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[2019] ZAECPEHC 13
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Kleinhans v Registrar of the Health Professions of Council of South Africa and Others (4200/2017) [2019] ZAECPEHC 13 (26 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case
No: 4200/2017
In
the matter
between:
CHRISTO
LOUIS KLEINHANS
(duly
assisted by his mother and guardian
BEVERLEY
ANNE KLEINHANS)
Applicant
And
THE
REGISTRAR OF THE HEALTH PROFESSIONS
COUNCIL
OF SOUTH AFRICA
First
Respondent
THE
HEALTH PROFESSIONS COUNCIL OF SOUTH
AFRICA
Second Respondent
THE
PRESIDING OFFICER OF THE ROAD ACCIDENT
FUND
APPEAL TRIBUNAL OF THE HEALTH
PROFESSIONS
COUNCIL OF SOUTH AFRICA
Third Respondent
ROAD
ACCIDENT FUND
Fourth Respondent
JUDGMENT
BESHE
J:
[1]
This is an application for the
review and setting aside of the decision of the third respondent
confirming the rejection of the applicant’s Serious Injury
Assessment Report by the fourth respondent.
[2]
It is only the first, second and
third respondents who are opposing the application. Fourth
respondent
has opted to abide the decision of this court.
[3]
The applicant, a minor child who
is duly assisted by his mother was injured in a motor
vehicle
collision at the time when he was a pedestrian and five (5) years old
on 7 July 2012.
[4]
Having been assessed by a number
of experts, the reports by the experts were submitted
to the Road
Accident Fund. At some stage after the submission of the reports,
Road Accident Fund indicated that they required the
applicant to be
assessed by Road Accident Fund’s own experts. According to
applicant’s mother, the Road Accident Fund
appointed
Mr
Moolman
, clinical psychologist, to assess the applicant.
[5]
It was after an assessment by
Mr
Moolman
that the Road Accident Fund advised that they had
rejected applicant’s Serious Injury Assessment Report. After a
further
consideration or adjudication by the third respondent (Appeal
Tribunal) the injuries of the applicant were found not to be serious.
Thereby confirming the decision by the fourth respondent.
[6]
Reasons for the decision were
sought from second respondent. The response to the request
for
reasons was a referral to a letter that was sent to the applicant
earlier, informing them of the outcome of the appeal. The
following
was recorded in the said letter:
“
We refer to the
above matter and hereby inform you that Road Accident Fund Appeal
Tribunal resolved at its meeting held on 19 May
2017 as follows: -
i. Patient 8-year-old boy
involved in an accident during June 2012 when 5 years’ old.
ii. Injuries sustained
included head injuries, soft tissue injury forehead, lips, abrasions
right leg. Was treated as day patient,
discharged same day.
iii. Current complaints
headaches.
iv.
Examination/assessment findings no orthopaedic injuries.
v. Outcome diagnosis
confirming minor head injury.
vi. Dr Dippenaar awarded
WPI 20%.
VII. The Panel was
unanimous in its decision that the patient does not qualify under the
narrative test as he sustained a non-serious
musculoskeletal injury.”
[7]
Applicant complains that this
does not constitute proper reasons as required by
Section
5 of the Promotion of Administration Justice Act
[1]
and
that it should be presumed that the decision was taken without good
reason.
[8]
Third respondent’s
decision is impugned on the basis that based on the expert reports
before it, it cannot be said that they were properly considered:
- that it was
unreasonable.
- the Tribunal failed to
apply its mind in that it did not properly or fairly have regard to
all the expert reports submitted.
- the decision was
procedurally unfair in that the Tribunal irrationally and
unreasonably failed to call for further assessments
or submissions.
- it was not rationally
connected to the information before the Tribunal.
[9]
The application is opposed on the basis
inter alia
that:
- There was an
unreasonable delay in launching the application.
- The Tribunal took into
account the various relevant considerations in reaching its decision.
- Did not give more
weight to certain factors and less weight to others. And did not act
irrationally or fail to apply its mind.
[10]
Dr. J Crosier
who deposed to first, second and third
respondents’ answering affidavit, drew the court’s
attention to
Regulation 3 (1) of the Road Accident Fund
Regulations
which prescribed the method of assessing what injury
can be categorised as constituting a serious injury. In particular
Regulation 3 (1) (b) (ii).
If the injury resulted in 30% or
more impairment of the Whole Person the injuries shall be assessed as
serious.
(iii)
An injury which does not result in 30% or more impairment of the
Whole Person may only be assessed as serious if that injury:
Resulted
in long term impairment or loss of body function;
Constitutes
permanent serious disfigurement;
Resulted
in severe long term mental or severe long term behavioural
disturbance or disorder.
[11]
According to a Serious Injury Assessment Report
compiled by
Dr. J Dippenaar
, (10 March 2015) the applicant was
diagnosed with traumatic brain injury. He was of the view that the
injury resulted in serious
cognitive and memory impairment. He
commented that:
Applicant
suffered significant brain injury during the accident. He has severe
memory, learning and cognitive impairments. Gave
applicant’s
impairment rating as 20% WPI.
Dr.
Estelle De Wit
, a Clinical Psychologist who after perusing
several other reports and conducting certain tests came to the
following conclusion:
“
Based on the
assessment, the examiner diagnosed Christo with cognitive disorder
due to head injury and below average intelligence.”
[12]
Dr. LL Lankester
, a neurosurgeon, concluded
that the head injury sustained by Christo was a minor head injury and
he has not been left with any
localising neurological signs.
[13]
The applicant was also assessed by Road Accident
Fund’s experts, a Clinical Psychologist
Bilué Moolman
who after the assessment came to the following conclusion:
The
plaintiff’s level of cognitive functioning has detoriated as a
result of the motor vehicle accident.
There
has been a personality change as his behaviour is different from
pre-morbid behaviour.
There
are no physical injuries that have limited the plaintiff’s
daily functioning.
The
plaintiff has experienced significant psychological sequelae as a
result of probable frontal lobe damage.
The
plaintiff has experienced loss of amenities of life with regards to
the psychological sequelae as a result of the motor vehicle
accident.
[14]
Apart from impugning the procedural manner in
which the decision of the Tribunal was reached, applicant
questions
the constitution of the Tribunal. This is also apparent from the bulk
of the prayers in the notice of motion. Namely:
“
3. That the matter
be referred back to the Road Accident Fund Appeal Tribunal for
reconsideration, which tribunal shall be differently
constituted to
the tribunal of first instance (“the newly constituted Appeal
Tribunal”) and shall consist of Medical
Practitioners properly
registered as such under the Health Professions Act 56 of 1974 as
required by regulation 3(8), read with
regulation 1 of the
Regulations;
4. The newly constituted
Appeal Tribunal is ordered to deal with the appeal in accordance with
the Regulations (which were applicable
at the time of the collision
in which the minor was injured) and after having due regard to these
application papers and the reasons
which this Honourable Court may
provide when granting this order (if any);
5. That the newly
constituted Appeal Tribunal is ordered to notify the First Respondent
of its findings within 90 calendar days
after the matter is referred
to it by the First Respondent (as contemplated in regulation 3(12) of
the Regulations), or such additional
period as the First Respondent
may on application from the newly constituted Appeal Tribunal
authorise in writing, which additional
period shall not exceed 14
calendar days.”
[15]
In a bid to support this prayer, the deponent to the founding
affidavit states that it has come
to light that
Dr. Crosier
and
Dr. Lambrecht
are properly registered. The registration
status of
Dr. Reid
and
Dr. Szabo
seem “questionable”.
There is no neurologist,
Dr. R Reid
, that is registered with
second respondent (the only person registered as such is
Dr. J
Reid
, the only
Dr. Szabo
who appears on the website and
who has a qualification which indicates that he / she is an
Orthopaedic Surgeon appears to be suspended.
On the preceding
subparagraph the deponent to the founding affidavit states that the
applicant’s attorney will depose to
a confirmatory affidavit
that he has attempted to check the registration status of each of the
members of the Tribunal that considered
applicant’s appeal.
[16]
The said attorney, in his confirmatory affidavit
states:
“
[5]
I have read the affidavit deposed to by the applicant and confirm the
correctness and accuracy of correspondence exchanged between
the
parties to which he makes reference.”
The
rest of the founding affidavit where it refers to him does not seem
to be confirmed. It was only in a supplementary affidavit
that was
sworn to on the same date as with the replying affidavit that
reference is made to a document that advised the applicant
of the
composition of the Tribunal. Even then, the purpose is to refer to
the correct document. Nothing is said about what it was
alleged he
did regarding his investigation as to the validity of the Tribunal or
the status of its members.
[17]
No objection was raised about the composition of
the Tribunal by or on behalf of the applicant.
[18]
Dr. Crosier
denies that the members of the
Tribunal are not properly registered. He also outlines the procedure
that was followed when considering
the appeal. After which they noted
and found that for reasons stated in “BAK4” the
applicant’s injuries did not
qualify under the narrative test.
He further stated that whilst some of the reports applicant relies
upon makes use of words such
as “severe”. It is not given
that the injuries were indeed severe. That the Tribunal ascertained
that the head injuries
were minor. That there were no orthopaedic
injuries. He also stated that the applicant was discharged on the
same day.
[19]
Is there a factual dispute as to whether or not
the Tribunal was properly constituted? I think not. Apart
from an
indication that evidence will be given by applicant’s attorney
in this regard, no such evidence was produced. The
little information
in this regard as to what may have given rise to the belief or
suspicion that the Tribunal was not properly
constituted amount to
hearsay evidence which was never confirmed by the applicant’s
attorney. Besides what does it mean for
a website to create doubts
about the registration status of the members of the Tribunal.
[20]
According to the respondents, the Tribunal was
properly constituted. In any event in my view this has to
be decided
on the version of the respondent.
[21]
In my view the applicant has not made out a case
for the referral of the matter back to a differently constituted
Road
Accident Fund Appeal Tribunal for reconsideration.
[22]
A number of grounds that are listed under
Section
6 (2) of the Promotion of Administrative Justice Act
are cited by
the applicant as grounds why the Tribunal’s decision should be
reviewed and set aside.
[23]
As indicated earlier, the applicant also
complained that the reasons provided by the respondents for the
decision taken do not constitute adequate reasons. I am unable to
agree with the applicant in this regard. In my view, adequate
reasons
were provided. They may be brief, constituting only one page and in
point form, but they are specific to the issue, they
are clear and
contain sufficient detail.
[24]
In determining whether the applicant has made out
a case for the setting aside of the third respondent's
decision, I
will be alive to the principle that was enunciated in a matter
involving the
Pharmaceutical
Manufacturers Association of South Africa
[2]
where
the following was stated:
“
As
long as the purpose sought to be achieved by the exercise of public
power is within the authority of the functionary, and as
long as the
functionary’s decision; viewed objectively, is rational, a
court cannot interfere with the decision simply because
it disagrees
with it or considers that the power was exercised inappropriately.”
In
MEC
for Environmental Affairs and Development Planning v Garisms CC
[3]
the Supreme Court of Appeal had this to say:
“
The law remains,
as we see it, that when a functionary is entrusted with a discretion,
the weight to be attached to particular factors,
or how far a
particular factor affects the eventual determination of the issue, is
a matter for the functionary to decide, and
so long as it acts in
good faith (and reasonably and rationally) a court of law cannot
interfere.”
[25]
The procedure adopted by the Tribunal in
considering the matter, and the factors considered to reach the
decision it did, are set out in the answering affidavit. Based on
this, I am unable to find that the decision was not rationally
connected to the information before the Tribunal. Nor am I persuaded
that in the circumstances, the decision was unreasonable or
that the
Tribunal failed to apply its mind. The expert reports were considered
individually by four appropriately qualified members
of the Tribunal
who thereafter at a meeting were in agreement that the applicant’s
injuries do not qualify under the narrative
test as he sustained a
non-serious musculoskeletal injury.
[26]
In my view, the decision arrived at by the
Tribunal was rationally connected to and was supported by the
evidence that was before the Tribunal. I am of the view that the
applicant has not succeeded in making out a case for the relief
sought.
[27]
Accordingly the application is dismissed with
costs.
_____________
NG BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
: Adv: JJ Nepgen and Adv: PT Marais
Instructed
by
: PBK ATTORNEYS
22 Hurd Street
Newton Park
PORT ELIZABETH
Ref: PB
Kitching/dp/MAT2763
Tel.: 041 – 365
5955
For
the 1
st
, 2
nd
and 3
rd
Respondents
: Adv: N Felgate
Instructed
by
: MCWILLIAMS
AND ELLIOTT INCORPORATED
152 Cape Road
PORT ELIZABETH
Ref: W78397
Tel.: 041 – 582
1250
For
the 4
th
Respondent
: N/A
Instructed
by
: JOUBERT GALPIN & SEARLE
173 Cape Road
Mill Park
PORT ELIZABETH
Ref: N
Boshoff/ys/ROA5/2816
Tel.: 041 – 396
9261
Date
Heard
: 13 December
2018
Date
Reserved
: 13 December
2018
Date
Delivered
: 26 March
2019
[1]
Act 3 of 2000 (PAJA).
[2]
2000 (2) SA 647
CC at 85.
[3]
[2013] ZACSA 82 at [22].