Berend v Road Accident Fund (942/2022) [2025] ZANCHC 45 (30 May 2025)

(NORTHERN
CAPE DIVISION, KIMBERLEY)

CASE
NO.: 942/2022

Date heard:  01-02-2024

Date delivered:
30-05-2025

 Reportable:
Yes/No

Circulate to Judges:
Yes/No

Circulate to Magistrates:
Yes/No

In
the matter between:

BOITUMELO
ALFRED BEREND
                                                            

Plaintiff

and

ROAD
ACCIDENT
FUND                                                                         

Defendant

CORAM: 
WILLIAMS J

JUDGMENT

WILLIAMS
J:

1.           
In this claim for damages against the Road Accident Fund as
a result
of injuries sustained by the plaintiff, Mr B A Berend, in a motor
vehicle accident, all heads of damages have been settled
between the
parties except for past medical and hospital expenses.

2.           
Only the plaintiff and his wife Mrs K Berend testified.  Mrs

Berend, was a member of GEMS medical scheme at the time of the
accident and the subsequent treatment of the plaintiff.  The

plaintiff is covered by GEMS as a dependant of Mrs Berend.

3.           
It is not in dispute that the plaintiff’s past medical
and
hospital expenses amounted to R175, 148.70 and that these expenses
have been paid in full by GEMS.

4.           
The stance taken by the Fund is that the plaintiff has, as a
result
of being a dependant on his wife’s medical aid, suffered no
loss in respect of the past medical and hospital expenses
which were
paid by GEMS.

5.           
Whilst acknowledging the fact that the issue of compensating
a
plaintiff/claimant for expenses paid by a medical aid scheme has been
addressed in the matter of Discovery Health (Pty) Ltd v Road
Accident Fund and Another [2022] JOL 57493 (GP), where the court
found that the benefits received by a claimant from a third party,
whether a private insurance policy or
a medical aid scheme are not
considered for purposes of determining the quantum of a claimant’s
claim against the defendant,
the argument by Mr Mogano for the Fund
is that the payment by GEMS was as a result of an agreement between
it and Mrs Berend and
not the plaintiff.  That the plaintiff had
no agreement with GEMs to pay the medical aid contributions and there
being no
indication that the plaintiff will reimburse GEMS, he would
be unjustifiably enriched should the Fund be ordered to pay the claim

for past medical expenses.

6.           
The argument is further that in the absence of a cession between
Mrs
Berend or GEMS and the plaintiff, there is no legal basis on which to
find that the plaintiff has suffered any loss.

7.           
The argument raised by the defendant is in my view somewhat
contrived
in the light of the clear and unequivocal authority in this regard.

8.           
In Zysset and Others v Santam Ltd 1996(1) SA 273 (CPD), the
legal position relating to delictual claims was set out as follows at
277 H to 279 C thereof:

“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…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
because 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 recovering
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 the account as
being completely collateral. The classic examples are (a) benefits
received by the plaintiff under ordinary
contract 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
insuring 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.”

(own highlighting)

9.           
This principle was restated in the Discovery Health matter,
where Mbongwe J held at paragraph 21 thereof that:

“In terms of our
law, benefits received by a claimant from the benevolence of a third
party or a private insurance policy are not
considered for purposes
of determining the quantum of a claimant’s damages against the
first respondent.  The reason
for this is merely because a
benefit that accrues or is received from private insurance policy
origin from a contract between the
insured and the insurance company
for the explicit benefit of the claimant and its receipt does not
exonerate the first respondent
from the liability to discharge its
obligation in terms of the RAF Act.

10.        
The Discovery Health judgment also deals with the exclusions
and limitations of benefits as contained in the Road Accident Fund
Act 56 of 1996 and concludes at paragraph 27 thereof that “.
. . the RAF Act does not provide for the exclusion of benefits the
victim of a motor vehicle accident has received from a private

medical scheme for past medical expenses.”

11.        
In the recent matter of Van Tonder v Road Accident Fund
(2023/013183) [2024] ZAGPJHC 1009 (7 October 2024), where the
present issue was once again raised, the court held at paragraph 107

thereof that:

“The RAF’s
statutory duty to compensate for past medical expenses, as mandated
by the Road Accident Fund Act, is not discharged by the involvement
of a private insurer.  The Act ensures that a claimant is
indemnified for all reasonable
medical costs incurred due to injuries
sustained in a road accident, and the fact that a medical aid has
stepped in to settle those
costs does not alter the RAF’s
obligation to reimburse the claimant.”

12.        
See also the matter of Gunther v Road Accident Fund (24228/16)
[2024] ZAWCHC 153 (6 June 2025), at paragraphs 30 and 31 thereof,
which state as follows:

30.      
Furthermore, the submission that the medical aid has contracted out
of its obligation to
pay medical expenses is nonsensical, to say the
least. It is clear that the defendant wishes to penalize the
plaintiff for using her medical aid at the time of the collision to
cover
her medical and hospital expenses, yet the argument ignores the
authority cited above which states that her insurance is no concern

damages against the defendant.

31.      
Ultimately, the agreement between the plaintiff and GEMS is binding
and is sanctioned in
terms of section 32 of the Medical
Schemes Act  The issue of subrogation is not relevant
and whether the medical aid proceeds against the plaintiff at some
later stage,
is not the defendant’s concern anyway. The
argument related to subrogation clearly ignores the authorities and
legal principles
and is simply bad in law. The plaintiff has
proved that the medical expenses which she incurred were as a result
of and incurred due to the treatment she
received for her accident
related injuries and the determination of her claim falls full square
within section 17 of the RAF Act,
as correctly argued by the
plaintiff’s counsel.”

(own
highlighting)

13.        
In light of the authorities cited above it appears to me that the
distinction
which the Fund seeks to draw between the relationship
between members and dependants viz a viz a medical aid scheme, is
artificial
and an attempt to renege on its statutory obligation to
compensate the plaintiff for his proven medical expenses.  The
agreement
entered into between Mrs Berend and GEMS is not only for
the benefit of Mrs Berend but also for the plaintiff.  GEMS
would
be able to claim back its expenditure, upon payment by the
Fund, whether in terms of the agreement or on the basis of unjust
enrichment
from the plaintiff.  The fact that GEMS had covered
the medical expenses of the plaintiff is however a collateral issue
which
has nothing to do with the Fund and should be ignored in the
calculation of damages.

The
following order is made:

1.   
The defendant shall pay an amount of R175 148.70 (ONE HUNDRED
AND SEVENTY-FIVE THOUSAND ONE HUNDRED AND FORTY-EIGHT RAND AND

SEVENTY CENTS) to the plaintiff in full and final settlement of the
Plaintiff’s claim for past hospital and medical expenses.

2.   
The aforementioned amount in the total sum of R175 148.70
(ONE HUNDRED AND SEVENTY-FIVE THOUSAND ONE HUNDRED AND FORTY-EIGHT

RAND AND SEVENTY CENTS) shall be payable by direct transfer into the
trust account of Adams & Adams, the details of which will
be
supplied to the Defendant by the Plaintiff’s attorneys.

3.   
The plaintiff shall allow the defendant 180 (ONE HUNDRED AND
EIGHTY) court days to make payment of the capital from date of this

court order, failing which the plaintiff will be entitled to recover
interest at the applicable legal rate.

4.   
The defendant is ordered to pay the plaintiff’s taxed or
agreed costs with respect to the Plaintiff’s claim for past

hospital and medical expenses on the Party and Party High Court
scale, within discretion of the taxing master inclusive of but
not
limited to:

4.1                
The fees of Counsel on the High Court scale, inclusive of
counsel’s full reasonable day fees for the 31^st
January, 1^st February and 2^nd
February 2024 and the reasonable cost in respect of preparation of
the Particulars of Claim and Heads of Argument;

4.2                
The above costs will also be paid into the aforementioned trust
account,

5.   
It is recorded that the plaintiff’s instructing attorneys do
not act on a contingency fee basis.

6.   
The following provisions will apply with regards to the
determination of the aforementioned taxed or agreed costs:

6.1                
The plaintiff shall serve the notice of taxation on the defendant;

6.2                
The plaintiff shall allow the defendant 180 (ONE HUNDRED AND
EIGHTY) court days to make payment of the taxed costs from date of
settlement or taxation thereof;

6.3                
Should payment not be effected timeously, the plaintiff will be
entitled to recover interest at the applicable interest rate on the

taxed or agreed costs from date of allocator to date of final
payment.

6.4                
The plaintiff shall not issue a writ prior to the expiry of the
180-day period.

CC
WILLIAMS

JUDGE

For
Plaintiff:             
Adv D Jankowitz

Adams & Adams

c/o Stefan Greyling Inc

For
Defendants:       Mr Mogano

Office of the State
Attorney