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[2016] ZAGPJHC 407
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J L v Rand Mutual Assurance Company Limited and Others (A3004/20016) [2016] ZAGPJHC 407 (13 July 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3004/20016
In
the matter between:
J
L
Appellant
and
RAND MUTUAL
ASSURANCE COMPANY LIMITED
First
Respondent
MURRAY &
ROBERTS
LIMITED
Second
Respondent
THE MINISTER OF
LABOUR
Third
Respondent
THE DIRECTOR
GENERAL
Fourth
Respondent
OF
THE DEPARTMENT OF LABOUR
J
U D G M E N T
KEIGHTLEY,
J
INTRODUCTION
[1]
The appellant, Mr L, was employed by Murray & Roberts Limited as
an underground onsetter at the lmpala Platinum Mine. While
he was on
duty in April 2009 he stepped backwards into an open mine shaft.
Although he was able to arrest his fall by holding onto
a ledge, a
descending lift cage struck his right foot and ankle, causing severe
injuries. Various complications beset the surgical
treatment of his
injuries.
[2]
Mr L lodged a claim for compensation under the Compensation of
Occupational Injuries and Diseases Act 130 of 1993 ("COIDA"
or "the Act")).
[3]
In terms of section 30 of COIDA the Minister of Labour ("the
Minister") may issue a licence under specified conditions
to a
mutual association to carry on the business of insuring an employer
against the employer's liability to employees under the
Act. The
Minister issued a licence to Rand Mutual Assurance Limited ("RMA")
to act as the insurer to Murray & Roberts
under section 30,
subject to conditions specified by the Minister ("the licence
conditions").
[4]
In terms of section 62(1) the Director General of the Department of
Labour ("the DG") may:
"... subject to
such conditions as he may determine, authorise a mutual association
to provisionally settle claims by employees
for compensation ... .
[5]
Section 62(2) provides further that:
"An . . .
association . . . shall report provisional settlements to the
Director-General at such intervals and with such particulars
as the
Director-General may determine, and the Director-General may confirm,
amend or repudiate any such provisional settlement
. . . . "
[6]
The DG prescribed conditions for the provisional settlement by
RMA of claims for compensation in terms of this section ("the
settlement conditions").
[7]
The effect of the license issued to RMA, read together with
the settlement conditions prescribed by the DG, is that compensation
claims under COIDA by employees of Murray & Roberts are dealt
with by RMA rather than by the compensation commissioner through
the
compensation fund established under that Act ("the fund").
This was the scheme governing Mr L's claim for compensation.
[8]
Following a process that I will detail more extensively in due
course, Mr L was assessed by RMA as having suffered a 15% permanent
disability as a result of his accident. This was subsequently
reviewed, and he was reassessed at having suffered a 31% permanent
disability. This was in February 2012. The record before this court
did not contain proof of the DG's confirmation of RMA's assessments,
but the parties proceeded on the assumption that this had taken
place.
[9]
In June 2015 Mr L applied for a review and an increase of his
assessment in terms of section 90 of COIDA. I set out later the
specific
applicable provisions of this section. When RMA refused this
application Mr L lodged an objection in terms of section 91. In terms
of clause 17 of the settlement conditions prescribed by the DG,
RMA is directed to deal with section 91 objections and appeals
by
convening an independent tribunal. In doing so it must make use of
the applicable independent tribunal database to select the
presiding
officer of the tribunal. RMA proceeded to convene a tribunal ("the
tribunal") to consider Mr L's objection.
[10]
Mr L's attorney, Mr Spoor, appeared before the tribunal and
made submissions on his behalf. The tribunal delivered a judgment
dismissing
the objection. Mr L now appeals to this court against the
tribunal's decision. The appeal is brought under section 91(5)(a) of
COIDA, read with the settlement conditions.
[11]
Section 91 reads, in relevant part, as follows:
"Objections and
appeals against decisions of Director-General
(1) Any person
affected by a decision of the Director-General may, within 180 days
after such decision, lodge an objection against
that decision with
the commissioner in the prescribed manner.
(2) (a) An objection
lodged in terms of this section shall be considered and decided by
the presiding officer assisted by two assessors
designated by him, of
whom one shall be an assessor representing employees and one an
assessor representing employers.
(b) If the presiding
officer considers it expedient, he may, notwithstanding paragraph (a)
call in the assistance of a medical assessor.
(c) The provisions
of sections 6, 7, 45 and 46 shall apply mutatis mutandis in respect
of the consideration of an objection.
(3) (a) After
considering an objection the presiding officer shall, provided that
at least one of the assessors, excluding any medical
assessor, agrees
with him, confirm the decision in respect of which the objection
was lodged or give such other decision as
he may deem equitable. ...
(4)
(5) (a) Any person
affected by a decision referred to in subsection (3)(a), may appeal
to any provincial or local division of the
(High Court) having
jurisdiction against a decision regarding-
(i) the
interpretation of this Act or any other law;
(ii) ... ;
(iii)
the question whether the amount of any compensation awarded is so
excessive or so inadequate that the award thereof could
not
reasonably have been made;
(iv)
(b) Subject to the
prov1s1ons of this subsection, such an appeal shall be noted and
prosecuted as if it were an appeal against a
judgment of a
magistrate's court in a civil case, and all rules applicable to such
an appeal shall mutatis mutandis apply to an
appeal in terms of this
subsection.
…
.”
[12]
lt is common cause that the only parties in the proceedings
before the tribunal were Mr L and RMA. Despite this, the appellant
cites
a number of other parties as respondents in the appeal before
this court. The citation of parties varies for no apparent reason
in
the different documents filed by Mr L. The full range of respondents
cited includes (in addition to RMA) Murray & Roberts
Limited, the
Minister and the DG.
[13]
Save for RMA, none of these cited respondents were formally
joined in the appeal proceedings although the papers filed in support
of the appeal were served on them. Only RMA has played an active role
in the appeal.
GROUNDS
OF APPEAL
[14]
There are two legs to Mr L's appeal:
[14.1] The first leg
of appeal is based expressly on section 91(5)(i) ("the ultra
vires ground of appeal"). lt is described
in Mr L's notice of
appeal as follows:
"The Presiding
Officer (of the tribunal) erred in failing to hold that the licence
conditions prescribed by the Minister of
Labour on (RMA), under
section 62 of (COIDA), in terms of which (RMA) was empowered to
convene a tribunal to adjudicate objections
and appeals against
decisions of the Director General under section 91 of the Act, was
ultra vires the powers afforded to the Minister
under section 30 read
with section 62 of the Act."
[14.2] The second
leg of the appeal is expressly based on section 91(5)(iii).
Essentially, Mr L contends that the tribunal erred
in confirming
RMA's decision not to award him an increased assessment following his
review of the 31% permanent disability assessment.
This leg of the
appeal comprises no less than 18 identified separate grounds. For
simplicity's sake, I will refer to this leg (and
its composite parts)
as "the merits grounds of appeal".
POINTS
IN LIMINE
[15]
Before considering each of the legs of Mr L's appeal it is
necessary to refer to two points in limine raised by RMA. The first
of
these is the submission that COIDA simply does not provide for an
appeal in terms of section 91(5) against a decision made by a
tribunal convened by RMA under clause 17 of the settlement
conditions. Accordingly, it is submitted that this court has no
jurisdiction to consider the present appeal.
[16]
The second point
in limine
is that the
ultra vires
ground of appeal relied on by Mr L is an impermissible attempt to
judicially review the RMA licence conditions, and the exercise
of the
tribunal's powers thereunder. RMA submits that COIDA does not make
provision for a review of this nature, and that Mr L
cannot use the
guise of a section 91(5) appeal to achieve what is effectively a
judicial review of the Minster's powers under the
Act.
[17]
The latter point
in limine
is directly related to the
ultra vires
ground of appeal. I will deal with it more fully
when considering that ground.
JURISDICTION
TO CONSIDER THE APPEAL
[18]
In contending that the court has no jurisdiction to consider
this appeal RMA relies on the express wording and definitions of key
provisions of COIDA, read with the relevant settlement conditions
prescribed by the DG.
[19]
RMA points out that in terms of sections 91(2) and 91(3)(a), a
"presiding officer'
is required to consider and to make a
decision in respect of an objection lodged under that section.
Furthermore, section 91(5)
specifies that an appeal to the High Court
lies in respect of a decision
"referred to in subsection
3(a)".
In other words, a decision made by a
"presiding
officer'.
[20]
A
"presiding officer'
is defined under section 1
of COIDA as
"any officer appointed in terms of section 2(1)
(a) or (b) and designated as such by the Director-Genera!'.
Section
2(1)(a) and (b) provide for the Minister to appoint a
compensation commissioner, and other officers or employees to
assist
the DG. The point made by RMA in this regard is that a
"presiding
officer''
is defined as someone appointed and designated by the
Minister or other delegated officer. lt does not include persons
appointed
by RMA to preside over objection tribunals.
[21]
Clause 17 of the settlement conditions prescribed by the DG
makes provision for RMA to convene objection tribunals and to appoint
presiding officers from the independent tribunal database to preside
over them. Clause 17 reads as follows:
"
Objections
and appeals against decisions of the Director-General
17.1 In cases where
an objection is lodged
against a decision made the Mutual
Association
, the following process will be followed:
(i) The Mutual
Association shall be advised and an independent tribunal shall be
convened
in terms of section 91
.
The tribunal shall be
convened the Mutual Association making use of the tribunal database
which will be established and maintained
between the Fund and the
Mutual Association
.
(ii) The written
opinion, and where
deemed necessary by the presiding officer
in terms of section 91(2)(b), oral evidence from the independent
panel and or any other expert accepted by the tribunal as necessary
to decide the matter in a fair and equitable manner,
will be
presented to the presiding officer which evidence may be used by the
presiding officer and assessors in reaching a decision
.
(iii) The decision
shall be communicated to the Mutual Association and the complainant."
(emphasis added)
[22]
The purpose of clause 17 would appear to be to provide a
parallel process for the hearing of objections to decisions made by
RMA
under its licence. In other words, to put these objections on a
par with the objection process outlined in section 91. This appears
from the specific cross-references made in clause 17 to section 91,
and to the common use in both the section and clause to a “
presiding
officer
”. Thus, clause 17 appears to be intended to mirror
the section 91 process for claims dealt with by RMA as a licenced
mutual
association under COIDA, with such practical changes as are
necessary (such as the use of the independent tribunal database from
which to appoint presiding officers).
[23]
RMA does not contend that it is not authorised to convene a
tribunal to hear objections under section 91. As I will indicate
shortly,
that is an argument made by Mr Spoor in support of Mr L's
ultra vires
ground of appeal. Of course, if Mr Spoor is
correct in his contention, then the entire platform for the appeal
falls away for that
reason. I shall refer to this point again later.
[24]
However, RMA makes a different point. lt says that assuming
clause 17 gives the mutual association the power to convene a
tribunal
to consider and decide an objection, it does not include a
provision permitting an from that decision to the High Court. RMA
points
out that no reference is made in clause 17 to the right of an
objector to appeal against a tribunal's decision to the High Court.
Section 91(5) of COIDA only provides for an appeal against the
decision of a
"presiding officer''
as defined under that
Act. That definition does not include a presiding officer appointed
under Clause 17.
[25]
Consequently, contends RMA, from a reading of COIDA together
with clause 17 of the settlement conditions it must be concluded that
a High Court has no jurisdiction to consider an appeal from an
RMA-convened objection tribunal.
[26]
If RMA's contention is correct, it means that an appeal to the
High Court is not available to that class of employees whose claims
for compensation under the Act lie to RMA as a mutual association
licensed by the Minister. The right of appeal is only open to
employees whose employers have elected not to embark on the mutual
association insurance route, and therefore whose claims are
dealt
with by the compensation commissioner and fund.
[27]
This
state of affairs seems to me to be at odds with the fundamental
rights of employees like Mr L to equality under section 9,
access to
courts under section 34, and fair labour practices under section 23
of the Constitution. In addition, section 22(1) of
COIDA specifically
gives all employees the entitlement to the benefits provided for in
the Act.
[1]
[28]
I can see no rational reason for depriving this particular
class of employees of the right of an appeal to the High Court simply
because the impugned decision was made by a tribunal convened by a
licensed mutual association in accordance with its licensing
conditions, rather than by a tribunal convened directly under the
auspices of the commissioner.
[29]
Similarly, I can see no rational reason for depriving RMA of
the right to appeal to the High Court under section 91(5) in
circumstances
where it is not satisfied with the decision reached by
a tribunal convened under clause 17.
[30]
The question is whether the failure of the DG to specify in
clause 17 that the right of appeal under section 91(5) applies is
indicative
of an intention to exclude that right in respect of
decisions made by tribunals appointed under that clause. I think not.
What
clause 17 deals with is the parallel process that RMA must
follow when section 91 objections are filed in the mutual association
setting. Clause 17 prescribes RMA's obligations in this regard, and
broadly outlines the procedure to be followed by a tribunal
under
that clause. Once the tribunal has made its decision, its function is
completed. The appeal process outlined in section 91
lies directly to
the High Court. For that reason, there was no need for clause 17 to
deal with the appeal stage of proceedings.
The natural course for a
claimant unhappy with an objection decision by a tribunal appointed
under clause 17 would be to appeal
to the High Court in terms of
section 91(5).
[31]
Statutory provisions must be interpreted in a manner
consistent with constitutional rights and with the purpose of the
legislative
scheme in question. In my view, the constitutionally
compatible interpretation of clause 17 is that it was not intended to
exclude
the right of appeal. Instead, it was intended to operate in
conjunction with the right of appeal provided in section 91(5) of
COIDA.
On this approach, employees who are covered by a mutual
association enjoy the same benefit of a right of appeal to the High
Court
as those whose claims fall under the auspices of the fund. This
is consistent with the guarantee afforded all employees under section
22(1), and with the constitutional guarantees of equality and access
to courts.
[32]
In circumstances where a mutual association has been licensed
under section 30, the reference in section 91(5) to
"any
person affected by a decision referred to in section (3)(a)"
must be taken to include a person affected by the decision of a
presiding officer appointed in accordance with clause 17 of the
settlement conditions prescribed by the DG. If this were not so, it
would mean that employees covered by Rand Mutual would be limited
to
an objection process to a tribunal only. Their parallel right of
recourse would be cut short. Unlike other employees, they would
not
enjoy a right of appeal to the High Court. As I have already
indicated, that consequence is constitutionally unacceptable and
is
contrary to the objectives sought to be achieved by COIDA.
[33]
Accordingly, I cannot endorse RMA's interpretation of clause
17 read with section 91. I find that on a proper, constitutionally
compatible interpretation of these provisions, the High Court has
jurisdiction to consider Mr L's appeal against the decision of
the
tribunal constituted under clause 17.
THE
ULTRA VIRES
GROUND
[34]
The
ultra vires
ground of appeal rests on the
contention that clause 17 of the settlement conditions constitutes an
ultra vires
delegation by the DG to RMA of his powers to
convene a section 91 objection tribunal. This was the argument
advanced at the hearing
of the appeal, based on the written heads of
argument submitted by Mr Spoor. The argument is somewhat different to
that described
in the relevant ground of appeal in Mr L's notice of
appeal. There it was contended that the Minister (not the DG) had
acted ultra
vires in empowering RMA to convene an objection
tribunal. Be that as it may, I will proceed on the basis of the
argument developed
more fully in the written and oral submissions
made by Mr Spoor on behalf of Mr L.
[35]
In advancing this ground on behalf of his client, Mr Spoor
relies on section 3(1) of COIDA. That section provides that:
"The
Director-General may, subject to such conditions as he or she may
determine, delegate any of his or her powers or assign
any of his or
her duties to the or an officer or referred to in section and may at
any time cancel any such delegation or assignment."
[36]
Mr Spoor argues that what this means is that the DG may only
delegate his powers to an officer or employee referred to in section
2(1)(b) who are employees of the state. He has no power to delegate
any of his powers to a mutual association, like RMA.
[37]
Mr Spoor says that the restricted scope of the DG's powers of
delegation finds support in the express provisions of clause 15 of
the licence conditions prescribed by the Minister. These provide
that:
"The functions
and vested in the Director-General in terms of the Act are not to the
Mutual Association and all matters falling
within the scope of the
powers of the Director-General shall, when otherwise authorised the
Director-General in an in terms
of section 62 of the be referred
by the Mutual Association to the Director-General for decision. ... "
(emphasis added)
[38]
Mr Spoor relies on the first of the underlined parts of clause
15.
[39]
As far as section 62 is concerned, Mr Spoor contends that this
does not extend the scope of the DG's powers of delegation. All that
it does, he submits, is to permit the DG to authorise RMA to settle
claims provisionally. Section 62 does not give the DG the authority
to delegate his responsibilities under section 91 to RMA, i.e. to
ensure that an objection tribunal is constituted. Mr Spoor also
makes
the same point as that made by RMA in its first point in limine, viz.
that COIDA requires that a "presiding officer''
of an objection
tribunal under section 91 must be an appointee under section 2(1)(a),
and not someone appointed by RMA.
[40]
For these reasons, Mr Spoor submits that the DG acted outside
of his statutory powers in enacting clause 17 of the settlement
conditions:
he purported to delegate his powers under section 91 to
RMA in circumstances where he was not empowered under COIDA to effect
such
a delegation. lt follows that the tribunal convened by RMA was
not lawfully authorised to deal with Mr L's objection.
[41]
Mr L seeks specific relief in the event of his ultra vires
ground of appeal succeeding. He requests an order declaring that
clause
17 of the settlement conditions falls outside of the DG's
powers and is of no force and effect, and a further order
declaring
the objection hearing before the tribunal to be a nullity.
[42]
lt is common cause that Mr Spoor did not raise the
ultra
vires
point before the tribunal when it considered Mr
Lighthouse's objection. However, Mr Spoor submits that he is entitled
to raise the
point on appeal. This is because it involves
"the
interpretation of the Act or any other law".
Accordingly, Mr
Spoor contends that it falls within the ambit of appeals envisaged in
section 91(5)(a)(i)
[43]
Alternatively,
Mr Spoor submits that this court is obliged
mero
motu,
and
in the course of this appeal, to have regard to the principle of
legality and to consider and rule on the
ultra
vires
nature
of the tribunal's purported authority under clause 17. He relies in
this regard on
Cape
Dairy and General Livestock Auctioneers v Sim.
[2]
In
that case it was held that a court has a duty not to enforce any
contract that is in violation of the law, whether or not the
parties
raise the issue, and regardless of whether the court is one of first
instance or an appeal court.
[44]
RMA's response is that the
ultra vires
ground is not a
permissible ground of appeal under section 95(1). In reality it is an
attempt to seek the judicial review of the
DG's powers under the
guise of a section 91(5) appeal. RMA says that the correct basis for
a judicial review of this nature is
the Promotion of Administrative
Justice Act, 2000 ("PAJA"), implemented through the
procedure set out in Uniform Rule
53. Mr L has ignored both PAJA and
Rule 53 in his ostensible reliance on an appeal under section 91(5).
Neither the Minister
nor the DG have been joined in these
proceedings, notwithstanding that they are the public functionaries
most directly implicated
in, and affected by, the relief that is
sought.
[45]
Consequently RMA submits that the ultra vires ground of appeal
falls to be dismissed on this basis alone, and that there is no need
to consider the substance of this ground.
[46]
In my view there is merit in RMA's submissions. Mr Lighfoot's
complaint is that the DG acted outside of the power accorded to him
under the Act by authorising RMA to establish a complaint tribunal in
clause 17 of the settlement conditions. He seeks to have
clause 17,
as well as the proceedings before the tribunal and it's finding, to
be declared to be of no force and effect. In other
words, he requests
this court to set aside clause 17 of the settlement conditions, and
to set aside the decision of the tribunal
on the basis that the
tribunal proceedings are to be treated as if they never took place.
[47]
The first difficulty for Mr L is that his argument is
inherently self destructive. If the argument is correct, i.e. if
the
tribunal proceedings were a legal nullity, then this court has no
jurisdiction to consider the appeal in the first place.
[48]
The
second difficulty for Mr L is that his case on ultra vires bears all
the hallmarks of a judicial review. In essence, he is seeking
to
review the exercise by the DG of his powers under section 62 of
COIDA by authorising RMA to establish an objection tribunal
in terms
of clause 17 of the settlement conditions. In prescribing clause 17
as part of the settlement conditions the DG undoubtedly
was engaging
in administrative action within the meaning of PAJA.
[3]
Furthermore, the relief Mr Lighthouse requests in respect of the
ultra vires ground is precisely that provided for in section 8(1)(c)
of PAJA.
[4]
[49]
Although
the ultra vires ground is presented as a ground of appeal, its true
legal character is that of a review of the DG's powers.
lt is not
concerned with whether the tribunal came to a wrong conclusion on the
facts or the law, which is the usual basis for
an appeal.
[5]
In the notice of appeal there is an attempt to couch the ultra vires
ground in the language of an appeal. As I indicated earlier,
the
notice of appeal states that:
"The presiding
officer erred in failing to hold that the licence conditions .... .
was (sic) ultra vires the powers afforded
to the Minister under
section 30 read with section 62 of the Act".
However,
what this overlooks is the fact that the tribunal could not have made
a determination on the ultra vires point for the
simple reason that
it had no jurisdiction to review the DG's exercise of his
powers. Thus, it could not have erred, as is
alleged in the notice of
appeal.
[50]
What this demonstrates is that there is an inherent
misalignment between the ultra vires point and the path elected by Mr
L to pursue
it, viz. as a basis for an appeal in terms of section
91(5). This misalignment arises from the fact that the ultra vires
ground
is fundamentally a basis for a review and not an appeal under
section 91(5).
[51]
More
specifically, it is a review that fits squarely within the ambit of
PAJA. As such, it is PAJA, and not section 91(5) that establishes
the
appropriate cause of action for Mr L's ultra vires complaint.
[6]
PAJA has been described as the primary or default pathway for the
review of administrative action.
[7]
The Constitutional Court has warned of the impermissibility of
litigants electing an alternative pathway for the review of
administrative
action in circumstances where PAJA would be the
appropriate path.
[8]
[52]
In my view, Mr L's proper remedy insofar as the ultra vires
point is concerned was to institute a judicial review under PAJA by
following the procedure laid down in Rule 53. What he cannot do is to
bypass PAJA under the guise that his appeal involves "the
interpretation of (COIDA)" within the meaning of section
91(5)(a)(i). lt is axiomatic that every judicial review will involve
the interpretation of legislation or other empowering law. To
interpret
section
91
(5)(a)(i)
as permitting an objector to review administrative action through an
appeal would be to undermine the constitutional scheme
in terms of
which PAJA (or in limited circumstances, section 33 of the
Constitution itself) is the appropriate mechanism for that
form of
review.
[53]
For
similar reasons, it is not permissible for Mr L to rely on the
general principle of legality to establish a basis for an appeal
on
the
ultra
vires
ground.
Once it is established that this ground is essentially in the nature
of a review of administrative action, then it is incumbent
on Mr L to
pursue his remedy under PAJA. He does not have a free election to
resort to an appeal based on the principle of legality.
The case Mr
Spoor relies on to support his reliance on legality
[9]
did not deal with the exercise of public power. In my view it does
not assist Mr L's case, which is steeped in the intricacies
of
administrative law and judicial review.
[54]
For all of these reasons, I conclude that Mr L's
ultra
vires
point falls to be dismissed on the basis that it is not
properly before the court. I decline to consider the substance of the
point.
Should Mr L wish to pursue it, he will have to do so through
the appropriate channels under PAJA.
THE
MERITS GROUNDS
For
purposes of considering the merits grounds of the appeal it is
important to draw a distinction between two decisions of RMA.
The
first of these is the decision made by RMA in February
2012
to
increase Mr L's permanent disability assessment from 15% to 31%.
I will refer to this as the "February 2012 decision".
The
second is the decision made by RMA to refuse Mr L's request under
section 90 of COIDA, in June 2015, to review his 31% disability
assessment. I shall refer to this as the "2015 review decision".
[56]
This distinction is important because this court is sitting as
a court of appeal against the decision of the tribunal to refuse to
uphold Mr L's objection to an RMA decision in terms of section 91(1)
of COIDA. This exercise necessarily requires the court to
be clear on
the question of which of the two RMA decisions formed the subject
matter of Mr L's objection to the tribunal. Was it
the February 2012
decision, or the subsequent 2015 review decision?
[57]
A number of grounds in the notice of appeal are expressly
linked to the tribunal's alleged error in confirming RMA's 2012 and
make
no reference to the 2015 review decision. This suggests that the
subject matter of the objection to the tribunal was the earlier
decision. One of the difficulties with this is that in terms of
section 91(1) of COlDA an objection must be lodged within 180 days
of
the decision under consideration. This requirement rules out the
possibility that the subject matter of the objection was the
February
2012 decision, as the time for such an objection had long lapsed by
30 September 2015 when Mr L filed his objection.
[58]
Mr Spoor clarified matters in his heads of argument and in his
oral submissions at the hearing of the appeal. He confirmed that the
subject matter of Mr L's objection was the 2015 review decision,
and not the February 2012 decision. Therefore the question
that
arises for determination on appeal is whether the tribunal erred in
not upholding Mr L's objection to RMA's refusal to accede
to his
review request lodged in June 2015.
[59]
Section 90(1) of COIDA gives the DG the power to review
"any
decision in connection with a claim for compensation or the award of
compensation"
on certain grounds. These include the power to
review a decision on the ground:
"(d) that the
decision or award was based on an incorrect view or misrepresentation
of the facts, or that the decision or award
would have been otherwise
in the light of evidence available at present but which was not
available when the DG made the decision
or award."
[60]
Clause 16 of the settlement provisions makes section 90(1)
applicable to the mutual association context by providing that:
"The Mutual
Association may after notice, if possible, to the party concerned and
after giving him an opportunity to submit
representations, at any
time review any decision in connection with a claim for compensation
or the award of compensation on the
grounds as set out in the Act."
[61]
The power of the DG, or the mutual association, as the case
may be, to review previous awards of compensation on the grounds
listed
is not restricted to any time period. So, for example, if
a claimant's medical condition deteriorates after an award is made,
section 90(1) read with clause 16 permits him or her to approach the
mutual association for a review of the original assessment
based on
new medical evidence.
[62]
In June 2015 Mr L applied for the review of his 31% disability
assessment. He completed the requisite application form issued by
RMA
for this purpose. The form stipulates that:
"This
application must be lodged with Rand Mutual Assurance at anytime
(sic) if the claimant's condition deteriorates based
on new medical
evidence. The consultation and associated medical costs to acquire
additional or new medical evidence will be at
applicant's own costs.
Rand Mutual Assurance will only refund the medical costs if the new
medical evidence submitted results in
an increase of the Permanent
Disability awarded previously by RMA, or where the new medical
evidence will result in rescinding
its previous decision not to award
a Permanent Disability." (emphasis added)
[63]
Mr L's application for a review of his previous award was
supported by Dr M M van Dyk, who noted in the application form that
Mr
L:
"recently had a infarction and had a coronary artery
bypass. He is 100% disable (sic) to work underground as well as on
surface."
(emphasis added)
[64]
When Mr L subsequently filed an objection against RMA's
refusal to entertain his review application positively, he recorded
in the
objection form that the reasons for his objection were that:
"Rand Mutual
does not want to increase my pension. Due to the accident and results
thereof I will never be able to work again";
and
"I have
applied for increased pension, but does not hear from Rand Mutual.
Please let me know what is going on."
[65]
As documentary evidence in support of his objection, he
attached a letter from Dr Van Dyk. The letter is dated 20 August
2015. lt
records that Mr Lighfoot developed hypertension as a result
of ongoing financial stress. He had suffered a heart attack resulting
in him being 100% unsuitable for any work.
[66]
By the time that the tribunal set a date for Mr L's objection
hearing Mr Spoor had come on board as his legal representative on a
pro bono basis. The tribunal hearing was set for 28 October 2015. On
26 October 2015 Mr Spoor wrote to RMA in which he indicated
that:
"On the face of
it it appears there is merit in the objection. Mr L has been assessed
by RMA as 31% permanently disabled. lt
appears that this assessment
does not take into account a number of important sequelae including:
post traumatic stress disorder;
kidney failure associated with
painkilling medication taken in respect of the injury; a heart
condition that may be associated
with the injury and its sequelae.
[67]
Mr Spoor went on to state that:
"We were
however not involved in the preparation and filing of the objection.
On perusal however it is clear that the medical
evidence has not been
properly prepared and that several of the medical reports are poorly
motivated and do not address the important
issues."
[68]
On this basis, Mr Spoor sought a postponement of the objection
hearing. His request was not granted. Instead, he was invited to seek
a postponement from the tribunal at the hearing itself.
[69]
By the time the hearing commenced, Mr Spoor had adopted a
different view. He indicated to the tribunal that although his
original
view was that Mr L required new reports to support the
objection, he had reconsidered this position. He told the tribunal
that
he thought there was enough documentation before it to support
an increase in Mr L's disability assessment. Alternatively, he
requested
that if the tribunal did not share this view, Mr L should
be given an opportunity to supplement the documentation in support of
his objection. However, Mr Spoor made it clear that he wanted to
proceed with the hearing. Moreover, he told the tribunal that:
"I'm
placing all my reliance on the medical reports and the documentation
that is before you. So I don't intend to lead any
evidence from
the complainant. We stand or fall on what is in these documents, and
all I will be doing is taking you through
these documents and making
the argument why the 31% should be revised." (emphasis added)
[70]
In clarifying the basis for Mr L's objection, Mr Spoor stated
to the tribunal that the "main grounds" on which he was
seeking an increase was the PTSD. He submitted that ex facie the
available documents, RMA had ignored Mr Lighthouse's PTSD.
[71]
lt is common cause that the tribunal had before it the
documents forming part of the tribunal record. These documents
included the
medical reports documenting Mr L's condition over the
years from the time of his accident. The documents included the final
reports
upon which the 15% and 31% assessments were originally made.
The latest reports in the bundle were those of the orthopedic
surgeon,
Dr SG Wouters, dated June 2015. The only new medical
evidence was Dr Van Dyk's letter that had been attached to Mr L's
objection.
[72]
There was only one witness called to give evidence before the
tribunal. This was Dr Van der Merwe. She commenced working for RMA
in
2011, and was directly involved in the recommendations that led to
the February 2012 decision in terms of which Mr L's assessment
was
increased to 31%. She explained to the tribunal that this decision
was based on the fact that after the initial 15% assessment
it
appeared that Mr L had developed Complex Regional Pain Syndrome
associated with his original ankle injury. This placed
him in a
similar position to someone who had lost a leg. On this basis his
disability assessment was increased to 31%, falling
just short of the
35% recommended for a person who has suffered an amputation below the
knee.
[73]
Dr Van der Merwe confirmed that PTSD had not been taken into
account in that assessment leading to the February 2012 decision.
[74]
On the basis of this, Mr Spoor submitted to the tribunal that
RMA had erred in failing to take Mr L's PTSD into account in making
its February 2012 assessment. He pointed to various reports in the
bundle of documents before the tribunal that made reference
to Mr L
suffering from PTSD. He submitted that RMA had known about this
condition but had ignored it when it assessed Mr L in February
2012.
Accordingly, he submitted to the tribunal that it should uphold the
objection on this ground.
[75]
In refusing to uphold the objection the tribunal pointed out
that Mr L had made no reference to PTSD in his notice of objection.
Mr L had not lodged a claim based on PTSD, nor was there a final
medical report submitted in respect of PTSD. Instead, Mr L's grounds
of objection changed during the course of the argument submitted by
Mr Spoor.
[76]
The tribunal took the view that in the absence of a claim for
PTSD being lodged by Mr L, it was not in a position to rule that the
PTSD that Mr L is alleged to suffer was the result of his original
injury.
[77]
The tribunal held that it was bound to consider the objection
on the basis of the grounds identified in the notice of objection.
lt
held in this regard that: "If
may be so that the Objector
suffered from PTSD when the assessment of his degree of permanent
disablement was made, but that is
not what (the) Objector objected
against in his Notice of Objection."
[78]
Before
this court Mr Spoor submits that the tribunal erred in its approach.
He refers to section 91(3)(a) of COIDA which gives the
presiding
officer of an objection tribunal the power to
"confirm
the decision in respect of which the objection was lodged or such
other decision as he deem equitable”.
Mr
Spoor submits that this gives an objection tribunal a wide equitable
discretion. He submits further that this discretion must
be exercised
in a manner consistent with the underlying policy of the Act. In
Davis
v Workmen's Compensation Commissioner,
[10]
it
was held that this policy was
"to
assist workmen as far as possible".
The
court further held that it should
"not
be interpreted restrictively so as to prejudice a workman if it is
capable of being interpreted in a manner more favourable
to him."
This
position was endorsed in
Urquhart
v Compensation Commissioner.
[11]
[79]
Mr Spoor submits that in holding that it was bound by the
grounds of objection stated in Mr L's notice of objection the
tribunal
erred. lt interpreted its jurisdiction too restrictively.
This was contrary to the dictates of the tribunal's wide equitable
discretion
as expressed in section 91(3)(b). lt was also contrary to
the tribunal's obligation to act in accordance with the policy
underlying
COIDA. Mr Spoor submits that the tribunal ought to have
accepted that RMA has a duty to follow up on all medical reports in
support
of an applicant's claim for compensation. lt failed to follow
up on the reports indicating that Mr L suffered from PTSD.
[80]
In the circumstances, Mr Spoor submits that the tribunal ought
to have accepted that the
31%
assessment of Mr L's disability
was too low in that it failed to take account of his PTSD. The
tribunal ought to have increased
Mr L's compensation. Alternatively,
it ought at least to have ordered a further inquiry into Mr L's PTSD
so that a proper assessment
could be made.
[81]
One of the problems with Mr Spoor's submissions is that it is
based on an assumption that an objection tribunal has an equitable
jurisdiction that permits it to overlook obvious shortcomings in both
the substance of, and the process followed by an objector
in filing
an objection under section 91.
[82]
In my view, the mere reference to a tribunal having the power
to
"give such other decision as (it) may deem equitable"
is not sufficient to warrant the conclusion that an objection
tribunal has free rein to act in accordance with what it considers
to
be equitable in a particular case, regardless of how the objection is
couched and whether or not it is supported in the documents
upon
which it is founded.
[83]
Objections
must be filed in the prescribed form. Rule 9 of the Rules, Forms and
Particulars Which Shall be Furnished in Terms of
the Compensation for
Occupational Injuries and Diseases Act 130 of 1993
[12]
provides that:
"An objection
against a decision of the Commissioner shall be submitted on Form WG
29 (Annexure 3)
with the particulars required therein
."
(emphasis added)
[84]
The regulation expressly cross-refers to objections in terms
of section 91 of COIDA. Form WG 29 is a prescribed objection form. lt
requires an objector to: "Give your reasons in full for lodging
the objection" (emphasis added), and it also requires
the
objector to attach any documentary evidence that he or she wishes to
submit in support of his or her reasons for the objection.
[85]
RMA's objection form mirrors both of these requirements
exactly.
[86]
In terms of this scheme, the reasons for the objection and the
documents submitted in support of them are critical to the objection
process. A tribunal cannot simply ignore the objection as framed by
an objector and embark on a different inquiry altogether. That
would
not be a rational exercise of its powers. Nor would it be consistent
with the principle of audi alteram parlem. The decision-maker
whose
decision forms the subject matter of the objection is entitled to
know what the basis of the objection is and what documents
will be
used to support it.
[87]
In the present case the basis for the objection presented
orally at the hearing before the tribunal was poles apart from that
couched
in the documents giving rise to the objection.
[88]
To begin with, the objection was against the 2015 review
decision of RMA, not the February 2012 decision. As I indicated
earlier,
the review was based on Dr Van Dyk's confirmation that Mr L
had suffered a recent myocardial infarction requiring bypass surgery.
lt was on this basis that he indicated that in his view Mr L was now
being 100% permanently disabled.
[89]
The objection was also supported by Dr Van Dyk's assessment of
Mr L's current disability state as a result of his heart attack and
hypertension. Although Dr Van Dyk referred to the hypertension
arising from financial stress, he did not refer to PTSD.
[90]
lt is apparent from this that the basis of both the section
90(1) review and the objection to the decision flowing from it were
predicated on Mr L's heart problems, not PTSD. However, the objection
argued by Mr Spoor at the hearing before the tribunal was
entirely
different. That objection was based solely on Mr L's alleged PTSD. Mr
Spoor avowedly placed no reliance on Mr L's heart
condition.
[91]
Similarly, Mr Spoor did not rely on the document attached to
the Mr L's notice in support of his objection as required. That
document
was Dr Van Dyk's letter confirming Mr Lighthouse's
heart condition. As I have already noted, it made no reference to
PTSD.
[92]
Instead, in support of the oral case for upholding the
objection as presented to the tribunal, Mr Spoor relied on historic
medical
reports in respect of Mr L that referred to PTSD. The only
report by a qualified psychiatrist diagnosing Mr L with PTSD emanated
from September 2009. This was a substantial period before the very
first assessment in 2011 in terms of which Mr L was assessed
at 15%
disability. The psychiatrist, Dr Moloto, recommended treatment for Mr
L's PTSD and depression in the form of medication
and psychotherapy.
[93]
In November 2009, following an overdose of medication (which
Mr L denied was intentional), a psychologist, Ms Van der Berg filed
a
report for the purpose of motivating for the authorisation of
psychological treatment. She reported that:
"currently the
patient displays with symptoms of (PTSD), which is an Anxiety
disorder."
She recommended that Mr L should remain in
hospital to receive medication and both group and individual
psychotherapy. She indicated
that:
"the psychiatric section
has a specific programme for the patients to effectively help them to
recover."
[94]
Once again, this assessment was made approximately 18 months
prior to the first assessment of 15% disability. lt was made more
than
two years before the February 2012 decision, and more than five
years before the review decision and the lodging of Mr L's objection.
Thereafter, there were no medical reports confirming a continued
diagnosis of PTSD on the part of Mr L.
[95]
The only other report of any relevance is that of an
occupational therapist, Ms Stirrat, dated 26 November 2012. As an
occupational
therapist, Ms Stirrat is not qualified to make a
professional diagnosis of PTSD. She did not attempt to do so in her
report. What
she records is that on a General Health Questionnaire,
which is a "self-reporting measure", Mr Lighthouse gave
responses
that indicated he had a well-above abnormal psychosocial
profile. The questionnaire included measures for somatic symptoms,
anxiety
and insomnia, social dysfunction and severe depression.
However, it is important to note that Ms Stirrat concluded in this
regard
that:
"Based on his
reports, collateral information received from his wife and
documentation to hand,
he experienced psychosocial complaints
following the injury on duty.
He is no longer on treatment for
this
. There were no updated specialist reports pertaining to
this.
His wife was of the opinion that this has improved
substantially
.”
[96]
Mr L did not present any new evidence to suggest that he
continued to suffer from PTSD. He had the option of appearing before
the
tribunal to support Mr Spoor's submissions on this score.
However, Mr Spoor expressly declined to call Mr L. He also elected
not
to proceed with an application for a postponement so as to follow
up on his first assessment of the case, viz. that additional medical
evidence was needed to support the objection. On the contrary, as
noted earlier, Mr Spoor conveyed to the tribunal that they
would
"stand or fall" on the documents already forming part of
the record.
[97]
lt was on this basis that the tribunal was required to
consider and make a finding on the merits of the objection.
[98]
In my view, the tribunal cannot be faulted for its decision to
dismiss the objection. The objection was saddled with patent
shortcomings.
These included the chasm between the objection as
formulated in the notice, and that argued before the tribunal; and
the absence
of any evidence to the effect that Mr Lighthouse
continued to suffer from PTSD and that it this had led to a permanent
disability.
[99]
As RMA submitted before the tribunal, a permanent disability
on the basis of PTSD is only permitted once a person has reached
maximum
improvement. Until then, it would have been premature for RMA
to make an award. Dr Moloto's diagnosis of PTSD was made at an early
stage, whereafter Mr L had received treatment many years before. In
these circumstances, any review and objection based on existing
PTSD
would have to have been supported by current evidence indicating that
the condition persisted and had resulted in permanent
disability.
There was no evidence of this kind before the tribunal.
[100]
Mr Spoor's reliance on the historical medical reports suffered
from a further shortcoming. Save for Ms Stirrat's report, they all
preceded the February 2012 decision. At best for Mr Lighfoot, they
may have had implications for that decision. Indeed, this
was
the line taken by Mr Spoor in many of his submissions to the
tribunal. lt was also the line taken in the grounds of appeal
described in the notice of appeal. Mr Spoor's dominant line of attack
was that RMA failed to take into account Mr L's PTSD in making
the
February 2012 assessment of a 31% permanent disability. However, the
problem with this is that we now have clarity that the
objection was
not leveled against the February 2012 decision, but rather the 2015
review decision. In the circumstances, Mr Spoor's
line of attack, and
his reliance on the historical medical records was misdirected.
[101]
When the case is properly analysed it is difficult to find any
fault with the tribunal's decision to dismiss the objection. I accept
that there may be cases where a tribunal is entitled to extend its
inquiry more broadly than the precise terms of the reasons stated
for
the objection in the objection form. There may also be cases where a
tribunal may be entitled to order a further inquiry on
particular
aspects of an objection before making a final decision. However, this
is not one of those cases for all of the reasons
I have cited above.
[102]
I take into account the fact that Mr L is a layperson.
However, he was legally represented at the tribunal hearing. His
legal representative
could have persisted with an application for a
postponement to supplement the record but he elected not to do so. To
expect the
tribunal to step into the breach in these circumstances
and to make up for obvious shortcomings in the case as it was
presented
would be to stretch too far the tribunal's duty to uphold
the underlying purpose of the Act.
[103]
In any event, the door is not closed on Mr L. He is entitled
under section 90(1) to seek a fresh section 90 review on the basis of
all of the medical conditions identified by Mr Spoor in his letter of
26 October 2015, based on recent, supporting medical evidence.
As
noted in RMA's review form, if Mr L succeeds in a review of that
nature, RMA will reimburse him for the costs associated with
obtaining the necessary medical reports.
[104]
In the result, the merits grounds of appeal must also fail.
[105]
RMA did not seek a costs order against Mr L in the event of
the appeal being dismissed.
[106]
I make the following order.
1. The appeal is
dismissed.
________________________
R
KEIGHTLEY
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
________________________
M
MBONGWE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
Heard: 10 May 2016
Date
of Judgment: 13 July 2016
For
the Applicant: Mr R Spoor
Instructed
by: Richard Spoor lnc
Counsel
for First Respondent: A Cockrell SC
M
Meyerowitz
Instructed
by: Webber Wentzel
[1]
Section 22(1) reads as follows:
"If an
employee meets with an accident resulting in his disablement or
death such employee or the dependents of such employee
shall,
subject to the provisions of this Act, be entitled to the benefits
provided for and prescribed in this Act."
[2]
1924 AD 167
[3]
In relevant part, section 1(a)(ii) of PAJA defines "administrative
action" as meaning:
"any decision
taken ... by an organ of state, when ... exercising a public power
or performing a public function in terms
of any legislation".
[4]
Section 8(1)(c) gives courts the power to set aside the impugned
administrative action.
[5]
See, for example, the discussion by Prof Hoexter in Administrative
Law in South Africa (2ed) at 108 on the difference between
appeals
and review.
[6]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC), para 25
[7]
Hoexter, above, pg 118
[8]
Minister of Health v New Clicks South Africa (Pty) Ltd
2006 (2) SA
311
(CC) at paras 118 and 143
[9]
Cape Dairy and General Livestock Auctioneers v Sim, above
[10]
1995 (3) SA 689
(C), with reference to COlDA's predecessor
[11]
2006 (1) SA 75
(E), with reference to COIDA
[12]
GG 15758 of 27 May 1994