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[2020] ZAGPPHC 7
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Mahlangu N.O obo Mahlangu v RAF (67880/14) [2020] ZAGPPHC 7 (15 January 2020)
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NORTH GAUTENG HIGH COURT,
PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER: 67880/14
15/1/2020
In
the matter between:
ALBERT
JABHI MAHLANGU N.O.
PLAINTIFF
ON
BEHALF OF MICHAEL MAHLANGU
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MAVUNDLA
J.,
[1]
The plaintiff is Mr Michael Mahlangu, an adult male residing at 370
Kotze Street Garsfontein,
Pretoria, Gauteng, sued the defendant for
damages he allegedly suffered on 20 July 2013 at Atterbury Road,
Menlyn, Pretoria, Gauteng
when a motor vehicle with registration
letters and numbers [….] then and there driven by Mr GA
Mabitsela (hereinafter referred
to as the insured driver) collided
with the plaintiff who was standing next to the pavement behind the
yellow lane at the time
of the accident.
[2]
The defendant in its plea raised three special pleas, but during a
pre-trial minute
held on 18 September 2019, indicated that it would
only rely on its first special plea; which is:
2.1
Defendant's first special plea
2.1.1
In
paragraph 4 of the plaintiff's particulars of claim it is alleged
that the collision occurred on 20 July 2013. The Road Accident
Fund
Act, Act 56 of 1996, and regulations thereto were amended, which
amendments commenced on 10 August 2008;
2.1.2
In accordance with Regulations 3(1)(a)
and (b} of the Road Accident Fund Amendment Act, Act No 19 of 2005,
in that a third party
who wishes to claim compensation for non-
pecuniary loss shall submit himself to an assessment by a medical
practitioner in accordance
with the regulations;
2.1.3
The plaintiff failed and or refused to
submit himself to the statutory prescribed assessment procedure and
methods stipulated in
Regulations 3(1)(a) of the Road Accident Fund
Amendment Act, Act No 19 of 2005;
2.1.4
The defendant pleads exclusion of
liability in terms of Section 17 of the Road Accident Fund Amendment
Act, Act 19 of 2005, read
together with Regulation 3, the plaintiff
has failed or neglected to prove per statutorily prescribed method of
assessment of serious
injuries, that he has sustained a serious
injury as defined by the Amendment Act read together with Regulation
3;
2.1.5
In the premises the plaintiff has failed
and or neglected to comply with the provisions enacted under the said
regulation and therefore
the claim is accordingly not enforceable in
the present proceedings.
[3]
On the 4 December 2019, the parties agreed that the matter should be
proceeded with
only on the aforesaid special plea and that the rest
of the issues be and indeed were separated in terms of rule 33.4 of
the Uniform
Court Rules and postponed
sine die.
[4]
It is common cause that summons was issued on 15 September 2014 and
the defendant's
plea and special plea were filed on 17 October 2014.
Litis
contestation occurred on 7 November 2014; vide Uniform
Rule 25(1) read in conjunction with Uniform Rule 29(b); In
Milne,
NO v Shield Insurance
Co.
Ltd
1969 (3) SA 352
(AD) at 358C
Holmes JA stated that: " It has rightly been held that, in our
modern procedure,
litis contestatio
or joinder of issues takes
place when the pleadings are closed;
vide
also
Government
of
RSA v Ngubane
1972 (2) SA 601
(AD) at Holmes JA held at
at 608D-E that 'In modern practice
litis
is taken as being
synonymous with close of pleadings, when the issue is crystallised
and joined.";
Potgieter v Sustein (Edms) Bpk
1990 2 15
(T} at 18H-19H.
[5]
It is trite that a claim for general damages does not pass to the
estate of a deceased
person unless
litis contestatio
has taken
place;
vide
in this regard
Jankowiak v Parity Insurance
Co
Ltd
1963 (2) SA286 (w);
Potgieter v Rondalia Assurance
Corporation of SA Ltd
1970 (1) SA 705
(N) at 710-D;
Vide also
the authorities cited in the preceding paragraph.
[6]
The Regulations in terms of
Road Accident Fund Act 56 of 1996
however, added some more requirements before any estate of a claimant
would be able to claim general damages for pain and suffering
and
those requirements one finds under
regulation 3.
[7]
In casu
Mr
Michael Mahlangu passed away on 8 April 2015 which was 5 months after
litis
contestation and
almost
two years after the alleged accident according to the letter of
authority of the Master of the High Court issued on 29 March
2017. It
is common cause that the deceased never submitted himself to a
medical practitioner in accordance with regulations to
the Road
Accident Fud Act 19 of 2005 (as amended).
[8]
In
an attempt to comply with the Act and the Regulations, the hospital
records which defined the injuries sustained by the plaintiff
were
provided to Dr N Mogoru (an independent medical assessor) who
accordingly prepared the statutorily required RAF 4 Form. Dr.
Mogoru
having considered the injuries of the plaintiff, concluded that, had
the plaintiff been alive his injuries would have qualified
as
'serious' by virtue of the fact that he would either have had a 30%
whole person impairment or would have qualified under the
narrative
test.
[9]
It
is not in dispute that according to the hospital records, the
plaintiff sustained the following accident- related injuries:
9.1
Polytrauma;
9.2
head injury with cerebral cedema (brain
swelling) identified by a CT Scan; (GCS of 2/15 on admission to the
hospital;
9.3
open left femur fracture; and
9.4
Closed left femur fracture; and
9.5
C2 injury (and neck vertebra fracture)
[10]
Per
the hospital records the plaintiff received the following treatment
for the aforesaid accident related injuries:
10.1
a debridement of the left femur
(24 July2013);
10.2
external fixation of the right
tibia (24 July 2013);
10.3
a debridement and open reduction
with an internal fixation of the right tibia (24 July 2013)
10.4
open reduction and internal
fixation of the right tibia (28 September 2013) and
10.5
a protracted stay in hospital for
operations and recovery.
[12] It
was submitted on behalf of the plaintiff that:
12.1
the purpose of RAF 4 assessment is to
determine the seriousness of the injury as the defendant is only
liable to compensate a plaintiff
if the injury is serious;
12.2
the defendant's special plea targets
plaintiff's purported non-compliance with Regulation 3: the
defendant's protestation can be
distilled to read that there is no
valid assessment of the 'seriousness' of the plaintiff's accident-
related injuries;
12.3
the applicable authority to the special
plea is the case of
Road Accident
Fund v Duma (2002/12) and three related cases (Health Professions
Council of South Africa as Amicus Curiae
[2012]
ZASCA 169
(27 November 2012) dealt with the
Road Accident Fund Act 56
of 1996
read with the Regulations promulgated under the Act with
regards to 'serious injury' to be determined in accordance with the
procedure
prescribed in the Regulations;
12.4
the proverbial bone of contention raised
in the respective cases adjudicated simultaneously before the SCA is
that the plaintiff's
'serious' injury, had not been determined by the
method prescribed by the Regulations promulgated under the Act and
that the High
Court should not have awarded general damages;
12.5
the SCA held that neither s17(1) nor
s17(1A) provides any objective determinable content or substance to
the central concept of
what injury would qualify as ‘serious’.
All s17 (1A) adds is that the assessments of whether or not a
particular injury
meets the threshold requirements ‘serious’
must be carried out by someone registered as a medical practitioner
under
the Health Professions Act 56 of 174 and on the basis of a
prescribed method;
12.6
Regulation 3 prescribes the method
contemplated in s17(1A) for the determination of ‘serious
injury’. As a starting
point it provides in 3 (1) (a) that a
third party who wishes to claim general damages ‘shall submit
himself or herself to
an assessment by a medical practitioner in
accordance with these regulations’. In terms of 3(3)(a) a third
party who has
been so assessed, ‘shall obtain from the medical
practitioner concerned a serious injury assessment report.’
This report
is defined in regulation 1 as a duly completed RAF4.
12.7
The RAF4 form itself, read with
Regulation 3(1)(b), requires the medical practitioner to assess
whether the third party’s
injury is ‘serious’ in
accordance with 3 sets of criteria.
12.8
At paragraph [8] of the SCA judgment the
SCA held that in terms of Regulation 3(3)© the defendant is only
liable for general
damages ’if a claim is supported by serious
injury assessment report submitted in terms of the Act and
Regulations’
and the Fund is satisfied that the injury has been
correctly assessed as serious in terms of the method provided for in
the Regulations.
If the defendant is not satisfied, it must in terms
of regulations 3(3)(d), either:
‘
(i) reject the
third party’s RAF4 form and give reasons for doing so; or
(ii) direct that the
third party submit himself or herself to a further assessment at the
defendant’s expense
by a medical practitioner designated by the
Fund in accordance with the method prescribed in Regulation
3(1)(b).’;
12.9
In all four matters
which served begore the SCA simultaneously the defendant rejected the
RAF4 form in terms of Regulation 3(3)(d)(i)
by means of a letter from
its attorneys. Post the aforesaid envisaged rejection the plaintiff
is entitled to lodge a dispute in
terms of regulation 3(4).
12.10
the SCA held at
paragraph [19] of the judgment that 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 met the threshold
requirement for an award of general damages was
conferred on the
defendant and not the court. That much appears from the stipulation
in Regulations 3(3)© that the defendant
shall only be obliged to
pay general damages if the defendant, and not the court, is satisfied
that the injury has correctly been
assessed in accordance with the
RAF4 as serious. Unless the defendant 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 defendant is
so satisfied, the court
has no jurisdiction to entertain the claim
for general damages against the defendant.
12.11
Unlike the
respective plaintiffs in the SCA judgment who did not submit
themselves for a physical assessment, the plaintiff could
not submit
himself for the envisaged assessment due to his unfortunate early
passing.
12.12
the defendant to
date has failed to, in terms of regulation 3(3)(d)(i), reject the
plaintiff’s RAF4 form. Regulation 3(3)(d)(iii)
is not available
to the defendant due to the fact that the plaintiff is deceased;
12.13
the reality of the
defendant’s special plea, in the absence of the aforesaid
rejection envisaged by regulation 3(3)(d)(i),
is that the defendant
is calling upon the court to make a determination as to the
seriousness of the injury which, as stipulated
supra,
this court does not have the jurisdiction to do so by virtue of the
legislative framework;
12.14
Regulation 3
provides the protocol which must be followed and the defendant is of
the opinion that the plaintiff has not been correctly
assessed, then
the only option available to the defendant is to reject the generals
on the basis that the plaintiff has not been
correctly assessed,
notwithstanding the fact that the plaintiff has been assessed,
post-mortem, by virtue of the hospital records
and a signed and dated
RAF4 form which is before the court;
12.15
Until such time the
defendant has formally rejected the RAF4 the plaintiff’s legal
representatives are proverbially felled
on the knees from pursuing
the internal appeals process delineated by regulation 3(4);
12.16
due to the fact that
the defendant is not satisfied as to the seriousness of the
plaintiff’s injury, the only way for the
plaintiff’s
legal representatives is to obtain finality on the seriousness of the
plaintiff’s injury and to have the
Health Professions Council
of South Africa peruse RAF 4 in conjunction with the hospital records
and to make a finding accordingly;
12.17
for the defendant to
persist with its first special plea when it has not acted positively
as is required by the regulations renders
the special plea moot. The
special plea is not even academic as it is redundant and serves no
purpose;
12.18
the defendant must
accept or reject the RAF4 and if they reject it then they must detail
why they reject it and they can defer to
their own experts or they
can defer to the tribunal;
12.19
the defendant
maintains that the plaintiff was not correctly assessed or not
assessed at all. It is submitted on behalf of the plaintiff
that that
position is disputed by virtue of the fact that the plaintiff was
assessed post-morbid by virtue of the hospital records;
12.20
nowhere in the
regulations does it say that the dispute should be referred to the
court for argument on the factual question of
whether or not someone
was assessed or correctly assessed at all.
12.21
It is accordingly
submitted that the only question this court is faced with is whether:
has the defendant made an election and was
the election made in terms
of the Regulations? Thus, it is not the question of arguing a special
plea, it is the fact that the
defendant has failed to make a
decision;
12.22
it is accordingly
submitted that the defendant cannot rely on the special plea until
such time as it has acted in accordance with
its obligations. Again,
if the defendant is not satisfied it must exercise its rights and
obligations which will entitle the plaintiff
to exercise their rights
and obligations;
12.23
it was accordingly
submitted that the special plea is moot and general damages should be
referred to the HSPCSA in light of the
defendant’s failure to
make an election. The plaintiff in this regard relied on the
J.E.
Meyer v Road Accident Fund
case, CN; 522229/2011 for costs on an attorney and client scale due
to the defendant’s failure to reject the RAF4 within
a
reasonable time;
12.24
notwithstanding the
aforesaid, the defendant has (at the last pre-trial conference) made
an offer in respect of the merits which
the plaintiff accepted. Such
an offer and acceptance at the pre-trial was the basis of a 60/40
apportionment (i.e. the defendant
is liable for 60% of the
plaintiff’s proven and or agreed damages.) Accordingly, the
plaintiff seeks an order on the merits
portion of the trial as same
has become settled between the parties together with the appropriate
costs order.
[13] It
was further submitted that, in the event the defendant accepted the
RAF 4 on the date of trial,
it will be submitted that the defendant
has satisfied itself that the plaintiff’s injuries were serious
as described in the
clinical and hospital records and that this court
can accordingly make an order for non-pecuniary loss. I must hasten
to state
that unfortunately on the date of trial the defendant
persisted with special plea. Besides, the parties agreed that the
rest of
the issues should be separated and postponed
sine die
in terms of rule 33.4 and that only the special plea be adjudicated.
That being the position, I am constrained to only deal with
the
special plea, period.
[14] It
was submitted on behalf of the defendant that:
14.1 Michael
Mahlangu never submitted himself to a medical practitioner in
accordance with the regulations to
the
Road Accident Fund Act
19 of 2005 (as amended);
14.2 the RAF 4
was however completed by one Dr Mogoru at a venue known as Road
Accident Assessment Clinic –
which has no affiliation with the
defendant whatsoever. Of note, a search of the Health Profession
Council’s website iregister
(sic) of a Dr N Moguru was not
found, only a Dr N J Moguru practising under registration number
MP0475076 was found. The last mentioned
person is a general
practitioner. It is not clear whether the report was completed by the
last mentioned person as no HPCSA registration
number nor
qualifications are reflected on the report;
14.3 the
assessment was done on 13 April 2017 (two years after the demise of
Mr Michael Mahlangu, who has since
been substituted by a AJ Mahlangu
N.O (albeit not pleased as such). It is common cause between the
parties that the assessment
was based on a letter of instruction and
available hospital records. The conclusion in RAF4 form was that: he
believes that he
was going to qualify either with 30% WPI or
narrative test;
14.4 In the
unanimous decision in
Road
Accident Fund v Duma and Three similar cases
[1]
Brand JA stated:
“Unless and until the Constitutional
Court holds otherwise, the law is therefore as stated by this court,
for example, in
the case of
South
African Forestry
[2]
;
Brisley
[3]
;
and
Bredenkamp
[4]
;
Maphango
[5]
,
which do not support the first proposition relied upon by the court
a
quo
. As to the second proposition,
it follows, in my view, that the supposed principle of contract law
perceived by the court
a quo
cannot be expanded to other parts of the law. In addition, the reason
why our law cannot endorse the notion that judges may decide
cases on
the basis of what they regard as reasonable and fair, is essentially
that it will give rise to intolerable legal uncertainty.
That much is
illustrated by past experience. Reasonable people, including judges,
may often differ on what is equitable and fair.
The outcome of a
particular case will thus depend on personal idiosyncrasies of the
individual judge. Or, as Van der Heever JA
put it in
Preller
and Others v Jordaan
1956 (1) SA 483
(A) at 500, if judges are allowed to decide cases on the basis of
what they regard as reasonable and fair, the criterion will no
longer
be the law but the judge. (See also
Brisley
para 24;
Bredendkamp para 38; PM
Nienaber ‘Regters en Juriste’
200 TSAR 190
at 193; JJF Hefer ‘
Billikheid
in die Kontraktereg volgens die Suis-Afrikaanse Regskommisie’
2000 TSAR 143.)
”
14.5 in
conclusion, it was submitted on behalf of the defendant that the
special plea should be upheld with an
appropriate order of costs.
[15] In
the matter of
Road Accident fund v Faria
2014 (6) SA 19
(SCA)
the Supreme Court of Appeal, restated the principle from the Duma
matter
supra
and held that under the new legislative regime
the assessment of whether a claimant’s injury was serious was
an administrative
and not judicial, decision. Unless the Fund was
satisfied that the injuries were serious, the claimant has no claim
for general
damages.
[16] in
the
Duma v Three Similar cases the Supreme Court of Appeal
held that the decision as to whether an injury is serious is vested
in the Road Accident Fund and not the Court. A claim for general
damages was premature until the claimant has satisfied the RAF that
his injury was serious: if the RAF rejected a claimant’s
RAF 4
form, he would be barred from maintaining a claim for general damages
in court. If the RAF took an unreasonable time to make
its decision,
it would amount to a failure to take administrative action- to be met
with an internal appeal and review proceedings.
Until the decision
was overturned or reviewed, it existed as a fact, and the trial court
could not disregard.
[17] It
was further held in the Duma matter that both s 17(1A) of the Act and
reg 3(1) require an assessment
to be done physically by a medical
practitioner registered as such under the Health Professions Act 56
of 1956.;
vide
pages 22 para [31] G – page 23 A-B para
[32] A.
In casu
, doubt has been cast as to whether the RAF 4
form was completed by a person registered as a medica; practitioner
as such under
the Health Professions Act; vide sub paragraph 14.2
supra
. In my view, this uncertainty could be cured through
further evidence, were the matter to be allowed to proceed further.
[18] In
terms of regulation 3(3)(d) where the defendant is not satisfied that
the claimant was properly
assessed, it must either:
(i)
reject the third party’s RAF4 form and give reasons for doing
so; or
(ii)
direct that the third party submit himself or herself to a further
assessment at
the defendant’s expense by a medical practitioner
designated by the Fund in accordance with the method prescribed in
Regulation
3(1)(b).
[19] It is
common cause that the deceased never submitted himself to a medical
practitioner in accordance
with the regulations to the Road Accident
Fund Act 19 of 2005(as amended). The RAF4 form was compiled on the
strength of the hospital
medical records post-morbid. Needless to
state that there was no physical examination of the deceased and
therefore there was no
assessment as required by the Act and
regulations. Even if option (ii) were to be resorted to, calling for
further assessment,
physical examination, is completely out of the
question
[20]
However, the defendant has failed to exercise the option of rejecting
the RAF4 form. If it had done
so, it would have been obliged to give
its reasons for doing so. Bearing in mind the fact that the defendant
as an organ of state,
is constitutionally enjoined in exercising its
administrative function, to do so within a reasonable time.
In
casu
the defendant has failed to take a decision at all, thus
frustrating the plaintiff in exercising its rights to proceed further
to appeal to the tribunal in terms of the regulations.
[21] In
the
Faria
matter
supra
the Supreme Court of Appeal at pag27 E-H, pointed out that in terms
of the regulations, if the Fund is not satisfied with the assessment
of an injury, it has three options, namely, (i) accept the serious
injury assessment report; or (ii) reject the report; or (iii)
direct
that the third party submit to a further assessment.
[24] It is
trite that costs follow the event.
In
casu,
the
defendant has been dilatory in making an election as required by the
regulations, to the prejudice of the plaintiff. There
is absolutely
no explanation why this matter had to reach court without the
defendant having made an election. This requires the
court to show
its disdain and mulct the defendant in punitive costs on attorney and
client scale; vide
Road
Accident Fund v Duma, Road Accident Fund v Kubeka
;
Mlatsheni
v Road
Accident Fund
[6]
:
Bovungana v
Road
Accident Fund.
[7]
www.saflii.org/za/cases/ZACSA/2012/169.html
[
25]
In the result the following order is issued:
1.
That the special plea is dismissed;
2.
That the defendant is ordered to make a decision
in terms of regulations;
3.
That the defendant is ordered to refer general
damages to HSPCA;
4.
That the defendant is
ordered to pay the costs of action to date on attorney and client
scale
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
: 05/01/2020
DATE
OF JUDGMENT
: 15/01/2020
PLAINTIFF’S
ADV
: ADV J.T. JOOSTE
INSTRUCTED
BY
: SPRUYT INC.
DEFENDANT’S
ADV
: ADV R.G. MASIPA
INSTRUCTED
BY
: T.M. CHAUKE ATTORNEYS
[1]
2013 (6) SA 9
(SCA) at 21G – 22H
[2]
South African Forestry Co Ltd v York Timbers
2005 (3) SA 323
(SCA)
[3]
Brisley v Trsotsky
2002 (4) SA 1 (SCA
[4]
Bredenkamp and Others v Standard Bank of SA Ltd
2010 (4) SA
468 (SCA)
[5]
Maphango v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA
19 (SCA)
[6]
2009 (2) SA 401
(E) para 18.
[7]
2009 (4) SA 123
(E) para 7.