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[2019] ZAGPPHC 66
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Maluleke v Health Professions Council of South Africa and Others (96672/16) [2019] ZAGPPHC 66 (14 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
96672/16
14/2/2018
In
the matter between:
E
MALULEKE
Applicant
And
HEALTH
PROFESSIONS COUNCIL
OF
SOUTH
AFRICA
First Respondent
THE
ACTING REGISTRAR OF THE HEALTH
PROFESSIONS
COUNCIL OF SOUTH AFRICA
Second
Respondent
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL
Third Respondent
THE
ROAD ACCIDENT FUND
Fourth Respondent
JUDGMENT
MAKHUVELE J
Introduction
[1]
The applicant seeks an order to review and set aside the decision of
the third respondent
(" the Appeal Tribunal") dated 24
February 2016 in terms of which she was advised that having
considered her reports,
the Appeal Tribunal had
"
concluded that this matter
is
not serious and
it
does not qualify
both
under
the narrative
test and
the
AMA
rating
system"
[1]
.
She also seeks an order to direct
the second respondent to re-appoint a new Appeal Tribunal to
reconsider her medical reports and
that she be permitted to be
present at the hearing and to provide further evidence pertaining to
her injuries.
[2]
The review is launched in terms of
various subsections of section 6(2) of the Promotion of
Administrative Justice Act 3 of 2000
("PAJA") on the basis
that the decision was materially influenced by errors of law or
facts, irrelevant considerations
were taken into account, relevant
considerations were not considered and that the action of the
Tribunal was arbitrary end or procedurally
unfair.
Relevant legislative
framework
[3]
The
Road Accident Fund Amendment Act No.
19 of 2005
has imposed restrictions or limitations on amongst others,
compensation for non-pecuniary loss. In this regard, the assessment
of claim s is regulated by Regulations promulgated in terms of
Section 26
of the
Road Accident Fund Act No. 56 of 1996
, as amended
(the Ac t).
[4]
Regulation 3
prescribes the procedure for assessment of a serious in
jury in terms of section 17 (1A) of the Act.
[5]
The assessment by a medical practitioner is based on one of the
following methods;
[5.1] considering whether the
injury is included in the list of injuries published by the Minister
in the Gazette from time to time;
(Regulation 3(b) (I), and if not,
[5.2] if the injury has resulted
in 30%o or more of the Whole Body Impairment in accordance with the
American Medical Association's
Guides to the Evaluation of Permanent
Impairment,
6
th
Edition
("AMA
Guides"); (Regulation 3(b)ii), and if not;
[5.3] if the injury falls in one
of the categories listed in Regulation 3(b) (iii) which includes a
consideration as to whether
the injury has resulted in a serious
long-term impairment or loss of a body function. The enquiry under
Regulation 3(b) (iii) is
referred to as
'the narrative test".
[6]
Th e RAF is entitled to challenge an
assessment of an injury as a 'serious injury'' and to this extent it
has an option to reject
the assessment report or direct that the
claimant undergo further assessment.
[7]
Regulation 3(4) prescribes the procedure
that a claimant who is not satisfied with a rejection of his serious
injury assessment
report should follow to declare a dispute and
lodgement of documents in that regard.
[8]
Referral of a dispute to the Appeal
Tribunal is in terms of Regulation 8 which also prescribes
appointment of a panel of three independent
medical practitioners
with expertise in the appropriate areas of medicine . One of them is
designated as Chairperson .
[9]
In terms of Regulation 3(8) (c), the
Registrar
" may appoint
an
additional independent practitioner
with expertise in any appropriate health profession to assist the
appeal
tribunal in an
advisory
capacity".
[10]
The p arties (RAF and the cl aim an t) are entitled to be notified in
writing " who the
persons are that have been appointed as appeal
tribunal". (Regulation 3( ().
[11]
Anyone of the parties is entitled to
object to the composition of the Appeal Tribunal in writing. The
Registrar is enjoined to allow
the other party to respond to the
objection, and then make a final decision on the appointment, which
may be to substitute the
member complained about or to stick with the
appointment. The decision is final and binding. (Regulation 3(10).
[12]
The Appeal Tribunal is entitled to
decide whether a hearing to consider legal arguments is necessary and
to this extent it must
communicate with the Registrar and give
reasons. The Registrar then appoints an Advocate or Attorney
recommended by the Bar Council
or Law Society to give advice on the
need for a hearing. If there is a need . and the recommendation is
accepted by the App e al
Tribunal, the hearing to consider legal
argument is the n preside d by the appointed Advocate or Attorney .
The parties are duly
in formed and are entitled to legal
representation at such a hearing.
[13]
If on consideration of a recommendation
a hearing is not warranted. or if the legal issues have been
determined. the Appeal Tribunal's
powers are prescribed by Regulation
3 (11) and they include directing further assessment and submission
of reports, confirmation
or substitution of the assessment report of
the medic al practitioner or confirmation of rejection of the serious
in jury assessment
report by the RAF or an agent.
[14]
The decision of the Appeal Tribunal is
final and binding . (Regulation 3(13))
[15]
The application before me is based on
the applicant's right to administrative action that is procedurally
fair which is enshrined
in Section 33(1) of the Constitution of the
Republic of South Africa. This entitles her to launch review
proceedings in terms of
PAJA as indicated above.
In this regard. as it will be seen
hereunder, the applicant 's case is limited to procedures that were
adopted by the Appeal Tribunal
and not the merits of the assessment
of her injury. The decision is attacked on three (3) main grounds
based on allegations of
errors of fact and law.
The relevant
facts
relating
to
submission
of
the
assessment
for
serious
i
njury
[16]
The applicant's serious injury does not
fall in the list gazetted by the Minister. At 12% WPI, she is also
far below the 30% threshold.
Therefore, the only applicable criteria
in terms of what I have elaborated above is if she satisfies one of t
e 4 categories in
terms of the 'Narrative Test".
[17]
According to the assessment report (RAF
4) signed by Dr. Enslin, the injury falls within the category of
"Serious long-term
impairment or loss of a body function"
[18]
The RAF rejected the assessment by
letter dated 11 August 2015 from its attorneys of record. The reason
indicated was that according
to the RAF's own RAF 4 signed by one Dr
Van den Bout , the applicant does not qualify under both the WPI and
narrative test.
[19]
The applicant duly lodged a dispute and
filed a RAF 5, RAF 4 forms as well as her medico-legal reports
[2]
for assessment by the Appeal Tribunal.
[20]
The appeal was set down for
consideration by the Appeal Tribunal on 24 February 2016. The
applicant was duly notified by letter
directed to her attorneys of
record dated 01 February 2016. It was also mentioned in the letter
that the Appeal Tribunal was constituted
by four (4) medical experts,
being two Orthopaedic Surgeons, a Specialist Neurosurgeon and one
indicated as "Occupational
Medicine".
[21]
The decision of the Appeal Panel was communicated on 25 April 2016 as
indicated above.
Grounds of review
[22]
I will not dwell on the grounds of review based on the merits of the
injury in the main affidavit
because they were not pursued during
argument in court. The applicant submitted that the Appeal Panel
should have called for her
to be examined and also called for
additional evidence or even summoned her to attend the hearing. A
point was also made that the
Appeal Tribunal failed to apply the
narrative test properly and that It relied on submitted papers
whereas it should have called
for oral evidence and legal argument.
[23]
It appears from the record of
proceedings filed by the respondents (and a reading of their
answering papers) that the only documents
that served before the
Appeal Tribunal were the documents submitted by the applicant when
she lodged the dispute as indicated above.
[24]
In her Supplementary affidavit, the
applicant noted that from a reading of the minutes of the Appeal
Tribunal dated 24 February
2016, it was clear that the RAF did not
make any submissions and that the only documents in the record were
hers.
[25]
The applicant re-iterated her stance
that the Appeal Tribunal failed to apply the Narrative Test
correctly. The contention put forward
is that the Appeal Tribunal
should have considered the subjective circumstances of the applicant
as indicated in the various medico
legal reports.
[26]
Various instances from the reports were
quoted to illustrate the effect of the injuries on her from a
psychological, clinical and
occupational perspective. For instance,
Dr Enslin has indicated that she has symptoms of depression and has
pain in the lower lumber
spine.
The Occupational Therapist has
indicated that she resigned from her work because the pain had
affected her work speed.
[27]
She repeated the grounds of review in
the main affidavit relating to the failures by the Appeal Tribunal to
call her to be clinically
examined, to present oral evidence for
instance or even to obtain alternative medical reports.
Issues
arising
from
the
Answering affidavit
[28]
In its answering affidavit, the Appeal
Tribunal contended, amongst other things that the RAF did not make
submissions to it and
that they were satisfied that the applicant's
reports were enough to enable them to consider the appeal.
Furthermore, there was
no need for oral or written submissions.
[29]
The Appeal Tribunal deliberated on the
contents of the applicant's reports and resolved that her injuries
were not serious and do
not qualify under the narrative test and AMA
rating.
[30]
The Appeal Tribunal defended the
procedure adopted when considering the applicant's matter. Each
member spends hours reading the
reports. If further improvement on
the injury has been noted it cannot be regarded as permanent.
[31]
Although ·1 the AMA Guides and
the Narrative Test are different, according to the Appeal Tribunal
they are related, with
the former as a starting point because it
gives an indication of the severity of the injury.
[32]
The decision was taken after considering
the applicant's injuries, the RAF 4 form completed by Dr Enslin which
indicated that the
injury qualify as serious under the narrative
test. This was contrasted with the views expressed by Dr Van Den Bout
who indicated
that the injury does not qualify under both the WPI and
the narrative test.
[33]
All in all, the Appeal Tribunal
demonstrated in its answering affidavit that it took into account all
the medico-legal reports,
not by just reading them, but interrogating
the issues holistically.
[34]
It appears from a reading of the
replying affidavit that the applicant has maintained her stance that
indeed her injury is serious
as contemplated in the Regulations and
the Ac t.
Submissions
[35]
Counsel for the both parties submitted
heads of argument and also handed up various authorities that were
not referred to in the
written sub missions . I am indebted to the
parties for the assistance .
Applicant
[36]
During argument in court the applicant's
grounds of review were limited to allegations of procedural
irregularities. These are the
alleged errors committed by the Appeal
Tribunal. It was submitted on behalf of the applicant that these
errors, indicated below,
render the decision of the Appeal Tribunal
to be reviewable in terms of PAJA. Furthermore, it was argued that
the decision is reviewable
because it has a detrimental effect on the
applicant.
[36.1] The report of Van den Bout
referred to in the third respondent's affidavit did not serve before
it when the appeal was considered.
This is the report that was
referred to in the letter rejecting the serious injury assessment.
Therefore, the Appeal Tribunal contravened
the Regulations by taking
it into consideration .
[36.2] The Appeal Tribunal
considered the reports and issues raised by a Clinical Psychologist
(Karen Hovenga). However, there was
no Clinical Psychologist in the
panel. The applicant's argument is that Regulation 3(8) (c) should
have been invoked and a Clinical
Psychologist be appointed into the
panel.
[36.3] The AMA Guides and the
Narrative Tests are not related. Counsel for the applicant handed up
a judgment of Kgomo J in the
matter of
Zamokwakhe Comfort
Mngomezulu v RAF
, South Gauteng High Court Case No. 0463/2010
(reportable, but citation not provided). The learned Judge had
rejected the concept
of Maximum Medical improvement because it is
irrelevant when considering the seriousness of injuries in terms of
the narrative
test.
The argument advanced here is that
the Appeal Tribunal committed an error of law by stating in the
answering affidavit that the
AMA Guides and the Narrative Test are
related.
[37] A
further argument on behalf of the applicant was that even though the
soft tissue injury does not
fall in the list of gazetted injuries, it
is clear from a reading of the legislative framework that any
complications arising from
any injury would qualify as a serious
injury.
[38]
It was also argued that the Appeal
Tribunal cannot rely on an analysis of the experts report because it
is not in the answering
affidavit.
[39]
The applicant contended that the test of
a reasonable person is not applicable because the review is based on
procedural irregularities.
[40]
Finally, it was submitted on behalf of
the applicant that the prayer for condonation of late filing of the
appeal was not competent
because there had been an oversight on
calculation of dates. Seemingly this is common cause between the
parties as there was no
objection to this submission.
Respondents
[41]
The Counsel for the respondents
submitted that the procedure followed by the Appeal Tribunal was
correct. The applicant was advised
about the composition of the panel
but did not object as she is entitled to in terms of the Regulations.
[42]
He denied that the alleged errors would
affect the decision of the Appeal Tribunal, even if they existed . It
was also submitted
on behalf of the respondents that it is clear from
the various medical reports filed by the applicant that even
accepting her version
of her injuries, they can never constitute
'serious injury' in terms of the Act/ Regulations.
Legal
principles
[43]
In the matter of
MEC
For Environmental Affairs and Development Planning y Clqlrtson's
cc
[3]
,
Nugent JA and Swain AJA
[4]
reiterated the distinction between a review and an appeal.
"It bears repeating that
a
review is not
concerned with the correctness of
a
decision
mode
by
a
functionary, but
with whether he performed the function with which he,
was
entrusted . When
the
/ow entrusts
o
functionary
with
a
discretion it
means
just
that: the
/ow
gives recognition
to the evaluation
mode
by the
functionary to whom the discretion is entrusted,
and
it
is
not open to
a
court to
second-guess his evaluation . The role of
a
court is
no
more than to
ensure that the decision-maker
has
performed the
function
with
which he
was
entrusted."
Analysis
and
Conclusions
[44]
Having outlined the procedure for
assessment of a serious injury, the dispute resolution and what
actually happened, I find it difficult
to comprehend the criticisms
levelled against the Appeal Tribunal. I will limit my analysis to the
three grounds of review argued
in court;
[44.1] The composition of the
Appeal Tribunal is regulated by Regulation 3(8) which I have referred
to above.
It is clear from a reading of the
Regulation that the Registrar has a discretion to appoint an
independent Health Practitioner.
It is common cause from the
chronology of events that the applicant was notified in writing
about the set down of the appeal
and the composition of the Appeal
Tribunal. The applicant was entitled to object, which objection would
have been considered by
the Registrar, after affording the RAF an
opportunity to comment. There is no evidence that any objection was
raised. Therefore,
there is no merit on this ground of review.
[44.2] The comment in the
answering affidavit that AMA Guides and Narrative Test are related.
Well, the deponent to the
answering affidavit made it clear that these are different tests,
but, that the AMA guides provide a starting
point when contemplating
the question of the permanent nature of the injury. It is so that the
applicant relies on the first part
of paragraph 5.1 of RAF 4 Form
which states that
"serious long term impairment or loss of
body function' .
There is nothing wrong in considering the IMM.
It may be that in the context of the judgment of Kgomo J this was not
relevant due
to the nature of the injury contemplated in Section 5 of
RAF 4.
Therefore, I do not find reference
to these tests as 'related' to be an error that would entitle a
review
of a decision.
[44.3] Lastly, the presence or
absence of the report of Van den Bout in the list of documents that
were considered by the Appeal
Tribunal is in my view of no
consequence because that report was relied on by the RAF when it
rejected the serious assessment report.
It was the basis of the
appeal before the Appeal Tribunal. Therefore, I do not find reference
to it in the answering affidavit
as an error that would entitle the
applicant to a review of the decision of the Appeal Tribunal.
[45]
Accordingly, there is no merit in this
application and it therefore stands to be dismissed. There is no
reason why costs should
not follow the cause.
[46]
I make the following order,
[46.1]
The application is dismissed with costs.
TAN
MAKHUVELE J
Judge
of the High Court
APPERANCES
Applicant:
Adv. WR Du Preez
Instructed
by:
VZLR INC.
Monument Park, PRETORIA
Ref: B Singh/ J Rabie/mdp/MAT94962
First, Second and Third
Respondents:
Adv. R Schoeman
Instructed
by:
Ramulifho Inc . Attorneys
Garsfontein , PRETORIA
Re f: NKL/HPCSA
Heard
on:
28/11/2018
Judgment
delivered on:
14/12/2018
[1]
The decision was communicated to her attorneys by letter dated 25
April 2016
[2]
The reports of Dr Theo Enslin (Independent Medical Examiner), Rita
van Biljon (Occupational Therapist). Dr AC Strydom (Industrial
Psychologist), Karin Hovenga (Counseling Psychologist)
[3]
(408/2012)
[2013] ZASCA 82
(31 May 2013)
[4]
Ponnan and Tshiqi JJA and Willis AJA concurring