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[2015] ZASCA 23
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Mahano and Others v Road Accident Fund and Another (20008/2014) [2015] ZASCA 23; 2015 (6) SA 237 (SCA) (20 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20008/2014
Reportable
In
the matter between:
Malefane
Kemuel
Mahano
.............................................................................................
First
Appellant
Mmaphuti
Grace
Kubjana
.........................................................................................
Second
Appellant
Roland
Sydney
Thomsen
..............................................................................................
Third
Appellant
and
Road
Accident
Fund
....................................................................................................
First
Respondent
Minister
of
Transport
..............................................................................................
Second
Respondent
Neutral
Citation:
Mahano v Road Accident Fund
20008/2014
[2015] ZASCA 23
(20 March 2015)
Coram:
Lewis, Shongwe and Willis JJA and Gorven and Meyer AJJA
Heard:
09 March 2015
Delivered:
20 March 2015
Summary:
General Damages –
Road Accident Fund Act 56 of 1996
–
interpretation of reg 3(1)(
b
)(iv) of the Road Accident Fund
Regulations, 2008 – whether Minister of Transport must publish
operational guidelines in order
to apply the American Medical
Association’s Guides to the Evaluation of Permanent Impairment
in assessing whether third party's
injury is 'serious' such as to
qualify for general damages.
ORDER
On
appeal from:
North Gauteng Division, Pretoria (Kgomo J sitting as
court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Meyer
AJA (
Lewis, Shongwe and Willis JJA and Gorven AJA
concurring)
[1]
This appeal concerns the meaning of reg 3(1)(
b
)(iv) of the
Road Accident Fund Act: Regulations
, GN R770
GG
31249, 21 July
2008 (the Regulations). The particular sub regulation governs
the Fund’s liability to pay general damages
to a claimant.
The Regulations were promulgated by the second respondent, the
Minister of Transport (the minister), under
the amended Road Accident
Fund Act 56 of 1996 (the Act). The amending provisions were
introduced by the
Road Accident Fund Amendment Act 19 of 2005
.
This Act and the Regulations came into force on 1 August 2008.
The threshold requirement for the obligation of the
Road Accident
Fund (the Fund) to pay general damages is that the Fund must be
satisfied that the injury has been correctly assessed
as ‘serious’
in accordance with the method prescribed in the Regulations.
The ‘American Medical Association’s
Guides to the
Evaluation of Permanent Impairment Sixth Edition’ (the AMA
Guides) must be applied in the assessment.
The question that
arises in this appeal is whether reg 3(1)(b)(i) makes the application
of the AMA Guides in the assessment of
whether a third party’s
injury is ‘serious’ dependent on the existence of
‘operational guidelines’.
[2]
The history of ‘the statutory road accident compensation
scheme’ is set out in the judgment of Moseneke DCJ in
Law
Society of South Africa & others v Minister of Transport &
another
2011 (1) SA 400
(CC) paras 17-28. The matrix of the
legislative scheme that is also relevant to this appeal is to be
found in the judgment
of Brand JA in
Road Accident Fund v Duma &
three similar cases
2013 (6) SA 9
(SCA) paras 3-10. I first
refer briefly to the legislative scheme in order to contextualize reg
3(1)(
b
)(iv).
[3]
Section 17(1) of the Act limits the obligation of the Fund to
compensate third parties for general damages (non-pecuniary loss)
to
those instances in which the third party has suffered a ‘serious
injury’. In terms of s 17(1)(A) the assessment
of a serious
injury ‘shall be based on a prescribed method’ and ‘shall
be carried out by a medical practitioner’.
The Act, as was held
in
Duma
paras 5-6, does not provide an objective standard for
deciding on the seriousness of the injuries but stipulates that the
assessment
should be made by a medical practitioner on the basis of a
prescribed method and empowers the minister to promulgate
Regulations.
[4]
Regulation 3 prescribes the method contemplated in s 17(1) for the
determination of ‘serious injury’. A third party
who
wishes to claim general damages must submit him- or herself to an
assessment by a medical practitioner (reg 3(1)(
a
)). Once
assessed the third party ‘shall obtain from the medical
practitioner concerned a serious injury assessment
report (reg
3(3)(
a
)), which is defined as ‘a duly completed form RAF
4’ and attached to the Regulations as annexure D (reg 1).
The
RAF 4 form itself, read with reg 3(1)(
b
), requires the
medical practitioner to assess whether the third party's injury is
'serious' in accordance with three sets of criteria
(See
Duma
paras 6-7):
(a)
First, if the injury meets the description of any one or any
combination of the injuries listed in reg 3(1)(
b
)(i) (as
amended by the Road Accident Fund Amendment Regulations, 2013) it
shall not be assessed as serious. If the injury
falls within
the list the third party is only ‘entitled to be assessed in
terms of regulations 3(1)(
b
)(ii) and 3(1)(
b
)(iii)’
if ‘any complication arises from any one, or any combination of
the injuries’ listed in reg 3(1)(
b
)(i). A
‘complication’, in terms of the amended reg 1, ‘means
any medical complication and, or (sic) functional
impairment relating
to the third party, which in the opinion of the medical practitioner,
could result in the injury being assessed
as serious in terms of sub
regulation 3(1)(
b
)(ii) and/or 3(1)(
b
)(iii)’.
(b) Second, the
third party's injury must be assessed as 'serious' if it ‘resulted
in 30 per cent or more Impairment of the
Whole Person’ (WPI) as
provided in the AMA Guides (reg 3(1)(
b
)(ii) read with reg 1).
This is where reg 3(1)(
b
)(iv) fits into the legislative
scheme. Regulations 3(1)(
b
)(iv) – (vi) provide as
follows:
‘
(iv)
The AMA Guides must be applied by the medical practitioner in
accordance with operational guidelines or amendments, if any,
published by the Minister from time to time by notice in the Gazette.
(v)
Despite anything to the contrary in the AMA Guides, in assessing the
degree of impairment, no number stipulated in the AMA Guides
is to be
rounded up or down, regardless of whether the number represents an
initial, an intermediate, a combined or a final value,
unless the
rounding is expressly required or permitted by the guidelines issued
by the Minister.
(vi)
The Minister may approve a training course in the application of the
AMA Guides by notice in the Gazette and then the assessment
must be
done by a medical practitioner who has successfully completed such a
course.’
It
is common cause that no operational guidelines have been published by
the minister under reg 3(1)(
b
)(iv).
(c)
Third, an injury which does not result in 30 per cent or more WPI may
nonetheless be assessed as serious under what has become
known as the
'narrative test' if that injury resulted in a serious long-term
impairment or loss of a body function; constitutes
permanent
serious disfigurement; resulted in severe long-term mental or severe
long-term behavioural disturbance or disorder;
or resulted in
loss of a foetus (reg 3(1)(
b
)(iii)).
[5]
The Fund is only liable for general damages if a claim is supported
by a serious injury assessment report (the RAF 4 form) ‘and
the
Fund is satisfied that the injury has been correctly assessed as
serious in terms of the method provided for in these Regulations’
(reg 3(3)(
c
)). If the Fund is not so satisfied, it must
either reject the third party’s RAF 4 form or direct that the
third party
submits him- or herself to a further assessment by a
medical practitioner designated by the Fund in accordance with the
method
prescribed in the regulations (reg 3(3)(
b
)). The
regulations go on to provide for a dispute resolution procedure.
It culminates in a determination by an appeal
tribunal consisting of
three medical practitioners appointed by the registrar of the Health
Professions Council. If
the dispute resolution procedure
is not resorted to, the rejection of the RAF 4 form or the assessment
by the Fund’s designated
medical practitioner, as the case may
be, becomes ‘final and binding’ (reg 3(5)(
a
)).
The determination of a dispute, if one is declared, by the appeal
tribunal is also ‘final and binding’
(reg 3(13)).
[6]
It was held in
Duma
para 19 that-
‘
[i]n
accordance with the model that the legislature chose to adopt, the
decision whether or not the injury of a third party is serious
enough
to meet the threshold requirement for an award of general damages was
conferred on the Fund and not on the court. That much
appears from
the stipulation in reg 3(3)(
c
) that the Fund shall only be
obliged to pay general damages if the Fund — and not the court
— is satisfied that the
injury has correctly been assessed in
accordance with the RAF 4 form as serious. Unless the Fund is so
satisfied the plaintiff
simply has no claim for general damages. This
means that unless the plaintiff can establish the jurisdictional fact
that the Fund
is so satisfied, the court has no jurisdiction to
entertain the claim for general damages against the Fund. Stated
somewhat differently,
in order for the court to consider a claim for
general damages, the third party must satisfy the Fund, not the
court, that his
or her injury was serious.’
[7]
Recently this court in
Road Accident Fund v Faria
2014 (6) SA
19
(SCA) para 34 said that:
‘
[t]he
amendment Act, read together with the Regulations, has introduced two
‘paradigm shifts’ that are relevant to the
determination
of this appeal: (i) general damages may only be awarded
for injuries that have been assessed as ‘serious’
in
terms thereof and (ii) the assessment of injuries as
‘serious’ has been made an administrative rather
than a
judicial decision.’
[8]
The three appellants as plaintiffs instituted separate actions
against the Fund in the North Gauteng Division of the High Court,
Pretoria, for the damages they suffered as a result of injuries they
sustained in motor vehicle accidents that occurred after 1
August
2008. General damages form part of the relief claimed in each
action. The stance adopted by the appellants in
each action is
that compliance with reg 3 is ‘legally impossible’ in the
absence of operational guidelines in relation
to the application of
the AMA Guides. The first and second appellants each launched
an application after the close of pleadings
in their respective
actions in which they sought declaratory relief in accordance with
their interpretation of reg 3(1)(
b
)(iv). They joined the
minister in each application, who gave notice that he would abide the
decision of the court.
Although it opposed the second
appellant’s application (the second appellant’s
application for declaratory relief)
the Fund failed to oppose the
first appellant’s application. Default judgment in
accordance with the relief prayed
for in the notice of motion was
granted in the first appellant’s application. The Fund
then launched an application
for rescission of the default judgment,
which application was opposed by the first appellant (the Fund’s
rescission application).
The third appellant raised the issue
by way of an objection to an application for the amendment of the
Fund’s special plea
in which the third appellant’s
non-compliance with reg 3 was raised (the Fund’s application
for amendment).
[9]
The appellants and the Fund agreed that a determination of the
following questions is dispositive of the Fund’s rescission
application, the second appellant’s application for declaratory
relief and the Fund’s application for amendment:
whether
(a) reg 3(1)(
b
)(iv) requires operational guidelines to be
published by the minister before the AMA Guides can be applied in the
determination
of a claimant’s WPI;
(b)
the AMA Guides can be applied for purposes of the Regulations in the
absence of operational guidelines published by the minister;
and
(c) a claimant is
excused from compliance with the regulations by virtue of the maxim
lex non cogit ad impossibilia
(the law does not compel a
person to perform that which is impossible) if the AMA Guides cannot
be applied for purposes of the regulations
in the absence of
operational guidelines.
[10]
The three applications were heard together by Kgomo J on 26 July
2013. The high court was called upon to determine the
three
questions. Judgment was delivered on 30 August 2013. The
interpretation of reg 3(1)(
b
)(iv) contended for by the
appellants did not find favour with the high court. In
answering questions (a) and (b) in favour
of the Fund the high court
held that the phrase ‘if any’ in reg 3(1)(
b
)(iv)
applies to and qualifies both the publication of ‘amendments’
and of ‘operational guidelines’. The
minister was
therefore, so the high court held, not obliged to publish guidelines
before the AMA Guides could be applied. Instead
of granting orders
appropriate to each application the high court made the following
order:
‘
1.
The application is dismissed with costs.
2. The costs shall
include the costs attendant on the employment of two counsel.’
[11]
The appeal lies against this order with the leave of this court. The
Fund did not cross-appeal. Counsel, however, informed
us that
the determination of the central legal issue raised in this appeal is
accepted as decisive of each application and that
the parties had
agreed to act upon the decision in a manner appropriate to what each
application’s outcome should have been.
[12]
With reference to the language used in reg 3(1)(
b
)(iv), the
appellants contend that it envisages and requires the publication of
operational guidelines, which ‘must’
be applied in order
to apply the AMA Guides. The injunction, they contend, is
peremptory. They contrast the language of reg
3(1)(
b
)(iv)
with that used in reg 3(1)(
b
)(i) prior to its amendment
(‘[t]he Minister may publish’ a list of non-serious
injuries, which was indeed done) and
in reg 3(1)(
b
)(v) (‘[t]he
Minister may approve a training course . . . by notice in the
Gazette
and then the assessment must be done . . .’). The
appellants contend that those provisions are plainly discretionary
whereas reg 3(1)(
b
)(iv) by contrast is peremptory. The
words ‘if any’ used in reg 3(1)(
b
)(iv), so they
contend, only qualify and apply to the publication of amendments and
not to both the publication of amendments and
operational guidelines
[13]
Regulation 3(1)(b)(iv) must be interpreted in accordance with the
established principles of interpretation. (See
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18;
Bothma-Batho Transport (Edms) Bpk v S Bothma
& Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) para 12.)
The meaning to be attributed to reg 3(1)(
b
)(iv) as contended
for by the appellants is not sensible and has no basis in its
language or in context. The language used
clearly confers a
discretion on the minister to publish operational guidelines and the
application of the AMA Guides is not dependent
on the existence of
operational guidelines. Reference to the context supports this
legislative intent.
[14]
As to language, the words ‘if any’ in reg 3(1)(
b
)(iv)
denote that the publication of ‘operational guidelines’
or of ‘amendments’ thereto is discretionary.
An
alteration of the punctuation used in reg 3(1)(
b
)(iv) is
required in order to sustain the interpretation contended for by the
appellants: the insertion of a comma after the
words
‘operational guidelines’ and the deletion of the comma
after the word ‘amendments’. (‘The
AMA Guides
must be applied by the medical practitioner in accordance with
operational guidelines, or amendments if any, published
by the
Minister from time to time by notice in the Gazette.’)
The distinction which the appellants seek to draw between
operational
guidelines and amendments is artificial: once operational
guidelines, if published, are amended they remain operational
guidelines in accordance with which the AMA Guides must then be
applied. The obligation created in reg 3(1)(
b
)(iv) by
the use of the word ‘must’ is one placed conditionally
upon the medical practitioner: the AMA Guides
‘must’
be applied by the medical practitioner in accordance with ‘any’
operational guidelines or amendments
‘if’ published.
No obligation is placed on the minister. The publication
of operational guidelines
is clearly not a condition precedent to the
application of the AMA Guides in the assessment whether an injury is
‘serious’.
[15]
The same legislative intent is reinforced when reg 3(1)(
b
)(iv)
is considered contextually. The use of the permissive or
facultative word ‘may’ in the other regulations
referred
to by the appellants and not in reg 3(1)(
b
)(iv) is no
indication that the publication of operational guidelines is
peremptory. The statutory provision in reg 3(1)(
b
)(iv)
concerning the publication of operational guidelines is not couched
in words which have an affirmative or imperative character,
such as
‘shall’ or ‘must’. There is also no
other provision in the Regulations, or in the Act, which
imposes an
obligation on the minister to publish operational guidelines in order
for the AMA Guides to find application.
[16]
There is nothing in the other provisions of the regulations and of
the Act which lends any weight to the interpretation contended
for by
the appellants. On the contrary, that interpretation will
result in the absurdity that the AMA Guides, which take
centre stage
in the administrative determination of whether an injury is ‘serious’
to qualify for an award of general
damages in terms of s 17(1) of the
Act, cannot be applied until such time as the minister publishes
operational guidelines even
though the minister may consider the
publication of operational guidelines not necessary or expedient.
Furthermore, there is no
impediment, it is common cause, to the
practical application of the AMA Guides in the absence of operational
guidelines.
[17]
I conclude, therefore, that the publication by the minister of
operational guidelines or amendments under reg 3(1)(
b
)(iv) is
discretionary. The application of the AMA Guides in the
assessment whether the third party's injury is 'serious'
to qualify
for general damages is not dependent on the existence of operational
guidelines. The conclusion at which the high
court arrived
therefore cannot be faulted and the appeal cannot succeed.
[18]
Finally, the matter of costs. The interpretation contended for
by the appellants, without intending to be unkind, is
rather
opportunistic and seems to be an attempt to avoid compliance with the
Regulations despite the clear and unambiguous wording
of reg
3(1)(
b
)(iv). I agree with the Fund’s contention that the
construction contended for by the appellants is linguistically and
contextually
untenable.
I am, therefore, not
persuaded that the circumstances of this case warrant a deviation
from the general principle that costs should
follow the event.
[19]
In the result the following order is made:
The appeal is
dismissed with costs, including the costs of two counsel.
___________________
PA
Meyer
Acting
Judge of Appeal
APPEARANCES
For
Appellants: BP Geach SC, CM Dredge
Instructed
by: Van Zyl Le Roux Inc., Pretoria
Honey
Attorneys, Bloemfontein
For
First Respondent: S Budlender, L Kutumela
Instructed by:
Lindsay Keller c/o Friedland Hart Attorneys, Pretoria
Matsepe
Attorneys, Bloemfontein