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[2014] ZAGPJHC 281
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Kasema v Members of the Road Accident Fund Appeal Tribunal Convenced on 4 November 2011 and Others (2011/47210) [2014] ZAGPJHC 281 (24 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2011/47210
DATE:
24 OCTOBER 2014
In the matter between:
EPPINEGE
KASEMA
....................................................
Applicant
And
MEMBERS OF THE
ROADACCIDENT FUND
APPEAL TRIBUNAL CONVENCED
ON
4 NOVEMBER
2011
.............................
First
to Sixth Respondents
THE HEALTH PROFESSIONS
COUNCIL
OF SOUTH
AFRICA
......................................
Seventh
Respondent
ROAD ACCIDENT
FUND
.................................
Eighth
Respondent
J U D
G M E N T
KEIGHTLEY,
AJ
:
INTRODUCTION
[1] This case concerns an application
for the review and setting aside of a decision made by the members of
the RAF Appeal Tribunal
(the Appeal Tribunal) to the effect that the
injury suffered by the applicant in a motor vehicle accident did not
qualify as a
serious injury. Section 17(1) of the Road Accident
Fund Act 56 of 1996 (the Act) provides that a claimant only has a
claim
for general damages from the Road Accident Fund (the Fund) if
he or she has suffered “serious injury” as defined in
section 17(1A) of the Act. The effect of the Appeal Tribunal’s
decision is that the applicant has no entitlement to
a claim for
general damages against the Fund.
[2] Section 17(1A) of the Act provides
that the assessment of a serious injury must be done in terms of the
method prescribed in
the Regulations promulgated in 2008 under the
Act (the Regulations).
[1]
A party who wishes to claim for general damages against the Fund for
injuries sustained in a motor vehicle accident is required
first to
have his or her injuries assessed by a medical practitioner trained
in the method of assessment, and such assessment must
be submitted to
the Fund. The Fund determines whether it is satisfied that the
injuries are serious.
[2]
If it is not so satisfied, the injured person may appeal against this
finding to the Appeal Tribunal.
[3]
[3] The method of assessment and
criteria to be applied for the determination of a serious injury are
prescribed in the Regulations.
If the injury resulted in a 30
percent or more “Impairment of the Whole Person” (WPI),
as provided in the American
Medical Association Guides (AMA Guides),
the injury must be assessed as a serious injury.
[4]
Alternatively, if the WPI is assessed as less than 30%, it may only
be assessed as serious if the injury, among others things,
has
resulted in a serious long-term impairment or loss of bodily
function.
[5]
[4] The appointment, functioning and
powers of the Appeal Tribunal are dealt with under the Regulations.
The Appeal Tribunal
resides under the Health Professions Council of
South Africa (HPCSA). Members of an Appeal Tribunal are
appointed by the
Registrar of the HPCSA. They are all
independent medial practitioners with expertise in appropriate areas
of medicine.
[6]
THE FACTS
[5] The decision sought to be impugned
in this case was made on 4 November 2011. The chronology of the
applicant’s claim
and appeal may be summarised as follows:
[5.1] The applicant, Mr Kasema, was a
pedestrian who was knocked over by a motor vehicle on 15 July 2009.
He sustained injuries,
more particularly, a fracture, to his left
femur.
[5.2] His injuries were initially
assessed by one Dr Schnaid on or about 8 April 2010. Dr Schnaid
completed the requisite
RAF4 form (which is known as a Serious Injury
Assessment Report). He assessed Mr Kasema’s WPI as being
14.8%.
As this was below 30%, Dr Schnaid, completed what is
called the “narrative test” and concluded that, despite a
WPI
rating of less than 30%, his view was that on the narrative test,
Mr Kasema had suffered a serious long-term impairment or loss
of a
bodily function.
[5.3] On this basis, Mr Kasema sought to
claim for general damages for his injuries against the Fund.
[5.4] On 5 January 2011 the Fund
rejected Mr Kasema’s serious injury claim in terms of
Regulation 3(3)(d)(i) on the basis
that the assessment of the injury
was premature as Mr Kasema had not yet reached what is terms “maximum
medical improvement”
(MMI).
[5.5] Mr Kasema’s attorneys duly
lodged an objection against the Fund’s decision on 25 January
2011. The attorneys
included all relevant documentation with
the objection, including all of Dr Schnaid’s reports completed
in 2010 and Mr Kasema’s
hospital records. This is
apparent from the record of the Appeal Tribunal’s proceedings
that was placed before me.
[5.6] On 19 April 2011, the HPCSA wrote
to Mr Kasema’s attorneys requesting written submissions.
In August 2011 the
attorney’s requested the names of the panel
members who would be nominated to the appeal panel. These names
were provided
on 13 October 2011. In the same letter, the HPCSA
advised Mr Kasema’s attorneys that the matter was on the agenda
of
the Appeal Tribunal for 4 November 2011.
[5.7] On the following day, being 14
October 2011, Mr Kasema’s attorneys wrote to the HPSCA and
advised it as follows:
[5.7.1] They recorded that they objected
to the appointment of all four identified experts on the panel on the
basis that according
to the attorneys’ knowledge, all four of
the experts “
are extensively used by the RAF and rely on the
RAF for a substantial portion of their work and income
”.
Mr Kasema’s attorneys asserted that “
it would be
fundamentally unfair and unconstitutional to subject our clients to
an assessment under such partial circumstances
.”
[5.7.2] The attorneys averred that the
RAF’s rejection of Mr Kasema’s claim was invalid.
[5.7.3] Importantly, for purposes of
this matter, Mr Kasema’s attorneys advised the HPCSA that: “
We
have furthermore not finalised our quantum preparations in this
matter and our client is still to be assessed by further experts.
Upon receipt of such further reports we will be in a position to
further assess our client's medical status which may include an
amendment to the initial findings apropos the Serious Injury Report.
”
[5.8] It is significant to note that the
attorneys did not request a postponement of the matter pending the
expected further medical
reports, nor did they provide any details as
to when such reports might be expected.
[5.9] Following this letter the HPCSA
advised the applicant’s attorneys that two further experts
would be added to the appeal
tribunal panel.
Subsequent to this the attorneys made no further objection to the
constitution of the panel.
[5.10] The panel considered Mr Kasema’s
case at its meeting on 4 November 2011. The Appeal Tribunal's
decision was communicated
to the applicant’s attorneys by way
of a letter (the decision letter) dated 16 November 2011.
[5.11] The Appeal Tribunal set out in
its decision letter the bases for its rejection of Mr Kasema’s
appeal. They indicated
that although Dr Schnaid had stated that
Mr Kasema had not reached MMI, the X-ray indicated that the fracture
was well united.
The panel stated that in its view Mr Kasema’s
WPI did not exceed 3%. In addition, the letter stated that the
panel
was of the view that Dr Schnaid had incorrectly applied the AMA
Guide. The letter recorded that the panel had unanimously
agreed that the applicant did not qualify as having suffered a
serious injury by way of percentage as well as by way of the
narrative
test.
[5.12] It is common cause that the
letter communicating the Appeal Tribunal’s decision was
received by Mr Kasema’s attorneys.
It is also common
cause that they took no steps at that stage to review the decision.
Nor did they lodge any request for
reasons for the decision.
[5.13] Some 17 months later, on 8 April
2013, Mr Kasema’s attorneys wrote to the Registrar of the
HPSCA. They referred
to the Appeal Tribunal’s decision of
November 2011, and requested the Tribunal to review its decision on
the basis that it
had been premature. The attorneys attached to
the letter new medical reports from Dr Schnaid (dated 6 September
2012); Dr
Jivan (6 September 2012) and Prof A Scheepers (dated 22
February 2013). Prof Scheepers had been appointed by the RAF to
assess
Mr Kasema.
[5.14] It is worth recording that none
of these further medical reports assessed Mr Kasema’s WPI as
over 30%. Dr Jivan
assessed the WPI as 7%, and Prof Scheepers
assessed it as 3%. Dr Schnaid assessed it as less than 30% but
on the narrative
test once again indicated his view that Mr Kasema
had suffered a serious long-term impairment of loss of bodily
function.
[5.15] The HPCSA did not respond to the
applicant’s attorney’s request for a review of the
matter.
[5.16] Despite this, it was only some 10
months later, in February 2014, that the applicant instituted the
present review proceedings.
By this time, a period of 2 years
and 3 months had elapsed from the time that the Appeal Tribunal had
made the decision that is
sought to be reviewed and set aside.
[6] From this chronology of the
application it is immediately apparent that the first issue that
arises for consideration is whether
or not the applicant ought to be
non-suited for his delay in instituting these review proceedings.
DELAY
[7] This review is governed by the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
Unlike under the common law,
PAJA prescribes in section 7(1) that an
application for review must be brought without unreasonable delay and
not later than 180
days after the exhaustion of internal remedies.
This prescription is tempered by section 9, which provides for a
variation
in the time limits set down in PAJA. In terms of
section 9(1) read with section 9(2), a court may extend the 180 day
time
limit for a fixed period “where the interests of justice
so require”.
[8] In this case, the application for
review was made well outside the 180-day outer limit provided for
under PAJA. In fact,
the review application was instituted over
2 years after the decision of the Appeal Tribunal was made. The
applicant expressly,
and correctly, brings his review application
under PAJA. However, neither in the Notice of Motion, nor in
the affidavits
filed in support of his application, does the
applicant seek the requisite order for an extension of time under
section 9 of PAJA.
[9] The stance adopted by the applicant
as regards the timing of the review application in his affidavits was
to submit that he
had brought the application within a reasonable
time. He averred that he had not been provided with reasons for
the Appeal
Tribunal’s decision. In addition, he averred
that his physical condition had deteriorated since the decision.
He submitted that the court has a discretion to find that his
application was brought within a reasonable time.
[10] In the replying affidavit, the
applicant still makes no reference to section 9 of PAJA. On the
contrary, he asserts that
where no specific time limit is set out in
the relevant legislation, a review must be brought within a
reasonable time. He
also denies that there is a prescribed time
limit of 180-days for the institution of review proceedings.
The applicant points
instead to the court’s general power to
condone non-compliance with the Uniform Rules of Court. He
requests the court
to grant condonation – it is not clear what
condonation is sought for, but it must be assumed that it is for
failing to file
the review application within a reasonable time in
terms of the Rules.
[11] It was only in the heads of
argument filed by the applicant that reference to section 9 of PAJA
is made. In these heads,
Mr Kitching for the applicant submits
that the court has a discretion to grant an extension of time where
the interests of justice
so require.
[12] Mr Motau on behalf of the first to
seventh respondents (the respondents), being the panel members of the
Appeal Tribunal and
the HPCSA, submitted that the applicant’s
failure to apply for an order under section 9 of PAJA is fatal to his
application.
He points in this regard to the fact that no case
is made out for such relief in the founding or replying papers.
[13] There is merit in Mr Motau’s
submissions. It is trite that a party must in their founding
papers, or particulars
of claim, as the case may be, set out the
details of the relief they seek. A party cannot, without
amending their notice
of motion, seek new relief at the hearing of
the matter by placing reliance on the prayer for “further and
alternative relief”.
[7]
The applicant in the present case conceded in its replying affidavit
that he was bound by his founding papers, which, as
I have already
indicated, seek to make out a case different to that required for an
extension of time under section 9 of PAJA.
In addition,
although the applicant’s heads of argument refer to section 9,
the applicant did not seek to amend his notice
of motion to include a
prayer for relief under section 9 of PAJA.
[14] Be that as it may, in my view it is
not necessary for me to decide the matter on this basis. I will
assume for present
purposes, and without deciding the issue, that the
applicant is not non-suited for failing expressly to seek relief
under section
9 of PAJA. Proceeding on this assumption, the
test I must apply is whether it would be in the interests of justice
in this
case to permit an extension of the time period prescribed in
section 7 of PAJA. It is only if I am satisfied that the
interests
of justice dictate an extension of time that I will have
authority to entertain the applicant’s review application.
[8]
[15] The essential requirements for
granting relief under section 9(2) of PAJA are that there must be a
full and reasonable explanation
for the delay, and that this
explanation should cover the entire period of the delay.
[9]
What is in the interests of justice will depend on the facts of each
case. A court must take into account all relevant factors
in
this regard. These include the nature of the relief sought, the
extent and cause of the delay, its effect on the administration
of
justice and other litigants, the importance of the issues raised, and
the prospects of success in the intended proceedings.
[10]
[16] Applying these requirements to the
present case it seems to me that the applicant falls at the first
hurdle: there is simply
no explanation for the considerable delay in
the applicant instituting the review proceedings, let alone a
reasonable and full
explanation covering the entire period of the
delay.
[17] The chronology of the application
set out earlier demonstrates that 17 months passed between the
decision of the Appeal Tribunal
being communicated to the applicant’s
attorneys and their request to the same body for a review of the
decision based on
new medical information. A further period of
10 months passed before the institution of the review proceedings.
The only explanation attempted by the applicant for the length of
time he took to institute the review application in his founding
affidavit is that he was never provided with reasons for the
decision; and that he suffered a “steady physical decline”
of his condition after the decision, which could only be demonstrated
by the “slow passage of time”. The alleged
steady
physical decline in the applicant’s condition is simply not
supported on the papers. As I indicated earlier,
Dr Jivan
estimated the applicant’s WPI as 7% in September 2012.
Prof Scheepers in his report (upon which the applicant
relies) puts
his WPI at 3% and concludes that: “According to the narrative
test he does not have serious long term impairment
or loss of a
bodily function.” Prof Scheepers’ examination was
conducted in February 2013. From this it
is apparent that there
was no steady decline in the applicant’s condition, as all the
experts, including Dr Schnaid as early
as 2010 calculated the
applicant’s WPI to be less than 30%. In any event, the
applicant delayed for a further year
after the last updated report
was obtained before instituting the review application. There
is simply no explanation for
this.
[18] As far as the absence of reasons is
concerned, this too cannot be a reasonable explanation for the delay
in instituting the
review proceedings. Quite simply, the Appeal
Tribunal’s decision letter set out the reasons therefor.
If the
applicant or his attorneys were of the view that these reasons
were not sufficient, it was open to them to request further or better
reasons. In none of the correspondence between the applicant’s
attorneys and the HPCSA is a request for reasons made.
[19] The extent of the applicant’s
delay in instituting his review proceedings was substantial. In
the absence of reasons
to explain this delay, there is simply no
basis upon which I can conclude that it would be in the interests of
justice to condone
the delay by granting an order under section 9 of
PAJA.
[20] This is confirmed by a
consideration of the other relevant factors at play. In
particular, the applicant’s prospects
of success in the review
are poor. The applicant’s complaints about the Appeal
Tribunal’s decision may be summarised
as follows:
[20.1] the HPCSA did not respond to the
applicant’s objection to the members panel, save for appointing
two additional members;
[20.2] accordingly, the Appeal Tribunal
was biased and joined interest in the cause with the RAF in that it
was a one-sided panel
and failed to assess the applicant’s
injuries impartially and correctly;
[20.3] the Appeal Tribunal failed to
provide reasons for its decision, indicating that the Appeal
Tribunal’s decision was
taken without good reason;
[20.4] the Appeal Tribunal failed to
assess the applicant’s injuries correctly, as is evidenced by
subsequent medical reports
demonstrating a decline in his physical
condition;
[20.5] in addition, it erred in finding
that the applicant had reached MMI, contrary to the opinion expressed
by Dr Schnaid.
[21] Based on these complaints, the
applicant identifies the grounds of review upon which he relies as
including bias, bad faith
and an ulterior purpose or motive on the
part of the Appeal Tribunal; the failure of the Appeal Tribunal to
take into account relevant
considerations; and the irregular
conclusion reached by the Appeal Tribunal, based on “incompetent
evidence”, that
the applicant had reached MMI.
[22] There is not a shred of evidence to
support the contention that the Appeal Tribunal was biased. In
its answering affidavit,
the first to seventh respondents were at
pains to point out that panel members are appointed by the Registrar
of the HPCSA, and
not by the Fund. They are all medical experts
who provide their services as a public duty. They are not
employed by
the HPCSA or by the Fund, and receive a modest stipend
for their services.
[23] Apart from this, the facts of the
case illustrate that after the applicant’s objection, which was
in the most general
terms, the Registrar appointed two additional
panel members to consider the applicant’s case. The
applicant was informed
of this and raised no further objection.
Had there been real substance to the objection, no doubt the
applicant’s attorneys
would have taken the matter further.
[24] As I indicated above, the Appeal
Tribunal did provide reasons for its decision.
[25] This puts paid to the applicant’s
attempts to review the decision based on bias, bad faith and an
ulterior purpose or
motive.
[26] As for the remainder of the grounds
of review, it is important to bear in mind that the reviewability of
the Appeal Tribunal’s
decision must be determined on the basis
of the information that was before it at the time. For this
reason, the applicant’s
reliance on the additional medical
reports obtained in 2012 and 2013 was misplaced.
[27] The question is whether, based on
the information before the Appeal Tribunal at the time, its decision
was rational and reasonable,
and based on all relevant
considerations. There is nothing to indicate that it was not
so. The first to seventh respondents
explained in their
answering affidavit that the panel members all reviewed the medical
information supplied by the applicant separately,
and they applied
their own medical knowledge and expertise in analysing the
information and reaching a decision.
[28] It is common cause that even Dr
Schnaid estimated the applicant’s WPI as less than 30%.
He nonetheless found on
an application of the narrative test that the
applicant had suffered a serious long-term impediment. The
members of the panel
making up the Appeal Tribunal did not agree with
this, and they indicated that in their view, Dr Schnaid had not
applied the AMA
Guide correctly. The test is not whether they
were right or wrong in their assessment, but rather whether their
conclusion
is reasonable and rational based on the information they
had before them. There is nothing to indicate that their
decision
was irrational or unreasonable.
[29] Finally, it is appropriate for me
to take into account the public interest element in the need for
finality in the decisions
of administrative bodies like the Appeal
Tribunal.
[11]
The financial and administrative burden on the Fund is substantial.
To ensure that the objectives of the Fund are met,
it is important
that claims are processed, and funds allocated without undue delay.
Whether or not a claimant has an entitlement
to a claim for general
damages against the Fund is a critical element of any claim, and it
is important to reach finality on this
issue timeously. Any
review of the Appeal Tribunal’s decision must, accordingly, be
instituted without delay.
It is not in the interests of the
claimant, the Fund, or the administration of justice to permit
reviews of such decisions to remain
pending indefinitely.
[30] For all of these reasons, I
conclude that it is not in the interests of justice in this case to
condone the applicant’s
delay in instituting the review
proceedings. The application must fail for this reason.
ORDER
[31] I make the following order:
1. The application is dismissed with
costs.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date Heard: 16 October 2014
Date of Judgment: October 2014
Counsel for the Applicants: Adv. J A
Kitching
Instructed by: Raphael & David
Smith Inc
Counsel for the Respondent: Adv. T
Motau SC
Adv K Magan
Instructed by: Geldenhuys Malatji Inc
[1]
R 769, GG 21 July 2008
[2]
Regulation 3
[3]
Regulation 3(8)
[4]
Regulation 3(1)(b)(ii)
[5]
Regulation 3(1)(b)(iii)
[6]
Regulation 3(8)(b)
[7]
Johannesburg City Council v Bruma Thirty-two (Pty) Ltd
1984
(4) SA 87
(T) at 91D-E & 92G
[8]
Opposition to Urban Tolling v South African National Roads
Agency Limited
2013 JDR 2297 (SCA) at para 26
[9]
Pricewaterhouse Coopers Inc v Van Vollenhoven NO
[2010] 2
All SA 256 (SCA)
[10]
Camps Bay Ratepayers’ and Residents’ Association v
Harrison
[2010] 2 All SA 519
(SCA) at para 54
[11]
Gwetha v Transkei Development Corporation Ltd & Others
2006 (2) SA 603
(SCA) at para 22;
Wolgroeiers Afslaers (Edms) Bpk
v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41E-F