and medical expenses.
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[11] The RAF’s defence is that, because the scheme paid the expenses, the
plaintiff suffered no loss, and it is therefore not liable to compensate the plaintiff. It
also seeks to rely on internal directives concerning medical -scheme payments,
prescribed minimum benefits and emergency medical conditions, and
reimbursement arrangements between claimants and their schemes.
D. The applicable legal principles
[12] Section 17(1) of the Road Accident Fund Act 56 of 1996 (‘the RAF Act’)
obliges the RAF, subject to the Act, to compensate a third party for loss or damage
caused by or arising from the driving of a motor vehicle where the injury is due to
the negligence or other wrongful act of the driver or owner. Although the claim is
statutory, ordinary delictual principles remain the foundation of liability. The RAF
is substituted for the wrongdoer; it is not entitled, by internal administrative
instruction, to alter the substantive content of that liability.
[13] Certain benefits received by an injured person from an independent source
are disregarded in assessing damages. Payments under insurance for which the
injured person has provided consideration are a classic example. The benefit is
collateral and is res inter alios acta as between the claimant and the wrongdoer.
[14] The same principle applies to medical -scheme payments. In Bane and
Others v D'Ambrosi
1, the Supreme Court of Appeal recognised medical scheme
benefits as a form of insurance benefit. In Mooideen v Road Accident Fund 2, the
Court held that a claimant may recover from the RAF as if the medical scheme had
1 2010 (2) SA 539 (SCA) para 19
2 Unreported WCHC judgment of Davis, J case no 17737/2015, delivered on 11 December 2020 at page 10
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not indemnified the claimant; any recovery arrangement between the claimant and
the scheme is collateral to the RAF's liability.
[15] The doctrine of subrogation does not extinguish the insured claimant's cause
of action. An indemnifying insurer generally enforces its right of recourse in the
name of the insured, and the rights and duties between the claimant and the
wrongdoer remain unchanged. This accords with Commercial Union Insurance Co
of SA Ltd v Lotter
3, Rand Mutual Assurance Co Ltd v Road Accident Fund4, and Le
Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty) Ltd5.
[16] The RAF's reliance on s 19(d)(i) of the RAF Act is misplaced. That
provision is directed at agreements under which a person, other than the permitted
legal representatives, assists with or finances a claim in exchange for a portion of
the compensation. A medical scheme's contractual right to reimbursement is not
such an agreement. In Road Accident Fund v Abdool -Carrim
6, the Supreme Court
of Appeal considered the purpose and reach of s 19(d). In Van Tonder v Road
Accident Fund7, its reasoning was applied in rejecting the RAF's attempt to invoke
s 19(d)(i) against medical-scheme funded expenses.
[17] The Medical Schemes Act 131 of 1998, including the scheme's obligation to
fund prescribed minimum benefits, does not transfer the RAF's liability to the
medical scheme. The plaintiff's entitlement to medical-scheme benefits arises from
membership and contributions. The RAF identified no provision in either statute
that excludes from compensation expenses paid by a medical scheme, and it
3 1999 (2) SA 147 (SCA)
4 2008 (6) SA 511 (SCA)
5 (17111/2021) [2025] ZAWCHC 260.
6 2008 (3) SA 579 (SCA)
7 (1736/2020; 9773/2021) [2023] ZAWCHC 305
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produced no evidence identifying the expenses said to fall within the categories on
which it relies.
[18] The RAF also relies on internal directives issued after the plaintiff's cause of
action arose on 12 August 2019. Such directives cannot amend the RAF Act,
displace established common-law principles, or operate retrospectively to impair
an accrued claim. The presumption against retrospectivity was recently reaffirmed
in Road Accident Fund v Mudawo and Others; Road Accident Fund v
Lyton and
Others8. The directives therefore provide no answer to the plaintiff's claim.
[19] I have considered the majority judgment in Discovery Health 29. That matter
concerned whether the RAF and its chief executive officer were in breach of an
earlier interdict and the status of later directives. It did not make an order reversing
the settled principle that medical-scheme benefits are collateral when damages are
assessed.
E. Application
[20] At issue is the defendant's denial of liability for the plaintiff's past hospital
and medical expenses because a portion of those expenses was paid on her behalf
by her medical scheme. As far as could be discerned, the RAF's defence is
premised on two arguments. First, notwithstanding that the action is brought by the
plaintiff, the claim is said not truly to be hers but to be advanced on behalf of the
medical scheme, because any amount recovered must be repaid to the scheme
under the agreement between them. On this reasoning, the plaintiff suffered no
loss.
8 (1185/2024; 1468/2024) [2026] ZASCA 54 para 54-55
9 2025 (3) SA 225 (GP)
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[21] Secondly, the RAF contends that s 29 of the Medical Schemes Act 131 of
1998, read with reg 8, compels a medical scheme to pay emergency medical
expenses as prescribed minimum benefits. Because the scheme was statutorily
obliged to pay those expenses, the plaintiff is said to have suffered no loss. The
RAF further contends that, even if it compensates the plaintiff, she would not be
obliged to claim on behalf of the scheme or to reimburse it.
[22] This is an old argument dressed in new clothes, and it has been rejected by
our courts on numerous occasions. Section 17(1) of the Road Accident Fund Act
56 of 1996 requires the RAF to compensate third parties, including the plaintiff, for
loss or damage caused by the negligent or unlawful driving of a motor vehicle.
Ordinary delictual principles govern the calculation of patrimonial damages for
which the RAF is liable, subject to express statutory exclusions and limitations that
are not pertinent here. Certain benefits received by a plaintiff must, however, be
left out of account because they are entirely collateral. In Zysset and Others v
Santam Ltd
10, the Court identified the classic examples as benefits received under
ordinary contracts of insurance for which the plaintiff paid the premiums, and
money or other benefits received through the benevolence of third parties
motivated by sympathy.
[23] The decision in Road Accident Fund v Abdool-Carrim11 was also considered
by Cloete J in Van Tonder 12. Notwithstanding those judgments, the defendant
persists in submitting that s 19(d)(i) of the RAF Act applies to the plaintiff's claim.
10 1996 (1) SA 273 (C) page 278 B-D
11 2008 (3) SA 579 (SCA)
12 (1736/2020; 9773/2021) [2023] ZAWCHC 305 para 10 -12
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Although this matter does not concern a supplier's claim per se, the reasoning of
the Supreme Court of Appeal in paragraphs 11 and 12 of Abdool -Carrim applies
equally here. In summary, the Court held that a supplier's right to claim from the
RAF was conditional upon the plaintiff having a valid and enforceable claim. The
supplier's claim was not unenforceable against the RAF merely because of an
agreement concluded with someone other than an attorney of the kind referred to in
s 19 of the RAF Act.
[24] In Van Tonder, Cloete J held that the reasoning in Abdool-Carrim applied
equally to an agreement between a claimant and a medical scheme, and
accordingly rejected the RAF's reliance on s 19(d)(i). I respectfully agree. Section
19(d) of the RAF Act does not apply to the agreement between the plaintiff and her
medical scheme. To hold otherwise would also conflict with the principle
recognised in Zysset and Discovery Health: a benefit received by a plaintiff under
an insurance arrangement does not absolve the RAF from discharging its statutory
obligation to compensate her.
[25] The issue was conclusively determined in Van Wyk, a unanimous Full Court
decision of this Division. Van Wyk has since been followed in recent decisions of
this Court.13
[26] Ms Goosen, who appeared for the defendant, acknowledged the prevailing
law in this Division concerning past hospital and medical expenses. She was fully
aware of the Full Court decision in Van Wyk , accepted that it was binding, and
confirmed that she had advised the defendant accordingly. She further conceded
13 See Colin Hamish Wylie v Road Accident Fund (Case No 13359/2021) [2026] ZAWCHC (11 August 2026) ; and
Upton v Road Accident Fund (Case No 11906/2023), delivered on 21 August 2026
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that she could advance no argument or cogent reason why Van Wyk should not be
followed in this matter.
[27] Ms Goosen merely restated her instruction that past hospital and medical
expenses paid by a medical scheme do not constitute a loss for which the RAF is
liable. Ms Goosen explained that the instruction emanated from the RAF's head
office and had been disseminated to all provinces. Notwithstanding the Full Court
decision binding in this Division, the RAF's position remained that it could not
make an offer on the plaintiff's claim, as substantiated by the vouchers and
confirmed in Ms Hoosen's affidavit. If the Court nevertheless found for the
plaintiff, Ms Goosen indicated that the defendant would abide the Court's
determination of the amount payable.
[28] The RAF relied on three directives. The first, issued on 12 August 2022
excluded claims for medical expenses paid by a medical scheme. The second,
issued on 13 April 2023 provided that prescribed minimum benefits and
emergency medical conditions were payable by the scheme and were not
recoverable from the RAF. The third directive of 2 November 2023 treated an
agreement by a plaintiff to reimburse a medical scheme as falling within the
exclusion in s 19(d)(i) of the RAF Act. Even if the directives had meri t, the
principle against their retrospective operation, repeatedly affirmed by our courts,
militates against applying them here. The plaintiff's cause of action arose on 12
August 2019, before any of the directives was issued.
[29] The principles referred to earlier in this judgment have formed part of our
law for many years and bear the weight of precedent. Our courts have recognised
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that medical- scheme benefits are a form of indemnity insurance and should
therefore be disregarded in the assessment of damages under the principle of res
inter alios acta. The fact that a medical scheme provides a prescribed minimum
benefit to its members is inconsequential to the RAF's liability.
[30] Access to that benefit remains contingent upon membership of the scheme.
The benefit is available in exchange for contributions and protects the member
against injury or loss. As the Court observed in Zysset , the law does not allow a
wrongdoer to benefit from the injured person's prudence in obtaining insurance or
from the benevolence or compassion of a third party who comes to the injured
person's assistance.
[31] The fact that the plaintiff's medical scheme has already paid part of her past
medical expenses does not affect the RAF's liability. The principle of res inter alios
acta prevents the RAF from deducting the sums paid by the scheme from the
amount otherwise payable to the plaintiff for past hospital and medical expenses.
[32] The RAF's defence is the same proposition that has repeatedly been rejected:
that the plaintiff suffered no compensable loss because her medical scheme met
part of the expense. It overlooks the collateral-source rule. The plaintiff acquired
medical-scheme cover independently of the RAF. The RAF may not appropriate
that benefit and thereby reduce the compensation that would otherwise be payable
under s 17(1).
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[33] In Discovery Health (Pty) Ltd v Road Accident Fund and Another 14
(Discovery Health 1), Mbongwe J held that the RAF’s refusal to pay past medical
expenses on the basis contemplated in the first directive was unlawful and
interdicted its implementation. The RAF’s applications for leave to appeal to both
the Supreme Court of Appeal and the Constitutional Court were unsuccessful.
[34] The RAF thereafter issued the second and third directives. In Discovery
Health (Pty) Ltd v Road Accident Fund and Another 15 (Discovery Health 2),
Discovery Health urgently sought a declaration that the RAF and its CEO were in
breach of the order in Discovery Health 1. The majority held that there was no
breach because the earlier order concerned only the first directive, while the
subsequent directives had not been set aside. The minority disagreed.
[35] In Road Accident Fund v Nicolaas Van Wyk 16 , the RAF similarly
contended that the subsequent directives did not contravene the order setting aside
the first directive. Lekhuleni J, writing for a unanimous Full Court, endorsed the
minority reasoning in Discovery Health 2. The Court held that the central principle
in Discovery Health 1, consistent with Bane and Others v D’Ambrosi, was that a
claimant’s right to recover past medical expenses from the RAF is unaffected by
payment of those expenses by a medical scheme. Accordingly, the RAF may not
reject such a claim merely because a medical scheme has already paid the
expenses.
[36] Counsel for the plaintiff referred the court to recent decisions of this division
that correctly endorsed the approach adopted in Van Wyk. These include Colin
14 2023 (2) SA 212 (GP)
15 2025 (3) SA 225 (GP)
16 [2026] ZAWCHC (26 February 2026)
13
Hamish Wylie v Road Accident Fund (Case No 13359/2021) [2026] ZAWCHC
(11 August 2026), per Mayosi J, and Upton v Road Accident Fund (Case No
11906/2023), delivered on 21 August 2026 per Peters, AJ.
[37] On the unchallenged evidence, the plaintiff proved past hospital and medical
expenses of R106 890,42. Discovery's payment of R92 216,41 does not extinguish
or reduce the RAF's liability. Any obligation resting on the plaintiff to account to
or reimburse Discovery is a matter between them and does not concern the RAF. In
the circumstances, the plaintiff's claim must succeed.
F. Costs
[38] The plaintiff initially sought a punitive costs order on the attorney-and-client
scale. During argument, however, I was informed that the parties had agreed that
the costs of counsel may be allowed on scale C. Although the RAF's persistence
with an unsuccessful defence is regrettable, punitive costs remain exceptional. In
the exercise of my discretion, the ordinary rule that costs follow the result is
sufficient. The plaintiff is therefore entitled to her costs on the party-and -party
scale, including the costs of counsel on scale C.
G. Order
[39] The following order is made:
1. The Defendant shall pay to Plaintiff's attorneys of record the sum of R
106 216.41 (One Hundred and Six Thousand Two Hundred and
Sixteen Rand and Forty- One Cents) which is in respect of the
Plaintiff's past hospital and medical expenses.
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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 the Plaintiff's taxed or agreed party and party
costs in respect of her claim for past hospital and medical expenses,
which shall include the taxed or agreed fees of Plaintiff's Counsel on
Scale C, including but not limited to preparation of written
submissions and trial preparation, as well as his day fee in respect of
the trial on 11 September 2026.
4. The Plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the Defendant.
5. 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.
6. Payment of the capital amount and the legal costs shall be effected
directly to Plaintiff's attorneys of record by means of an electronic
transfer into the trust account mentioned below.
7. 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.
8. 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 allocatur, in the event of
taxing the bill of costs, whichever is applicable.
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9. Plaintiff shall not proceed with a warrant of execution in respect of the
capital amounts and legal costs prior to the expiry of the said 180
calendar days.
10. Plaintiffs attorneys' trust banking account details are as follows:-
NAME OF BANK : NEDBANK LIMITED
BRANCH : S[…] P[… ]
NAME OF ACCOUNT : S[…] A[…] W[…] T[…] A[… ]
ACCOUNT NO. : 1[… ]
BRANCH CODE NO. : 1[… ]
____________________________
M F ADAMS
ACTING JUDGE OF THE HIGH COURT
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APPEARANCES
For Plaintiff: Adv WS Coughlan
Instructed by: Sohn and Wood Attorneys
For Defendant: Ms F Goosen
State Attorney, Cape Town