Maqhutyana and Another v Road Accident Fund (CA 17/2020) [2021] ZAECMHC 30 (17 August 2021)

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[2021] ZAECMHC 30
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Maqhutyana and Another v Road Accident Fund (CA 17/2020) [2021] ZAECMHC 30 (17 August 2021)

OF
INTEREST
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No.     CA 17/2020
In
the matter between
MTHABISENI
MAQHUTYANA (ECM 3254/2014)
First Plaintiff
NOKULUNGA
MNAMA (ECM 703/2013)
Second Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
FULL BENCH
JUDGMENT
HARTLE J
Background:
[1]
The
plaintiffs mentioned above jointly referred issues for determination
common to them arising during the conduct of their separate
trial
proceedings enforcing their claims for statutory compensation against
the Road Accident Fund (“the Fund”).  The claims
arise in
terms of the provisions of section 17 of the Road Accident Fund Act,
No. 56 of 1996 (“the RAF Act”).
[1]
[2]
The matter (“the referral”) comes before this court by way of a
directive
issued by the Judge President pursuant to the provisions of
section 14 (1)(a) of the Superior Court Act, No. 10 of 2013 (“the
SCA”),
dated 8 June 2020, which provides that the common issues be
heard by a court comprising of three judges on the basis of an agreed
stated case between the parties.
[3]
The issues were originally formulated in the Judge President’s
directive
as follows:
“
1.
The Court will be called upon to determine whether or not it is in a
position to deal
with the issue of special damages before the outcome
of the Health Professions Council of South Africa (HPCSA) in
determining the
issue of [the] rejected RAF 4 form unless the
(plaintiff)
[2]
elects to abandon
the issue of general damages and what is the position if the HPCSA
[decision] is negative.
2.
The Court will be called to determine whether or not the Plaintiff
may proceed
with the issue of loss of earnings wherein [the]
seriousness of injuries has been rejected, and plaintiff appealed to
the HPCSA and
the outcome of [its decision is] that the plaintiff’s
injuries are not serious.”
[3]
[4]
In
both matters the Fund, after merits had been separated and conceded
in the separate actions, had rejected the serious injury assessment
reports of the plaintiffs which had been submitted to it on the
prescribed RAF 4 forms more than 3 years prior in each case.
[4]
Both plaintiffs had consequently invoked the dispute resolution
procedure referred to in regulation 3 of the Regulations
[5]
promulgated under the RAF Act.
[6]
Mnama’s process was still underway by the time of the referral, but
in Maqhutyana the Health Professions Council (“HPCSA”)
had
already rendered a decision in the appeal process unfavourable to the
plaintiff.
[5]
Despite this it is ostensibly evident, and not quite unsurprising,
that
the plaintiffs were desirous of pursing their claims in the
court for loss of earnings and had sought to enroll their matters for
hearing on the trial roll in the Mthatha High Court in order to have
this head of damages determined in each case. The Fund however
raised
certain preliminary objections to the matters proceeding and
questioned whether it was permissible for the court to proceed
to a
determination of the loss of earning claims in each scenario.
[6]
The parties had ostensibly reached a clear stand-off in both matters
at
that time.  Maqhutyana did not see any reason to forego his
claim for loss of earnings because of the HPSCA’s finding that
his
injuries were not serious. Mnama was unwilling to abandon her
belatedly contested claim for general damages which she had held
out
for in her summons and wished to proceed to trial in pursuit of her
claim for loss of earnings apart from the contested head
of damages.
(The parties appeared to accept that her claim for general damages
had of necessity to be held in abeyance because of
the Fund’s
rejection of her serious injury assessment report.) The Fund, by its
objections, was resisting the entitlement of either
plaintiff to
proceed to a judicial determination of their claims for loss of
earnings on a “not ripe for hearing” premise whereas
it was
maintained on behalf of the plaintiffs that the issue of the
rejection of the RAF 4 form had nothing to do with their claims
for
serious damages and neither did it oust the jurisdiction of the court
to determine the issue of loss of earnings. It was this
stance
adopted by the Fund which appears to have culminated in the parties’
agreement to refer the common issues for determination.
[7]
At the
first set down of the matter before us,
[7]
the defendant was beset by certain problems relating to a lack of
formal representation and the matter could accordingly not proceed.
Once these difficulties had been resolved and when the matter came
before us on a second occasion,
[8]
the plaintiffs sought a postponement in order for the parties to
amplify the stated case.  They were desirous of raising a
preliminary
point which it was contended on their behalf would
dispose of the need to determine the original issues referred.
[8]
With
the benefit of time, it seemed to have occurred to the parties that
in Mnama a separation of issues might resolve her conundrum
and
permit of a continuation of her claim for loss of earnings separate
from her claim for general damages which was under scrutiny.
In
Maqhutyana the notion that the plaintiff was barred from proceeding
with his claim for loss of earnings, or that the substance
of that
claim depended for its validity or enforceability on a finding that
his injuries were serious, or that it was somehow “interwoven”
with such a claim, appeared (correctly so in my view) to have been
jettisoned.
[9]
Mr. van der
Linde who appeared on behalf of the Fund together with Mr. James did
not argue against the proposition of Mr. Matebese,
who appeared for
the plaintiffs, that despite the answers to the questions as
originally framed having suggested itself to them in
the interim,
and in the plaintiffs’ view having in any event become moot by
virtue of the preliminary point they wished to
interpose, that it was
perhaps convenient for this court to still determine the original
“issues” in the interests of litigants
and RAF practitioners
generally.
[9]
We
share the parties view that it may be useful to do so.  The
questions that initially vexed the parties seem to have been posed
in
similar matters in this Division which concern in each instance the
same objection raised by the Fund to trials proceeding once
it has
rejected serious injury assessment reports.
[10]
[10]
The
nub of the preliminary point is that the original issues referred for
determination do not arise at all really because the issue
of the
liability of the Fund was already determined and /or conceded in the
court orders disposing of the merits in each action.
These
orders were granted prior to the rejection of the RAF 4 forms and at
a time when the plaintiffs’ claims for general damages
formed part
of their pleaded cases and, by implication, under circumstances where
there was no contestation (at least on the pleadings)
that their
injuries fell to be compensated under section 17 (1A) for such
losses. Thus, so the argument went, on a proper interpretation
of
section 17 (1) and of the orders, the issue of the Fund’s liability
for non-pecuniary losses has become
res
judicata
to the extent that the Fund is precluded from re-opening this aspect;
from opting out of the court orders (obligating it to simply
pay
these damages without further ado); and from now raising a defence
that the Fund had not pleaded nor raised at all at the time
when the
“orders on liability” were granted.
[11]
The
stated case:
[11]
In the meantime, I set out below the comprehensive agreed
“supplementary stated case”
between the parties which fell to
this court ultimately to be determined after the postponement of 24
August 2020, which includes
a reference to the purportedly defeating
preliminary point:
“
1.
The first plaintiff, Mthabiseni Maqhutyana, was injured in a motor
vehicle accident which
occurred on the 28
th
September 2003
at Mphumaze Location, Balasi Administrative Area, Qumbu, Eastern Cape
Province.  He lodged a claim against the
defendant in terms of
the Road Accident Fund Act 56 of 1996 (“the Act”).
2.
The claim was not settled by the defendant within the time prescribed
by the Act.
The first plaintiff, as a result of thereof,
instituted proceedings originally in the Magistrate’s Court, Qumbu
under case number
146/2008.  This was due to the limitation
imposed then by the Act prior to its amendment of Act No. 19 of 2005.
3.
Subsequent to the amendment of the Act the first plaintiff instituted
the present
proceedings in the above Honourable Court.
[12]
4.
For purposes of validating (his) claim for non-pecuniary loss in
terms of section
17 of the Act, which required a serious injury
assessment (the RAF 4), the first plaintiff was assessed by Dr.
Songca on 23 September
2014 and the serious injury assessment, RAF 4
was accordingly lodged with the defendant.
5.
In his Particulars of claim in the High Court the plaintiff claimed,
in paragraph
10 thereof, both general damages and loss of income
earning capacity.
6.
In paragraph 11 of his Particulars of Claim first plaintiff alleged
that the injuries
sustained by him in the accident constituted
serious injuries as contemplated in Regulation 3 (1)(b)(ii) and
(iii)(aa), (bb) and
(cc).
7.
The first plaintiff annexed to his Particulars of Claim the duly
completed RAF
form.
8.
In its plea to the relevant paragraphs the defendant pleaded: “
The
defendant has no knowledge of the allegations contained in these
paragraphs and accordingly does not admit nor deny and puts the
plaintiff to proof thereof”
.
9.
The defendant therefore placed the seriousness of the injury in
issue.
10.
On 9 February 2018 the first plaintiff’s case appeared before the
Honourable Mr. Justice
Mbenenge JP who granted an order in the
following terms:
“
IT IS ORDERED
THAT:
1.
The issues relating to merits shall be separated from the
issues relating to quantum;
2.
The defendant be and is hereby held liable for all proven
and/or agreed damages suffered by the plaintiff on the 28
th
September 2003 at or near Balasi Administrative Area, Qumbu, Eastern
Cape;
3.
The issue of quantum shall be postponed sine die;
4.
No order as to costs.”
11.
The matter was thereafter set down for the determination of quantum
on 7 March 2018.
It was, however, not heard on the said date.
12.
On 23 March 2018 the defendant rejected the serious injury assessment
report of Dr. Songca.
As a result thereof the plaintiff
referred the matter for dispute resolution to the Registrar of the
Health Professions Council of
South Africa (the “HPCSA”).
13.
The referral to the HPCSA came negative in that the HPCSA found that
the plaintiff’s injuries
fall below the minimum threshold of 30% as
required by the regulations and they do not qualify under the
narrative test.
14.
The matter was set down for 29 January 2020.  On the date of the
hearing the defendant
raised a point
in
limine
.
In essence the defendant’s point
in
limine
is that the rejection of the RAF 4 form warrants the stay of the
determination of the issue of loss of earnings and further that
as a
result of the rejection of the RAF 4 form the above Honourable Court
is not in a position to deal with the issue of the special
damages in
the absence of an Order for separation in terms of Rule 33 (4) unless
the plaintiff elects to abandon the claim for general
damages.
[13]
15.
The second plaintiff, Nokulunga Mnama was involved in a motor vehicle
accident which occurred
on the 16
th
of April 2010 at or
near Kroza Administrative Area in the district of Mqanduli, Eastern
Cape Province.
16.
She also lodged her claim with the Road Accident Fund, the defendant
herein.  The claim
was accompanied by an RAF 4 form completed by
Dr. P.A Olivier dated 1 June 2016.  This was in compliance with
section 17 of
the Act.
17.
When the defendant failed to settle the claim the second plaintiff
instituted action proceedings
in the above Honourable Court in which
she claimed special as well as general damages.  In paragraph 12
of the Particulars of
Claim she pleaded:
“
As a result of
the injuries sustained by the plaintiff aforesaid, the latter
suffered damages in the sum of Six Million Nine Hundred
and Fifty-One
Thousand Four Hundred and Forty Four Rand (6 951 944.00)
which is computed as follows:
“
12.1
SPECIAL DAMAGES:
12.1.1
future medical expenses
R100 000.00
12.1.2
loss of earning capacity
R6 101 444.00
12.2
GENERAL DAMAGES
12.2.1
General damages for pain and suffering,
Shock and
discomfort, disfigurement,
Loss of amenities
of life and disability
R750 000.00”
18.
Second Plaintiff made no specific allegation in her Particulars of
Claim that the injuries
suffered by her constituted serious injuries
as contemplated in Section 17 (1A) of the Road Accident Fund Act 56
of 1996 (as amended).
[14]
19.
On 23 March 2017 the matter came before Her Ladyship Justice Dawood J
who granted the following
order:
“
IT IS ORDERED
THAT:
1.
The issues of liability shall be decided separately from the
issues of quantum and all other issues.
2.
The defendant is held liable for all proven or agreed damages
resulting from injuries sustained by the plaintiff in the motor
vehicle
accident that occurred on 16 April 2010.
3.
The determination of quantum is postponed sine die.
4.
The defendant shall pay costs to date.”
20.
Both parties appointed experts in preparation for the determination
of the quantum.
The experts appointed by both parties are to a
large extent in agreement with their respective opinions and as a
result the parties
agreed that only the Industrial Psychologist
should convene a conference in order to prepare a joint minute.
The joint minute
of the Industrial Psychologists has since been
served and filed and the Actuarial calculations based on joint minute
have also been
served and filed.
21.
The matter was then enrolled for the determination of quantum on 11
October 2019 on both heads
of damages as claimed and for which the
defendant had been found liable.
22.
On 4 October 2019 the defendant rejected the serious injury
assessment report (RAF 4 form)
prepared by Dr. Olivier.  The
second plaintiff then referred the matter for dispute to the HPCSA.
The outcome of the dispute
resolution is still pending.
23.
Whilst the outcome of the dispute resolution is still pending the
Registrar of the above Honourable
Court enrolled the matter for the
determination of special damages and the matter was set down for 24
February 2020.
24.
Before the hearing of the matter the defendant raised a preliminary
point to the effect that
the above Honourable Court is not in a
position to deal with the issues of special damages if the serious
injury assessment report
has been rejected and a decision on the
dispute lodged with the HPCSA is still pending in the absence of an
Order for separation
in terms of Rule 33 (4) unless the second
plaintiff elects to abandon the claim for general damages.  In
essence the same point
raised by the defendant against the first
plaintiff.
[15]
25.
In both matters the plaintiffs contend that the issue of the
rejection of the RAF 4 form has
nothing to do with special damages
and that the rejection cannot oust the jurisdiction of the court to
determine the issue of loss
of earnings and/or special damages.
26.
The matters have jointly been referred to the above Honourable Court
by the Honourable Judge
President and by way of special allocation.
ISSUES IN
DISPUTE:
27.
The issues in dispute are identified in the directive from the Judge
President as follows:
27.1
Whether or not the court is in a position to deal with the issue of
special damages before the
outcome of the Health Professions Council
of South Africa (HPCSA) in determining the issue of the rejected RAF
4 form unless the
(plaintiff) elects to abandon the issue of general
damages and what is the position if the HPCSA [decision] is negative
(in the absence
of a Rule 33 (4) application for separation of these
issues and/or a Court Order that such issues be separated in terms of
Rule 33
(4)).
27.2
Whether or not the plaintiff may proceed with the issue of loss of
earning wherein [the] seriousness
of injuries had been rejected, and
plaintiff appealed to the HPCSA and the outcome of [its decision is]
that the plaintiff’s injuries
are not serious.
27.3
Whether a Plaintiff may proceed with the issues of special damages
(including loss of income) in
the absence of a Rule 33 (4)
application for separation of these issues and/or a Court Order that
such issues be separated in terms
of Rule 33 (4).
28.
The matter was set down for hearing on 24 August 2020.
THE PROCEEDINGS
OF 24 AUGUST 2020:
29.
At the hearing of the matter on 24 August 2020 the plaintiffs,
placing reliance on the facts
appearing in the stated case, in
particular relating to the court orders on liability referred to
hereinabove, contended that the
two (2) issues referred for
determination by the above Honourable Court do not really arise in
the matters before the court.
30.
The plaintiffs contended that section 17 of the RAF Act properly
interpreted is only concerned
with the liability of the Fund, the
defendant, and has no relevance to the quantum of damages.
31.
The plaintiffs further contended that the issue of liability of the
RAF has already been determined
and/or conceded in the court orders
dated 23 March 2017 and 9 February 2018; that the court orders were
granted prior to the rejection
of the RAF 4 forms and when the
general damages and/or non-pecuniary loss was still part of the
plaintiff’s pleaded claims and
that the fund, the defendant, is
therefore bound by the court orders and has a duty to obey same and
cannot seek to opt out or frustrate
the court orders by raising an
issue that was not in existence at the time the orders were granted.
32.
The proceedings were then adjourned to allow the parties to
supplement the stated case by
agreement to introduce the preliminary
point raised.
THE PRELIMINARY
POINT:
33.
The Plaintiffs contend that on a proper construction of Section 17 of
the RAF Act and the
Court Orders of 23 March 2017 and 19 February
2018 referred to above the issue of liability of the Defendant of
non-pecuniary loss
(general damages) has become
res judicata
to the extent that the Defendant is precluded from reopening same or
from opting out of the Court Orders by raising a defence that
it had
not pleaded nor raised at all at the time the said Court Orders on
liability were granted.
34.
The Defendant contends that the issue of liability for non-pecuniary
loss (general damages)
was placed in issue by the Defendant on the
pleadings and/or the provisions of the RAF Act and that the Defendant
did not waive any
defences relating thereto on the express wording of
the said Court Orders.”
The
pleadings in Maqhutyana and Mnama:
[12]
In
Maqhutyana the plaintiff claimed both general damages and “loss of
income earning capacity”.  In support of his claim
for general
damages he had pleaded that the injury sustained by him in the motor
vehicle accident constituted a serious one as contemplated
in
Regulation 3(1)(b)(ii) and (iii)(aa), (bb) and (cc) of the RAF Act.
He had annexed the completed RAF 4 form which he had
submitted to the
Fund together with his claim documentation.  He asserted that
despite his compliance with the RAF Act and Regulations
in this
respect, the Fund had not invoked the options open to it in
Regulation 3 (3)(d)(i) or (ii).  In other words, it had
neither
accepted or rejected the serious injury assessment report, nor had it
called upon him to submit himself for a further assessment
to
ascertain whether the injury was serious.
[16]
He alleged that his claim in respect of general damages was therefore
valid and enforceable.
[17]
[13]
The
Fund’s plea filed in the action is entirely unhelpful.  The
standard refrain that appears throughout in response to almost
every
allegation of substance is that it has no knowledge of the
plaintiff’s allegations, does not admit nor deny them, and puts
the
plaintiff to the proof of them.
[18]
[14]
Although the Fund is adamant that it placed the serious injuries in
dispute on the pleadings
it hardly did so mindfully and conscious of
the import of the legislative scheme pertaining to such claims to
which I will shortly
allude.
[15]
In
Mnama, the plaintiff made no specific allegation in her particulars
of claim that the injuries suffered by her constituted serious
injuries as contemplated by section 17 (1A) of the RAF Act. However,
she sought to claim general damages on the premise that she
had
sustained “severe” injuries, namely a head injury, an injury to
her chest and left knee and soft tissue injuries.
[19]
Additionally she claimed “loss of earning capacity”.
[20]
[16]
In response to these allegations the Fund pleaded no knowledge of the
nature and extent of
the injuries alleged to have been suffered by
her and put her to the proof thereof. It denied any obligation to
compensate her for
any damages at all.
[17]
The
Fund did not raise any special plea that Mnama’s allegations to
justify her claim for general damages were somehow lacking,
only
complaining in the present referral proceedings (and by virtue of the
“preliminary objections” it intended to raise at the
eleventh
hour when the trial on quantum was due to proceed)
[21]
that it had no case to meet on the pleadings that she had suffered a
serious injury as contemplated in section 17 (1A) of the RAF
Act and
the Regulations.
[18]
The
fact of and the developments after the Fund’s rejection of the
plaintiffs’ serious injury assessment reports is not reflected
in
the formal pleadings in either action.
[22]
The
legislative scheme:
[19]
Before engaging with the issues in dispute and the “preliminary
point” outlined above
it is necessary to have regard to the latest
legislative scheme applicable to third party claims for statutory
compensation arising
out of the wrongful driving of a motor vehicle
and briefly to look at how these provisions (more especially
pertaining to claims
for non-pecuniary loss) have been applied and
interpreted by our courts since their implementation.
[20]
The provisions of section 17 of the RAF Act provide as follows:
“
17.
Liability
of
Fund
and
agents.
—
(1) The Fund or an agent shall—
(
a
)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving
of a motor vehicle where the
identity of the owner or the driver thereof has been established;
(
b
)
subject to any regulation made under section 26, in the case of a
claim for compensation under
this section arising from the driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has been
established,
be obliged to
compensate any person (the third party) for any loss or damage which
the third party has suffered as a result of any
bodily injury to
himself or herself or the death of or any bodily injury to any other
person, caused by or arising from the driving
of a motor vehicle by
any person at any place within the Republic, if the injury or death
is due to the negligence or other wrongful
act of the driver or of
the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties as
employee: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.
(1A) (
a
)
Assessment of a serious injury shall be based on a prescribed method
adopted after consultation with medical service providers and
shall
be reasonable in ensuring that injuries are assessed in relation to
the circumstances of the third party.
(
b
) The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act, 1974 (Act No.
56 of 1974).
(2). . . . . .
(3) (
a
) No
interest calculated on the amount of any compensation which a court
awards to any third party by virtue of the provisions of
subsection
(1) shall be payable unless 14 days have elapsed from the date of the
court’s relevant order.
(
b
) In
issuing any order as to costs on making such award, the court may
take into consideration any written offer, including a written
offer
without prejudice in the course of settlement negotiations, in
settlement of the claim concerned, made by the Fund or an agent
before the relevant summons was served.
(4) Where a claim
for compensation under subsection (1)—
(
a
)
includes a claim for the costs of the future accommodation of any
person in a hospital or nursing
home or treatment of or rendering of
a service or supplying of goods to him or her, the Fund or an agent
shall be entitled, after
furnishing the third party concerned with an
undertaking to that effect or a competent court has directed the Fund
or the agent to
furnish such undertaking, to compensate—
(i) the third party
in respect of the said costs after the costs have been incurred and
on proof thereof; or
(ii) the provider of
such service or treatment directly, notwithstanding section 19 (c) or
(d),
in accordance with
the tariff contemplated in subsection (4B);
(
b
)
includes a claim for future loss of income or support, the amount
payable by the Fund or the
agent shall be paid by way of a lump sum
or in instalments as agreed upon;
(
c
)
includes a claim for loss of income or support, the annual loss,
irrespective of the actual loss, shall
be proportionately calculated
to an amount not exceeding—
(i) R299 154.00 per
year in the case of a claim for loss of income; and
(ii) R299 154.00 per
year, in respect of each deceased breadwinner, in the case of a claim
for loss of support.
(4A) (
a
) The
Fund shall, by notice in the
Gazette
, adjust the amounts
referred to in subsection (4) (c) quarterly, in order to counter the
effect of inflation.
(
b
) In
respect of any claim for loss of income or support the amounts
adjusted in terms of paragraph (a) shall be the amounts set out
in
the last notice issued prior to the date on which the cause of action
arose.
(4B) (
a
) The
liability of the Fund or an agent regarding any tariff contemplated
in subsections (4) (a), (5) and (6) shall be based on the
tariffs for
health services provided by public health establishments contemplated
in the National Health Act, 2003 (Act No. 61 of
2003), and shall be
prescribed after consultation with the Minister of Health.
(
b
)
The tariff for emergency medical treatment provided by a health care
provider contemplated in the National Health
Act, 2003—
(i) shall be
negotiated between the Fund and such health care providers; and
(ii) shall be
reasonable taking into account factors such as the cost of such
treatment and the ability of the Fund to pay.
(
c
) In the
absence of a tariff for emergency medical treatment the tariffs
contemplated in paragraph (a) shall apply.
(5) Where a third
party is entitled to compensation in terms of this section and has
incurred costs in respect of accommodation of
himself or herself or
any other person in a hospital or nursing home or the treatment of or
any service rendered or goods supplied
to himself or herself or any
other person, the person who provided the accommodation or treatment
or rendered the service or supplied
the goods (the supplier) may,
notwithstanding section 19 (c) or (d), claim an amount in accordance
with the tariff contemplated in
subsection (4B) direct from the Fund
or an agent on a prescribed form, and such claim shall be subject,
mutatis
mutandis
, to the provisions applicable to the
claim of the third party concerned, and may not exceed the amount
which the third party could,
but for this subsection, have recovered.
(6) The Fund, or an
agent with the approval of the Fund, may make an interim payment to
the third party out of the amount to be awarded
in terms of
subsection (1) to the third party in respect of medical costs, in
accordance with the tariff contemplated in subsection
(4B), loss of
income and loss of support: Provided that the Fund or such agent
shall, notwithstanding anything to the contrary in
any law contained,
only be liable to make an interim payment in so far as such costs
have already been incurred and any such losses
have already been
suffered.”
[21]
As is immediately evident, the section commences with a general
premise for the Fund’s
liability “subject to the Act” arising
from the driving of a motor vehicle and then goes on to deal
separately with each head
of damages that makes up a claim for
statutory compensation which the Fund would be liable to pay to a
third party, assuming that
it is liable in principle. Our present
concern is with a third party’s claim for non-pecuniary loss,
colloquially referred to as
“general damages”.
[22]
Prior
to 1 August 2008, the date on which the Road Accident Fund Amendment
Act, No. 19 of 2005 (“the Amendment Act”) took effect,
a third
party could claim general damages from the Fund without any
limitations. The general provision read without the current proviso.
The Amendment Act however introduced an exclusion on all claims for
general damages that are not as a result of “serious injury.”
It
also put a cap on claims for loss of income.
[23]
[23]
Further, since the amending provisions took
effect, the assessment to determine what constitutes a serious injury
as contemplated
in sub-section (1A) for purposes of bringing a
third’s party’s circumstances into the ambit of the proviso
stated in section
17 (1) has been premised on the “prescribed
method” spelt out in Regulation 3 and is undertaken by a medical
practitioner registered
under the Health Professions Act, No. 56 of
1974.
[24]
Section 3 describes the object of the RAF Act as being the payment of
compensation “in
accordance with this Act” for loss or damage
wrongfully caused by the driving of motor vehicles.  Section 1
defines “This
Act” as including any regulations made under
section 26.
[25]
Section 17 (1) of the RAF Act must accordingly be read together with
the provisions of Regulation
3 which prescribes how a serious injury
is to be determined along a somewhat time consuming and pedantic but
specialized administrative
trajectory, at the Fund’s cost, so as to
bring a third party’s claim for non-pecuniary loss within the ambit
of the proviso to
section 17 (1) before the Fund is obliged to
compensate him or her in this respect.
[26]
Regulation
3 deals with the method of assessing a serious injury.
[24]
[27]
Regulation 3(1)(a) provides that a third party
wishing to claim general damages must firstly be assessed by a
medical practitioner.
Regulation 3(3)(a) provides that such a third
party shall obtain a serious injury assessment report (defined by
Regulation 1 as a
duly completed RAF 4 form) from a registered
medical practitioner.
[28]
Sub-regulation 3(3)
(c),
which postulates two separate
jurisdictional requirements for the Fund’s liability for general
damages to kick in, provides that:
“
The
Fund or an agent shall only be obliged to compensate a third party
for non-pecuniary loss as provided for in the Act if a claim
is
supported by a serious injury assessment report submitted in terms of
the Act and these Regulations and the Fund or an agent is
satisfied
that the injury has been correctly assessed as serious in terms of
the method provided for in these Regulations.”
[25]
[29]
The
Fund has three options available to it once the serious injury
assessment report has been submitted to it, and it has 90 days
from
the date of the submission within which to make its election.
[26]
These are: (i) accept the serious injury assessment report or (ii)
reject the report (and furnish reasons) or (iii) direct that the
third party submit to a further assessment.
[30]
In terms of
sub-regulation 3(3)
(e)
:
“The Fund … must either accept the further assessment or dispute
the further assessment
in
the manner provided for in these Regulations
”.
(Emphasis added.)
[31]
The
dispute resolution procedure which avails to the advantage of both a
dissatisfied third party (who is unhappy with the Fund’s
rejection
of the serious injury assessment report) and the Fund (which does not
accept the further assessment if it goes in favour
of the third
party) is provided for in sub-regulation 3(4), read together with
sub-regulations 3(5), 3(7), 3(8), 3(10) 3(11), 3(12)
and 3(13). As is
pointed out in
Road
Accident Fund v Faria,
there
is no other.
[27]
[32]
The
latter procedure culminates in a determination by an Appeal Tribunal
consisting of three independent medical practitioners appointed
by
the Registrar of the HPCSA with expertise in the appropriate areas of
medicine.
[28]
[33]
If
the dispute resolution procedure is not resorted to within the
prescribed time period by the third party, the rejection of the
RAF 4
form or of the assessment by the Fund’s designated medical
practitioner, as the case may be, becomes “final and binding”.
[29]
[34]
In terms of
sub-regulation 3(13), assuming a resort by either the third party or
the Fund to the prescribed dispute resolution procedure,
the
determination of the Appeal Tribunal “shall be final and binding”.
The
effect of the Amendment Act on the Fund’s liability to compensate
third parties for general damages:
[35]
The
Supreme Court of Appeal observed in Faria
[30]
that
the
Amendment Act, read together with the Regulations, has introduced two
‘paradigm shifts’: (i) general damages may only be awarded
for
injuries that have been assessed as ‘serious’ in terms thereof
and (ii) the assessment of injuries as ‘serious’ has been
made an
administrative rather than a judicial decision.
[31]
The latter sea-change appears to have confounded many a litigant in
road accident fund claims enforced in court.
[36]
It
is further clear in my view from the amending provisions that the
shift necessarily also entailed a costs-saving objective for
the
Fund, by limiting the need for a third party to resort to legal
proceedings at all. Additionally, the costs of making the serious
injury assessment, administratively, are borne by the Fund.
[32]
[37]
In
the past, so it was pointed out in Faria, whereas a joint minute
prepared by experts chosen from the contending sides (who would
no
doubt have guided the parties in making critical concessions in the
litigation) would ordinarily have been conclusive in judicially
deciding an issue between a third party and the RAF, including the
nature of the third party’s injuries, this is no longer the
case.
The assessment of damages as ‘serious’ is determined
administratively in terms of the prescribed manner and not by the
courts.
[33]
[38]
This
has notably impacted what happens to the conduct of an action issued
out of our courts to enforce a claim for non-pecuniary loss
arising
in terms of the provisions of section 17 (1A) of the RAF Act when the
serious injury assessment comes under scrutiny and
the parties then
follow the expected and provided for administrative trajectory until
a final outcome is rendered.  That outcome
constitutes a final
and binding conclusion of the decision whether the injury is serious
and only thereupon establishes the jurisdictional
fact necessary for
the court to decide a claim for general damages, if it is necessary
for the court to adjudicate the claim at all.
[34]
Before this moment, the plaintiff “simply has no claim for general
damages” and the court “no jurisdiction” to entertain
the claim
for general damages against the Fund.
[35]
[39]
Whilst the adjudication of the plaintiff’s
claim for non-pecuniary loss must of necessity wait in abeyance while
the administrative
processes for a serious injury assessment and a
dispute resolution procedure play out in the administrative realm,
the question arises
what happens to the plaintiff’s claims other
than for their non-pecuniary loss in court (in a scenario where the
third party has
needed to enforce his/her claim for compensation in
court), especially if the Fund raises the serious injury dispute
without any
warning on the pleadings and extremely late in the game
and disrupts or delays the finalization of the trial.  What
effect does
the RAF 4 rejection have on the proceedings in the court,
and how is a plaintiff expected to plead his/her case or the Fund its
defence
in the light of the administrative interruption?
[40]
Willis
JA in Faria astutely observes that past legal practices, like old
habits, sometimes die hard and that, understandably, medical
practitioners, lawyers and judges experienced in the field of road
accident claims may have found it difficult to adjust to the complex
changes brought about by the Amendment Act.
[36]
In my view the greatest confusion appears to arise when legal
practitioners conflate the administrative processes with the
legal
proceedings or fail to appreciate the unique nature of each.
[41]
I would suggest further that the vision of the
legislature by the Amendment Act was to avoid legal costs at all and
that this should
be kept in mind when considering how to deal with
the impact of the administrative proceedings on an action instituted
to enforce
a third party claim for compensation when a RAF 4 form is
rejected or whilst a serious injury assessment is underway.
Lebeko,
Duma and related cases:
[42]
In
Road Accident Fund v Lebeko
[37]
the Supreme Court of Appeal reckoning with the issue of how a serious
injury is to be assessed for the purposes of section 17 (1A)
of the
RAF Act made it plain that the obligation of the Fund to make payment
to a third party is dependent on the extra-judicial
assessment of the
injury in terms of the prescribed method as outlined in regulation
3.  It noted that even if the Fund delayed
in making the
election whether to accept or reject the assessment, that this would
not justify a disregard for the prescribed process.
In other words,
the unique extra-judicial process for the assessment can firstly not
be dispensed with.  It is a necessary,
antecedent step, before
any obligation can arise on the part of the Fund to have to
compensate a third party for his/her non-pecuniary
loss and,
secondly, the determination of the issue of whether the injury is
serious or not is not for the court to make but is one
that must be
resolved internally and administratively by the Fund.
[43]
The
process is initiated (despite what the parties’ pleadings say or
don’t say) by an examination of the third party by the medical
practitioner and the submission of the prescribed RAF 4 form.
[38]
[44]
The
process to determine whether a serious injury exists is completed if
the Fund accepts the serious injury assessment report.
[39]
If the Fund rejects the report, the third party declares a dispute
concerning the assessment of the injury to the Registrar
of the
HPCSA, who in turn refers the disputed assessment to the Appeal
Tribunal as constituted in terms of Regulation 3 (8)(b) and
(c).
[40]
[45]
A special plea raised by the Fund in Lebeko that this procedure set
out in the regulations
had not been fully complied with, and that the
issue of the seriousness of the injury had not been finally
determined in terms of
regulations 3 (4) to 3 (12), was dismissed by
the trial court.  It further found that the reasons given by the
defendant in
correspondence for rejecting the plaintiff’s serious
injury assessment report(s), were unsound, irrelevant, irrational,
and unsustainable
and that it therefore could never be regarded as an
‘objection’ - (rejection). The high court accorded the same
reasoning to
other letters of rejection and ostensibly regarded the
defendant as having accepted the assessment report(s) as correct. In
particular
it relied on the RAF 4 report of an occupational therapist
which had not pertinently been rejected by the Fund. Leaving aside
the
fact that a report of an occupational therapist does not equate
to compliance with the requirement of an assessment by a registered
medical practitioner, the court noted however that the trial judge
had been wrong to enter “the arena reserved for the defendant
and
ultimately the tribunal” by finding instead that the defendant had
“accepted” that the injury was serious.
[46]
Plaintiffs’ counsel (in the appeal) argued that the Fund’s
failure to respond to the
claimant within a reasonable time was
tantamount to its acceptance of the correspondence of the serious
injury assessment report
submitted with the initial claim and that as
such the Fund must be deemed to have agreed that the injury was
serious (as defined).
The appeal court however found this submission
to be misplaced, noting that the nature of the inquiry into the
assessment may prove
to be complex and as a result take time to
investigate, hence the delay on the part of the Fund in responding
early.
[47]
The appeal court emphasized that the power to establish whether or
not an injury is serious
lies ultimately with the Appeal Tribunal
(comprised of functionaries with appropriate expertise) and not with
the courts. In the
result it concluded that if the court proceeded
with the claim for general damages on that basis, it would be
exceeding its powers.
[48]
The regulations at the time did not stipulate a time frame within
which the Fund was required
to respond to a claim for general
damages.  The appeal court noted that while it was conceivable
that delays might be prejudicial
to claimants, this did not justify a
disregard for the prescribed process.
[49]
To counter the inevitable prejudice, it suggested that it was open to
the plaintiff to direct
a written request to the Fund for an
expeditious response to the claim and in particular the issue of
general damages.  Alternatively,
so it was reasoned, because the
Fund is an organ of state as defined in section 239 of the
Constitution of the Republic of South
Africa, 1996, a third party
could invoke the provisions of the Promotion of Administrative
Justice Act, No. 3 of 2000 (“PAJA”)
in order to compel a
‘timeous’ response.
[50]
It
further dismissed the notion that the parties could agree among
themselves that the injury in question should be regarded as serious
or that their opinion in this respect was a substitute for the
decision by the designated functionary (Fund or Appeal
Tribunal).
[41]
Likewise
any agreement on whether the injury is serious cannot be
“assumed”.
[42]
There
is no room for inferences to be drawn as to the Fund’s supposed
“satisfaction”.
[43]
[51]
The
court also disregarded as unconvincing the notion that once summons
was issued to enforce the claim that the matter was then subject
to
the Uniform Rules of Court and not to the processes which fall under
the RAF Act and regulations “precisely because the process
of
establishing whether a claimant is entitled to general damages falls
exclusively within the ambit of the (Fund) and ultimately
the appeal
tribunal (subject, of course, to a court’s power of review).”
[44]
[52]
In dealing with the impact of the administrative processes on the
litigation, and in its
conclusion generally, the appeal court found
that:
“
[27]
At the time that the judgment was delivered in the court below, the
plaintiff had still not complied with the
procedure as set out in
regulation 3. The failure to do so by the plaintiff meant that the
defendant could not have been, and was
not as yet, satisfied that the
plaintiff’s injury had been correctly assessed. It was not for the
high court to construe that,
in the circumstances, it could make an
order for general damages absent the prescribed assessment. The high
court misdirected itself
in doing so. Consequently, in the light of
the plaintiff’s failure to complete the process prescribed in
regulation 3, the defendant’s
special plea should have been upheld.
[28]
While the special plea falls to be upheld, it was nonetheless
dilatory in nature. Its success does
not extinguish the plaintiff’s
cause of action in respect of general damages but has the effect of
postponing adjudication until
at least the procedural aspects
complained of, have been complied with or extinguished by the
operation of the regulations. It is
not unknown for an offending
party to be granted leave so as to enable him or her to comply with
the prescribed procedure, even if
a special plea (such as this) has
been successful.
[29]
The special plea took the form of an objection to the plaintiff’s
cause of action regarding its
claim for general damages, in light of
his failure to comply with the prescribed regulations. The
plaintiff’s right to claim general
damages is clearly dependent on
the acceptance or rejection of the RAF 4 assessment by the defendant
or ultimately a determination
by the appeal tribunal.
[30]
In upholding the special plea, it simply follows that the claim for
general damages is not ripe
for hearing and has the effect of staying
that part of the proceedings,
pending the
determination of the dispute before another forum. This is covered by
rule 22(4) of the Uniform Rules of Court.”
[45]
[53]
The
appeal court confirmed that the right to claim general damages
remained alive in all the circumstances and that it was still open
to
the plaintiff to pursue such a claim provided he fulfilled the
prescribed procedural requirements.
[46]
[54]
It is further instructive to have regard to the order issued by the
appeal court concerning
the consequences to the plaintiff of it
having upheld the Fund’s special plea.  The approach
sensitively supports the third
party’s rights afforded to him/her
to still pursue the claim for general damages in accordance with the
prescribed method:
“
2.1
It is declared that the defendant is liable for the plaintiff’s
loss without any
apportionment.
2.2
The defendant is ordered to furnish the plaintiff with an undertaking
in terms of
s
17(4)(a)
of
the
Road
Accident Fund Act 56 of 1996
,
to compensate him for the costs of the future accommodation of the
plaintiff in a hospital or nursing home or treatment of or rendering
of a service or supplying of goods to him arising out of the injuries
sustained in the motor vehicle collision of 6 June 2009 after
such
costs have been incurred and upon proof thereof.
2.3
The defendant is ordered to pay the costs of the hearing on 2 August
2011.
2.4
The special plea is upheld with costs.
2.5
It is declared that the plaintiff has not yet complied
with
regulation
3.
0.5
in; margin-bottom: 0in; line-height: 200%">
2.6
The plaintiff is given leave to exercise his right in terms
of
regulation
3(4)
to
appeal
against
the Fund’s rejection of Dr Scher’s serious injury assessment
report within 90 days of the date of this judgment.
2.7
The matter is postponed sine die for the determination of:
2.7.1
the plaintiff’s claim for general damages; and
2.7.2
liability for the remaining costs.”
[55]
The
principles enunciated in Lebeko were re-stated by the Supreme Court
of Appeal in Road Accident Fund v Duma & Others.
[47]
[56]
In this appeal against four judgments of the South Gauteng High
Court, the contention of
the Fund, in broad outline, was to the
effect that the High Court should have held in each case that the
issue whether the plaintiff
had suffered “serious injury” had not
been determined by the method prescribed by the regulations
promulgated under the Act and
that the High Court should therefore
not have awarded general damages.
[57]
The
cases each had their own unique features and in all of them the Fund
had filed special pleas in which it was pleaded in different
ways
that the plaintiff had not complied with regulation 3 and that his or
her claim for general damages was therefore not competent,
alternatively premature.
[48]
In all four cases the Fund subsequently rejected the RAF 4 form in
terms of regulation 3 (3)(d)(i) by means of an identical
letter from
its attorneys.  In each instance these commonly worded letters
were written in every case at least one year –
and in some cases
almost two years – after the RAF 4 form had been delivered to the
Fund and very shortly – in some cases a few
days – before the
commencement of the trial proceedings.
[49]
[58]
In all
four cases the Fund’s contentions in the High Court were, in broad
outline, that the plaintiffs’ RAF 4 forms did not comply
with the
requirements of Regulation 3, in the main, because a medical
practitioner had failed to do a physical examination of the
plaintiffs and another who had provided input was not a medical
practitioner.  Further it was submitted that in any event, the
RAF 4 forms had been rejected by the Fund, as envisaged in Regulation
3(3)(d)(i) and that the plaintiffs’ remedy was therefore
to declare
a dispute in terms of Regulation 3(4). In the circumstances, so it
was submitted, the court could not entertain the claims
for general
damages.
[50]
[59]
However,
in all four cases these contentions did not find favour with the High
Court for reasons that essentially went along the following
lines:
the RAF 4 forms were in fact compliant with regulation 3 and, in
any event, it was apparent from the medical evidence
presented at the
trial that the plaintiffs did indeed suffer serious injuries as
contemplated by the regulations. Moreover, the Fund’s
rejection was
invalid for one or both of two reasons and should thus be
disregarded. The first reason was that the Fund had failed
to reject
the RAF 4 forms within a reasonable time and its right to do so had
therefore expired. The second was that since the Fund
had given
insufficient or invalid reasons for its rejection, it did not
constitute a proper rejection in terms of regulation 3(3)(d)(i).
[51]
[60]
The
antecedent enquiry, so the court reasoned, was whether the High Court
was right in deciding, for either of the two reasons given,
that the
Fund’s rejection of the RAF 4 forms should be disregarded.
[52]
If it was, the merits of the rejection seemed to it to be of little
consequence. Conversely, if the rejections could not be
disregarded
by the trial courts, the fact that the rejection was without merit
would again be of little consequence.
[53]
It was to that antecedent enquiry that the appeal court turned.
[61]
The
court noted that a consideration of the High Court’s judgments in
the four cases on appeal before it and those upon which they
relied,
all seemed to set out from the premise that it is ultimately for the
court to decide whether the plaintiff’s injury was
‘serious’ so
as to satisfy the threshold requirement for an award of general
damages. Proceeding from that premise, so the argument
went, these
decisions assume that if the Fund should fail to reject an assessment
properly or to do so timeously, the rejection can
be ignored. The
cases also suggest, so it was submitted before the appeal court, that
if the medical evidence before the court showed
that, on balance, the
plaintiff was indeed seriously injured, the court could then proceed
to decide the issue of general damages.
[54]
[62]
The appeal court however set the record straight regarding the effect
of the new model applicable
to claims for general damages in the
following all- important
dictum
:
“
[19] …. In
accordance with the model that the legislature chose to adopt, the
decision whether or not the injury of a third party
is serious enough
to meet the threshold requirement for an award of general damages was
conferred on the Fund and not on the court.
That much appears from
the stipulation in regulation 3(3)(c) that the Fund shall only be
obliged to pay general damages if the Fund
– and not the court –
is satisfied that the injury has correctly been assessed in
accordance with the RAF 4 form as serious.
Unless the Fund is so
satisfied the plaintiff simply has no claim for general damages. This
means that unless the plaintiff can establish
the jurisdictional fact
that the Fund is so satisfied, the court has no jurisdiction to
entertain the claim for general damages against
the Fund. Stated
somewhat differently, in order for the court to consider a claim for
general damages, the third party must satisfy
the Fund, not the
court, that his or her injury was serious
. Appreciation of this
basic principle, I think, leads one to the following conclusions:
(a)
Since the Fund is an organ of State as defined in s 239 of the
Constitution and
is performing a public function in terms of
legislation, its decision in terms of regulations 3(3)(c) and
3(3)(d), whether or not
the RAF 4 form correctly assessed the
claimant’s injury as ‘serious’, constitutes ‘administrative
action’ as contemplated
by the Promotion of Administrative Justice
Act 3 of 2000 (PAJA). (A ‘decision’ is defined in PAJA to include
the making of a
determination.) The position is therefore governed by
the provisions of PAJA.
(b)
If the Fund should fail to take a decision within reasonable time,
the plaintiff’s
remedy is under PAJA.
[55]
(c)
If the Fund should take a decision against the plaintiff, that
decision cannot be ignored
simply because it was not taken within a
reasonable time or because no legal or medical basis is provided for
the decision or because
the court does not agree with the reasons
given.
(d)
A decision by the Fund is subject to an internal administrative
appeal to an appeal
tribunal.
(e)
Neither the decision of the Fund nor the decision of the appeal
tribunal is subject
to an appeal to the court. The court’s control
over these decisions is by means of the review proceedings under
PAJA.
[20]
To recapitulate; if the Fund rejects the RAF 4 form – with or
without proper reasons – it means that
the requirement that the
Fund must be satisfied that the injury is serious has not been met.
In that event the plaintiff cannot continue with its claim for
general damages in court. The court simply has no jurisdiction to
entertain
the claim
. The plaintiff’s remedy is to take the
rejection on appeal in terms of regulation 3(4). It follows that the
rejection cannot be
ignored merely because it was not raised within a
reasonable time. This does not mean, as was suggested, for instance,
in
Louw v Road Accident Fund
(supra) at para 82, that the Fund
can avoid and frustrate every claim against it indefinitely by simply
not taking a decision either
way. The solution is to be found in
s 6(2)(g) read with s 6(3)(a) of PAJA. These sections
provide that if an administrative
authority unreasonably delays to
take a decision in circumstances where there is no period prescribed
for that decision, an application
can be brought ‘for judicial
review of the failure to take the decision’. Though PAJA sees this
as a ‘ground of review’ it
is really no different from the time
honoured common law remedy of
mandamus
(see eg
Cape
Furniture Workers’ Union v McGregor NO
1930 TPD 682
at 685-6).”
(Emphasis added.)
[63]
In
answer to the objection raised on behalf of the plaintiffs that this
solution did not augur well for indigent clients who must
incur
unnecessary expenses by way of an unreasonable delay PAJA review, the
court proposed the following hope.  First, an application
may
often not be necessary. The Fund may very well react to a letter of
demand and, all things being equal, should do so.  (The
court
noted incidentally that in none of the four cases on appeal did the
plaintiff seem to consider a resort to this rather obvious
and
inexpensive solution.) Secondly, the application to compel need not
be an elaborate and expensive one. It will require two allegations
only: that the Fund had failed to take a decision and that a
reasonable time had elapsed. Thirdly, unless the Fund was to present
a plausible explanation for its unreasonable delay there is no reason
why it should not be mulcted in attorney and client costs or
worse to
force it to mend its ways.
[56]
Finally, it was suggested that if this
mandamus
solution proved to be unaffordable, that the answer lay in an
approach to the legislative authorities or perhaps in a
constitutional
challenge of the Regulation. What is plain, however,
so the appeal court re-iterated, is that the Fund could not justify a
deviation
from the procedure pertinently prescribed by Regulation 3.
[64]
The issue of what constitutes a reasonable time for the Fund to
accept or reject a serious
injury assessment report has in fact now
been remedied by the Legislature.  Regulation 3 (3) (dA)
provides that the Fund has
90 days after a serious injury assessment
report has been lodged with it to respond. This however seems to have
done little to galvanize
the Fund into earlier action and rejections
of RAF4 forms are more often than not announced at the eleventh hour
when a matter is
about to go to trial, invariably to adjudicate
quantum after the Fund has gotten the issue of merits and causation
(including whatever
apportionment of liability is appropriate) out of
the way.
[65]
A further significant finding by the appeal court concerns the legal
effect of a negative
decision by the Fund to reject a RAF 4 and what
to do when it fails to provide proper reasons for such decision.
The court
noted as follows in this respect:
“
[24]
Recognition that the Fund’s decision to reject the plaintiffs’
RAF 4 forms constituted administrative action, dictates that
until
that decision was set aside by a court on review or overturned in an
internal appeal, it remained valid and binding (see eg
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004
(6) SA 222
(SCA)
para 26). The fact that the Fund gave no reasons for the rejection;
or that the reasons given are found to be unpersuasive
or not based
on proper medical or legal grounds, cannot detract from this
principle. The same holds true for the respondents’ argument
that
it appeared from the medical evidence presented by them at the trial
that the Fund was wrong in deciding that their injuries
were not
serious.
Whether
the Fund’s decisions were right or wrong is of no consequence.
They
exist as a fact until set aside or reviewed or overturned in an
internal appeal.
It was therefore not open to the High Court to disregard the Fund’s
rejection of the RAF 4 forms on the basis that the reasons
given were
insufficient; or that they were given without any medical or legal
basis; or that they were proved to be wrong by expert
evidence at the
trial.”  (Emphasis added)
[66]
Further,
in this respect, a court’s overriding” as it were of the Fund’s
decision to reject cannot be promoted as constituting
that review as
this approach would fly in the face of the provisions of section 7
(2) of PAJA which require that no court shall entertain
a review of
an administrative decision unless and until any internal appeal
provided for has first been exhausted.
[57]
[67]
Although
recognizing that section 7 (2)(c) of PAJA allows for the internal
appeal procedure to be circumvented in exceptional circumstances
and
on application by the person concerned, the appeal court noted that
such a situation did not exist in the matters before it:
[58]
[25]
… It is true that s 7(2)(c) of PAJA allows the internal appeal
procedure to be circumvented ‘in exceptional circumstances
and on
application by the person concerned’. But apart from the fact that
there was no application to this effect in any of the
matters on
appeal, I can detect no exceptional circumstances that could warrant
this departure. This is of particular significance
in the light of
the recent Constitutional Court decisions that placed strong emphasis
on the need for internal remedies to be pursued
and particularly
those that lie to specialised appeal tribunals. Thus it was pointed
out by Mokgoro J in
Koyabe
v Minister for Home Affairs (Lawyers for Human Rights as Amicus
Curiae)
2010
(4) SA 327
(CC)
paras 35-37:
‘
Internal
remedies are designed to provide immediate and cost-effective relief,
giving the executive the opportunity to utilise its
own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a vital role
in providing litigants
with access to justice, the importance of more readily available and
cost-effective internal remedies cannot
be gainsaid.
First,
approaching a court before the higher administrative body is given
the opportunity to exhaust its own existing mechanisms undermines
the
autonomy of the administrative process. It renders the judicial
process premature, effectively usurping the executive role and
function. . ..
Once
an administrative task is completed, it is then for the court to
perform its review responsibility, to ensure that the administrative
action or decision has been performed or taken in compliance with the
relevant constitutional and other legal standards.
Internal
administrative remedies may require specialised knowledge which may
be of a technical and/or practical nature. The same holds
true for
fact-intensive cases where administrators have easier access to the
relevant facts and information. Judicial review can
only benefit from
a full record of an internal adjudication, particularly in the light
of the fact that reviewing courts do not ordinarily
engage in
fact-finding and hence require a fully developed factual
record.’”
[59]
[68]
As to the Fund’s obligation to provide
reasons for its decision, its failure to comply with the obligation
in this respect does
not on its own render the decision invalid:
“
[26]
As to the Fund’s obligation to provide reasons for its decision, it
is true that it is pertinently constrained to do so by
regulation
3(3)(d)(i). But, as I have said, the Fund’s failure to comply with
this obligation cannot render the decision invalid
per se. As a
matter of principle, I suppose, the claimant can compel the Fund to
give reasons in terms of s 5 of PAJA. Yet,
in practice, a
claimant whose medical experts maintain that his or her injury is
indeed serious as contemplated in regulation 3(1)(b),
would clearly
be better advised to proceed directly on appeal to the appeal
tribunal. I say this because the appeal tribunal is in
any event not
bound by the reasons given by the Fund. In the exercise of its wide
investigative and fact-finding powers, the appeal
tribunal can
establish for itself whether or not to assess the injury as serious,
whatever the reasons of the Fund might have been.
The appeal created
by the regulations appears to be ‘an appeal in the wide sense’,
that is a complete rehearing of, and fresh
determination on the
merits with additional evidence or information if needs be (see
eg
Tikly
& others v Johannes NO
1963
(2) SA 588
(T)
at 590G-H).”
[60]
[69]
The last feature of significance in Duma is how the court dealt with
the further conduct
of the four matters after upholding the Fund’s
appeal.
[70]
In the special plea the Fund had prayed that the plaintiffs’ claims
for general damages
be dismissed outright based on the Fund’s
contention that these were premature in that the plaintiffs had
failed to establish that
their injuries were serious in accordance
with the method prescribed in Regulation 3.  The Fund had
however held out, alternatively,
for an order that these claims be
stayed, pending the compliance by the plaintiffs with Regulation 3.
[71]
The appeal court opted for the outcome that would promote the
plaintiff’s right to have
the dispute resolved in the proper
forum.  Further even though the quantum of the plaintiffs’
claim for general damages had
by operation of the orders of the High
Court, been determined either by agreement or the court, the order
made by the appeal court
facilitated the recognition that the awards
of general damages would “stand”.  As to costs, the appeal
court noted further
that though the plaintiffs were ultimately
unsuccessful, both in their opposition to the special pleas and on
appeal, that it would
make no order as to costs given “the
uncertainty that existed” about the interpretation and application
of Regulation 3.
[72]
The
court’s practical approach to an obviously difficult conundrum
posed by the parallel administrative processes appears from the
excerpt below of an example of one (amongst the four) of its orders
substituting that of the High Court:
[61]
“
In
this light the following orders are made in the four matters on
appeal:
In
the matter of Road Accident Fund v Kubeka: Case No 64/2012:
1.
The appeal is upheld, with no order as to costs.
2.
The order of the High Court is set aside and replaced with the
following:
‘
(a)
The defendant is to make payment to the plaintiff of an amount of
R408 276 for loss of earnings.
(b)
The defendant is to furnish an undertaking in terms
of
section
17(4)(a)
of
the
Road
Accident Fund
Act
56 of 1996
for
future medical expenses incurred by the plaintiff.
(c)
The first and third special pleas raised by the defendant are upheld.
(d)
The plaintiff’s claim for general damages is postponed
sine
die.
(e)
The plaintiff may dispute the defendant’s rejection of the
plaintiff’s serious injury assessment report in terms of regulation
3(4) of the Road Accident Fund Regulations, 2008 within 90 days of
the date of this order.
(f)
In the event that the appeal tribunal determines that the plaintiff’s
injury constitutes a ‘serious injury’, the defendant
is to make
payment to the plaintiff of the amount of R300 000 for general
damages.
(g)
There is no order as to costs in relation to the defendant’s
special pleas and the plaintiff’s claim for general damages.
(h)
Save as aforesaid, the defendant is to pay the plaintiff’s costs,
including the costs of the following experts: Dr Barlin, Ms
Marks, Ms
van Zyl and Mr Rolland.’
3.
The period of 90 days referred to in paragraph 2(e) above is to be
calculated from the date of this court’s order.”
[73]
In
Mpahla v Road Accident Fund
[62]
the Supreme Court of Appeal had to reckon with an interpretation of
the amended Regulation 3 (3) (dA) arising upon the Fund’s delay
in
accepting or rejecting a serious injury assessment report. The
appellant had contended before the high court that on a proper
construction of Regulation 3(3) (dA), the Fund was deemed to have
accepted that the appellant sustained a serious injury, because
it
did not reject the serious injury assessment report or direct the
appellant to submit to a further assessment within 90 days of
delivery of the report.
[74]
The
following facts were common cause. On 5 July 2013 the appellant
instituted an action in terms of the Act for damages she allegedly
suffered as a result of the injuries she sustained in a motor vehicle
collision that occurred on 18 November 2011. One of her claims
was
for non-pecuniary loss or general damages in an amount of R400 000.
On 28 October 2013, in compliance with Regulation 3(3)
and the Act,
the appellant caused a serious injury assessment report to be
submitted to the Fund. Even though Regulation 3(3) (dA)
applied, the
Fund failed to react to her report within 90 days as contemplated in
that regulation. The 90-day period expired on 26
January 2014. It was
only on 17 January 2015 that the Fund reacted to it by rejecting it.
It conceded the issue of negligence and
undertook to compensate the
appellant for the other heads of damage but continued to resist and
deny liability for general damages.
[63]
[75]
Regarding
the claim for general damages, the Fund raised two special pleas.
First, it said that the appellant failed to comply with
the
requirements of section 17 of the Act and Regulation 3 of the
Regulations relating to the submission of the serious injury
assessment report. Second, it contended that the claim for general
damages was premature because the appellant had failed to exhaust
the
processes and remedies available to her in terms of Regulation 3. The
first special plea (based on the submission of the report)
was
correctly abandoned because the appellant ultimately delivered the
report to the Fund on 28 October 2013.
[64]
[76]
The
appellant contended that Regulation 3(3) (dA) should be interpreted
to mean that if the Fund fails to accept or reject a claimant’s
serious injury assessment report or fails to direct that a claimant
submits himself or herself to a further assessment within the
90-day
period prescribed by the regulations, that the Fund should then be
deemed to have accepted the injury as serious.
[65]
[77]
The high court had rejected the appellant's submission and in brief
held that Regulation
3(3) (dA) was not capable of the construction
contended for on her behalf, namely that if the Fund had not taken a
decision within
90 days, that it was deemed to have either accepted
the serious injury assessment report or to have referred the
plaintiff for a
further assessment.  The appeal court agreed and
dismissed the appeal, holding as follows:
[14]
An interpretation that seeks to suggest that because the Fund did not
make a decision within 90 days
of receipt of the SIA report, it is
deemed to have accepted that the third party has suffered serious
injuries is untenable and in
conflict with the provisions of
subsecs 17(1) and 17(1A) of the Act, and regulation 3. It is
always open to the Fund to reject
the SIA report when it is not
satisfied that the injury has been correctly assessed in terms of
regulation 3(3)(dA). This regulation
does no more than prescribe a
period within which the Fund can reject or accept the report. It
would be an anomaly if, in terms of
regulation 3(3)(dA), where the
Fund has failed to make a decision within the prescribed period, an
otherwise not serious injury would
by default become serious because
of the delay. By including the prescribed period the legislature
sought to ameliorate the hardship
experienced by claimants prior to
and after the
Duma
case. The intention was to bring legal
certainty and to compel the Fund to act promptly and timeously, not
to create a presumption
in favour of a claimant that the injury in
question is a serious one.
…
[17]
The new regulation seeks to define the rights of the claimants in
unambiguous terms and afford them an
opportunity after 90 days to
apply for a mandamus in terms of PAJA to compel the Fund to make a
decision. It was specifically enacted
to deal with the mischief
identified by this court in
Duma
relating to the phrase
‘within a reasonable time’ which caused uncertainty to claimants.
It is unfortunate that the Fund continues
to be tardy, but one cannot
reformulate the regulation in order to avoid that consequence.
[18]
In my view, absent any constitutional challenge, the reading into the
regulation of a deeming provision
is impermissible and tantamount to
arrogating to the court the powers of law-making functions. It
follows that the appeal has no
merit and falls to be dismissed.”
[78]
The further value of the judgment is its confirmation of the
principle established in Lebeko
and Duma that if the Fund is not
satisfied that the injury is serious, that the plaintiff “cannot
continue with its claim for general
damages in court” and that the
court “simply has no jurisdiction to entertain the claim.”
Instead, such a litigant’s
remedy is to take the rejection on
appeal in terms of Regulation 3 (4) or, if applicable, to vindicate
his/her rights under the provisions
of PAJA in recognition that the
Fund conducts itself as an organ of state in making the decisions
pressed upon it to be made in Regulation
3.
[79]
In Van
Der Westhuizen v Road Accident Fund
[66]
the High Court exercised its powers under rule 42 (1) and (2) to
rescind an order granted by consent between the parties in a road
accident fund action which included a globular claim for general
damages and loss of income, after it became apparent that the Fund
had not yet taken a decision to accept or reject the RAF 4 form.
The court had queried after the fact, on the basis of Mpahla
v Road
Accident,
[67]
whether the Fund
had taken a decision either way in respect of the plaintiff’s claim
for general damages.  In response to
the court’s query,
plaintiff’s counsel simply stated that the Fund had not rejected
the claim for general damages.  The
Fund’s counsel agreed with
the plaintiff’s and asserted that there was no need to rescind the
order in the circumstances.
[80]
The court held however that the decision in Mphala is clear authority
for the proposition
that, in the absence of a decision by the
defendant to take a decision, a court may not entertain the claim for
general damages and
that the remedy of the plaintiff was to apply to
court to compel the defendant to take a decision.
[81]
The
judgment in Road Accident Fund v Faria
[68]
reveals that the Fund rejected its own expert’s assessment that the
claimant’s injury was a “serious injury” in terms of
section 17
(1) of the RAF Act.  The issue on appeal was whether it was
competent, as a matter of law, for the High Court to
have decided to
award the plaintiff general damages in the circumstances of the
case.  The plaintiff had in the court undergone
medico-legal
assessments by two orthopedic surgeons, one of whom was appointed by
the Fund.  The experts had prepared a joint
minute in terms of
which they agreed that the plaintiff had suffered disfigurement and
psychological problems as a result of shoulder
scarring and that,
accordingly, he had suffered a “serious injury”, resulting in
“serious long-term impairment”.  The
Fund rejected the RAF
assessment by its own expert.  The High Court held that the
objections raised by it had fallen away by
reasons of the joint
minute and disregarded its contention that the court should have
permitted it to direct that the third party
submit himself/herself
for a further assessment to ascertain whether the injury was serious.
[82]
The court thereupon made the order that the plaintiff be awarded
general damages which the
parties had agreed was an appropriate
amount.
[83]
The appeal was proceeded with despite the issues between them having
become moot, the parties
accepting that the case raised an important
question of law,
viz:
“whether
the Road Accident Fund Regulations (“the Regulations”)
promulgated in terms of the Act provide for the RAF to reject
its own
expert’s finding in respect of determining a serious injury and to
require that there should be compliance with the procedures
provided
for in the Regulations in determining whether or not an injury is
“serious””.
[84]
From the appeal judgment the obvious answer to the question was in
the affirmative.
[85]
The
court held that since the assessment of injuries as serious is now an
administrative rather than a judicial decision, that the
Fund is not
bound by the views of its own expert and that the High Court had
wrongly awarded damages.  The order of the High
Court to pay the
plaintiff the sum of R350 000.00 as general damages was set
aside.
[69]
[86]
All of the judgments outlined above self-evidently reflect the
“paradigm shift” and the
hands-off approach required by our
courts when it comes to the Fund assessing what claims for general
damages are compensable and
which not.  The judgments also
reveal a respect for the right of claimants to pursue their claims
for general damages in the
appropriate forum, rather than a court
arrogating to itself a jurisdiction which it does not have.
Further and of critical
significance, Duma confirms that the Uniform
Rules of Court must yield to what is happening in the administrative
realm at any given
time.
The
issues concerning Mnama and Maqhutyana:
[87]
In the present matters comprising the two actions issued out of the
Mthatha High Court, the
Fund rejected the serious injury assessment
reports of the plaintiffs requiring the parties to follow the long
administrative route
in respect of their claims for general damages.
It did so very belatedly at a stage after the Fund had accepted
liability for the
plaintiffs’ damages to be agreed or proven and at
a point after the plaintiffs in both matters had enrolled their
matters for trial
in respect of quantum.  This is the normal
progression after liability is conceded and under the old claims
dispensation would
not have caused any consternation, except here the
RAF 4 rejection, an election expected to have been taken by the Fund
within 90
days of the RAF 4 Form being lodged with them, followed
long after the fact and once merits had been separated from quantum
and the
former issue conceded.
[88]
Since the “preliminary point” only came to the plaintiffs’
imagination during the course
of the referral, the only confusion at
the initial point of the referral was whether it was permissible, by
virtue of the obvious
effect of the Fund’s rejection of their RAF4
forms, for them to proceed with the determination of their claims for
loss of earnings
in each situation.
[89]
A
reading of the issues for determination as reflected in the Judge
President’s directive reveals that two scenarios were contemplated,
one where the administrative decision of the HPCSA was still awaited
(Mnama) and the other where it had been taken but was unfavourable
to
the plaintiff (Maqhutyana).  In the case of Maqhutyana the other
concern was whether the plaintiff’s separate claim for
loss of
earning could proceed at all in the light of the HPCSA’s ruling
that his injuries were not serious, and in the case of
Mnama, whether
her claim for loss of earnings could be proceeded with whilst waiting
for the HPCSA’s decision unless she “abandoned
her claim for
general damages.” A related question was what would happen if that
decision then turned negative.
[70]
The
separation of issues option:
[90]
Even
before the first set down of the matter before this court the Fund
appeared to have accepted (based on the heads of argument
filed on
its behalf at the time which foreshadowed what it would argue) that
the plaintiffs were not barred from proceeding with
their respective
claims for loss of earnings separately from their claims for
non-pecuniary losses generally, or in Mnama’s situation
while
the administrative interlude endured, but that the plaintiffs’
remedy in order to so proceed (which neither had availed
themselves
of), was to be found in the provisions of Rule 33 (4).
[71]
[91]
Uniform rule 33(4) provides as follows:
“
If,
in any pending action, it appears to the court
mero
motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately from any
other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit and may order
that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application of any party
make such
order unless it appears that the questions cannot conveniently be
decided separately.”
[92]
Still,
so it was belabored on behalf of the Fund in anticipation of arguing
the initial issues before us, our courts have repeatedly
warned that
when a decision is called for in terms of rule 33 (4), it must be a
carefully considered one, regard been given in particular
to the
convenience of all concerned in each action.  In this respect
though, it was submitted in Mnama that she had been assessed
by
various experts to prove special damages and the quantum thereof and
that the reports produced as a result revealed that she had
provided
these experts with facts informing their professional opinions which
are equally material to the assessment of the quantum
of her claim
for general damages (non-pecuniary losses) and loss of income
(pecuniary losses).  The Fund accordingly lamented
that she
would inevitably be compelled to give evidence both with regards to
her claim for general damages and with regard to her
loss of income
which would be heard in separate sittings if those issues were
separated.
[72]
In the result,
the necessary underpinning of convenience as envisaged in Rule 33
(4), so it was submitted on the Fund’s behalf,
would be absent.
[93]
In accepting that a separation of the issues was an appropriate
resolve of a “not ripe
for adjudication” scenario contemplated by
the examples in both Maqhutyana and Mnama, Mr. Van Der Linde
submitted that it was not
difficult to imagine a case where the
evidence on the issue of a serious injury does not overlap at all
with the issues arising upon
the adjudication of a loss of income
claim.
[94]
I am
not in agreement however that the Fund’s concerns of an overlapping
even arise given that the experts under the new claims
dispensation
ought not to involve themselves in court in the assessment that
undergirds the plaintiff’s entitlement to enforce
a claim for
general damages.
[73]
[95]
The
issue of the seriousness of the injury will be determined
extra-judicially according to the prescribed method.  The
opinions
of the experts (certainly in the court) are accordingly
irrelevant to the question of whether the injury ought to be regarded
as
serious because it is not the court’s concern to make such a
determination.  Not only are experts’ opinions that conduce
to
the proof of the plaintiff’s entitlement to the claim for general
damages not required at all in court, but their views are
also
unlikely to matter (in court) if the plaintiff makes it through the
threshold gateway.
[74]
Further, the question of the extent of those damages (assuming the
jurisdictional fact is established for the court to ultimately
determine this aspect) would, in my experience, rarely require that
evidence be adduced especially since the narrative test envisaged
in
regulation 3 (1)(b)(iii) would already have taken into account the
impact of the injury on the plaintiff’s personality rights.
These factors will be evident to the Fund acting in its capacity as
administrator if it accepts the serious injury assessment report,
in
which event it should be prompted to make an appropriate offer for
the third party’s non-pecuniary loss commensurate therewith.
If not, the relevant factors would certainly have become apparent in
the specialized dispute resolution forum, and ought to form
the basis
for an appropriate offer in respect of general damages, should the
decision of the Appeal Tribunal conduce to the plaintiff’s
favour.
If anything will remain for consideration after such an offer is
rejected, I expect that this would relate to the extent
of the
quantum only, an aspect routinely argued before the court on the
basis of a stated case if the parties cannot agree on the
extent
thereof.
[96]
The
Fund’s stance in objecting to Mnama proceeding to determine her
claim for loss of income in the meantime pending the administrative
processes that were underway appears to have been founded on a
judgment of this division in Samana v RAF
[75]
on which it relied.  The court held in that matter that:
“…
.(A) plaintiff
is not entitled to unilaterally proceed in respect of one aspect of
his or her claim without specifically abandoning
relief sought in
respect of the others, or pursuant to an order for separation of the
issues in terms of Rule 33 (4).  It was
accordingly incumbent on
the applicant to apply for separation.  Second, it was manifest
that the evidence relevant to the seriousness
of the plaintiff’s
injuries would also be relevant in respect of the impact of the
injuries on his earning capacity.  It was
accordingly
unavoidable that there would have been substantial overlapping of
evidence, and it was accordingly in any event not convenient
to hear
these issues separately.”
[97]
The issue argued before the court in Samana concerned who should bear
the wasted costs of
a postponement of a trial. In that matter the
defendant had rejected the plaintiff’s RAF 4 form and adopted the
view in court that
the matter (enrolled for hearing in respect of
quantum and comprising of claims for both general damages and loss of
earnings) was
not ripe for hearing.
[98]
The Fund had asked the plaintiff to agree to a postponement
(ostensibly not on the basis
that a court could not
in principle
adjudicate on the issue of loss of income in the case of a
non-serious injury), but for the reason that it was unlikely,
inter
alia
because of a
prima facie
view expressed by the trial
judge in this regard, that it would allow the matter to proceed in
respect of this head of damages on
its own, and because it foresaw it
as inevitable that the issue of general damages would overlap with
it. The plaintiff was not in
agreement.  Instead, it was
asserted on his behalf that he was entitled to proceed with his claim
in respect of loss of income
only and that it was unnecessary to
apply for a separation of issues.
[99]
Despite making such an election (not to make the interlocutory
application for a separation
of issues), the plaintiff yet sought to
persuade the defendant that the issues of general damages and loss of
earnings did not overlap,
this because the latter concerned a claim
for
special damages
.  It was contended on behalf of the
plaintiff that the concept of special damages within the meaning of
the RAF Act and its
regulations is not symbiotic with the issue of
the seriousness of the injuries and that the evidence the plaintiff
sought to lead
in respect of the claim for loss of income instead
concerned the question of the plaintiff’s functional capacity
subsequent to
the injury sustained by him.  For this reason, so
it was maintained, there would not be any overlapping of evidence and
there
would therefore be no inconvenience to the Fund to have to hold
over on the issue of the general damages.
[100]
The
Fund had however indicated that it would vociferously oppose an
application for separation of issues and maintained its position
that
there would an overlap of evidence and therefore an inconvenience to
it.
[76]
Even though there was
no such application before it, the court, held that the plaintiff
ought to have been aware 12 days before the
trial when the Fund
requested a postponement that there was “no reasonable prospect”
that the matter would proceed in respect
of loss of income only, that
the plaintiff’s counsel had “obstinately” refused to agree to a
postponement under these circumstances,
and that it was only fair
that the Fund should be indemnified in respect of the wasted costs.
[101]
A general order was issued that the matter be postponed
sine die
,
with the plaintiff to pay the wasted costs occasioned by the
postponement.
[102]
The value of the judgment lies in the
ratio
that a plaintiff
cannot unilaterally decide to isolate out one aspect of his claim
whilst going to trial on the other except with
the leave of the
court.  I would venture to suggest however that this aspect of a
practical separation of issues is imminently
capable of being agreed
between the parties during the case management processes (to be
endorsed by an appropriate directive of the
case management judge at
conference) or ordered by the court at Trial Roll Call.  The
unique nature of road accident fund litigation,
and the more recent
expectation on the part of litigants to employ effective case
management measures, compels one in the direction
of finding
practical solutions to the problem.
[103]
Inasmuch as the Fund (in the present actions) may have been under the
impression by the
dictum
in Samana aforesaid that the
plaintiffs had of necessity to abandon their claims for general
damages in order to effectuate their
matters proceeding in respect of
their loss of income claims, they are mistaken. The court in Samana
did not rule out the possibility
of a separation of these heads of
damages at all. It merely suggested that the plaintiff would have to
put aside his claim for general
damages at that juncture to enable
the matter to proceed in respect of his loss of income claim
(tantamount to a stay of the claim
for general damages), otherwise
the question of a separation of issues would have been entirely
irrelevant. Separate the claim for
loss of income from what? An
abandoned claim?  This is not what could have been meant by the
judgment in my view.
[104]
The
fate of the other part of Mnama’s claim is not that it ought to be
irrevocably abandoned, but that it must of necessity stand
over for
determination or final disposal once the administrative processes
concerning the issue of her serious injury dispute following
the
rejection of her RAF4 form have run their course. The provisions of
section 17 (1A) dictate as much. This must be so even if
her
pleadings have not yet been brought in line to reflect the tangential
developments along the administrative trajectory, most
especially
that she lodged a RAF4 form and that the Fund rejected the serious
injury assessment.
[77]
[105]
In practice the parties record the relevant developments concerning
the status of the extra-judicial dispute resolution
at the case
management conference by bringing the judge up to speed as to what
aspect of the plaintiff’s claim is ready for hearing
and what not.
This cost-effective measure should be promoted over technical
objections to pleadings or the unnecessary hearing
of special pleas
where the inevitable outcome remains that the court (as a result of
the recognized impact of the legislative scheme)
will not be able to
adjudicate the plaintiff’s claim for general damages in the court
for so long as the administrative processes
interpose. I would
suggest that such an approach would give recognition both to the
effect of the legislative scheme in all of its
nuances, meet the
objective of the amending provisions by unnecessarily limiting
litigation costs for the Fund, and also respect
the right of the
third party to pursue his claim for general damages through the
unique administrative processes, or by the opportunity
given to
him/her to resolve any dispute arising concerning the seriousness of
the injury in the alternative dispute resolution forum
made provision
for in the scheme.
[106]
Indeed, a plaintiff should in my view be chary of being forced into a
situation where he/she formally abandons his/her
claim in an action
for non-pecuniary loss to gain the value of being able to proceed to
adjudication in respect of his/her claim
for special damages, thus
burning his/her bridges in respect of the court adjudicating the
quantum of the claim for non-pecuniary
loss assuming an ultimate
determination through the administrative processes that the injury is
serious and deserving of being compensated
for under this head of
damages.  It may also give the impression, unless expressly
qualified, that he/she is throwing in the
towel in respect of the
dispute resolution process that has its own life force apart from the
formal action.
[107]
Whilst the action and the administrative processes respectively are
separate and independent the reality is that
the end (and thus
interwoven) goal is to ensure that he/she is compensated for his/her
non-pecuniary loss where, administratively,
the Fund accepts or is
obliged to accept on the basis of a final and binding decision of the
HPCSA that the injury sought to be compensated
for is a serious one
within the meaning ascribed to it in section 17 (1A) of the RAF Act
read together with the Regulations.
[108]
A
separation of issues (if not a stay of Mnama’s claim for general
damages as in the example of Lebeko),
[78]
would be desirable,  and indeed both logical and practical,
because of the recognized principle that this court has no
jurisdiction
to entertain a claim for general damages against the
Fund pending the administrative decision being taken in terms of the
RAF Act
and regulations as to whether or not the injury of the
plaintiff is serious enough to meet the threshold requirement for an
award
of general damages.
[109]
What is an appropriate case for a separation order is obviously a
consideration best left for the court to determine
in an
interlocutory application in terms of rule 33 (4) if an order in this
respect is not issued by the trial court
mero motu.
Alternatively, I would suggest that the parties should
propose in the course of their case management processes what is a
reasonable
step forward in court (at that time) in the light of the
status of the tangential dispute resolution procedure and keep in
mind that
the litigation will defer to what is happening in such
realm at any given time. This is the fate that both plaintiffs must
content
themselves with in the further prosecution of their actions
going forward.
The
Fund’s objection against the piecemeal adjudication of issues:
[110]
The
initial stance adopted by the Fund (in the present matter before us)
that in principle claims for loss of earnings ought not to
be dealt
with separately from the issue of general damages (where the Fund or
the appeal tribunal’s decision on the issue of seriousness
of the
injury is still awaited) on the basis that the piecemeal adjudication
of actions ought to be discouraged, was correctly so
in my view not
pursued before us.
[79]
Indeed,
in my view the legislative scheme lends itself to the separate
adjudication of the uniquely distinct components of the compensation
that a third party is entitled to claim under section 17 of the RAF
Act.
[111]
A claim for future medical expenses is one that particularly comes to
mind.  Such claims are routinely settled,
and the required
undertaking given in terms of section 17 (4)(a) of the RAF Act
without upsetting the proverbial apple cart and indeed
without
requiring a separation of that issue from what remains still to be
determined by way of appropriate statutory compensation.
[112]
There are, in addition, myriad examples of RAF actions litigated in
this division where claims for general damages
stand over for
determination apart from the immediate adjudication of their claims
for loss of income until a later indefinite date
whilst the decision
of the HPCSA is awaited following the invocation by one of the
parties of the dispute resolution process.
[113]
The earlier implementation in this court’s division (before the
recent amendment of Uniform Rule 37A and the issue
of the Judge
President’s Directive in this respect) of effective case management
has in fact promoted the piecemeal dealing of
RAF actions as has
suited the parties’ convenience.  In my view this has
dramatically reduced costs for the Fund which has
a public duty to
litigate responsibly.
Is
the claim for loss of income barred if the HPSCA’s decision on the
issue of the seriousness of the injury is negative to the
third
party?
[114]
The
answer to this question is a resounding “No.
[80]
The parties conceded as much.
[115]
Neither is the jurisdiction of the court to adjudicate on a
plaintiff’s claim for loss of earnings momentarily
ousted where the
dispute resolution process has been invoked after the Fund has
rejected the plaintiff’s serious injury assessment
report, and the
administrative challenge is underway.
[116]
This is because a claim for loss of income as an incident of the
statutory compensation that a third party is entitled
to claim stands
on its own.
[117]
It has
its own unique requirements and limitations referred to in section 17
(4). It is self-evidently not hit by the proviso to section
17 (1)
and is distinct and separate from any serious injury assessment.
[81]
In other words, the Fund’s liability to pay damages for loss of
income (assuming the loss and probable extent thereof is
proven)
arises immediately once the Fund accepts or the trial court finds
that the injuries sustained by the plaintiff (or the death
of the
breadwinner as the case may be) arose from the negligent driving of a
motor vehicle under the circumstances described in general
in section
17.
[118]
The
related question whether a plaintiff in obliged to wait out the
administrative decision in respect of the seriousness of the injury
before being entitled to proceed in court with his/ her claim for
loss of income appeared to be premised on the initial misgivings
of
the parties in the present referral that such a claim was interwoven
with a claim for general damages (understood in the traditional
sense
of the concept) and/or only competent in the case of a serious
injury.
[82]
That is however
not the situation, and nothing stands in the way of such a claim
being adjudicated separately, and first, if the
circumstances lend
themselves to such a scenario.
[83]
The
takeaway from the Lebeko and Duma related cases:
[119]
From the foregoing leading judgments and others of the High Courts on
the issues under consideration, the following
observations appear:
119.1 In terms of
section 17 (1) of the RAF Act, after its amendment by the
Road
Accident Fund Amendment Act, No. 90 of 2005
, a third party is
entitled to compensation for a non-pecuniary loss only for a serious
injury as contemplated in sub-section (1A).
119.2 The
determination of whether the injury meets this threshold must be
undertaken by a medical practitioner by way of the method
prescribed
by the regulations.
119.3 A request for
such assessment must be initiated by the third party on the
prescribed form.  An acceptance or “satisfaction”
by the
Fund that this assessment of the seriousness of the injury has been
correctly undertaken in terms of the method provided in
the
regulations will establish the third party’s entitlement, assuming
he/she has filed a RAF4 form in accordance with the prescribed
procedure, to be compensated for his/her non-pecuniary loss.  It
will also signal the relevant moment when a claim for general
damages
affords a plaintiff the necessary jurisdictional fact for a court to
adjudicate such a claim.
119.4
If the
assessment by the medical practitioner is not endorsed by the Fund in
its capacity as administrator, or any further assessment
of the third
party required by the Fund is disputed by it, the dispute resolution
procedure must of necessity be invoked and the
third party and the
Fund must proceed administratively to a final determination of the
dispute.
[84]
119.5 Whilst such a
process endures, the plaintiff’s claim for general damages will not
be justiciable.
119.6 The “model”
or legislative scheme introduced by the Amendment Act in respect of
third party’s claims for non-pecuniary
loss presupposes that unless
and until the necessary jurisdictional fact is established by means
of the strictly administrative processes
that run in tandem with or
parallel to the action proceedings, the court cannot enforce an
obligation on the part of the Fund to
pay general damages even if the
Fund has in principle conceded liability for any damages that may be
proven or agreed or has impliedly
gone along with the suggestion that
the serious injury assessment is not in contention up until that
point.
119.7 Whilst the
Fund may further notionally agree in the action (wearing the hat of a
defendant) to pay an agreed sum of general
damages conditionally upon
the administrative decision going in the plaintiff’s favour, the
expectation that it will pay out such
an award is doomed to remain a
velleity unless the administrative process is concluded in the
plaintiff’s favour as a matter of
fact.  Further any order for
general damages issued short of the administrative process having run
its course and conducing
to the benefit of a plaintiff falls to be
set aside on the basis that the court would have had no power to make
it.
119.8 The scheme
also postulates that the administrative processes cannot be
sidelined, avoided, disregarded, or deemed to have taken
place.
A court should be especially wary of going along with the parties’
assumption that the Fund (because it has neither
accepted nor
rejected the serious injury assessment report) has thereby accepted
the injury to be serious and within the threshold
that warrants the
payment of compensation in terms of the provisions of the proviso to
section 17(1).
119.9 If the Fund
fails (or by necessary implication the Appeal Tribunal) delays in
taking the decision which it must, the plaintiff’s
remedy is to
vindicate the administrative inaction pursuant to the provisions of
section 6 (2)(g) read together with section 6 (3)(a)
or (b), as the
case may be, and section 8 (2) of PAJA.
119.10
Likewise,
if the Fund fails to furnish reasons for the rejection, the third
party’s recourse lies in the provisions of section 5
of PAJA.
[85]
119.11
There is no deeming provision
that assists the plaintiff, or any
default outcome that pertains when, as in these instances, the Fund
has been particularly tardy
in rejecting the plaintiffs’ serious
injury assessments or has done so after conceding liability in the
action, or at the eleventh
hour when the matters have been enrolled
for trial already.
119.12
Neither can the parties in
the litigation subvert the administrative
process by agreeing that the injury meets the threshold even if the
experts involved in
the litigation express such a common view.
Their opinions are irrelevant in court because it is not the court’s
decision
to make whether the injury is serious or not, neither
whether objectively considered it is a decision which the Fund ought
to have
made.
119.13
Further, it is not open to
the trial court to adjudge whether the
decision taken by the HPCSA ultimately was the correct one. That too
is a matter for judicial
review.
119.14
Since
the effect of Regulation 3 (13) is that the decision of the Appeal
Tribunal is final and binding, this means that once the Tribunal’s
decision has been made, it can be safely assumed that the
jurisdictional fact necessary for the trial court to order the Fund
to
pay general damages (if the court has to determine the claim at
all) has established itself, or not depending on the import of that
decision, and will continue to have the corresponding effect until,
consonant with the general principle of our law that an
administrative
decision remains valid and binding unless set aside
upon judicial review, it is overturned on review.
[86]
119.15
A parties’ objection to the
court’s jurisdiction to adjudicate a
claim for general damages can be raised by way of a special plea.
119.16
A court will generally incline
in favour of upholding a special plea
raised by the Fund where the plaintiff has not complied with the
provisions of the regulations
or pursued his/her dispute to finality
before the Appeal Tribunal but will afford the plaintiff an
opportunity to exhaust the internal
remedy at his/her disposal rather
than dismissing the claim for general damages.
119.17
The provisions of Uniform Rule
22(4) can be employed to order a stay
of the plaintiff’s claim for general damages to afford him/her the
opportunity to pursue
the internal remedies at his/her disposal.
119.18
Our courts should show deference
to the Fund and specialized Appeal
Tribunal in respect of the decisions required to be made by these
functionaries in terms of section
17 (1A) read with Regulation 3.
119.19
A
court should also recognize (in respect of that part of the
plaintiff’s claim for statutory compensation that represents
his/her
non-pecuniary loss) that the matter is not subject to the
Uniform Rules of Court but to the proceedings that fall under section
17
(1A) and the regulations.
[87]
Further
comments and observations:
[120]
I would suggest that if a plaintiff elects after the fact to
challenge a negative decision of the HPCSA by way of
judicial review,
it would require him/her to request the Fund to agree to a further
stay of the claim for general damages for later
adjudication in the
court, in order to await the outcome of the separate application for
judicial review. This is because the regulations
recognize that the
decision of the Appeal Tribunal is final and binding and signals the
end of the administrative internal processes.
The likely manner
in which this will affect the proceedings in court is that the Fund
is entitled to demand that this sub-claim be
withdrawn or that the
plaintiff acknowledges that it cannot be enforced or has no interest
in it being enforced.
[121]
Although the pleadings in court should ideally foreshadow a claim for
general damages, I would suggest that it is
not fatal to a
plaintiff’s case if they are only amended later once the claim for
general damages becomes justiciable.  In
laying the basis for
the claim, when it does mature, a plaintiff should properly bring the
claim within the ambit of section 17 (1A).
The Fund ought also
to plead appropriately regarding whether the plaintiff’s claim for
general damages is enforceable (in circumstances
where the plaintiff
has sought to bring it within the ambit of the inclusion for serious
damages), and if not, why it lacks.
I would suggest that a bald
denial concerning a claim for general damages in an action which is
sub-judicated to the administrative
process would have no place and
may irresponsibly run up costs of litigation.  A plaintiff’s
claim for general damages should
perhaps be qualified in his/her
particulars of claim as being conditional upon the acceptance by the
Fund of the seriousness of the
injury, or the HPCSA’s finding in
his/her favour ultimately.  This would avoid unnecessary
objections to the plaintiff’s
particulars of claim or even the
raising of a special plea by the Fund that the claim for general
damages does not yet arise if at
the time it is not yet justiciable.
I would suggest that it is best compartmentalized in the particulars
of claim so that it can
ideally receive separate treatment in
recognition of the unique import of the legislative scheme.
[122]
A
question which begs itself is how the acceptance by the Fund or its
“satisfaction” that an injury has been correctly assessed
as
serious (as defined) is to be denoted. This may be particularly
relevant in applications for default judgment where this
jurisdictional
fact will have to be established by the plaintiff as a
fact before a court will be satisfied in turn that it has the
necessary jurisdiction
to adjudicate a claim for general
damages.
[88]
(In my
experience it is only the rejections that are documented and even
these are informally placed before the court during
case management
proceedings in which the Fund has entered a notice of intention to
defend and is actively participating in court.)
[123]
If the
Fund has made an offer to a third party in respect of general
damages, can this offer stand as proof that the Fund has accepted
that the third party’s injury has been correctly assessed as
serious? In my view it would not be an unreasonable inference to draw
in all the circumstances that in such a scenario the relevant
jurisdictional fact for the court to adjudicate a claim for general
damages in a default judgment application has been established,
otherwise a court should leave the resolve of this aspect of the
plaintiff’s claim where it belongs, namely in the administratively
realm, reserving the right of the plaintiff to pursue it in
court
again at the appropriate time.
[89]
The
answers to the original issues:
[124]
On the
first issue for determination as outlined in paragraph 27.1 of the
Supplementary Stated case as set out above, there is no
dispute that
it remains open to a plaintiff wishing to proceed to trial to
adjudicate a claim for loss of earnings, despite the absence
of an
outcome following a determination by the HPSCA concerning whether
his/her injuries are to be accepted as serious following
a rejection
of his/her RAF 4 form by the Fund, to make application on the basis
of the provisions of rule 33 (4) to separate his/her
claim for
special damages (including any claim for future medical expenses
which is routinely dealt with separately) from that of
general
damages so as to enable him/her to proceed to trial on this aspect in
the meantime.
[90]
[125]
Lebeko also proposes a stay of the claim for general damages on the
basis provided for in Uniform rule 22 (4), assuming
the parties’
pleadings in court lend themselves to such a solution.  (The
inevitable practical effect which a court should
recognize is that
the claim for general damages must of necessity stand over for
determination until the administrative process has
run its course.)
[126]
I would suggest further that a judge should adopt a robust approach
through the case management machinery and prompt
the parties in the
right direction to facilitate the objectives of the effective
disposal of the litigation with the least fuss and/or
cost and in the
manner that yields itself best to the obvious effect of the
legislative scheme.
[127]
The answer to the issue as framed in the first part of sub-paragraph
1 is therefore in the affirmative.
[128]
Self-evidently,
however, a formal separation of issues in an action is not automatic,
and a party must apply for it in terms of the
provisions of rule 33
(4) unless the court orders it
mero
motu
.
Such a separation will not and should not require a plaintiff to
“abandon” the issue of his/her entitlement to claim “general
damages” as a pre-requisite for such a direction.
[91]
A stay of the claim for general damages whilst the plaintiff’s
claims for special damages proceed may also be more
appropriate and
achieve the same effect.
[129]
As to the second part of the question, assuming a separation of the
issue of loss of earnings was ordered, even
if the HPSCA’s decision
is negative, the action remains extant (but unenforceable) in respect
of the plaintiff’s remaining claim
for general damages and the
plaintiff as
dominus litis
must surely decide what to do in
the court to bring this incident of his unitary claim for
compensation to a disposal.  Invariably
RAF matters are settled
by agreement and the HPCSA’s decision will prompt the most suitable
outcome but there may, for example,
be a costs issue arising which
justifies the parties enrolling the matter on trial for an
appropriate judgment in his/her favour
in this respect. As suggested
above, a plaintiff may also seek to keep the action alive whilst
he/she reckons with the possibility
of reviewing that decision with a
view to still proceeding to a determination of the claim for general
damages ultimately, assuming
the plaintiff’s claim for his/her
non-pecuniary loss becomes enforceable by such a fiat.
[130]
As for
the question posed in paragraph 27.2 of the supplementary stated
case, I am inclined to agree with the reasoning of Victor
J in Botha
v RAF that the court’s jurisdiction is not ousted to deal with the
plaintiff’s claim for issue of loss of earning
even where the
seriousness of the injury is in contention and its determination
underway in terms of the parallel administrative
process provided for
in the regulations.
[92]
[131]
The answer to the question posed in paragraph 27.3 in in the
negative, but subject to what I have said above about
the parties
being sensible and agreeing to stay claims for general damages
wherever possible, eschewing obstructive approaches or
technical
objections that will run up the legal costs and thwart the objectives
of the scheme.
The
preliminary point:
[132]
That brings me finally to the preliminary point.  I have
deliberately left this issue for last as the exposition
set out above
is necessary to demonstrate the fallacy of the argument submitted on
the plaintiffs’ behalf in this respect.
[133]
Mr. Matebese, who appeared on behalf of the plaintiffs, argued that
everything hinges for the determination of this
point on the
interpretation of the provisions of section 17 (1) of the RAF Act and
on the orders themselves, which general provisions,
he sought to
persuade us, concern themselves with the question of liability as
opposed to that of quantum.
[134]
It is correct, as he submitted, that the provisions of section 17 (1)
make it clear that the Fund or its agent is
liable for all damages or
loss suffered by a third party as a result of any bodily injury to
himself or herself or the death of or
any bodily injury to any other
person, caused by or arising from the driving of a motor vehicle by
any person at any place within
the Republic, if the injury or death
is due to the negligence or other wrong act of the driver or of the
owner of the motor vehicle
or of his or her employee in the
performance of the employee’s duties as employee.
[135]
But
since the implementation of the Amendment Act
,
there can also be no question that one cannot read the general
provisions establishing the Fund’s liability apart from the proviso
introduced by the amending provisions, or disjunctively from the
Regulations, which, as explained in the numerous judgments of the
Supreme Court of Appeal above, as well as that of the Constitutional
Court in Law Society of South Africa v Minister of Transport
[93]
must be understood against the background of the historical matrix
and rationale for its introduction and limitation of the Fund’s
liability to compensate a third party in respect of general damages
for only serious injury as contemplated in sub-section (1A).
[136]
It is also important to appreciate the “paradigm shift” referred
to in Faria that requires the process of sifting
enforceable claims
for general damages from non-enforceable ones to be determined
administratively, eschewing the court’s intervention
in any action
instituted to enforce the claim to determine this issue.
[137]
The general preamble to section 17 (1) cannot be read without the
proviso (the inclusionary provision), sub-section
1A or Regulation
3.  They are integral to the question what circumstances justify
the exclusion of the Fund’s liability for
general damages or,
conversely, meet the gateway threshold.  Mr. Matebese appeared
to concede as much in earlier heads of argument
filed regarding the
effect and proper interpretation of section 17 (1A) in its amended
form, when viewing the scheme as a whole.
[138]
There is nothing new he could offer in the interpretative exercise in
enjoining this court to adopt the interpretation
of section 17 (1)
that he contended for.  Our courts have said their say
concerning the effect of the amending provisions.
[139]
Further,
on a plain reading of the merits orders of the Judge President and
Dawood J, there can be no suggestion that anything was
intended other
than that the Fund has conceded negligence and causation, in other
words general liability, but for the question whether
the plaintiffs’
claims for their non-pecuniary loss fall to be accepted or rejected
by the Fund or are found to be justified by
the Appeal Tribunal on
the basis that the injury is to be regarded as serious and therefore
compensable by the Fund.  Against
the clear construct of the new
model there is simply no room for any assumptions to be made based on
what the pleadings say or don’t
say, neither can anything be
inferred from the conduct of the Fund because the question whether
the inclusion (or exclusion as the
case may be) applies or not is
dependent on an extrajudicial determination.  In other words,
the plaintiffs have to satisfy
the Fund (not the court) that their
injuries are serious.   This fact or knowledge would
certainly have formed part of
“the material known to those
responsible for (the orders’) production”, or at least should
have at the time the merits orders
were granted.
[94]
[140]
Further, it can hardly be suggested, in the circumstances that
pertain here that the issue of the Fund’s liability
for
non-pecuniary loss (general damages) has become
res judicata
especially since that issue has not yet arisen in either Maqhutyana
or Mnama.  It will not arise in Maqhutyana unless the HPCSA
is
upset pursuant to a judicial review.  In Mnama it may still
arise depending on the outcome of the appeal process.
[141]
It is
a trite principle that
res
iudicata
cannot
be founded by implication.  The decision set up as
res
iudicata
must necessarily involve a determination of the same question of law
or fact.
[95]
[142]
I agree with the submission made on behalf of the Fund that it was
not obviously necessary for the court in each
action and at the
juncture that the merits orders were made to decide whether the
defendant had accepted the injuries as serious
for them to make the
order in terms of the operative words thereof.  These issues
were not connected and indeed in accordance
with the prevailing
stance adopted by our courts, such an issue (as to whether the
injuries were serious enough to justify compensation
for
non-pecuniary loss) would not have arisen in either case.
[143]
In
Maqhutyana, although the Fund limply asserted on the pleadings that
it was not liable to compensate him, this is irrelevant to
the
separate administrative determination of whether the injury sustained
by him is a serious one within the contemplation of section
17 (1A)
and in accordance with the prescribed method.
[96]
The process pursuant to the provisions of Regulation 3 was still
underway and the culminating decision providing the jurisdictional
basis for this incident of the claim (and the Fund’s liability
therefore to pay such damages) still anticipated.
[144]
In
Mnama it is not clear how the
res
judicata
argument advanced by Mr. Matebese on her behalf could have assisted
her at all, because she did not plead the basis in terms of the
provisions of section 17 (1A) on which she became entitled to claim
general damages.
[97]
Fortunately, however, her entitlement to be so assessed lays not in
how she has pleaded, but in the provisions of the regulations
which
she had, by the time the merits order was granted, already availed
herself of. By filing the RAF 4 form she obviously intended
to make
her claim for general damages dependent on an outcome in respect of
the issue of the seriousness of the injury conducing
to her favour
ultimately.
[145]
Even if the parties in Maqhutyana and Mnama had proposed to finally
resolve the issue of general damages (in the
sense contended for by
the plaintiff) by the merits orders, that is without any recourse to
the prescribed procedure outlined in
section 17 (1A) read with
regulation 3, these orders would not be able to stand and would fall
to be set aside.
[146]
In the result I am not inclined to find in the plaintiffs’ favour
that the orders fall to be interpreted in the
manner contended for by
Mr. Matebese or that the issues raised by the Fund by way of the
preliminary objection in the actions do
not arise on the mere basis
that “liability” for general damages was conceded.
The
practical way forward for the plaintiffs:
[147]
In the
case of Maqhutyana it appears that the HPCSA came to its decision
prior to the set down of the referral before this court on
29 January
2020.  According to the defendant the plaintiff has taken no
active steps to challenge this outcome, which means
that the decision
remains effective until set aside by a court.
[98]
The plaintiff is free to pursue the remaining aspect of quantum which
is for loss of income (if this aspect has not yet already
been
settled) and in fact should have been regarded as having been free to
do so even since before the referral.  The Fund should
not have
stood in his way of doing so.
[148]
The plaintiff will in seeking to re-enroll the matter for trial have
to comply with the practice of this court concerning
case management
and the provisions of rule 37 A.  The parties will no doubt
responsibly outline the remaining issues still in
dispute which they
require the court to determine.
[149]
In the case of Mnama her injuries were assessed as serious by Dr.
Olivier on 1 June 2016, but the RAF 4 form lodged
with the Fund was
rejected. Mnama filed a dispute with the HPCSA.   The
stated case does not reflect whether the Appeal
Tribunal has resolved
the matter one way or the other. It is suggested that the delay in
reaching a conclusion (if the decision is
still outstanding) be
queried and the administrative inaction be vindicated in terms of
PAJA should either party feel so inclined.
[150]
In the
meantime, Mnama is free to seek a separation of issues (so as to
continue with her claim for loss of income), alternatively
the
parties are encouraged to agree that her claim for general damages be
stayed pending the resolve of her dispute before the HPCSA.
[99]
Such agreement will clear the way for her to proceed to trial
forthwith in order to determine her claim for loss of earnings
separately from her claim for general damages.
Costs
of referral:
[151]
On the issue of costs, both the plaintiffs and the Fund sought the
indulgence of this court for each of the respective
postponements and
should respectively bear these wasted costs.  These costs orders
will however, as suggested by Mr. Van Der
Linde, cancel each other
out.  Although the belated “preliminary point” raised on
behalf of the plaintiffs cannot be upheld,
I cannot blame the parties
for the confusion by the parallel process contemplated by the
provisions of section 17 (1A) and Regulation
3 in respect of claims
for general damages and the general inclination to assume that absent
any fuss made in the court (on the pleadings)
about the issue of the
seriousness of the injury (whether by the plaintiff or the Fund) that
the claim falls within the court’s
domain to adjudicate.  This
is a mistake commonly made by practitioners.
[152]
In the circumstances it would be fair to rather order that each party
bear their own costs of the referral.
[153]
I add
however that the parties should have been more circumspect about
agreeing to a referral in the first place that required a
determination
of issues that were parochial to the litigation yet
were elevated to a full bench to decide. The fact that they
supplemented their
stated case suggests that they were not bound by
the terms of the initial referral.  They should at that point
have sought the
Judge President’s consent to opt out especially
since the answers had by then occurred to them.  A full bench
referral ought
to be reserved for matters of importance or in this
instance, of continuing importance at least.
[100]
By its very nature a referral involves extra costs to the litigants.
It further carries with it the downside that an appeal
from the
decision of a full bench lies to the Supreme Court of Appeal in terms
of the provisions of section 16 (1) (a) of the Superior
Courts Act.
It finally distracts the parties from getting on with or back to the
litigation especially where the referral only
disposes of a
preliminary objection rather than the action in its entirety.
Delays and the logistics of establishing a panel
of three judges will
inevitably frustrate the parties who in this instance would have
promptly received a ruling on the Fund’s
preliminary objections a
while back already.
[154]
As for these objections, it is not evident that the argument advanced
on behalf of the Fund, viz that the plaintiffs’
claims for loss of
earnings were not in each case ripe for hearing, would necessarily
have prevailed.  The trial court will
no doubt have to determine
the impact of the now moot objections raised by the Fund in the
actions and where the costs should lie
in each instance.
[155]
In the premises I issue the following order:
1.
The “preliminary point” advanced on behalf of the plaintiffs in
the supplementary stated case is rejected.
2.
Each party is to pay his/her own costs of the referral.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE,
G
N Z MJALI
JUDGE
OF THE HIGH COURT
I
AGREE,
T
MALUSI
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
18 June 2021
DATE
OF JUDGMENT:
17 August 2021
APPEARANCES
:
For the
plaintiffs:   Mr. Z Z Matebese SC instructed by Caps Pangwa
& Associates, Mthatha (ref. Mr Pangwa).
For
the defendant: Messrs H J Van Der Linde SC & N James instructed
by Mohulatsi Attorneys, care of Mgxaji Inc, Mtatha (ref. Mr.
Mgxali).
[1]
By
the time the matter was heard before this court the original issues
were no longer contentious as between the parties, but the
plaintiffs
required the court to determine a preliminary point raised on their
behalf after the referral.
[2]
The
initial reference was to the “Defendant”, but the parties were
ad
idem
that this was a clear error.
[3]
The
directive in the record contains only two paragraphs but these were
later enlarged upon. The first one, from the context, appears
to
relate to Mnama’s situation, and the second one to Maqhutyana’s.
[4]
In
Maqhutyana’s case, the serious injury assessment report was
rejected on 23 March 2018 after the matter had been enrolled for
hearing in respect of the plaintiff’s claims for general damages
and loss of earning.  In Mnama’s case the Fund rejected
the
serious injury assessment report on 4 October 2019.  (Although
Mnama’s collision happened on 16 April 2010, the serious
injury
assessment report was ostensibly only lodged in 2016, years after
the issue of the summons in March 2013.)
[5]
GNR.770
of 21 July 2008:  Road Accident Fund Regulations, 2008
(
Government
Gazette
No. 31249)
as amended by Notice R.347, Government Gazette 36452 dated 15 May
2013 (“the Regulations”).
[6]
These
processes had in Mnama not yet run their administrative course by
the date of the referral.  In Maqhutyana, the administrative
process had already yielded an outcome, but the defendant seemed
uncertain whether the court could entertain the plaintiff’s
remaining claim for loss of earnings as a result of the HPCSA’s
decision in the appeal that the plaintiff’s injuries were not
regarded as serious.
[7]
The first appearance was on 8 June 2020.
[8]
The
second appearance was on 24 August 2020. At both the latter and the
first appearance the costs were reserved.
[9]
Law
Society v Minister of Transport 2010 (11) BCLR (GNP) at para 35; and
Botha v Road Accident Fund
2015
(2) SA 108
(GP)
.
See also the recent judgment of Mjali J in S H Mavuso v RAF (Mthatha
case no 4364/2016) delivered before the present referral,
on 25 May
2020, and which in my view provides an effective answer to the
question posed regarding Maqhutyana’s matter.
[10]
See,
for example, Mavuso v RAF (Supra) where issues in common with the
question raised in Maqhutyana was determined by way of a
stated
case.
[11]
The
plaintiffs did not raise formal pleas of
res
judicata
in the traditional sense of the word on the pleadings, but then
neither were the Fund’s preliminary objections raised by way
of
special pleas in the court.
[12]
This
was no doubt in accordance with the special arrangement for certain
third parties as provided for in section 2 (e)(ii) of the
RAF
(Transitional Provisions) Act, No. 15 of 2012.
[13]
From
the background sketched above, it seemed to me that the parties’
confusion at the time was whether Maqhutyana could pursue
the claim
for loss of earnings at all anymore in the light of the HPSCA’s
negative decision, so the word “stay”, and the
notion of a
separation of issues under such circumstances, appear incongruent.
The document in which the
in
limine
point was raised did not from part of the record before this court.
In any event I deal in the judgement with the so-called
election of
a plaintiff to abandon a claim for general damages in either a Mnama
or a Maqhutyana scenario.  The phrase “in
the absence of an
order for separation in terms of Rule 33 (4)” was added after the
fact.
[14]
This
is perhaps because the issue of the summons preceded her serious
injury assessment by almost three years.  Her particulars
of
claim were obviously not amended to cater for the later
developments.
[15]
See
my comments in footnote 13 above.
[16]
This
status would have pertained as at the time when the particulars of
claim were filed and would have remained unchanged as at
the date
when the Fund conceded the merits.  The serious injury
assessment was rejected only on 23 March 2018.
[17]
This
allegation would not have been correct then, or now.  The claim
for general damages has in fact still not become enforceable
in
court.  Neither has the necessary requirement for the Fund’s
liability to compensate him for general damages been established
in
the administrative realm.
[18]
This
is however not of any real consequence as I demonstrate in the
judgment.
[19]
The
serious injury assessment report was only lodged in 2016, more than
three years after the summons and particulars of claim were
served.
It appears that the plaintiff has not amended her particulars of
claim to bring them in line with the consequent
developments of her
perceived entitlement, since the serious injury assessment, to claim
general damages.  This too is in
my view of no real
consequence.
[20]
In
both matters it was clarified in heads of argument filed on behalf
of the plaintiffs that they were not concerned with claims
for
future loss of earning capacity (which aspect of a claim
traditionally falls under general damages since it is a prospective
loss) but the actual future loss of earnings (thus a patrimonial
loss), such losses having been proved in each action “by way
of
salary advice”.
[21]
The
Fund’s rejection was made known a week before the quantum hearing.
[22]
These
developments were possibly recorded in minutes or case management
documentation. Since in RAF proceedings the focus between
the
parties will move to a dispute resolution forum and then back to
court again when the plaintiff’s claim for general damages
becomes
enforceable, I would suggest that the parties’ minutes should
reflect the extra curial events and their relevance to
or impact on
the litigation.
[23]
See Law Society of Africa
&
Ten Others v Minister of Transport A
2011 (1) SA 400
(CC)
at
paras [17] – [28]; Road
Accident Fund v Lebeko
(
802/11)
[2012] ZASCA 159
(15 November 2012) at paras [3] – [4]; Road
Accident Fund v Duma, Road Accident Fund v Kubeka, Road Accident
Fund v Meyer, Road
Accident Fund v Mokoena
2013 (6) SA 9
(SCA)
at para [3] – [10] (“Duma and three similar cases”).
Each of these judgments helpfully summarise the history
of the
statutory road accident compensation scheme and developments bearing
on the introduction of the amending provisions so that
one can
appreciate the pressing need for and legitimate imperative (endorsed
by the Constitutional Court in Law Society of South
Africa & Ten
Others v Minister of Transport above) for the reduction of the
Fund’s unfunded and ballooning liability.
The urgent steps,
taken by the reforming measures, was to make the Fund sustainable so
that it could fulfil its constitutional
obligations to provide
social security and access to healthcare services for all (at
paragraph [52]).  One of the ways in
which this imperative was
acted on is by limiting the Fund’s liability for general damages
to those victims who have suffered
“serious injury”.  The
all-important limitation of the Fund’s liability was introduced by
the proviso to section 17
(1) of the RAF Act, which is followed by
the “how to” described in sub-section (1A), which in turn refers
a reader to a “prescribed
method” aimed at keeping the parties
out of court. The method is comprehensively provided for in
Regulation 3 and proposes to
keep the costs of the exercise, that is
of making the necessary determination that sifts a claim for general
damages as a result
of serious injury from ones that are not,
limited to those of the Fund acting administratively for such
determinations.  It
is evident from the Explanatory Memorandum
on the Objects of the RAF Amendment Bill, 2005 that a costs savings
underpinning the
proposed amendments was also top of mind.  The
Bill sought to repeal the erstwhile provision in section 17 (2), in
terms of
which the Fund was liable for the legal costs of claimants.
[24]
The
method is not in issue for present purposes, and I do not propose to
go into this in great detail, save to emphasize that a
prescribed
process for the determination exists and must be followed in all its
minutiae
.
[25]
The
Fund does not itself decide whether the injury is serious neither
does the RAF Act provide an objective standard for deciding
on the
seriousness of the injury (Duma
supra
at paras 5 – 6).  That assessment is to be made by the
medical practitioner.  The Fund can either accept or reject
the
medical practitioner’s assessment.  Its concern (acting
administratively) is with the question whether the third party’s
injury has been correctly assessed as serious in terms of the
“method” provided by the Regulations.  Section 17 (1A) (a)
presupposes that this method (which the Regulations are a product
of) is reasonable in ensuring that the injuries are assessed
in
relation to the circumstances of the third party.
[26]
Regulation
3 (3) (dA).
[27]
[2014] 4 All SA 168
(SCA) at para [32].
[28]
An additional independent “health practitioner,” with expertise
in any appropriate health profession, may also be appointed
by the
Registrar to assist the Appeals Tribunal in an advisory capacity.
(Regulation 8 (3)(c)).
[29]
Regulation
3 (5)(a). Although this provision appears prejudicial to the third
party, he/she may still invoke the dispute resolution
process after
the prescribed period by lodging an application for condonation with
the Appeal Tribunal. Our courts have also leaned
towards promoting
the opportunity to a third party, who wishes to belatedly challenge
the Fund’s administrative decision by way
of an appeal to the
HPSCA, to do so in that forum even if he/she has only come to a
realisation long after the fact that such internal
remedy must of
necessity first be exhausted.
[30]
Supra
.
[31]
Supra
at
para [34]. I add the significance that the assessment is at the cost
of the Fund in the administrative realm.
[32]
Litigation
should be a fallback option.  Ideally the Fund will make
appropriate offers in settlement of a claim before service
of a
summons. A third party will have to enforce his/her claim in court
as a last resort to beat prescription (section 23) and
in
circumstances where the Fund has in writing repudiated liability for
the claim (section 24 (6)).  Even so, the obligation
on the
parties to use the administrative method at their disposal will
prevail and the litigation will be sub-judicated under it.
[33]
Supra
at
para [34]
[34]
It
appears that all that will be left over for determination in court,
in practical terms, will be the extent of the quantum, or
matters
arising therefrom.  The court will no doubt have to accept
whatever outcome is rendered through the process as the
premise upon
which to make an award of general damages.  In my view an
appropriate offer should be made in respect of this
incident of the
third party’s claim immediately the decision of the Appeal
Tribunal is to hand. This is the exact objective of
the separate
process. That is, to determine the issue in the alternative forum
and to keep the parties from having to do so in
court at greater
cost to the Fund.
[35]
Duma
supra
at para [19], and
Faria,
supra
at para [35].
[36]
Supra
at para [34].
[37]
Supra
.
This judgment was delivered on 15 November 2012.
[38]
Regulation 3(1)
(a)
and
(b)
provides that a third party
who
wishes to claim compensation for non-pecuniary loss
shall submit himself or herself to an assessment by a medical
practitioner in accordance with these Regulations.  The RAF
4
form provides for the assessment of an injury envisaged in both
regulations 3(1)
(b)
(ii)
and 3(1)
(b)
(iii).
The narrative test entails an assessment of prospective long-term
impairment(s) which, over time, could vary or even be corrected.
It
ostensibly involves tests to establish whether the injury has
stabilized and that the MMI has been attained.
[39]
The
Fund
must then deal with the claim on that basis (Manukha v RAF
(285/20160
[2017] ZASCA 21
(24 March 2017) at para [22]).  An
acceptance should require that an offer for general damages be made.
[40]
Supra
at para [5].
[41]
Supra
See
para [25].
[42]
Supra
at
para [24].
[43]
Supra
at
para [24].
[44]
Supra
at
para [23].  It is a common mistake of practitioners to overlook
the import of the scheme and to resort to unnecessary point-taking
in the legal proceedings.
[45]
See
LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd
1974 (1) SA
747
(A) at 772E; GK Breed (Bethlehem) (Edms) Bpk v Martin Harris &
Seuns (OVS) (Edms) Bpk
1984 (2) SA 66
(O) at 72A-C; Parekh v Shah
Jehan Cinemas (Pty) Ltd and others
1980 (1) SA 301
(D) at G. (
This
is a footnote from the judgment itself.)  No doubt, if the
parties in the litigation plead their case and defence respectively
based on the intricacies required by section 17 (1A) read together
with the Regulations, with reference especially to the status
of
those proceedings in the parallel dispute resolution forum, the more
obvious way for the court to deal with the plaintiff’s
claim for
general damages in a scenario similar to Lebeko’s is to have its
adjudication postponed pending the determination of
the dispute
before the Appeal Tribunal.  This necessary strategic approach
(in recognition of the third party’s right to
have his/her dispute
resolved in a fair and public hearing albeit in a different forum
than the court) will, or at least ought
to, in recognition of that
same constitutional right, enable the plaintiff to proceed in court
in respect of the adjudication of
his/her other claims for
compensation which arise from the fact of the wrongful driving of a
motor vehicle.
[46]
Supra
at
para [32].
[47]
Supra
.
This judgment was delivered shortly after Lebeko, on 27 November
2012.
[48]
On
appeal the Supreme Court of Appeal found that these pleas should
have been upheld.
[49]
Supra
at para [11].
This
seems to be a common feature of road accident fund litigation which
plays havoc with the court rolls.
[50]
Supra
at
para [14].
[51]
Supra
at
para 15.
[52]
It
ultimately found that the Fund’s rejection should not have been
disregarded.
[53]
Indeed,
the correctness of the Fund’s reasons for rejection are of no real
consequence.
[54]
Supra
at
para 18.
[55]
The
same can be said for decisions of the Appeal Tribunal. When the
judgement in Duma was pronounced, we were earlier in the game
after
the implementation of the amending provisions. With the benefit of
time since then delays on the part of the appeal tribunals
constituted to hear disputes have also become commonplace.
[56]
See for example Mlatsheni v Road Accident Fund
2009 (2) SA 401
(E)
para 18; Bovungana v Road Accident Fund
2009 (4) SA 123
(E) para 7.
(This footnote comes from the judgement itself.)
[57]
Supra
at
para 25.
[58]
In a brief case note by Alfred Selman in De Rebus August 2013 at 155
regarding Duma, he lauds “the seemingly deft hand played
(by the
Supreme Court of Appeal) in balancing the practical, legal and
political implications of its decision” by presenting
a “strong
interpretation” of section 7 (2) of PAJA that prescribes that,
where administrative action by the Fund is contested,
all internal
remedies must first be exhausted before a court may be approached,
no matter how obstructive the Fund may be and regardless
of the
sufficiency of the reasons they give for the rejection of a RAF 4
assessment,
unless
there are exceptional circumstances present
.
In answering the question whether the court missed the opportunity
to protect third parties from being subjected to actions
of the RAF
perceived to be undertaken merely to frustrate their claims (by not
finding the existence of such exceptional circumstances),
he
concludes that the judgment is helpful rather than harmful.  He
suggests that had the court substituted its decision for
that of the
HPCSA and gone against the principle that the disputes arising in
the four cases should have been resolved in the alternative
forum
rather than by it as a
final
means, that this would have had the undesirable effect of leaving
the appeals process redundant.  He points to the necessity
for
the administrative processes, designed in such a manner as to
protect the Fund’s interest against fraudulent claims, to be
shown
the necessary deference, but also suggests that is unlikely that the
Fund will use the appeals process to enforce an obstructionist
agenda because of its responsibility to bear the reasonable cost of
each appeal to the HPCSA.  In other words, the prohibitive
financial consequences if it engages in such behavior should act as
a disincentive to the Fund in itself.
[59]
See
also
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
2011
(4) SA 113
(CC) para 50.  (This footnote is from Duma).
[60]
This
reasoning provides a compelling argument for the court to show
deference to the unique assessment method, procedures and the
internal remedies provided for in the regulations to determine
whether an injury is serious or not and to leave well alone what
is
not within the court’s jurisdiction to decide.
[61]
In
the other cases they are identical in form except for the obvious
variables.
[62]
(698/16)
[2017] ZASCA 76
(1 June 2017).
[63]
At
para [4].
[64]
At
para [5].
[65]
At
para [6].
[66]
(16743/2015)
[2019] ZAGPHC 163
(24 May 2019).
[67]
Supra
.
[68]
Supra
.
[69]
Evidently
the Fund had paid the damages (albeit in error) and the issue had
accordingly become moot between the parties.
[70]
The
parties should perhaps also have concerned themselves with the
question what the position would be if the decision went in favour
of the plaintiff, and she had
abandoned
her claim for general damages. What then? The manner in which the
question was framed however confirms the concern on behalf of
the
plaintiff that if the decision went against her and it was
thereafter clear that she was not entitled to have proceeded with
her claim for loss of earnings in the first place, because the
seriousness of the injury was at the heart of both claims as a

jurisdictional fact, that this might retrospectively render futile
the separate adjudication of this claim.
[71]
See
Mavuso v RAF which confirms a separation of issues to be a viable
solution to a problem similar to that encountered in both
referred
matters.
[72]
No
evidence would be required in court concerning the issue of her
entitlement to claim compensation for general damages.
This is
because that determination will be made in the administrative arena
or forum.
[73]
Their
relevance will be in examining a third party and compiling the RAF4
that asserts that the injury is serious. Their reports
or arguments
will also be of significance in the internal appeal hearing.
(See Regulation 3 (4)(b)). Expert reports relied
upon in the
administrative realm are routinely put up as being relevant in the
court as well, possibly duplicating costs.
[74]
In
Duma the court, in remarking upon the importance of the role in the
legislative scheme of the assessment in Regulation 3 (1),
observes
that the prescribed method, the process that applies to assess the
seriousness of the injury,
serves
as a measure of control to prevent claimants and the Fund from
incurring costs in establishing whether injuries qualify as
serious
when a medical practitioner has assessed them to be so after a
proper physical examination of the claimant. (See para [31])
The
objective therefore is to keep the costs in court to a minimum if
the need to enforce any aspects of the third party’s claim
arises
in the judicial forum at all. Further, if the assessment goes under
scrutiny through the internal remedy mechanism, these
costs also,
insofar as they are reasonable are also borne by the Fund pursuant
to the provisions of Regulation 3 (14)(a) so should
not be
duplicated in court by the plaintiff unnecessarily resorting to the
filing of expert reports unless their views pertain
to issues in
respect of which the court does have jurisdiction.
[75]
EL
Case No. 432/12, ECD 1132/12, unreported judgment dated 15 August
2018.
[76]
This
appears to have been an obstructive approach and unfortunately
suggests a lack of understanding by the Fund of the import of
the
new legislative scheme and order of things. I am not discounting
however that there may be real circumstances in which the
Fund can
resist an application for separation of issues on the basis of the
criteria of “convenience”.  It remains to
be seen however
what difficulties the Fund foresees as presenting a challenge, or
what in its experience since the implementation
of the amending
provisions, it can bring to the court’s attention as posing a real
concern that militates against a separate
adjudication of a
plaintiff’s separate claim for special damages apart from a claim
for general damages.  The Fund would
in my view have a hard
time explaining, in instances where it has been the cause of any
delays, why the plaintiff should be expected
to put off the hearing
of his/her incidents of the claim for compensation that are ripe for
hearing in the meantime, until the
administrative procedures have
run their course, which may take several months still.
[77]
Mnama
was criticised by the Fund’s counsel for not pertinently pleading
that there was an issue about the seriousness of the injuries
but at
the least she did indicate in her particulars of claim that she
would hold out for a claim for general damages, the enforcement
of
which was, and remains, premature. The filing of her RAF4 form
ultimately would have been sufficient indication of her desire
to
pursue her entitlement to claim compensation for her non-pecuniary
loss and would have set the administrative procedures on
track.
(The RAF1 form might also have heralded an indication that a claim
for general damages was among the heads of damage
she was intent
upon claiming from the Fund.)  Although the parties wear
different hats in the administrative arena and the
court, it would
be inimical to responsible litigation to unnecessarily take issue
with the pleadings when the fact of or status
of the administrative
processes underway are well known to each party in the litigation.
[78]
In
Lebeko the pleadings obviously lent themselves to a stay of the
claim for general damages since the special plea, which took
the
form of an objection to the plaintiff’s cause of action regarding
his claim for general damages (in light of his failure
to have
complied with the prescribed Regulation) fell to be upheld.
The plaintiff’s right to assert his claim for general
damages is
clearly, as the court observed, dependent on the acceptance or
rejection of the RAF 4 assessment, the rejection of the
further
assessment by the Fund, or ultimately the determination by the
Appeal Tribunal (see paras [27] – [29]).
[79]
Ironically the court dealt with very aspect in Mavuso v RAF (Supra),
which judgment was delivered on 25 May 2020, prior to the
issue of
the Judge President’s directive. One would have thought that this
would have rendered the referral moot and have clarified
for the
Fund that there was absolutely no merit in the preliminary
objections raised by them.
[80]
In Law Society of South Africa v Minister of Transport 2010 (11)
BCLR (GNP) at para 35 the court confirmed the principle
that whereas
a third party with a non-serious injury cannot claim general damages
for past and future loss of amenities of life,
he/she can still
claim medical expenses and loss of earnings. See also Botha v RAF
supra
at para [23] and Mavuso v RAF (
Supra
)
at par [11].
[81]
The
RAF 4 form in fact delineates the claim for non-pecuniary loss
referred to in the proviso (and which is subject to the serious
injury assessment) as being in respect of “general damages” or
“pain and suffering”.  Botha confirms that a claim
for loss
of earning capacity is pecuniary in nature and does not constitute
general damages.
Supra
at [23]. See also Mavuso v RAF (
Supra
).
[82]
Botha
supra
at
para [30] where the court observed that the historical
categorisation of future loss of earnings and loss of future earning

capacity as being included in a traditional claim for general
damages “took place in an era prior to the current legislation”.
In terms of the new dispensation, although the parties and courts
still colloquially refer to a claim for general damages, it is,
in
terms of the RAF Act, a claim for non-pecuniary loss (for pain and
suffering) subsumed under a unitary claim for statutory

compensation. See also Mavuso v RAF (Supra).
[83]
In
my view it was probably never envisaged that the serious injury
disputes would take so long to resolve as has been the case.
[84]
The
procedure and format for the launch of a dispute is outlined in
Regulation 3.  The notice of the dispute is to be given
on
prescribed form RAF 5.
[85]
The
reasons will only be of consequence really in a separate application
for the judicial review of the decision.  Such an
application
seems unnecessary, however, in the light of the third party’s
right in any event to seek a rehearing, in the wide
sense, of the
determination whether the injury is serious or not.  (Duma
supra
,
at [26])
[86]
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA).  See also Duma
supra
at para [24].
[87]
An
approach that does not conflate the two processes is infinitely
desirable.  The parties should also bear this in mind and
not
litigate irresponsibly.  Although it might have been essential
for the plaintiff to have had to issue a summons to enforce
his/her
claim in court, it should not be overlooked that the action
proceedings are just a means to an end.
[88]
Applications
for default judgment against the Fund have become the norm since the
Fund has cancelled service level agreements with
attorneys.
[89]
It
needs to be emphasized that the fact that the Fund has not filed a
notice to defend should not entitle a plaintiff to claim default
judgment in respect of his/her claim for general damages unless the
plaintiff can make the essential allegation that the Fund has
in
fact accepted the injury to be a serious one.
[90]
Mavuso v RAF (Supra).
[91]
It
may however be appropriate for the Fund to request the plaintiff to
confirm that he no longer wishes to pursue his claim for
general
damages where the Appeal Tribunal has not found in his favour and in
circumstances where he does not want to challenge
this decision by
way of judicial review in separate proceedings. Such a declaration
of intent would in my view conduce to finality
in respect of the
litigation.
[92]
See
also the reasoning of this court in Mavuso v RAF (Supra).
[93]
Supra
.
[94]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para 18.
[95]
Boshoff
v Union Government
1932 TPD 345
at 350, 351.
[96]
Although the Fund ought to have raised a special plea that the
plaintiff had not complied with Regulation 3 and therefore had no
jurisdiction to adjudicate on this incident of his claim for
compensation, this is neither here nor there for present purposes.
[97]
As
I indicated above, however, the pleadings are not determinative of
the serious injury issue.
[98]
MEC
for Health v Kirkland 2014 (3) SA 481 (CC); 2014 BCLR 547 (CC).
[99]
Although in the form of an
in
limine
objection, the Fund in effect relies on a special plea, not of
abatement, but a dilatory one that accords with our courts’
treatment
of claims under the provisions of section 17 of the RAF
Act, that the competence of a court to pronounce upon the issue of
general
damages is stayed or suspended until the aspect of the
seriousness of the injury has been disposed of in the administrative
forum.
[100]
Thembani
Wholesalers (Pty) Ltd v September
2014 (5) SA 51
(ECG) at 511-52A.