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[2017] ZAGPJHC 300
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Maimane v Health Professions Council of South Africa and Another (2014/40325) [2017] ZAGPJHC 300 (29 September 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL
D
lVISION,
JOHANNESBURG
CASE
NO: 2014/40325
In
the application of:
NAOME
SEANOKENG
MAIMANE.
Applicant
and
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
First Respondent
ROAD
ACCIDENT
FUND
Second Respondent
JUDGMENT
MAKUME,
J
:
[1]
In this application the Applicant seeks an order to review the
decision taken by the Appeal Tribunal of the First Respondent.
On
the First March 2014 the Tribunal
concluded that the Applicant
had not
sustained serious injuries as contemplated by Regulation 3 of the
Road Accident Fund Regulations.
[2]
The effect of that decision is that the Applicant will not be
entitled to compensation for non-pecuniary loss otherwise known
as
general damages.
[3]
It is common cause that this application is in terms of Rule 53 of
the Uniform Rules of Court read with Section 6 of the Promotion
of
Access to Administrative Justice Act No 3 of 2000 ("PAJA ")
[4]
The Applicant relies on the following grounds for seeking review
namely:
4.1
That the Regi3trar of the 1st Respondent refused to allow the
Applicant and
her legal representative to attend and make
representation to the Tribunal prior to them taking the decision.
4.2
That the Registrar of the First Respondent failed to make available
to her the
submissions of the Second Respondent which it made to the
Appeal Tribunal to enable the Applicant t respond thereto.
4.3
That in arriving at their decision the Tribunal failed to properly
have regard
to the contents of the report prepared by Dr Earle
on behalf of the Applicant.
[5]
The Application is opposed by both Respondents and in their
Answering Affidavit further simplified in the heads of argument
the
Respondents raised the following defences:
i)
Firstly it is denied that Second Respondent made any submissions
to
the Tribunal safe for the expert reports filed.
ii)
Secondly that Section 3 (4) (b) of the
Regulations make no provision for oral submissions
to be made to the Tribunal. The Section provides that when
an
aggrieved party in this instance the Applicant raises a dispute with
the findings of the Fund he or she lodges a dispute with
the
Registrar and sets out his or her grounds of rejecting the
assessment. The submission by the Applicant must be in writing and
shall include all medical reports as well as opinions by experts.
iii)
Thirdly the Respondents deny that the Tribunal which comprised of
three
prthopaedic surgeons and a neurosurgeon failed to apply their
minds to the relevant issues raised in the report by Dr Earle.
[6]
An attempt was made in the heads of argument for the first time by
the Applicant to introduce a further ground of review being
the
perceived Unconstitutionally on Regulation 3. It was argued by
the Applicant that the Regulation is ultra vires and violates
Section
34 of the Constitution by not allowing the Applicant to be heard
orally and that such refusal constitutes substantive and
procedural
unfairness to the substantial right of the Applicant. (the Audi
Alteram parte rule). The Applicant submits that the
Regulation should
be referred back to the legislator to rectify the anomaly. This
contention is not in the founding papers it is
not properly before me
the Respondents were not granted an opportunity to deal with it.
THE
STATUTORY LEGAL FRAMEWORK OF
THE
ROAD
ACCIDENT FUND SCHEME
[7]
In terms of
Section 17(1) and 17(1A) of the Road Accident Fund
Act
read with Regulation 3 of the Regulations promulgated in
accordance with the Act a person injured in a motor vehicle accident
may
only claim general damages against the Fund on proof that such a
person has suffered "serious injury".
[8]
Section 17(1A) provides that assessment of a serious injury must
be done by a medical practitioner on the basis of
a method as
prescribed in Regulation 3 (1)(D). The assessment involves
applying a vigorous method to the various body function
of a claimant
in order to determine the extent of the impairment caused by the
accident. If the medical practitioner in scoring
the
various tests arrives at a score of
30% or more on the Whole Person Impairment (WPI)
test then the
injuries is regarded as serious.
[9]
Once a dispute has been declared it is in terms of Regulation 3(8)
referred by the First Respondent to an Appeal Tribunal comprising
of
3 independent medical practitioners who are experts in the particular
type of injury complained of.
[10]
The powers of the Tribunal are to be found in Regulation 3(4) (b);
3(7); 3(10); 3(11) (a) to (f). The Tribunal calls for written
submissions from the claimant and the Fund which may comprise of
written memos, medical reports and opinions.
[11]
Regulation 3(10) confers a discretion on the Tribunal to receive
legal argument if it deems it necessary otherwise the Tribunal
sits
and deliberates on all issues placed before it in the various medico
legal reports as well as other written submissions submitted
by all
the interested parties.
[12]
In terms of Regulation 3(11) (g) to (i) and 3 (12) the Tribunal
produces its report and determination after consideration of
all
submissions which report and determination is in terms of Regulation
3(13) final and binding and can only be challenged by
way of a
review.
THE
APPLICANTS CASE FOR REVIEW
[13]
It is common cause that on the 8
th
of June 2013 the
Applicant lodged her RAF 5 form to which was annexed medico
legal reports completed in respect
of her, five medico legal
reports by the Second Respondent including joint minute from five
corresponding experts. The Applicant
followed up with a further
medico legal report by Dr Earle which report was also placed before
the Tribunal.
[14]
In paragraphs 12 and 14 of the answering affidavit Dr Engelbrecht on
behalf of the First Respondent tells the court that when
they met as
a Tribunal on the 01st March 2014 the three of them were satisfied
that enough medical reports had been provided to
enable them to
consider the appeal and that further submission whether oral or
written were not necessary. As indicated the report
by Dr Earle
although submitted late was also placed before them. Dr
Engelbrecht concludes by saying that
the
Regulations do not oblige them to hear oral submissions from the
parties. The Tribunal determines disputes based on medical
reports
and written submissions. It is only when they formulate a view that
they would like to receive oral submission that
they direct the
parties to do so.
[15]
It is clear that the Tribunal has a discretion which they exercise
after taking into consideration all facts and aspect of
the case.
Accordingly the Applicant's allegations that
a refusal to allow her legal representatives
personal
appearance at the hearing is procedurally unfair and a violation of
her constitutional right is flawed because the Regulations
do not
prescribe that the Applicant should be granted the right of personal
appearance.
[16]
I
t is important to be
reminded that fairness varies and depends on circumstances of each
case what is critical is that a court in
considering the principle of
procedural fairness should take into consideration whether or not the
empowering provisions impose
a particular procedure that should be
followed. The Constitutional Court in
AllPay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of
the South African Social Security Agency
and Others 2014 (1)
S.1
604 Cc at page 40
usefully formulated the legal
position as follows:
"Once
a
particular administrative process is prescribed by law it is
subject to the noms of procedural fairness codified in PAJA.
Deviation
from the procedure will be assessed in terms of norms of
procedural fairness.
That does not mean that an administrator
may never depart form the system put in place or that deviation will
necessarily result
in procedural unfairness.
But it does mean
that where administrator depart from procedure, the basis for
doing so will have to be reasonable and justifiable
and the process
of change must be procedurally fair.
"
[17]
The second ground of review which is also misplaced is the assertion
by the Applicant that the Appeal Tribunal failed to apply
their mind
to the relevant issues because they did not accept the opinion of Dr
Earle her own expert.
[18]
In the letter addressed to the Applicant's attorneys by
the Tribunal dated the 5th March 2014 the Applicant was
told that the
report by Dr Earle dated the 24 January 2014 does not support a brain
injury of note. Dr Engelbrecht in his Answering
Affidavit refers to
the report by Dr Earle. In my view this clearly indicates that the
Tribunal did consider and apply their
minds to the report by Dr
Earle.
[19]
The role of this court is not to determine if the Tribunal made a
correct or wrong decision. The question is whether the Tribunal
performed the function which was entrusted to it. The SCA in
MEC
for Environmental Affairs and
Development
Planning v
Clairison's CC
2013 (6)
SA 235
at para 18
sets out the functions of
review court in the following words:
“
It
bears
repeating
·
h
. at
a
review
is not concerned with the correctness of
a
decision made by the functionary but with whether he performed the
function with which he was entrusted. When the law entrusts
a
functionary with
a
discretion it means just that, the law
gives recognition to the evaluation made by the functionary to whom
the discretion is entrusted
and it is not open to
a
court to
second guess his evaluatio
n
.
The
role
of
a
court
is
no
more
than
to
ensure
that the
decision maker
has
performed the function with
which he
was entrusted.”
THE
RESPONDENTS CASE
[20]
The functions of a review court is to examine the reasonable and
rationality of the impugneddecision having regard to the requirements
of Rule 53 read with the relevant provisions of PAJA.
[21]
It is common cause that the power assigned by the Act and the
Regulations to the Tribunal is to decide finally whether the
injuries
sustained by victims of road accidents are serious or not. The reason
why the power was granted was aimed at limiting
liability of the Fund
to serious injuries only. Accordingly the decision by the Tribunal in
this matter which was taken after considering
all submission was in
furtherance of that purpose. There is therefore a rational connection
between the decision and the purpose
of the Regulation it can never
be said to have been arbitrary.
[22]
In the present matter there is no indication that the Tribunal in
exercising its power, failed to do so in a reasonable and
rational
manner. The mere fact that the Tribunal was able to accommodate the
report by Dr Earle at a late stage is clear indication
of the
diligence with which the appeal tribunal dealt with the issues.
[23]
It would seem to me that the Applicants complaint is more about the
findings and the result which complaint cannot be dealt
with by a
review court. O’Reagan J in the matter of
Sato
Star
Fishing (Pty) Ltd vs Minister of Environment Affairs and
Tourism
&
Other 2004 (4) SA 490
(CC) at page 45
set it out authoritatively as follows:
"Although
the review function of the court now have
a
substantive
as
well
as a
procedural ingredient, the distinction between
appeals and reviews continues to be significant. The court should
take care not to
usurp the functions of administrative agencie
s
.
Its
task is to ensure that the decision taken by
administrative agencies fall within the bounds of reasonableness as
required by the
Constitution."
[24]
I am accordingly not persuaded that the Applicant has made out any
case to review the decision of the First Respondent and
in the result
I
order
as follows:
24.1
The Application is dismissed with costs.
DATED
at JOHANNESBURG this 29 day of SEPTEMBER 2017.
______________________________
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING
: 29 AUGUST 2017
DATE
OF DELIVERY
: SEPTEMBER 2017
FOR
THE APPLICANTS
: ADV MWITZ
INSTRUCTED
BY
: BOVE ATTORNEYS
FOR
THE FIRST RESPONDENT ADV T
MAUDI
INSTRUCTED
BY
GILDENHUYSE MALATJI INC