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[2021] ZAGPPHC 310
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Van Rooyen N.O obo Mokoena v Health Professions Council of South Africa and Others (2267/2016) [2021] ZAGPPHC 310 (8 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED: YES
Case
Number: 2267/2016
ADV
MARYKE VAN ROOYEN
obo
NKOSINATHI CHRISTOPHER MOKOENA
Applicant
AND
THE
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA
Fist
respondent
DR
J CROSIER
Second respondent
DR
R REID
Third respondent
DR
A J LAMBRECHTS
Fourth respondent
THE
ROAD ACCIDENT FUND
Fifth
respondent
JUDGMENT
H
G A SNYMAN AJ
INTRODUCTION
[1]
This is an application for the judicial
review and setting aside of a decision by the Road Accident Fund
Appeal Tribunal dated 30
October 2018. The impugned decision was that
Mr Nkosinathi Christopher Mokoena (“
Mr Mokoena
”)
is not entitled to non-pecuniary loss arising from injuries he
sustained in a collision that occurred on 18 March
2013.
Mr Mokoena is an adult, unemployed male born on 25 December
1983.
[2]
The application is brought in terms of
section 6(1) of the Promotion of Administrative Justice Act, Act 3 of
2000 (“
PAJA
”).
The applicant contends that the impugned decision ought to be
reviewed and set aside as irrelevant considerations were
taken into
account, or relevant considerations were not considered in arriving
at the decision [see section 6(2)(e)(iii) of PAJA],
or that the
decision was arbitrarily or capriciously taken [see section
6(2)(e)(v) of PAJA].
[3]
The applicant initially also relied on
section 6(2)(a)(iii), namely that the administrator who took the
decision was biased or reasonably
suspected of bias. The applicant’s
counsel expressly did not persist with this in argument before me.
[4]
The relief sought is not only for the
decision to be reviewed and set aside, but that this court should
substitute and vary the
decision by correcting it. In terms of
section 8(1)(c)(ii) of PAJA this court may grant such an order,
instead of for instance
referring the matter back to the Appeal
Tribunal, “
in exceptional cases
”.
THE PARTIES
[5]
Adv Maryke van Rooyen N.O. brings the
application in her capacity as
curatrix
ad litem
for Mr Mokoena, appointed
as such in terms of an order of this court per Baqwa J dated
27 February 2018.
[6]
The first respondent (“
the
HPCSA
”) is a statutory body
established in terms of section 2 of the Health Professions Act, Act
56 of 1974 (“
the Health
Professions Act
”). The Registrar
of the HPCSA (“
the Registrar
”)
is charged in terms of the regulations under section 26 of the Road
Accident Fund Act, Act 56 of 1996 (respectively the
“
regulations
”
and “
the RAF Act
”)
to refer disputes regarding a claimant’s entitlement to
non-pecuniary loss to an appeal tribunal. The appeal tribunal
must in
terms of paragraph 3(8)(b) consist of three independent medical
practitioners with expertise in the appropriate area of
medicine. In
terms of paragraph 3(8)(c) of the regulations the Registrar may
appoint an additional independent health practitioner
with expertise
in any appropriate health profession to assist the appeal tribunal in
an advisory capacity.
[7]
In terms of the power as aforesaid, the
HPCSA appointed the second respondent (“
Dr J
Crosier
”), the third respondent
(“
Dr R Reid
”)
and the fourth respondent (“
Dr AJ
Lambrechts
”) to constitute the
relevant appeal tribunal for purposes of this matter (“
the
Appeal Tribunal
”). Dr J
Crosier and Dr AJ Lambrechts are orthopaedic surgeons. Dr R
Reid is a neurologist.
[8]
Masephule Dinga Incorporated attorneys
(“
Masephule Dinga
”)
were the attorneys of record in this matter on behalf of the HPCSA
and the Appeal Tribunal. They filed the record of proceedings
for
purposes of the review on behalf of these respondents on 18 June
2019. Although a notice of intention to oppose on behalf
of the HPCSA
and the Appeal Tribunal was filed on 9 May 2019, no opposing
affidavits were ever filed.
[9]
When the applicant on 22 January 2021
served and filed the notice of set down on this court’s opposed
motion roll of
22 February 2021 on Masephule Dinga, Masephule
Dinga indicated in an email of the same date that the applicant’s
attorneys
should rather direct their correspondence to the HPCSA as
they have no further involvement in this matter.
[10]
On Friday 19 February 2021 the
applicant’s attorneys received an email from Adv Ntsane
Mathibli, Legal Services of the
HPCSA. The HPCSA requested to be
provided with the initial notice of motion, with the founding papers
and the amended notice of
motion to enable it to attend to the
matter. The applicant’s attorneys of record forwarded these to
the HPCSA on the same
date. By Sunday 21 February 2021 the HPCSA
advised that it would abide the ruling of this court. Although this
was not expressly
stated, it follows that this applies to both the
HPCSA and the Appeal Tribunal.
[11]
The fifth respondent (“
the
RAF
”) opposed the application.
Fourie Fismer Incorporated attorneys (“
Fourie
Fismer
”) were the RAF’s
attorneys of record. The RAF filed an answering affidavit deposed to
by Mr Bernard Willem Bahlmann,
an attorney practicing at Fourie
Fismer (“
Mr Bahlmann”
).
However, Fourie Fismer formally withdrew as the RAF’s attorneys
of record on 18 February 2021, i.e. a few days before
this
matter was heard. It was submitted by counsel on behalf of the
applicant in his practice note that it is common knowledge
that the
RAF does not instruct attorneys to assist in its litigation at
present. Counsel for the applicant therefore stated that
there would
presumably be no representation for the RAF at the hearing.
[12]
As it turned out, only counsel on behalf of
the applicant appeared before me when the matter was called at 12:00
on Tuesday 23 February
2021.
BACKGROUND
[13]
Mr Mokoena sustained severe injuries in a
collision that occurred on 18 March 2013 at the four way
crossing of OR Tambo and
Hans Strydom Streets, Emalahleni (“
the
collision
”). He suffered damage
that entitled him to lodge and prosecute a claim under the RAF Act. A
claim form was duly lodged with
the RAF and in due course Mr Mokoena
instituted an action under the instant case number in this court.
[14]
One of the heads of damages that Mr Mokoena
claimed was a claim for non-pecuniary loss (also referred to as
“
general damages
”).
Non-pecuniary damages can be described as damages suffered by a
person that is not quantifiable in monetary terms. The
aim of
awarding these damages is to compensate a plaintiff for any harm
suffered of injuries sustained including pain and suffering,
disfigurement, emotional harm, permanent disabilities and loss of
amenities of life.
[15]
In terms of section 17(1) of the RAF Act,
the obligation on the RAF to compensate a third party for
non-pecuniary loss is limited
to compensation for a serious injury as
contemplated in section 17(1A). Paragraph 3(1)(b) of the regulations
provides the process
that needs to be followed in order to establish
whether an injury constitutes a serious injury for purposes of
section 17(1)(A)
of the RAF Act.
[16]
In terms of paragraph 3(1)(a), read with
the definition of medical practitioner in paragraph 1 of the
regulations, an injured third
party must be assessed by a medical
practitioner, registered in terms of the Health Professions Act.
After the assessment of the
injuries, the medical practitioner must
complete the prescribed RAF4 Serious Injury Assessment form, which
needs to be submitted
to the RAF.
[17]
The medical practitioner first needs to
determine whether the injuries or any combination thereof fall within
the list of exclusions
provided for in paragraph 3(1)(b)(i)(aa) to
(pp) of the regulations. If not, the injury shall be assessed as
serious in terms of
paragraph 3(b)(ii) if the injury resulted in 30%
or more Impairment of the Whole Person as provided for in “
the
AMA Guides”
. The “
AMA
Guides
” is defined in paragraph 1
to mean “
the American Medical
Association’s Guides for the Evaluation of Permanent
Impairment, Sixth Edition, or such edition thereof
as the Fund may
from time to time give notice of in the Gazette
”.
[18]
In terms of paragraph 3(b)(iii)(aa) to (dd)
an injury which does not result in a 30% or more Impairment of the
Whole Person may
still be assessed as serious if that injury resulted
in a serious long-term impairment or loss of a body function;
constitutes
permanent serious disfigurement; resulted in severe
long-term mental or severe long-term behavioural disturbance or
disorder; or
resulted in loss of a foetus. This is referred to as the
narrative test.
[19]
In summary, therefore, a plaintiff will
only qualify for general damages if the injury sustained is not one
of those excluded in
terms of the regulations, resulted in Impairment
of the Whole Person of 30% or more, or the injury sustained falls
within any one
or more of the four categories of injuries in terms of
the narrative test.
[20]
In a notice dated 30 September 2016,
the RAF conceded that it was liable to compensate Mr Mokoena for
damages arising from
the injuries sustained in the collision, subject
to the provisions of the RAF Act.
[21]
Mr Mokoena was examined and assessed
as contemplated in paragraph 3(1)(b) of the regulations by a number
of the medical practitioners
in order to assess whether he qualifies
for a serious injury in terms of section 17(1A) of the RAF Act.
[22]
Dr H Senske (orthopaedic surgeon) (“
Dr
Senske”
) assessed him and
determined that Mr Mokoena suffered from Impairment of the Whole
Person of 13%. However, Dr Senske expressed
the view that since
Mr Mokoena suffered from permanent serious disfigurement, he
qualifies for general damages (in terms of
the narrative test).
[23]
Dr G Reid (orthopaedic surgeon) (“
Dr
Reid”
), who was appointed by the
RAF to assess Mr Mokoena’s injury, recorded in his
original report that Mr Mokoena was
not entitled to an award for
non-pecuniary loss. Dr Reid later changed his view as appears from a
joint minute prepared by him
and Dr H Senske. In the joint
minutes the two orthopaedic surgeons agreed that: “
Patient
has not reached 30% or more Whole Person Impairment, but would
qualify to be awarded general damages on the grounds of serious
long-term impairment.
”
[24]
Dr Schevil (psychiatrist) (“
Dr
Schevil”
) assessed Mr Mokoena’s
Impairment of the Whole Person at 20% on his clinical assessment
alone. Taking all factors into
consideration, he assessed the
Impairment of the Whole Person at 45%, i.e. far in excess of the
required 30%. Dr Schevil also
assessed Mr Mokoena as
qualifying for an award of non-pecuniary loss on the basis of
Mr Mokoena having suffered severe
log-term impairment, as well
as severe long-term mental disturbance or disorder as required in
terms of the narrative test.
[25]
Dr JPM Pienaar (plastic and
reconstructive surgeon) (“
Dr
Pienaar”
) found that Mr Mokoena
suffered serious permanent disfigurement.
[26]
Dr JJ du Plessis (neurosurgeon) (“
Dr
du Plessis”
) diagnosed a mild
concussive head injury. However, he deferred to a psychiatrist and a
clinical psychologist, both who confirmed
that Mr Mokoena
qualifies for an award for non-pecuniary loss, namely Dr Schevil
referred to above and Dr Olivier
(clinical psychologist) (“
Dr
Olivier”
). Dr Olivier confirmed
that Mr Mokoena is entitled to general damages on the basis of the
narrative test.
[27]
Dr JA Smuts (neurologist) (“
Dr
Smuts”
), in his addendum report
confirmed that the seizures that Mr Mokoena suffered from were
due to post-accident epilepsy. Dr Smuts
recorded in the last
page of the RAF4 form that he assessed the Impairment of the Whole
Person of Mr Mokoena on a neurological
basis at some 54%.
[28]
The above reports were all submitted to the
RAF for a decision on Mr Mokoena’s entitlement to
non-pecuniary damages.
No response was initially forthcoming.
[29]
After the exchange of pleadings, a trial
date was obtained for 28 February 2018. A few days before the
trial, the attorneys
for the RAF informed Mr Mokoena as
envisaged in paragraph 3(3)(d) of the regulations that the serious
injury assessment reports
as furnished were rejected. The handler at
the RAF who dealt with the claim stated in this regard that the RAF
was not satisfied
that Mr Mokoena’s injuries had been
correctly assessed under the AMA Guides. In reaction, Mr Mokoena
lodged an
appeal to the Appeal Tribunal.
[30]
On 17 September 2018 the Registrar
advised that the second to fourth respondents would determine the
appeal. The Appeal Tribunal
therefore comprised a neurologist and two
orthopaedic surgeons.
[31]
On 30 October 2018 the Registrar
advised that the Appeal Tribunal
inter
alia
resolved at its meeting on
26 October 2018 regarding Mr Mokoena that:
“
v.
WPI: 13% (Senske); 4% (Reid); 9%
(Pienaar); 25% (Schevil).
viii.
Narrative test / disability: Does not qualify.
ix.
Appeal Tribunal decision: Non-serious musco-skeletal injuries
”
.
[32]
The applicant instituted the present
application for the review and setting aside of the above decision on
11 April 2019.
[33]
Mr Mokoena’s action for damages
under the same case number was finalised on 11 June 2019. In
terms of this court’s
order of that date per Mokose J, the
RAF was ordered to pay the applicant in her representative capacity
on behalf of Mr Mokoena
the amount of R1,034,916.39 in respect
of his claim for past and future loss of earnings and in respect of
his claim for past hospital
and medical expenses. In paragraph 2 of
the order, it was recorded that the applicant’s claim for
non-pecuniary loss (general
damages) still formed the subject matter
of this review application against the Appeal Tribunal’s
decision.
ARGUMENT ON BEHALF
OF THE APPLICANT
[34]
The Appeal Tribunal in what was described
in the heads of argument on behalf of the applicant as “
strange
”,
disagreed with their two colleagues, i.e. the two orthopaedic
surgeons (Dr H Senske and Dr Reid), who agreed that
Mr Mokoena
qualifies for non-pecuniary loss. It was submitted on behalf of the
applicant that the orthopaedic surgeons on
the Appeal Tribunal
(Dr J Crosier and Dr R Reid) did not have the benefit of
assessing Mr Mokoena in person. Without
reasons ever being
provided, they simply stated that Mr Mokoena does not qualify
under the narrative test.
[35]
It was argued on behalf of the applicant
that the Appeal Tribunal did not only refuse to endorse the agreement
reached by their
colleagues, but they also ventured to reject the
Serious Injury Assessment Report/s by Dr Smuts and Dr Schevil,
who both
in their own field of expertise gave unchallenged
assessments that Mr Mokoena does qualify for general damages. It
was submitted
on behalf of the applicant that the Appeal Tribunal
seemingly did not consider the neurological aspect at all.
[36]
In Mr Mokoena’s submission
document to the Appeal Tribunal clear reference was made to the
report of Dr Smuts as
well as his addendum report. Special
emphasis was placed on the fact that he suffers from epilepsy. There
was no neurologist to
refute this. It was further argued that
specific reference was also made to the RAF4 form and Dr Smuts’
assessment of
Impairment of the Whole Person of some 54% (more than
the required 30%). The ruling and reasons furnished by the Appeal
Tribunal
simply made no reference to Dr Smuts, or to the
neurological basis of the contentions on behalf of Mr Mokoena.
[37]
The applicant also relied thereon that
Dr Schevil assessed Mr Mokoena’s Impairment of the
Whole Person at 39%. His
basic diagnosis was one of “
post-traumatic
organic brain syndrome with symptoms consistent with frontal lobe
disfunction
”. Dr Schevil
also confirmed “
complex partial
seizures
”, which he referred to a
neurologist. It was pointed out on behalf of the applicant that more
importantly, Dr Schevil
also diagnosed that Mr Mokoena
suffers from “
post-traumatic
organic psychotic symptoms …
”.
It was pointed out that the RAF had no counterpart psychiatrist. The
Appeal Tribunal also did not include a psychiatrist
as part of the
Appeal Tribunal. There was simply no basis upon which the Appeal
Tribunal could regard itself qualified to “
confirm
the rejection of (Dr Schevil’s) Serious Injury Assessment
Report …
”, rather than
“
consider(ing) it appropriate to
accept (Dr Schevil’s) Serious Injury Assessment Report
”.
[38]
It was argued on behalf of the applicant
that the Appeal Tribunal’s “
confirmation
”
of the RAF’s arbitrary rejection of both Dr Smuts’
and Dr Schevil’s Serious Injury Assessment
Reports, is
clearly arbitrary and irrational. More so if one has regard to the
fact that the examining orthopaedic surgeon had
agreed to support an
award for non-pecuniary loss.
[39]
In my view the submissions on behalf of the
applicant have merit.
ARGUMENT ON BEHALF
OF THE RAF
[40]
In its answering affidavit the RAF raised
two points
in limine
.
The first was that this court is not “
capable
by law
” to grant the order asked
for in prayer two of the notice of motion, i.e. to substitute the
decision of the Appeal Tribunal
with a decision of its own. It was
submitted in this regard that section 8(1)(c)(ii) of PAJA provides
that the court may in exceptional
circumstances substitute, vary or
correct a defect that resulted form an administrative action, but
that the applicant failed to
mention any exceptional circumstances.
As I see it, this is not a point
in
limine
at all. It is an issue of fact,
namely whether the applicant has shown that this is an exceptional
case or not.
[41]
It is further argued as part of this first
point
in limine
that this court has no jurisdiction to set aside the RAF’s
decision to reject the serious assessment reports filed by the
applicant. It is then stated that legal argument will be presented to
this court at the hearing of this application in support
of this.
However, this never happened as no heads of argument were ever filed
on behalf of the RAF and no one appeared on its behalf
before this
court at the hearing. It is trite that this court indeed has the
necessary jurisdiction in terms of section 8(1)(c)(ii)
of PAJA, in
the event that it upholds the review, to substitute the decision of
the Appeal Tribunal with its own, i.e. not to refer
the matter back.
In terms of section 8(1) of PAJA this court may grant any order that
is just and equitable, including if it is
an exceptional case, to
substitute the decision of the Appeal Tribunal with is own. In the
result, the first so-called point
in
limine
raised by the RAF has no merit.
[42]
The second point
in
limine
is that the applicant failed to
make use of all the remedies available to him in terms of the
regulations, more specifically regulation
(9)(b)(i) read with section
5 of PAJA.
[43]
Paragraph 3(9)(b)(i) of the regulations
provides that if a party is aggrieved by any one or more of the
appointments made by the
Registrar to the Appeal Tribunal, then the
aggrieved party shall within 10 days deliver a written motivation to
the Registrar and
the other party, setting forth grounds upon which
the party objects to the appointment made. It is common cause that
the applicant
did not do so.
[44]
The RAF’s reference to section 5 of
PAJA appears to be wrong. Reference was apparently intended to be
made to section 7(2)(a)
of PAJA, which provides that no court shall
review an administrative action in terms of PAJA unless any internal
remedy provided
for in terms of any other law has first been
exhausted.
[45]
In view of the facts and circumstances of
this matter, what the RAF suggests is no internal remedy as envisaged
in section 7(2)(a).
That would have been an alternative remedy if the
applicant applied for the decision to appoint the Appeal Tribunal to
be set aside.
That is not what is at stake here. What is stake here
is the setting aside of the decision by the Appeal Tribunal.
[46]
There was, as I see it, no reason for the
applicant to object to the appointment of the medical practitioners
to the Appeal Tribunal.
It included two orthopaedic surgeons. The
joint report by the orthopaedic surgeons for the applicant and for
the RAF, which served
before the Appeal Tribunal confirmed that
Mr Mokoena was entitled to non-pecuniary relief. Under the
circumstances there was
also no basis upon which the applicant could
complain about the appointees to the Appeal Tribunal.
[47]
The RAF’s second point
in
limine
can therefore also not succeed.
[48]
Turning to the merits, Mr Bahlmann makes
several statements in the answering affidavit in an attempt to
challenge what is set out
in the founding affidavit with reference to
the reports of the medical practitioners who found that Mr Mokoena
indeed suffered
serious injuries, which would entitle him to
non-pecuniary loss. For instance, he states that the RAF was of the
intention to cross-examine
Dr Smuts and Dr Schevil on their
“
baseless findings
”
and that the RAF intends to pursue its intentions if the decision of
the Appeal Tribunal is indeed set aside (and the matter
referred
back). There are, however, no contrary or challenging reports by any
medical practitioners attached to the answering affidavit
in support
of this.
[49]
Clearly the statement cannot be made that
the findings of the applicant’s experts were baseless, least of
all not based on
only an affidavit by the RAF’s attorney.
Moreover, without any expert to support this, the RAF’s
deponent for instance
states in paragraph 16 that a neurosurgeon such
as Dr du Plessis is the only person competent to diagnose a brain
injury. He goes
so far as to state that the psychiatrist prescribes
the medicine to help the patient cope with the mental disorder and
the psychologist
assists the patient with the managing of the mental
illness in day-to-day life. Again, there is no basis upon which the
attorney
qualifies himself to express opinions like these.
[50]
As I see it, the opposition of the RAF to
the application is therefor wholly unsupported by facts and relevant
expert opinions and
does not provide an answer against the case made
out by the applicant for the decision of the Appeal Tribunal to be
reviewed and
set aside.
[51]
What was in my view at least required is
for a medical practitioner with the necessary expertise to have
confirmed under oath what
is stated in the answering affidavit. There
is not even an explanation before court how the Appeal Tribunal
reached the impugned
decision.
[52]
Under the circumstances, I regard the RAF’s
opposition to the application to be based virtually entirely on
hearsay.
[53]
As I see it, the mere fact that the
orthopaedic surgeons in their joint report referred to above,
concluded that Mr Mokoena
is indeed entitled to non-pecuniary
damages, in the absence of any explanation to the contrary, provides
grounds for the Appeal
Tribunal’s decision of to be set aside.
[54]
In determining whether the RAF’s
answering affidavit throw serious doubt on the applicant’s
case, the following principles
enunciated by the SCA in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)
at para 13
(although stated
in regard to an application where final relief was claimed), are of
importance:
"A
real, genuine and bona fide dispute of fact can exist only where the
Court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the Court
will generally have difficulty in
finding that the test is satisfied.
I say ‘generally’ because factual averments seldom stand
apart from a broader matrix
of circumstances all of which needs to be
borne in mind when arriving at a decision. A litigant may not
necessarily recognise or
understand the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual
allegations made
by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and
will only in exceptional circumstances be permitted to
disavow them.
There is thus a
serious duty imposed upon a legal advisor who settles an answering
affidavit to ascertain and engage with facts
which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen
it should come as no
surprise that the Court takes a robust view of the matter
.”
(My emphasis)
[55]
In my view the RAF’s answering
affidavit does not throw serious doubt on the applicant’s case.
The cumulative effect
of this fact, and the fact that the Appeal
Tribunal did not present any version to this court explaining on what
basis they arrived
at the impugned decision, leaves me with no
alternative but to find that the impugned decision of the Appeal
Tribunal should be
reviewed and set aside as irrelevant
considerations were taken into account, or relevant considerations
were not considered in
arriving at the decision [see section
6(2)(e)(iii) of PAJA], or that the decision was arbitrarily or
capriciously taken [see section
6(2)(e)(v) of PAJA].
THE APPEAL
TRIBUNAL’S DECISION TO BE SUBSTITUTED
[56]
The considerations to be taken into account
in deciding whether a matter should be referred back to the
administrator, in this instance
the Appeal Tribunal, or whether this
court should replace the Appeal Tribunal’s decision with its
own, are summarised as
follow by Lewis JA in the matter of
Westlinghouse Electric Belgium SA v
Eskom Holdings (SAC) Ltd and another
2016 (3) SA 1
(SCA) at [72] to [74]
:
“
[72]
In Gauteng Gambling Board v Silverstar Development
Ltd and Others
2005
(4) SA 67 (SCA)
para
29 Heher JA said:
'An
administrative functionary that is vested by statute with the power
to consider and approve or reject an application is generally
best
equipped by the variety of its composition, by experience, and its
access to sources of relevant information and expertise
to make
the right decision. The court typically has none of these advantages
and is required to recognise its own limitations.
. . . That is why
remittal is almost always the prudent and proper course.'
He relied
in this regard on inter alia the Constitutional Court decision
in Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism and Others
2004
(4) SA 490
(CC)
(2004
(7) BCLR 687
;
[2004] ZACC 15)
paras 46 – 49. The court
in Gauteng Gambling nonetheless considered that there were
exceptional circumstances in that
matter and, because of the
inevitability of the outcome, accepted that remittal was not
necessary and substitution was appropriate.
[73]
The question is essentially one of fairness. In Commissioner,
Competition Commission v General Council
of the Bar of South Africa
and Others
2002
(6) SA 606 (SCA)
([2002]
4 All SA 145)
Hefer AP said (para 14):
'(T)he
remark in Johannesburg City Council v Administrator, Transvaal
and Another [
1969
(2) SA 72 (T)
at
76D – E] that the Court is slow to assume a discretion which
has by statute been entrusted to another tribunal or functionary
does
not tell the whole story. For, in order to give full effect to the
right which everyone has to lawful, reasonable and procedurally
fair
administrative action, considerations of fairness also enter the
picture. There will be no remittal to the administrative
authority
where such a step will operate procedurally unfairly to
both parties.'
[74]
Most recently the Constitutional Court in Trencon Construction
(Pty) Ltd v Industrial Development Corporation
of South Africa Ltd
and Another
2015
(5) SA 245
(CC)
([2015]
ZACC 22) reversed a decision of this court which had ordered remittal
to a bid-evaluation committee: the committee had wrongly
concluded
that one of two bids was non-responsive. The Constitutional
Court held, however, that substitution was the appropriate
remedy.
Khampepe J said (para 47):
'To my mind, given the
doctrine of separation of powers, in conducting this enquiry there
are certain factors that should inevitably
hold greater weight. The
first is whether a court is in as good a position as
the administrator to make the decision. The
second is whether
the decision of the administrator is a foregone conclusion. These two
factors must be considered cumulatively.
Thereafter, a court should
still consider other relevant factors. These may include delay, bias
or the incompetence of an administrator.
The ultimate consideration
is whether a substitution order is just and equitable. This will
involve a consideration of fairness
to all implicated parties.
It is prudent to emphasise that the exceptional circumstances enquiry
requires an examination of each
matter on a case-by-case basis that
accounts for all relevant facts and circumstances.' [Footnote
omitted.]
The court said further that
the first enquiry is whether it is in as good a position to make the
decision as the administrator was.
Second, it must determine
whether a substituted award is a foregone conclusion.”
[57]
In this matter Mr Mokoena’s
injuries were sustained eight years ago. As I see it, it is indeed a
matter of fairness for
this issue to be dealt with expeditiously. In
view of the delays that will obviously be occasioned by a referral
back to the Appeal
Tribunal, it will not be fair to both parties to
refer the matter back.
[58]
Based on the uncontested reports of the
medical practitioners upon which the applicant relies, the outcome
before the Appeal Tribunal
is inevitable.
[59]
This court is in as good a position as the
administrator to make the decision. Should the RAF have held a
different view, it should
have presented this court with expert
reports confirmed under oath, which challenged this. The fact that it
failed to do so is
decisive.
[60]
In the result, I find that a remittal is
not necessary and that substitution is appropriate. This is one of
those exceptional cases
envisaged in terms of section 8(1)(c)(ii) of
PAJA
COSTS
[61]
In paragraph three of the notice of motion
the applicant moves for an order that the RAF, and any other
respondent who opposes the
application, be ordered to pay the costs.
Further that, if the RAF opposes the application it be ordered to pay
the costs of the
application on the scale as between attorney and
client.
[62]
In paragraph 11 of the answering affidavit
it is
inter alia
stated in this regard on behalf of the RAF that “
the
cost order sought ….is the main reason the Application is
opposed.”
.
[63]
At the hearing counsel on behalf of the
applicant only asked for a costs order against the RAF. However, no
longer on the scale
as between attorney and client.
[64]
There is no reason why costs in this matter
should not follow the event.
[65]
Under the circumstances the following
orders are made.
ORDER
1.
The decision by the Road Accident Fund
Appeal Tribunal (as constituted by the second to fourth respondents
herein) on 30 October
2018 (per annexure “
NCM11”
to the founding affidavit) that Nkosinathi Christopher Mokoena is not
entitled to non-pecuniary loss arising from injuries he sustained
in
the collision which occurred on 18 March 2013, is set aside;
2.
The Road Accident Fund Appeals Tribunal’s
decision of 30 October 2018 is substituted as follows:
“
It
is declared that the injuries sustained by the applicant, Nkosinathi
Christopher Mokoena, in the collision which occurred on
18 March
2013, are serious and that Nkosinathi Christopher Mokoena is entitled
to an award for non-pecuniary loss (general damages)
for the injuries
he sustained in the collision which occurred on 18 March 2013.”
3.
The fifth respondent is ordered to pay the
costs of the application, such costs to include:
3.1.
the costs of senior counsel;
3.2.
the costs of the application enrolled for
30 September 2019 (when fifth respondent sought a postponement).
4.
The quantum of the claim for non-pecuniary
loss is referred to the trial Court for determination.
5.
The applicant (plaintiff) is given leave to
apply for a preferential trial date.
H
G A SNYMAN
Acting
Judge of the Gauteng High Court
Pretoria
Virtually
heard: 23 February 2021
Electronically
delivered: 8 March 2021
Appearances:
For the applicant:
Adv J O Williams SC
Instructed by
Marais Basson Attorneys
For the 1
st
to 4
th
respondents:
No appearance: Letter to abide, CaseLines AAA-1.
Attorneys
withdrawn, CaseLines, W1 to W5.
For
the 5
th
respondent: RAF:
No appearance: Attorneys withdrawn Zodumo Hlwatika
(
ZodumoHl@raf.co.za
)