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[2017] ZASCA 76
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Mphala v Road Accident Fund (698/16) [2017] ZASCA 76 (1 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 698/16
In
the matter between:
NOBANTU
GLORIA
MPAHLA
APPELLANT
and
THE ROAD ACCIDENT
FUND RESPONDENT
Neutral
Citation:
Mpahla
v RAF
(698/16)
[2017] ZASCA 76
(1 June 2017)
Coram:
Lewis, Ponnan, Petse and Mathopo JJA
and Coppin AJA
Heard:
15 May 2017
Delivered:
1 June 2017
Summary:
Road Accident Fund
56 of 1996 – Interpretation of regulation 3(3)(dA) of the Road
Accident Fund Regulations – failure
of the Fund to take a
decision within prescribed period does not create a deeming provision
– remedy of claimant lies in
s 6(2)
(g)
of PAJA.
ORDER
On
appeal from
: The
Western Cape Division of the High Court, Cape Town (Schippers J)
(sitting as court of first instance):
The appeal is dismissed with costs.
JUDGMENT
Mathopo
JA (Lewis, Ponnan and Petse JJA and Coppin AJA concurring):
[1]
This is an appeal against the judgment of the Western Cape Division
of the High Court, Cape Town, to which for convenience I
shall refer
as the high court, (Schippers J) on a question of law decided against
the appellant. The matter proceeded before the
high court by way of a
stated case. The question of law concerned the interpretation of
regulation 3(3)(dA) of the Road Accident
Regulations,
[1]
passed pursuant to the
Road Accident
Fund Act 56 of 1996
, which requires the Fund to accept or reject a
‘Serious Injury Assessment’
[2]
report (SIA report) or to direct the
third party to submit to a further assessment, within 90 days from
the date on which the report
was delivered to the Fund. The appeal is
against that finding, on the stated case, is with the leave of that
court.
[2]
The appellant contended before the high court that on a proper
construction of
regulation 3(3)(dA)
, the Fund is deemed to have
accepted that the appellant sustained a serious injury, because it
did not reject the SIA report or
direct the appellant to submit to a
further assessment within 90 days of delivery of the report, which
expired on 26 January 2014.
[3]
Regulation 3(3)(dA)
provides as follows:
‘
The
Fund or an agent must, within 90 days from the date on which the
serious injury assessment report was sent by registered post
or
delivered by hand to the Fund or an agent who in terms of
section 8
must handle the claim, accept or reject the serious injury assessment
report or direct that the third party submit himself or herself
to a
further assessment.’
[4]
The following facts are 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 an SIA report) to be submitted to the Fund. Even
though
regulation 3(3)(dA)
applied, the Fund failed to react to the
appellant's SIA 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 the SIA report by
rejecting it. The Fund conceded
the issue of negligence and undertook
to compensate the appellant for the other heads of damages but
continued to resist and deny
liability for general damages.
[5]
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
s 17
of the Act and
regulation 3
of the
Regulations relating to the submission of the SIA 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 delivered the SIA
report to the Fund on 28
October 2013.
[6]
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 SIA report, or fails to direct that
a claimant
submit himself or herself to a further assessment within the 90-day
period prescribed by the regulations, then the Fund
is deemed to have
accepted the injury as serious. The argument is that with the
promulgation of the new regulation that was introduced
immediately
after this court’s judgment in
Road Accident Fund v
Duma,
(above) the legislature inserted a 90-day limitation
period in the regulation in order to address the concerns raised in
Duma
. The regulation previously did not provide for any
limitation of the period in which the Fund had to respond after
submission of
the SIA report.
[7]
The high court rejected the appellant's submission and in brief held
that
regulation 3(3)(dA)
was not capable of the construction
contended for by the appellant, namely that if the Fund has not taken
a decision within 90
days, it is deemed to have either accepted the
SIA report or to have referred the plaintiff for a further
assessment.
[8]
The legislative provisions governing the claims for general damages
or non-pecuniary loss are discussed at length in
Duma
.
The general tenor of
s 17(1)
of the Act is that the Fund is
liable to compensate claimants for loss arising from bodily injuries
sustained in motor vehicle
accidents. In terms of the Amendment
Act,
[3]
the limitation on the Fund’s
liability for general damages was introduced as a proviso in s 17(1)
that ‘the obligation
of the Fund to compensate a third party
for non-pecuniary loss shall be limited to compensation for serious
injury as contemplated
in subsection (1A) . . .’. In terms of
this section the assessment of serious injury must be based on a
prescribed method
and be carried out by a medical practitioner
registered under the Health Professions Act.
[4]
A third party in the position of the
appellant who has suffered as a result of any bodily injury to
herself or himself or the death
of or any bodily injury to any other
person caused by or arising from the driving of the vehicle due to
negligence of the driver
and as a result, wishes to claim for
non-patrimonial losses, must first obtain from the medical
practitioner concerned, an SIA
report.
[9]
One of the problems identified in
Duma
is that where the Fund
does not reject or accept the SIA report within a reasonable period,
the plaintiff is compelled to ask for
an order of court reviewing the
Fund’s inaction, and in that process the court is required to
determine what a reasonable
period is. That is a fact-based enquiry.
To avoid a plaintiff having to approach a court to determine whether
the period is in
fact reasonable, an amendment to the regulations was
introduced requiring the Fund to assess the SIA report within 90
days.
[10]
The high court rejected the appellant’s argument that the
introduction of the 90-day period gave rise to a deemed acceptance
of
the SIA report. The foundation for the argument was that the
amendment sought to avoid the mischief that
Duma
identified –
the Fund’s inaction – and that simply requiring the Fund
to respond within 90 days would not achieve
that end. The plaintiff
would still have to apply, after the 90-day period, for a review of
the Fund’s inaction in terms
of s 6(2)
(g)
of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA). This was
costly and time consuming and would prejudice the plaintiff,
especially one who was impoverished or did not have ready access to
legal services. Thus one had to read into regulation 3(3)(dA)
a
proviso, the effect of which is that inaction on the part of the Fund
for a period of 90 days would constitute a deemed acceptance
of the
injury as serious.
[11]
It was contended on behalf of the Fund that the interpretation
suggested by the appellant was untenable and would give rise
to an
absurdity that could not have been intended by the legislature. The
nub of the Fund’s argument is that if the regulation
introduced
a deeming provision, as contended for by the appellant, the Fund
would lose its statutory right to act in terms of regulation
3(3)
(c)
,
which provides that the Fund is obliged to compensate a third party
for non-pecuniary loss only if a claim is supported by a SIA
report
and the Fund is satisfied that the injury has been correctly assessed
as serious in terms of the method prescribed in the
regulations. It
was further submitted that the argument of the appellant flies in the
face of regulation 3(3)
(d)
(i) which provides that if the Fund
is not so satisfied, it must reject the serious injury assessment
report and give the third
party reasons for the rejection; or direct
the third party to submit himself or herself to a further assessment
by a medical practitioner
designated by the Fund, at its cost, to
ascertain whether the injury is serious in terms of the method set
out in regulation 3(3)
(d)
(ii). The submission made is that
since the Fund had rejected the SIA report, albeit late, the
appellant had to utilise the internal
dispute resolution mechanisms
provided for in the regulation to appeal against the rejection of the
report. On the appellant’s
construction, so the argument went,
the Fund would be liable for general damages without any legal basis
and this would render
the entire provisions of regulations 3(7) to
3(10), which deals with internal dispute resolution mechanisms,
nugatory.
[12]
If the Fund is not satisfied that the injury is serious, 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). The Fund, as an organ of State as defined in s 239
of the Constitution, performs a public function
in terms of
legislation. Its decision in terms of regulations 3(3)
(c)
and 3(3)
(d)
,
whether or not the report correctly assessed the claimant’s
injury as ‘serious’, constitutes administrative
action,
as contemplated PAJA. In terms of s 6(2)
(g),
read with s 6(3)
(b),
of PAJA if the Fund unreasonably delays in taking a decision in
circumstances where there is a period prescribed for that decision,
an application can be brought for judicial review of the failure to
take the decision.
[13]
Moreover, the clear language of regulation 3(3)(dA) enjoins the Fund
to decide within 90 days from the date on which the report
was sent
or delivered by hand to (a) accept the SIA report; (b) to reject it;
or (c) to refer the third party for a further assessment.
It was
correctly argued for the Fund that regulation 3(3)(dA) was enacted to
stipulate the time period within which the Fund must
make a decision
as to whether or not the third party has suffered serious injuries.
[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.
[15]
The appellant's further argument that a failure to read in a deeming
provision will leave a lacuna in the regulation that would
prejudice
claimants is misconceived. What that argument fails to appreciate is
that reading in a deeming provision into the regulation
would alter
its clear meaning. In any event, reading in may occur only when it is
necessary to save a provision from constitutional
invalidity.
[16]
In the hearing, counsel for the appellant was asked to formulate the
deeming provision for which the appellant contended. He
understandably had difficulty in doing so. He did, however, concede
that what we were being asked to undertake is a law-making
function
on a scale that is unprecedented.
[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.
[19] The following order is made:
The appeal is dismissed with costs.
________________________
R S Mathopo
Judge
of Appeal
APPEARANCES:
For
appellant:
A R Sholto-Douglas SC
C Tait
Instructed by:
A Batchelor & Associates, Cape
Town
McIntyre Van der Post, Bloemfontein
For
Fund:
P J J Zietsman
Instructed by:
Nongogo, Nuku Incorporated, Cape Town
Matsepes Incorporated, Bloemfontein
[1]
Published under
Government Notice R770 in
Government
Gazette
31249 of 21 July 2008, as amended by Government Notice R347 in
Government
Gazette
36452 of 15 May 2013 (the Regulations).
[2]
Discussed fully in
Road
Accident Fund v Duma, Road Accident Fund v Kubeka, Road Accident
Fund v Meyer, Road Accident Fund v Mokoena
[2012] ZASCA 169; 2013 (6) SA 9 (SCA).
[3]
Road Accident Fund
Amendment Act 19 of 2005
.
[4]
Health Professions Act 56 of 1974.