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[2019] ZAGPPHC 319
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Maleka v Health Professionals Council of South Africa and Others (26463/2017) [2019] ZAGPPHC 319 (10 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES: NO/
YES
(3)
REVISED:
NO/
YES
CASE NUMBER: 26463/2017
10/7/2019
BL
MALEKA
Applicant
[ID
NO: [….]]
[REF:
RAFA/009051/2014]
and
HEALTH
PROFESSIONS COUNCIL OF SOUTH
1
st
Respondent
AFRICA
THE
ACTING REGISTRAR OF THE HEALTH PROFESSIONS
2
nd
Respondent
COUNCIL
OF SOUTH AFRICA
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL
3
rd
Respondent
THE
ROAD ACCIDENT FUND
4
th
Respondent
JUDGMENT
SM
MARITZ, AJ
Introduction
[1]
This
is an application to review and set aside the decision of the Third
Respondent
(“the RAF Appeal
Tribunal or Tribunal or Third Respondent or Appeal Tribunal” ),
dated 19 February 2016, and
ancillary relief as more fully set out in the Notice of Motion.
[2]
The
Applicant's judicial review application is premised on the provisions
of the Promotion of Administration Justice Act, 3 of 2000,
("PAJA
" )
on the grounds that the
action was materially influenced by an error of law and/or fact
(section 6(2)(d) of PAJA) and/or because
irrelevant considerations
were taken into account or relevant considerations were not
considered (section 6(2)(e)(iii) of PAJA)
and/or that it amounts to
arbitrary action (section 6(2)(e)(v) of PAJA) and being procedurally
unfair. In argument, Counsel for
the Applicant, raised a further
point for review, being that the Appeal Tribunal failed to provide
adequate reasons for its decision.
[3]
The
application was heard on 2 May 2019 and the judgment was reserved.
Relief
sought
The
Applicant sought the following relief:
[4]
An
order reviewing and setting aside the decision of the Third
Respondent, dated 19 February 2016, pertaining to the effect of the
injuries suffered by the Applicant and determining same to be
non-serious in terms of section 17(1A) of the Road Accident Fund
Act,
56 of 1996,
(“RAF Act”)
and its Regulations;
[5]
An
order referring the matter to a newly constituted Appeal Tribunal to
determine the abovementioned dispute reviewed and set aside
and to
reconsider all medico-legal reports that served before the Tribunal
in respect of the Applicant's injuries;
[6]
An
order that the Applicant be permitted to be present at the Appeal
Tribunal hearing and that the Applicant be permitted to provide
further evidence pertaining to his injuries at the Tribunal hearing
if he wishes to do so; and
[7]
Costs
against the First Respondent
(“Health
Professionals Council of South Africa or HPCSA or First Respondent”
).
In paragraph 74 of the
Applicant's heads of argument he requested that the First and/or
Third Respondents be ordered to pay the
costs of the Applicant on a
scale between party and party, jointly and severally, the one paying
the other to be absolved.
The First, Second
("The
Acting Registrar of the Health Professions Council of South Africa or
the Acting Registrar of the HPCSA or Second Respondent"
)
and
the Third Respondent sought the following relief:
[8]
An
order that the Applicant's application be dismissed with costs on an
attorney and client scale.
Brief
Background
[9]
The
Applicant,
BENTJIE LUCAS MALEKA,
a
self-employed taxi business owner and a taxi driver of Maleka's
Taxi's and owner of Cornerdrive Restaurant and Tavern and a Dairy
Agent and owner of Maleka's Bottle Store, was a passenger in a
minibus taxi vehicle, which was involved in a motor vehicle accident,
which occurred on 10 December 2009. The accident occurred while he
was asleep. The taxi rolled over and the Applicant was thrown
out of
the said vehicle and as a result thereof he sustained various
injuries, as set out in the various medico-legal reports,
attached to
the Applicant's Founding Affidavit. After the accident he was taken
by ambulance to the Boitumelo Hospital, Kroonstad
and later
transferred to St Helena Private Hospital, Welkom.
[10] The
Applicant's family structure consists of his spouse and three
children.
[11]
The
Applicant has instituted a claim for compensation for non-pecuniary
damages
("general damages"
)
against the Road Accident Fund
(“The RAF or the Road Accident
Fund or the Fourth Respondent”)
and
submitted the prescribed RAF 4 form in terms of section 17 of the RAF
Act. The Road Accident Fund has rejected the Applicant's
claim and
the matter was referred to RAF Appeal Tribunal, which found that the
injuries suffered by him were non-serious.
[12]
A
claim for general damages is a claim stemming from pain and
suffering, which includes pain, general discomfort and shock
resulting
from the bodily injury of a person, loss of amenities of
life and disfigurement. General damages can also be claimed in
respect
of shock, shock induced by physical injury, loss of general
health and shortened life expectancy. The Road Accident Fund has an
obligation to pay such damages only in circumstances where the
injuries causing such damages have been determined as serious. The
RAF Act and the Regulations prescribe the process of determination
and the RAF Act requires pertinently that the injuries should
be
assessed in relation to the circumstances of the Claimant.
Legal
Framework
[13]
The
matter is subject to the new regime set out in the
Road Accident Fund
Act, 56 of 1996
, read with the Regulations promulgated in terms of
the Act.
[14]
In
terms of section 17(1) and 17(1A) of the Act and Regulation 3, a
third party may only claim general damages against the Road
Accident
Fund, the Fourth Respondent, where he or she has suffered a
"
serious injury'' .
A third party who
wishes to claim for compensation for non-pecuniary damages is
required to submit to an assessment by a medical
practitioner in
accordance with Regulation 3(1)(a) and the third party shall obtain
from the medical practitioner concerned a Serious
Injury Assessment
Report in terms of Regulation 3(3)(a).
[15] A
Serious Injury Assessment Form (RAF 4) must be completed, which
indicate that the person claiming
suffered from a Whole Person
Impairment (“WPI”) as set out in the Regulation of more
than 30%, alternatively on a narrative
test, suffered from a serious
injury as prescribed.
[16]
The
Applicant has obtained, completed and submitted the RAF 4 form as
contemplated in section 17 read with Regulation 3 of the Act,
to the
Fourth Respondent.
[17]
Regulation
3(1)(b) of the Act prescribed the criteria that such a medical
practitioner has to apply to assess whether a third party
had
suffered serious injuries. If the Fourth Respondent is not satisfied
that the injury has correctly been assessed as serious
it must reject
the report or, direct the third party to undergo a further
assessment.
[18]
The
Applicant's RAF 4 form was rejected by the Fourth Respondent.
[19]
Pursuant
to the aforesaid rejection the Applicant has requested dispute
resolution in terms of Regulation 3(4) of the Act and has
declared a
dispute by lodging a prescribed dispute resolution form
("RAF
5") with the Acting Registrar
of the Health Professions Council
("HPCSA")
within 90 days of being informed of
the rejection or the impugned assessment.
[20]
The
Registrar of the HPCSA has to appoint a Tribunal of at least three
(3) independent medical practitioners with expertise in the
appropriate area of medicine.
[21]
In
terms of Regulation 3(13) of the Act the determination by the Appeal
Tribunal is final and binding.
[22]
A
procedure by which the Appeal Tribunal enquires into the dispute is
laid down by Regulations 3(4) to 3(13) of the Act. It includes,
inter
alia ,
the following:
(a)
Both
sides may file submissions, medical reports and opinions.
(b)
The
Appeal Tribunal may hold a hearing for the purpose of receiving legal
argument by both sides and seek the recommendation of
a legal
practitioner in relation to the legal issues arising at the hearing.
(c)
The
Appeal Tribunal has wide powers to gather information, including the
power to direct the third party to submit to a further
assessment by
a medical practitioner designated by the Tribunal; to do its own
examination of the third party's injury; and to
direct that further
medical reports be obtained and placed before it.
[23]
It is important to note that the Appeal
Tribunal is not bound by the reasons, if any, provided by the Road
Accident Fund for the
rejection of the RAF 4. The Appeal Tribunal is
entitled
" in the exercise of
its wide investigative and fact-finding powers,...(2) established for
itself whether or not to assess
the injury as serious, whatever the
reasons of the fund might have been.
[1]
[24]
In view of the nature of general
damages, the investigation must centre around the amount of pain and
suffering which the Third
Party suffered as a result of the injuries
which have caused the long-term impairment or loss of a body function
and the extent
to which the Third Party's injuries caused the Third
Party to suffer from a loss of amenities of life. If these
consequences can
be regarded as serious consequences for the Third
Party, the injuries must be regarded as serious.
[25]
The test to determine whether an injury
is serious, is explained as follows in
HB
Klapper: The Law of Third Party Compensation
[2]
,
the learned author set out that
"
Pain and suffering include the pain, general discomfort and shock
resulting from the bodily injury of a person and encompass
both past
and future pain and suffering as well as psycho-symptomatic
experiences of pain after the amputation of a limb and pain
and
suffering resulting from medical procedures rendered necessary as a
result of the bodily injury"
and
" Loss of amenities of life
refers to the loss of
a
claimant's
drive and capability to actively participate in the normal activities
of life, recreation and social events which the
claimant was
accustomed to or participated in prior to the injury. This includes
sexual urge and ability, infertility, loss of
prospects or marriage,
loss of general health, change of personality, loss of mental
faculties, neurosis, insomnia, loss of life
expectancy and the
general anguish of having to cope with a disability."
[26]
The circumstances which have
traditionally been taken into account is the nature and extent of the
claimant's disability, the activities,
enjoyment, recreation and
sport which the claimant enjoyed prior to the injury, the age, sex,
social status, physique and general
health of the claimant prior to
the injury.
[27]
The HPCSA's Serious Injury Narrative
Test Guidelines were prepared by Dr HJ Edeling, Dr KO Rosman, Dr DA
Birrell and others as the
guidelines by which a Narrative Test should
be prepared so as to streamline the process.
[28]
A need for the Narrative Test arises in
any case where the injuries are found to have resulted in a Whole
Person Impairment of less
than 30% according to the method of the
American Medical Association Guides
("
AMA" ),
but the medical
practitioner, nonetheless regards the injuries as serious.
[29]
An injury which, as the position
in
casu,
does not result in at least
30% Whole Person Impairment, may only be assessed as serious if that
injury resulted in a serious long-term
impairment or loss of a body
function. This entails that the following has to be determined:
(a)
The
objective nature of the Third Party's injuries;
(b)
Whether,
objectively spoken, those injuries have resulted in an impairment of
a body function (or loss thereof);
(c)
Whether,
objectively spoken, that impairment or loss is of a long term
nature;
(d)
The
objectively determined personal circumstances of the Third Party;and
(e)
The
influence, objectively spoken, the injuries, as determined above, has
on a Third Party's personal circumstances.
[30]
It
is important to note that Doctor JJ Schutte and Dr RS Kahn, who
completed the RAF 4 form found that according to the narrative
test,
the Applicant has a serious long-term impairment, which could cause
loss of body function and has a permanent serious disfigurement
of
his anterior chest wall.
[3]
As such, the Applicant has to be assessed in terms of the narrative
test in order to qualify for compensation for non-pecuniary
loss.
[31]
In
JH v Health Professions Council of
South Africa and Others
[4]
where Rogers J discusses the meaning
of the words
" serious"
and
" severe"
and
also comments on the purpose of the restrictions which the Act places
on the obligation to pay general damages and concludes
as follows:
"[18] The
words serious and severe in these items are not defined. They connote
a degree of impairment or
disturbance or disorder which cannot be
fixed by quantitive measure. The assessment requires value judgment,
though one to be performed
on the basis of a correct interpretation
of the words used in the Narrative Test."
The
applicable legal principles in terms of the
Promotion of
Administrative Justice Act, 3 of 2000
,
("PAJA")
are
as follows:
[32]
In
RAF v Duma and Three similar cases
[5]
the Supreme Court of Appeal held
that the High Court may only become involved to the extent that the
provisions of the PAJA permits.
[33]
It
is not disputed that the decision of the Appeal Tribunal constitutes
administrative action and thus susceptible to review in
terms of the
provisions of PAJA.
[6]
[34]
This
judicial review application is premised on the provisions of PAJA and
more specifically on the grounds that the administrative
action was
materially influenced by an error of law and/or fact
(section 6(2)(d)
and/or because irrelevant considerations were taken into account or
relevant considerations were not considered
(section 6(2)(e)(iii))
and/or that it amounts to arbitrary action
(section 6(2)(e)(vi))
and
being procedurally unfair
(section 6(2)(c)).
In argument, Counsel for
the Applicant, raised a further point for review, being that the
Appeal Tribunal failed to provide adequate
reasons for its decision.
[35]
The
relevant sections of PAJA read as follows:
"6. Judicial review of
administrative action.
-
(1) Any person may institute proceedings in a court or a tribunal for
the judicial review of an administrative action.
(2)
A court or tribunal has the power
to judicially review an administrative action if-
(a)
the administrator who took it
(i)-(iii)...;
(b)
a mandatory and material procedure or
condition prescribed by an empowering provision was not complied
with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by
an error of law;
(e)
the action was taken-
(i)
to (ii)...;
(iii)
because irrelevant considerations
were taken into account or relevant considerations were not
considered;
(iv)
to (v)...;
(vi)
arbitrarily or capriciously;
(f)
the action itself
(i)...(ii)(aa)-(dd)...;
(h) the
exercise of the power or the performance of the function authorised
by the empowering provisions,
in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have
so exercised the power or performed
the function.
[36]
Cora Hoexter
[7]
:
Administrative Law in South Africa: states that rationality is the
first element of
"reasonable"
administrative action as expressed
in section 33(1) of the Constitution. She states the meaning of
rationality as follows:
"
This means in essence
that
a
decision must be supported by the evidence and
information before the administrator as well as the reason given for
it. It must
also be objectively capable of furthering the purpose for
which the power was given and for which the decision was purportedly
taken."
[37]
In
Pepcor Retirement Fund and Another v
Financial Services Board
[8]
the Supreme Court of Appeal held
that administrative decision has to be taken on an accurate factual
basis as a result of which
a material mistake of fact renders an
administrative decision subject to review. See also:
Dumani
v Nair and Another
[9]
.
[38]
The
factual mistake is required to be uncontentious and objectively
verifiable. The material error of fact will render a decision
subject
to review if the relevant decision has been made in ignorance of the
true facts material to that decision such as for example
not
considering relevant material and/or all of the material provided
and/or personal circumstances.
[10]
[39]
An
error of law which has a material impact on the decision renders the
decision subject to review
[11]
where it was decided that a material error of law is an error that
influence the outcome of a decision.
[40]
Section
33(1) of the Constitution of the Republic of South Africa, 108 of
1996, gives anyone a right to administrative action that
is
procedurally fair. Section 6(2)(c) of PAJA allows review of an
administrative action on the ground that the action was procedurally
unfair. Hoexter points out that procedural fairness is a principle of
good administration where context is all important. She states
that
"the content of fairness is not
static but must be tailored to the particular circumstances of each
case.
[12]
Procedural fairness is one of the
grounds of review in terms of PAJA. Section 6(2)(c) of PAJA allows
review of administrative action
on the ground that the action was
procedurally unfair. In terms of sections 3 and 4 of PAJA, the right
to procedural fairness is
given content.
[13]
[41]
The principle of legality requires
rational decision-making. Both the process by which the decision is
made and the decision itself
must be rational.
[14]
[42]
In
Dumani
v Nair and Another
[15]
the Supreme Court of Appeal held
that in taking the decision of an Appeal Tribunal on review, entails
an enquiry which is not one
whether the Appeal Tribunal was correct
in its conclusion but whether the Appeal Tribunal's decision is so
unreasonable that no
reasonable person could have reached it. The
point that the Appeal Tribunal would have acted arbitrarily if it
were to be found
that the Appeal Tribunal's decision could not be
justified on the acceptable evidence.
Application
of the Law to the Facts
[43] The
Applicant's claim for compensation for non-pecuniary damages (also
referred to as general damages),
in the prescribed form
("
RAF 4 form"),
was submitted to the Fourth Respondent in
terms of section 17 of the RAF Act read with the Regulations. It
specifically provides
for the envisaged two test reliance i.e. the
Whole Body Impairment and/or the narrative test as set out in the
reports by Dr JJ
Schutte and Dr RS Kahn.
[44]
The
Road Accident Fund
("the Fund or
Fourth
Respondent") rejected
the Applicant's RAF 4 form and stated as bases for its rejection that
the Applicant has failed, neglected
and/or refused to submit himself
to the statutorily prescribed serious injury assessment by a medical
practitioner in terms of
Regulation 3(1)(a) and (b) of the
Regulations, alternatively the Applicant has failed, neglected and/or
refused to submit a duly
completed statutorily prescribed serious
injury assessment report and, if applicable, narrative test opinion
in terms of Regulation
3(3)(a), (b) and (c) of the Regulations read
with sections 17(1A) and (24)(4) of the Road Accident Fund Act, 56 of
1996, (as amended)
("the
Road
Accident Fund
Act"
;).
[45]
On
6 December 2013 the Applicant notified the First and Second
Respondents of the rejection of his claim by the Fund and that a
dispute was declared. On or about December 2013 the Applicant's legal
representatives lodged an appeal with the Registrar, in terms
of
Regulation 3(4)
of the Regulations made in terms of
section 26
of the
Road Accident Fund Act against
the RAF's decision to reject the
Serious Injury Assessment Report(s). The Applicant then provided the
Second Respondent with the
RAF 5 form and all medico-legal reports
necessary to assess his injuries before the Tribunal.
[46]
The
following documents, medico-legal reports and submissions, attached
to the RAF 5 form, were submitted:
•
RAF
5 Form : Referral of Dispute;
•
Submissions
by the Applicant's legal representatives;
•
RAF
4 Form completed by Dr R Kahn, dated 12 November 2012 and Dr JJ
Schutte, dated 29 October 2014;
•
Medico-legal
report compiled by Ms Marli Grabler (Rita van Biljon Occupational
Therapists), dated 11 November 2015 (Occupational
Therapist);
•
Medico-legal
report by Dr M Prins, dated 6 December 2015 (Pulmonologist);
•
Medico-legal
report by Dr LF Oelofse, dated 29 October 2014 (Orthopaedic Surgeon);
and
•
Medico-legal
report by Dr DA Birrell, dated 25 November 2013 (Orthopaedic Surgeon)
[47]
On
1 February 2016, the First Respondent sent a letter to the
Applicant's attorney of record informing them that the matter was
scheduled for hearing by the Third Respondent on 19 February 2016.
The Applicant's attorney was further informed that the Registrar
of
the Health Professions Council of South Africa has appointed 4 (four)
independent medical practitioners with expertise in the
appropriate
area of medicine to consider the appeal. The following experts were
appointed:
•
Dr D Lekalakala (Orthopaedic Surgeon);
•
Dr FA Booyse (Orthopaedic Surgeon);
•
Dr T Ramokgopa (Orthopaedic Surgeon);
and
•
Dr M Mokabane (Neurosurgeon)
[48]
On
6 June 2016 the First Respondent informed the Applicant's attorney of
record,
inter alia,
that
the Applicant's injuries did not qualify as serious. A copy of this
letter is attached to the Applicant's Founding Affidavit,
marked
Annexure "E". The relevant part of the aforementioned
letter reads as follows:
" RE: RAF APPEAL
TRIBUNAL//BENJIE LUCAS MALEKA
We refer to the above matter
and hereby inform you that the Road Accident Fund Appeal Tribunal
resolves at its meeting held on 19
February 2016 as follows:
i.
Date of birth 27 July 1958. Date
of accident 10 December 2009.
ii.
Sustained multiple rib fractures
with bi-lateral haemopneumothoraces.
iii.
Was treated by a way of
intercostal drains.
iv.
The panel is agreeable that he
does not quality as serious injury due to the fact that the provided
lung function tests are within
normal range."
[49]
Counsel for the Applicant argued that it
appears from the abovementioned decision of the Appeal Tribunal that
it was decided on
a majority basis that the Applicant's injuries were
non-serious in light of the fact that the Applicant suffered multiple
rib fractures
with bi-lateral haemopheumothoraces, which was treated
by way of intercostal drains and that the Applicant's lung function
was
within a normal range. Counsel for the Applicant further
submitted that it appears from the decision of the Appeal Tribunal
that
the injuries recorded therein constituted the totality of the
injuries considered by the Tribunal. He further submitted that the
Tribunal had failed to consider the report of Dr LF Oelofse, which
report makes specific reference to a T8 compression fracture
with
adjacent level spondylosis that was diagnosed.
[50]
On 1 September 2016, Dr LF Oelofse
provided the Applicant with an addendum report based on the decision
by the Third Respondent,
dated 19 February 2016. A copy of this
addendum report is attached to the Applicant's Founding Affidavit,
marked Annexure "F".
In the addendum report he pointed out
that the Tribunal has failed to consider,
inter
alia,
a TB compression fracture with
adjacent level spondylosis that was diagnosed by him and stated in
his medico-legal report, dated
29 October 2014, chapter/paragraph 8.8
thereof. He pointed out that in his opinion it is not normal for a
man of his age to have
compression fractures or to have thoracic
spondylosis. He further pointed out that prior to the accident the
Applicant did not
experience problems or stigmata of osteoporosis. In
his opinion the Applicant does qualify for the narrative test for his
TB compression
fracture and five years later there are radiological
signs of adjacent level spondylosis. He further mentioned that the
decision
by the Tribunal, dated 19 February 2016, make no reference
to his report, where he concluded that the Applicant suffered post
traumatic osteo-arthritis of the left sterno-clavicular joint as well
as adjacent disc degeneration of the thoracic spine and that
same
should have been considered by the Tribunal. Although Dr Oelofse's
addendum report was not before the Appeal Tribunal at the
time when
it considered the seriousness of the Applicant's injuries , it is
accepted that Dr LF Oelofse's report, dated 29 October
2014, was
furnished to the Appeal Tribunal prior to taking its decision and
that the Appeal Tribunal could have and should have
considered and
addressed the post-traumatic osteo-arthritis of the left
sterno-clavicular joint as well as adjacent disc degeneration
of the
thoracic spine.
[51]
Counsel for the Respondents, as proof of
the fact that the Appeal Tribunal had considered Dr Oelofse's report,
referred to paragraphs
60 to 60.5 of its Answering Affidavit. In my
view the Tribunal did not duly considered Dr Oelofse's report as no
reference is made
in their decision, dated 19 February 2016, to Dr
Oelofse's report, where he concluded that the Applicant suffered
post-traumatic
osteo-arthritis of the left sterno clavicular
joint as well as adjacent disc degeneration of the thoracic spine. No
reference
is made in the decision of the Tribunal to the thoracic
spine injury, as diagnosed by Dr Oelofse.
[52]
Dr DA Birrell (Orthopaedic Surgeon) ("Dr
Birrell"), who was instructed by the Road Accident Fund
(“the
Fourth Respondent”) ,
has
confirmed the diagnosis as mentioned in the report of Dr Oelofse and
further stated that the Applicant did not return to driving
his taxi
after the accident and that he had consequently employed taxi drivers
to assist him with his business. He has stated that
the Applicant can
no longer drive due to the sternum pain that he experiences. Dr
Birrell states further that:
"There is a marked
anterior deformity over the sternum and again X-rays will be
requested of this area. He is tender to palpation."
[53]
The
Tribunal made no mention in its decision of the thoracic spine injury
(T8 compression fracture) although it was also dealt with
by Dr
Schutte when completing the RAF 4 form.
[54]
In
Pepcor Retirement Fund and Another v
Fincancial Services Board and Another
[16]
Cloete JA held that administration
action must be taken on an accurate factual basis. A mistake of fact
renders an administrative
action subject to review. The Supreme Court
of Appeal cautions in paragraph [32]:
"Judicial intervention has
been limited to cases where the decision was arrived at arbitrarily,
capriciously or ma/a fide or
as a result of unwarranted adherence to
a fixed principle or in order to further an ulterior or improper
purpose; or where the
functionary misconceived the nature of the
discretion conferred upon him and took into account irrelevant
considerations or ignored
relevant ones; or where the decision of the
functionary was so grossly unreasonable as to warrant the inference
that he had failed
to apply his mind to the matter: Johannesburg
Stock Exchange v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A) at 152C-D; Hira and Another v Booysen and Another
1992 (4) SA 69
(A) at 938 -C. There are decisions in other jurisdictions, however,
which go further."
[55]
In
this instance the Appeal Tribunal clearly made an error of fact when
not taking the abovementioned injury into consideration
when deciding
whether general damages should be awarded and thereby ignored
relevant facts.
See
:
SG
May v The Health Professions
Council of South Africa and 3 Others : Case No: 1996/2016: Gauteng
Division of the High Court, Pretoria
: Pretorius J at [34].
On
this ground alone the decision of the Third Respondent is reviewable
in terms of PAJA
(section 6(2)(e)(iii)).
[56]
Dr
JJ Schutte, Dr R Khan and Dr LF Oelofse, in their respective reports,
have recommended the narrative test to be applied due to
serious
long term impairment. Dr R Khan stated in her report as follows:
"The chest wall
deformity is causing Mr. Maleka to have activity limitation viz. he
cannot stand for longer than 2 hours, walk
a
distance of 2km,
crawl 3 meters, hammer something, and wrap a sting around
a
parcel due to
chest pains and cramps after the accident. Since the accident he
struggles to roll over in bed, sleep, perform sexual
activity,
struggles to do shopping, push a vacuum cleaner and drive
a
car due to his
chest and posterior chest wall pains. He finds he can only drive a
car with power steering. He also struggles to
place an object on a
shelf above his head, sit for longer than 2 hours, run and play
sports, carry
a
20 kg weight 10
metres and struggles to grasp a broom due to his chest pains.
He
therefore also has a serious long term impairment."
[57]
Dr Oelofse dealt with the Applicant's
productivity and found that he had been impaired due to the injuries
he had sustained. He
found that the Applicant has had to employ 2
(two) assistants to help him with his duties that he has difficulty
performing due
to the injuries he sustained. In his opinion the
Applicant's productivity will increase with successful treatment, but
will decline
again as his degeneration progresses and that the
Applicant's injuries caused him to be an unfair competitor in the
open labour
market. He further stated that the Applicant should be
referred to an Occupational Therapist and an Industrial Psychologist
with
regards to his future productivity and working ability. The
Tribunal failed to deal with the long-term impairment suffered by the
Applicant due to his injuries sustained.
[58]
Counsel for the Applicant correctly pointed out that the Tribunal
failed to consider the report by
Rita van Biljon Occupational
Therapists ("Rita van Biljon" or "Occupational
Therapist"). The Occupational Therapist
evaluated the Applicant
on 11 November 2015. A period of 5 years and 11 months has elapsed
since the accident (10 December 2009).
Counsel for the Applicant
further pointed out that there was no Occupational Therapist and/or
Industrial Psychologist on the panel
of the Tribunal.
[59] Under
the heading "Problems experience following the accident"
Rita van Biljon states as
follows:
•
Painful chest and back when engaging in
sitting and driving - he has therefore discontinued the taxi driving
as well as the delivering
and purchasing of stock.
•
Fatigue , when engaging in physically
demanding tasks, even when walking while supervising.
[60] Rita
van Biljon concluded in paragraph 14.3 as follows:
"1.
The plaintiff should be able to continue in his current reduced
capacity where he mainly
tends to the execution of sedentary
administrative type tasks at the bottle store and occasional light
supervisory tasks at the
bottle store and of the taxi drivers.
2.
Coping with light demands (including regular long distance taxi
driving) and long working hours, as required prior to the accident,
will most likely be problematic at present, as
a
result of the
plaintiff's mid-back symptoms and what appears to be a reduced
pulmonary output."
[61]
In paragraph 14.5 Rita van Biljon
further states that after considering the findings of the consulted
Orthopaedic Surgeon, Dr LF
Oelofse, who confirms post-traumatic
osteo-arthritis of the left sterno-clavicular joint as well as
adjacent level disc degeneration
of the thoracic spine, she is of the
opinion that:
" It will be best
for maintenance of the affected joint health, if the plaintiff
continues functioning at the reduced capacity
of sedentary to low
level light tasks for the remainder of his working life."
[62]
It is patently clear that the Appeal
Tribunal did not consider the relevant information as stated in the
reports of Dr Schutte,
Dr Khan, Dr Oelofse and Rita van Biljon as if
duly considered it would be patently clear that the Applicant has
sustained a serious
long-term impairment, which would quality him in
terms of the narrative test. The Tribunal failed to consider these
relevant information.
A material error of fact will render a decision
subject to review if the relevant decision has been made in ignorance
of the true
facts material to that decision such as for example not
considering relevant material and/or all of the material provided
and/or
personal circumstances.
[17]
[63]
Counsel for the Applicant argued that
the Third Respondent failed to provide adequate reasons for its
decision, dated 19 February
2016. He referred to the unreported case
of
NS Monjane v The Health
Professions Council of South Africa and 3 Others : Case No:
54184/2016, Gauteng Division, Pretoria : Janse
van Niewenhuizen J at
[14]
where the Court held as
follows:
"[14]
The furnishing of adequate
reasons
for a decision
forms the cornerstone of a person's constitutional right to fair
administration action. The principle
is
not novel and
was
articulated by
Schultz JA in Minister of Environmental Affairs
&
Tourism v
Phambill Fisheries
2003 (6) SA 407
SCA at para [40]
as
follows: '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 van Another v Wraith
and Others
[1983] FCA 179
;
(1983) 48 ALR 500
at 507 (lines 23-41),
as
follows: 'The
passage
from
judgments which are conveniently brought together in Re palmer and
Minister for the Capital Territory
(1978) 23 ALR 196
at 206-7; 1 ALO
183 at 193-4, serve to confirm my views 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 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 Administration Law Vol 2 at
244:
"It 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 7721-773A."
[64]
The decision taken by the Tribunal,
dated 19 February 2016, does not explain why the specific
decision/action was taken as the Tribunal
failed to furnish adequate
reasons for its decision and as such the administrative action is
reviewable.
[65]
It was further the case of the Applicant
that no reasonable person, in the position of the Appeal Tribunal,
with the relevant facts
to consider, would have come to the
conclusion that the Appeal Tribunal did (section 6(2)(h) of PAJA).
Counsel for the Applicant
referred to the unreported case of
SG
May v The Health Professions Council of South Africa and 3 Others :
Case No: 1996/2016 : Gauteng Division of the High Court,
Pretoria :
Pretorius J at pars [35]
&
[36]
where the Court held in paragraph
[36] as follows:
"[36]
The test is clear as explained in Duma's case
[18]
whether the Appeal Tribunal's decision is so unreasonable that no
reasonable person would have reached it. The question that must
be
answered, in the present circumstances, is whether this court is
satisfied that a reasonable person, in the position of the
Appeal
Tribunal, on the evidence before it, could have reached the
conclusion that it had reached. The decision maker, in this
instance
the Appeal Tribunal, had to take into consideration all maters which
a reasonable person would have done, having the same
information at
its disposal at the time the decision was taken."
[66]
It is clear from the documents before
court that the Appeal Tribunal did not examine the Applicant, or
studied the reports of Dr
Oelofse, Dr Khan and Dr Schutte, who
explicitly suggested that the injuries suffered by the Applicant
should be dealt with in terms
of the narrative test in order to
determine whether it qualifies as serious or not neither did they
study the report of the Occupational
Therapist, Ms Rita van Biljon,
in respect of her findings pertaining to the Applicant's serious
long-term impairment and significant
changes in his personal
circumstances and impact on his future productivity in the labour
market. The Appeal Tribunal did not consider
and/or address the
thoracic spine injury (TB compression fracture) of the Applicant as
well as the daily pain and discomfort he
suffers.
[67]
Counsel for the First to Third
Respondents conceded, during argument, that it has not been stated in
the Answering Affidavit that
the Appeal Tribunal had considered and
addressed the report by the Occupational Therapist, although it had
the information at its
disposal, neither did the Appeal Tribunal
addressed the Occupational Therapist's report in their decision,
dated 19 February 2016.
[68] The
Appeal Tribunal has the right to examine a claimant or to appoint an
expert to do so, but in this
instance they chose to ignore the
thoracic spine injury
(TB
compression
fracture) and failed to exercise their discretion to examine the
Applicant. Further examination and investigation may
have resulted in
a different conclusion. If the Appeal Tribunal had followed the
finding in
Duma's
case
[19]
and had "a
complete
re-hearing of and fresh determination on the merits"
the
result would in all probability have been different.
[69] Upon
consideration of the aforementioned as well as for reasons stated
above, I find that the administrative
action of the Appeal Tribunal
was so unreasonable that no reasonable person or body could have
taken the decision it has taken.
The Appeal Tribunal's decision that
the Applicant's injuries did not have
"significant
life changing effects"
is
so unreasonable that no reasonable Tribunal serious considering the
question objectively, could have reached the conclusion which
the
Appeal Tribunal reached. The Appeal Tribunal has completely failed to
consider all the facts relevant to the application of
the narrative
test. In my view the Appeal Tribunal had acted arbitrarily as its
decision could not be justified on the acceptable
evidence and as
such the decision taken by the Appeal Tribunal is reviewable.
[70]
The Applicant relies
inter
alia
on an error of fact as well as
a failure on the part of the majority of the tribunal to apply the
narrative test on the available
evidential material and that no
reasonable person or body could have so exercised the power or
performed the function. In my view
the Appeal Tribunal decision was
not taken on an accurate factual basis and as a result thereof this
material mistake of fact renders
its decision and administrative
action subject to review. The Appeal Tribunal made an material error
of fact as its decision has
been made in ignorance of the true facts
material to that decision such as for example not considering
relevant material and/or
all of the material provided and/or the
personal circumstances pertaining to the Applicant. The Appeal
Tribunal did not consider
the thoracic spine injury (T8 compression
fracture) of the Applicant as well as the daily pain and discomfort
he suffers and his
loss of amenities of life as referred to in the
medico-legal reports of Dr LF Oelofse, Dr JJ Schutte, Dr RS Khan and
the report
of Ms Rita van Biljon (Occupational Therapist) and as such
the decision and administrative action of the Appeal Tribunal is
subject
to review.
[71]
The grounds for review are cast in wide
terms and are adequate to conclude that the decision of the Appeal
Tribunal, dated 19 February
2016, is reviewable for reasons stated
above.
[72]
In respect of the constitution of the
Appeal Tribunal the following:
(a)
The
Registrar of the Health Professions Council had appointed 3
Orthopaedic Surgeons and a Neurosurgeon.
(b)
Although
the injuries suffered by the Applicant appear to be Orthopaedic in
nature, Dr DA Birrell recommended that the Applicant
should obtain
the opinion of a Cardiothoracic Surgeon or Thoracic Surgeon in
respect of his sternal fracture (T8 compressor fracture:
thoracic
spine injury). The Registrar did not appoint an expert in this field.
(c)
Although
Dr JJ Schutte, Dr R Khan, Dr LF Oelofse and Ms Rita van Biljon
recommended that the narrative test be applied in determining
whether
the injuries suffered by the Applicant are serious or not, due to
their findings of possible long-term impairment by the
Applicant
pertaining to his personal circumstances, his future productivity and
working ability, the Registrar did not appoint
any expert in the
relevant field of expertise.
[73] On
the face of it and having regard to the requirement that the members
of the Tribunal must be appointed
from experts in the relevant field,
the Tribunal is not correctly constituted.
Order
[74]
In the premises the following order is
made:
1.
That
the decision of the Third Respondent, dated 19 February 2016, 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, is reviewed and set aside;
2.
That
the Second Respondent be directed to re-appoint a new Appeal Tribunal
to determine the dispute reviewed and set aside in paragraph
1 and to
further reconsider all medico-legal reports that served before the
Tribunal ·in respect of the Applicant's injuries;
3.
That
the Applicant be permitted to be present at the Appeal Tribunal
Hearing; and that the Applicant be permitted to provide evidence
pertaining to his injuries at the Tribunal hearing if he wishes to do
so;
4.
That
the First Respondent be ordered to pay the costs of this application
on a scale as between party and party.
BY ORDER
SM MARITZ, AJ
ACTING JUDGE OF THE GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Counsel
for Applicant:
Adv M Jacobs
Applicant's
Instructing Attorneys:
Van Zyl Le Roux Inc
Counsel
for the First to Third Respondents: Adv
MC Makgato
First
to Third Respondents Attorneys:
Ramushu
Mashile Twala Inc
[1]
RAF v Duma and Three similar cases
2013 (6) SA 9
(SCA)
[2]
3
rd
Edition , pp 152-160
[3]
Founding Affidavit : Medico-legal reports: Dr JJ Schutte (pp 21-22)
& Dr R Khan (p 36)
[4]
2016 (2) SA 93
(WCC) para [18] and [19]
[5]
2013 (6) SA 9
(SCA) at para 19
[6]
RAF v Duma
supra
and JH v HPCSA and Others
supra
[7]
Cora Hoexter: Administrative Law in South Africa, 1
st
Ed : at p 307
[8]
2003 (6) SA 38 (SCA)
[9]
2013 (2) SA 274
(SCA) at para [29]
[10]
Minister of Home Affairs and Others v Somali Association of South
Africa and Another 2015 (3) SA 545 (SCA)
[11]
Section 2(d)
of PAJA & Hira and Another v Booysen and Another
1992 (4) SA 69
(A
[12]
Hoexter
supra
p 3-6
[13]
Hoexter
supra
p 3-8
[14]
Democratic Alliance v President of the Republic of South
Africa and Others
2013 (1) SA 248
(CC) para [33] - [34] &
[36] - [37]
[15]
2003 (2) SA 274
(SCA) at par [22]
[16]
2003 (6) SA 38
(SCA) at par [47]
[17]
Minister of Home Affairs and Others v Somali Association of South
Africa and Another 2013 (3) SA 545 (SCA)
[18]
2013 (6) SA 9 (SCA)
[19]
Supra