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[2019] ZAGPPHC 231
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Van der Walt v Road Accident Fund Appeal Tribunal and Others (18332/2018) [2019] ZAGPPHC 231 (6 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 18332/2018
6/6/2019
In
the matter between:
VAN
DER WALT: DALENE MAURITA
Applicant
And
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL
First
Respondent
THE
ROAD ACCIDENT FUND
Second
Respondent
THE
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA (HPCSA)
Third
Respondent
DR.
D. LEKALAKALA
Fourth
Respondent
DR.
T. RAMOKGOPA
Fifth
Respondent
DR
W.E. WILLIAMS
Sixth
Respondent
DR.
M. MOKABANE
Seventh
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
INTRODUCTION
[1]
This
matter concerns the question whether the applicant suffered serious
injuries as envisaged in section 17(1A) of the Road
Accident
Fund Act, 56 of 1996 (“the Act”). The first respondent
expressed the opinion that the applicant’s injuries
are
non-serious and the applicant, being unsatisfied with the decision,
seeks an order that the decision be reviewed and set aside.
LEGISLATIVE
FRAMEWORK
[2]
The
Road Accident Fund (“the Fund”) was established to
compensate a person (“third party”) for loss or damage
suffered by a third party as a result of
the
unlawful driving of a motor vehicle. [Sec 3]
[3]
Section
17(1) of the Act limits the payment of non-pecuniary loss to serious
injuries as contemplated in section 17(1A). Section
17(1A) states
that the assessment of a serious injury shall be determined on a
prescribed method adopted after consultation with
medical service
providers.
[4]
Regulation
3 of the regulations promulgated in terms of the Act pertains to the
assessment of a serious injury for purposes of section 17(1A).
Regulation 3(1)(b)(ii) and (iii) is relevant and reads as
follows:
“
(ii)
If the injury resulted in 30 percent or more Impairment of the Whole
Person as provided in the AMA
Guides, the injury shall be assessed as
serious.
(iii)
An injury which does not result in 30 percent or more Impairment of
the Whole Person may only
be assessed as serious if that injury:
(aa)
resulted in a serious long-term impairment or loss of a body
function;
(bb)
constitutes permanent serious disfigurement;
(cc)
resulted in severe long-term mental or severe long-term behavioural
disturbance or disorder;
or
(dd)
resulted in loss of a foetus.”
[5]
Regulation
3 prescribes the process to be followed in order to establish whether
the injuries in question comply with the criteria
supra
.
Should a medical practitioner be of the view that the injuries do
comply with the criteria
supra,
a
serious injury assessment report (RAF4) is submitted to the Fund.
The Fund must determine whether the injuries are serious
or not
and notify the third party of its decision.
[6]
Should
the Fund reject the RAF4 an aggrieved third party may, in terms of
regulation 3(4)(a) lodge a dispute resolution form. In
terms of
regulation 3(4)(b), a disputant shall set out the grounds upon
which the rejection is disputed and include such submissions,
medical
reports and opinions the disputant wishes to rely on.
[7]
The
Registrar of the Health Professionals Council of South Africa (“the
Registrar”) shall, in terms of regulation 3(8)
refer the
dispute for consideration by an appeal tribunal.
[8]
The
appeal tribunal consists of three independent medical practitioners
with expertise in the appropriate area of medicine and the
Registrar
may appoint an additional independent health practitioner with
expertise in any appropriate health profession to assist
the appeal
tribunal. [Reg 3(8)(b) and (c)]
[9]
The
appeal tribunal has, in terms of regulation 3(11), the following
powers:
“
(11)
The appeal tribunal shall have the following powers--
(a)
Direct that the third party submits himself or herself, at the cost
of the Fund or
an agent, to a further assessment to ascertain whether
the injury is serious,
in
terms of the method set out in these Regulations
,
by a medical practitioner designated by the appeal tribunal.
(b)
Direct, on no less than five days’ written notice, that the
third party present
himself or herself in person to the appeal
tribunal at a place and time indicated in the said notice and examine
the third party’s
injury and assess whether the injury is
serious
in
terms of the method set out in these Regulations
.
(d)
Direct that relevant pre- and post-accident medical, health and
treatment records
pertaining to the third party be obtained and made
available to the appeal tribunal.
(e)
Direct that further submissions be made by one or more of the parties
and stipulate
the time frame within which such further submissions
must be placed before the appeal tribunal.
(f)
Refuse to decide a dispute until a party has complied with any
direction in
paragraphs (a) to (e) above.
(g)
Determine whether in its majority view the injury concerned is
serious
in
terms of the method set out in these Regulations
.’
(h)
Confirm the assessment of the medical practitioner or substitute its
own assessment
for the disputed assessment performed by the medical
practitioner, if the majority of the members of the appeal tribunal
consider
it appropriate to substitute.
(i)
Confirm the rejection of the serious injury assessment report by the
Fund or
an agent or accept the report, if the majority of the members
of the appeal tribunal consider it is appropriate to accept the
serious
injury assessment report.”
(Own
underlining)
[10]
The
appeal tribunal must, in terms of regulation 3(12) inform the
Registrar of its “
findings”
and
the Registrar in turn informs the parties of the “
findings”
.
[11]
The
decision may be reviewed and set aside by a court if an applicant
succeeds in establishing one or more of the grounds of review
contained in the Promotion of Administrative Justice Act, 3 of 2000
(PAJA).
FACTS
[12]
The
applicant, a 36 year female at the time, sustained injuries as a
result of a motor vehicle collision that occurred on 5 May
2014. The
applicant’s injuries were assessed by various medical
practitioners who all agreed that the injuries are serious
and will
result in life-long impairment. In this respect, the prescribed RAF4
assessment report was delivered to the Fund.
[13]
The
Fund rejected the RAF4 assessment and on 9 December 2016, the
applicant declared a dispute as envisaged in regulation 3(4).
In
terms of the provisions of regulation 3(4)(b), substantiating
documents were attached to the dispute declaration, which documents
included¸
inter
alia
,
the following:
i.
RAF4 serious injury assessment form and medico legal report by Dr M
de
Graad, an orthopaedic surgeon;
ii.
RAF4 serious injury assessment form and medico legal report by
Professor Chait,
a plastic surgeon;
iii.
RAF4 serious injury assessment form and medico legal report by Ms N
Prinsloo, a clinical
psychologist;
iv.
Medico legal report by Dr Mathey, a psychiatrist;
v.
RAF4 serious injury assessment form and medico legal report by
Professor van
der Jagt, an orthopaedic surgeon;
vi.
Joint minutes between the orthopaedic surgeons; and
vii.
Joint minutes between the industrial psychologists.
[14]
The
joint minutes of the meeting between Dr de Graaf and Professor van
der Jagt recorded the applicant’s physical injuries,
the impact
the injuries have on her daily functioning and they agreed the
applicant’s injuries are serious with a serious
long-term
impairment and loss of body function.
[15]
Ms
Prinsloo came to the following conclusion in her report:
“
8.7
The clinical history, clinical observations, test results and
collateral information that were obtained
during the assessment
indicate that Mrs. Van der Walt suffers from chronic PTSD with
symptoms of anxiety and depression.”
[16]
Ms
Prinsloo was of the opinion that the applicant’s chronic
emotional state which was caused by the collision, is serious
and
will result in long-term impairment.
[17]
On
22 February 2017 the applicant was advised that three orthopaedic
surgeons and a neurologist were appointed to the appeal tribunal.
[18]
On
29 August 2017, the applicant’s attorneys of record were
informed that the appeal tribunal resolved as follows:
“
i.
That the patient was involved in a motor vehicle accident on 05 May
2014.
ii. The
patient sustained soft tissues injury, injury cervical spine, injury
lumbar spine, injury left shoulder. The injuries were treated
conservatively.
iii. He
(sic!)
has
history of multiple shoulder operations, for recurrent dislocation.
iv.
The panel having assessed the information on file is of the opinion
that the injury
does not qualify as serious under the narrative
test.”
[19]
The
applicant was not satisfied with the decision and launched the
present application.
GROUNDS FOR
REVIEW
[20]
In
the founding affidavit filed on behalf of the applicant, the
following is,
inter
alia
,
stated:
“
16.
The conclusion provided by the first and third respondent(s) states
that the injury is not considered
serious, but does not specifically
indicate and/or motivate its findings with regard to both components
of the serious injury assessment,
namely, the whole body impairment
(“WPI”) test, as well as under the “narrative
test”.
17.
The first and third respondents simply highlight certain facts in
their assessment namely,
injuries sustained by the applicant and a
history of shoulder operations for recurrent dislocation.
…
19.
It is apposite to draw this Honourable Court’s attention to the
paucity of
ANNEXURE A,
namely, that the reasons for the first
respondent’s findings and/or administrative decision are
lacking.”
DISCUSSION
[21]
The
furnishing of reasons for an administrative decision that adversely
affects the rights of an individual is the cornerstone of
fair
administrative action. Cora Hoexter in
Administrative
Law
in South Africa
Cora
Hoexter, 2
nd
edition, at 463, explains the importance of giving adequate reasons
as follows:
“
8.2
WHY GIVE REASONS?
‘
The giving of
reasons is one of the fundamentals of good administration’.
Lord Denning’s words echo a common-sense perception
that
reasoned decisions are generally preferable to unreasoned ones, and
that it is fair to inform affected individuals of the
reasons for any
action which has been taken against them. From a constitutional point
of view, the provision of reasons is an important
mechanism for
making administrators accountable to the people they serve and for
achieving the ‘culture of justification’
our Constitution
commits us to. It is also likely to increase public confidence in the
administrative process and thus enhance
its legitimacy. Citizens are
far more likely to have faith in a system of government which
respects their interests, and their
dignity, in this way.
From the affected
individual’s point of view, reasons offer considerable
procedural benefits. Indeed, the right to reasons
is often regarded
as a crucial component of procedural fairness or natural justice, and
the PAJA acknowledges this by requiring
that affected individuals be
informed of their right to reasons. Clearly, the decision whether and
how to challenge an unfavourable
administrative decision is far more
sensibly made once reasons have been given for it. Reasons give one
something to work with,
for example in deciding whether an
administrator has pursued improper purposes, taken irrelevant
considerations into account or
made an error of law. Thus in Koyabe v
Minister for Affairs
2010 (4) SA 327
(CC), where the applicants had
been declared illegal foreigners, Mokgoro J recognised that reasons
are ‘important in seeking
a meaningful review by the Minister
and in enhancing the chances of getting the immigration agent’s
adverse finding overturned’
.”
[22]
In
order to determine whether reasons in a particular instance are
adequate, it is incisive to have regard to what was stated by
Schutz
JA in
Minister
of Environmental Affairs & Tourism v Phambili Fisheries
2003
(6) SA 407
SCA at para [40] as follows:
“
[40]
What
constitutes adequate reasons has been aptly described by Woodward J,
sitting in the Federal Court of Australia, in the case
of Ansett
Transport Industries (Operations) Pty Ltd and Another v Wraith and
Others
[1983] FCA 179
;
(1983) 48 ALR 500
at 507 (lines 23 - 41), as follows:
‘
The passages from
judgments which are conveniently brought together in Re Palmer and
Minister for the Capital Territory
(1978) 23 ALR 196
at 206-7;
1 ALD
183
at 193-4, serve to confirm my view that s 13(1) of the
Judicial Review Act requires the decision-maker to explain his
decision
in a way which will enable a person aggrieved to say, in
effect: “Even though I may not agree with it, I now understand
why
the decision went against me. I am now in a position to decide
whether that decision has involved an unwarranted finding of fact,
or
an error of law, which is worth challenging”.
This requires that the
decision-maker should set out his understanding of the relevant law,
any findings of fact on which his conclusions
depend (especially if
those facts have been in dispute), and the reasoning processes which
led him to those conclusions. He should
do so in clear and
unambiguous language, not in vague generalities or the formal
language of legislation. The appropriate length
of the statement
covering such matters will depend upon considerations such as the
nature and importance of the decision, its complexity
and the time
available to formulate the statement. Often those factors may suggest
a brief statement of one or two pages only.'
To the same effect, but
more brief, in Hoexter The New Constitutional and Administrative Law
vol 2 at 244:
'(I)t is apparent that
reasons are not really reasons unless they are properly informative.
They must explain
why
action was taken or not taken; otherwise
they are better described as findings or other information.’
See also Nkondo and
Others v Minister of Law and Order and Another; Gumede and Others v
Minister of Law and Order and Another; Minister
of Law and Order v
Gumede and Others
1986
(2) SA 756
(A)
at
772I-773A.
”
[23]
In
casu,
the
relevant law is contained in regulation 3(1)(b)(iii)(aa) referred to
supra
.
In the result, the appeal tribunal had to consider whether the
applicant’s injuries resulted in a serious long-term
impairment.
[24]
To
this end, it is rather the sequelae of the injuries and not the
injuries in isolation, that play a role in determining whether
it
resulted in a serious long-term impairment. This aspect is dealt with
in the medico-legal reports filed by the applicant in
support of the
dispute resolution. It is not clear from the reasons provided by the
appeal tribunal whether it was aware of the
law applicable to the
subject matter of its decision.
[25]
The
next step is for the decision maker to record any findings of fact in
respect of the decision to be taken.
In
casu
the
appeal tribunal did not record any factual findings in respect of the
long-term impairment the injuries will have on the applicant.
The
recording of facts is in respect of the applicant’s physical
injuries which only forms the basis for the inquiry in question.
[26]
Lastly
the reasons for the conclusion reached by the decision maker should
be set out.
[27]
No
reasons are given for the conclusion reached by the appeal tribunal
that the applicant’s injuries will not lead to serious
long-term impairment. In the result and due to the insufficient
reasons, it is simply impossible to determine whether the decision
complies with the constitution imperative of fair and reasonable
administrative decisions.
[28]
In
the result, the review should succeed.
COMMENT
[29]
Litigation
in respect of decisions taken by the appeal tribunal has increased at
an alarming rate. I had no less than four opposed
review applications
in the opposed motion court in one week. In each application the
reasons furnished by the appeal tribunal pertaining
to their
decisions were dismally inadequate.
[30]
Firstly,
the reason may, most probably, be attributed to the wording of
regulation 3(12)
supra
,
that requires the appeal tribunal to notify the Registrar of its
“
findings”
.
As stated in
Minister
of Environmental Affairs & Tourism v Phambili Fisheries supra
mere
findings, without explaining why a decision was taken will not
necessarily suffice.
[31]
Secondly,
the appeal tribunal consists of medical practitioners who are not
au
fait
with the intricacies of administrative law.
[32]
In
order to curtail the flood of litigation at the expanse of the tax
payer, I would propose that the medical practitioners who
form part
of an appeal tribunal be provided with a guideline in respect of the
requirements for the furnishing of adequate reasons.
ORDER
[33]
In
the premises, I grant the following order:
1.
The
decision of the first respondent dated 29 August 2018, to the effect
that the injuries suffered by the applicant are non-serious
in terms
of
section 17(1A)
of the
Road Accident Fund Act 56 of 1996
, and
its regulations are reviewed and set aside.
2.
The
Registrar of the Health Professions Council of South Africa is
directed to re-appoint a new appeal tribunal to determine the
dispute
lodged by the applicant on 9 December 2016.
3.
The
third respondent is ordered to pay the costs of the application.
N. JANSE
VAN NIEUWENHUIZEN
JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD
21
May
2019
JUDGMENT
DELIVERED
6
June 2019
APPEARANCES
Counsel
for the Applicant:
Advocate J.
Botha
Instructed
by:
A Wolmarans
Inc
(012 433
6339)
Ref: MR A
DICKENSON/V/297
Counsel
for the First, Third to the
Seventh
Respondents:
Advocate
I Hlalethoa
(071 479
0942)
Instructed
by:
Moduka
Attorneys
(012 323
1137/012 753 3282)
Ref: MS
MODUKA/MHPCSA 0010/18/LML