A Full Bench of the Western Cape High Court has dismissed an appeal by the Road Accident Fund (RAF), rejecting its reliance on internal directives to avoid paying past medical expenses already settled by a medical scheme and warning that continued attempts to do so risk undermining the authority of the courts.
The appeal arose from an order directing the RAF to pay R350 187.56, plus interest, in respect of a claimant’s past medical expenses following a road accident in December 2018. Those costs were initially paid by the claimant’s medical scheme. Although other heads of damages were resolved between the parties, the RAF persisted in disputing liability for past medical expenses and pursued an appeal confined to that issue and interest.
Writing for the Full Bench, Judge James Lekhuleni – with Judge Constance Nziweni and Judge Mokgoatji Dolamo concurring – was critical of the RAF’s continued reliance on its internal directives.
The judgment, delivered on 9 February, recorded that “despite the argument raised relating to its directives having been dismissed by the apex [Constitutional] court, the RAF is still soldiering on in its resolve”, and cautioned that allowing a statutory body to escape liability in this manner would be “manifestly inequitable”.
Although the RAF ultimately paid the amount in January 2025 following the issue of a warrant of execution, it proceeded with the appeal after the Supreme Court of Appeal (SCA) granted leave in terms of section 17(2)(b) of the Superior Courts Act for the matter to be heard by the Full Bench of the Western Cape Division. The appeal was limited to the question of liability for past medical expenses and interest.
The appeal is one of several cases that have arisen from the RAF’s efforts, since 2022, to rely on internal directives to resist payment of past medical expenses where those costs were paid by medical schemes. Although aspects of that broader dispute remain pending before the SCA, the Full Bench was required to determine whether, on existing law and on the facts of this case, the RAF could rely on those directives.
The RAF’s position and the Court’s response
The RAF contended that where a claimant’s medical expenses have been paid by a medical scheme, the claimant has suffered no compensable loss and payment by the RAF would amount to impermissible “double recovery”. The Full Bench rejected this contention, holding it is inconsistent with long-established delictual principles.
The Court reaffirmed that benefits paid by medical schemes constitute indemnity insurance for which claimants have paid and are treated as collateral benefits (res inter alios acta) that do not reduce the wrongdoer’s liability. In reaching this conclusion, the Court referred to more than a century of authority recognising that a defendant may not appropriate the benefit of a plaintiff’s private insurance arrangements.
The Court also examined the structure of the RAF Act. Section 18 of the Act expressly excludes certain benefits – including compensation payable under the Compensation for Occupational Injuries and Diseases Act and the Defence Act – from RAF claims. By contrast, the Court noted, the Act contains no equivalent exclusion for benefits received from medical schemes.
Relying on the SCA’s decision in Coughlan NO v Road Accident Fund (2015), the Court held that where Parliament intended to exclude benefits that might otherwise be characterised as double compensation, it did so expressly.
Directives and the Discovery Health litigation
The judgment traced the litigation history surrounding the RAF’s directives.
In August 2022, the RAF issued a directive instructing officials to reject claims for past medical expenses already paid by medical schemes. That directive was set aside in October 2022 by the Gauteng Division of the High Court in proceedings brought by Discovery Health, which interdicted the RAF from relying on it (“Discovery Health I”). Applications for leave to appeal were refused by the High Court, the SCA and the Constitutional Court.
Notwithstanding those outcomes, the RAF issued two further directives in 2023 and 2024 – one linked to the Prescribed Minimum Benefits (PMBs) and Emergency Medical Conditions, and another based on section 19(d)(i) of the RAF Act.
In December 2024, a Full Bench of the Gauteng Division held, in a split decision (“Discovery Health II”), that the later directives did not breach the 2022 interdict. A minority judgment dissented, and Discovery Health was granted leave to appeal to the SCA.
Alongside this, Judge Lekhuleni noted that the SCA has already dismissed multiple RAF appeals advancing materially similar arguments, including in Van Tonder v Road Accident Fund and Esack v Road Accident Fund, with applications for reconsideration also refused.
Majority rejected, minority preferred
Judge Lekhuleni expressly rejected the reasoning of the majority in Discovery Health II, holding that it elevated form over substance. In the Court’s view, the essential question – whether the RAF may lawfully refuse payment of past medical expenses because a medical scheme has already paid them – had already been finally determined and was therefore res judicata.
By contrast, the Full Bench aligned itself with the minority judgment in Discovery Health II, quoting with approval its warning that: “A public body cannot insulate itself from the law by adopting a policy not to comply with a court order. It is not open to an organ of state whose conduct has been found to be unlawful by the courts to repeat that conduct in smaller parts if it can conjure up a new justification for doing so.”
The Court held that the RAF’s attempt to relitigate the same issue through new directives violated the interdict granted in 2022 and could not be countenanced.
Procedural and evidential failures
Independently of these broader principles, the Court held that the appeal was doomed by fundamental procedural and evidential defects.
The RAF had not pleaded reliance on the later directives, had not challenged the claimant’s past medical expenses in cross-examination, and had led no expert evidence to support the application of distinctions drawn in those directives.
In particular, the Court held that the directive linked to the PMBs could not be applied without expert evidence, which was absent. In these circumstances, Judge Lekhuleni stated the RAF “cannot be allowed to appeal on an issue that was not raised before the trial court nor borne out by its pleadings”, describing this failure as “fatal to the RAF’s appeal”.
Substitutionary liability and retrospectivity
Central to the judgment was the substitutionary nature of the RAF’s role as statutory stand-in for the negligent driver. As statutory stand-in for the negligent driver, the RAF assumes that driver’s delictual liability and may not appropriate benefits flowing from a claimant’s private insurance arrangements.
As Judge Lekhuleni said: “Considering the substitutionary obligation entrusted upon the RAF to compensate injured claimants, the RAF is not entitled to claim for itself the benefits of a road accident victim’s medical scheme insurance.” Allowing such an approach, he added, would permit the RAF to “shirk its substitutionary obligation and instead appropriate that benefit to itself”.
The Full Bench also rejected the RAF’s request that the matter be deferred pending the outcome of proceedings before the SCA, holding that courts are required to decide disputes on existing law and cannot suspend accrued rights.
It further held that the RAF’s directives, issued years after the claim arose, could not apply retrospectively.
Costs and judicial authority
The appeal was dismissed with costs, including the costs of two counsel. In doing so, the Court referred to earlier judicial criticism of the RAF’s persistence in advancing arguments already rejected by higher courts. In Van Tonder v Road Accident Fund, cited with approval, such conduct was described as “shamefully wasting yet more public funds which should be directed at the settlement of worthy claims”.
Judge Lekhuleni also warned that continued attempts to circumvent binding court orders risked undermining judicial authority, stating that such conduct “would infringe the dignity and authority of the courts envisaged in section 165 of the Constitution and risk rendering our courts impotent and judicial authority a mere mockery”.
