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[2019] ZAGPPHC 326
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Ramosoeu v Health Professions Council of South Africa and Others (9299/17) [2019] ZAGPPHC 326 (29 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:
9299/17
In
the matter between:
MASILO
EVELYN RAMOSOEU
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
TRIBUNAL APPEAL
TRIBUNAL
Third
Respondent
THE ROAD ACCIDENT
FUND
Fourth
Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant, Masilo Evelyn Ramosoeu (“Ramosoeu”) is
seeking a review and setting aside
of the third respondent’s,
the Road Accident Fund Appeal Tribunal’s (“the Appeal
Tribunal”) decision confirming
the finding of the fourth
respondent, the Road Accident Fund (“RAF”) in finding
that Ramosoeu did not qualify for general
damages due to the injuries
she suffered not constituting a serious injury.
[2]
The application is seemingly brought in terms of the Prevention of
Administrative Justice Act 3 of 2000
(“PAJA”).
Neither in the finding nor the supplementary affidavits are grounds
of the review in terms of PAJA
even alluded to, yet alone expanded
on. What is even more surprising is that in the replying
affidavit new evidence, an affidavit
of the Minister of Transport, a
party in another matter, is attached and relied on. It is
apposite to at this stage remark
that applicants intending to review
and set aside the decisions of the Appeal Tribunal, cannot do so as
par for the course.
The applicant and his or her attorney
should advisedly decide whether these decisions should be reviewed
and set aside. If
good grounds exist, these grounds should be
set out explicitly in the founding affidavit and cannot haphazardly
be done in a replying
affidavit for the first time. Any new
evidence in a replying affidavit, not flowing from an answering
affidavit and which
could have been foreseen in the founding
affidavit, is simply to be seen as
pro
non scripto.
[1]
[3]
Before the merits of the application is considered two points
in
limine
were raised that require an address.
The lack of
confirmatory affidavits
[4]
There were no confirmatory affidavits of Drs Duma and Beddulp
attached to that of the deponent who was
the third member of the
Tribunal. All the members agreed with the decision and it was
not a majority decision. This
point
in
limine
is
purely formalistic, does not take the matter any further and is to be
rejected. There is simply no prejudice to Ramosoeu
and there is
no
lacuna
in the Appeal Tribunal’s opposition. This could however
be a valid point raised if the decision was a majority decision,
i.e.
one member did not agree and the Appeal Tribunal should in future at
least aver that the deponent has the authority to depose
on behalf of
the other Tribunal members and not only on: “
I
am duly authorised to depose to this affidavit on behalf of the first
and second Respondents …”
[2]
The answering
affidavit does not comply with the Uniform Rules of Court
[5]
The Appeal Tribunal did not respond to the allegations set out in
Ramosoeu’s affifdavit
ad seriatim,
but chose to set out
background and preliminary submissions in answer to paragraphs 5 to 8
of the founding affidavit. The
Appeal Tribunal did however
address each of the review grounds individually. This method of
reply does not conform to normal
practice and deviating from such
practice is a risky means of addressing an applicant’s founding
averments. But, on
the papers, the Constitution of South
Africa, the Act, the Rules and the Appeal Tribunal’s functions
and powers and its work
method generally, and pertinent to this
matter, is common cause negating
ad seriatim
responses.
There is simply no prejudice to Ramosoeu, Ramosoeu is not left to
speculate about the Appeal Tribunal’s answer
to her
application. This point
in limine
is thus dismissed.
Grounds of review
The Appeal Tribunal
did not provide reasons, alternatively not adequate reasons.
[6]
In oral argument on behalf of Ramosoeu the main argument was that the
Appeal Tribunal did not provide
reasons for its decision, or at the
very least, not adequate reasons. The problem with this
argument is that it is not founded
on any ground of review raised in
the founding or supplementary affidavits. This ground of review
surfaced for the first
time in the replying affidavit. The
application should be dismissed on this ground alone as a court would
not permit an applicant
to make a case in reply when no case was made
out in the original application.
[3]
In application proceedings the affidavit must contain the essential
evidence which would have been led at a trial.
[4]
[7]
What is even more surprising is that Ramosoeu requested reasons from
the Appeal Tribunal for its decision.
Before receiving same
Ramosoeu withdrew the request for reasons. Ramosoeu then on
advice of the attorneys acting on her behalf
applied directly for the
review and setting aside of the Appeal Tribunal’s decision.
The law is not a game; one
cannot ask for reasons, withdraw the
request and then rely on the lack of reasons as a ground of appeal in
a replying affidavit.
This stratagem was obviously utilised for
strategic advantages; i.e. that in terms of s5(3) of PAJA, if
no reasons were provided
a court is to presume “
subject to
subsection (4) and in the absence of proof to the contrary”
that the administrative decision was taken without any good
reason. However, taking this route could land an applicant in
hot water because it could be argued that from the “
inadequate”
reasons provided by the Tribunal an applicant could discern the
reasons sufficiently to set up grounds as to why a decision should
be
reviewed and set aside.
[8]
This ground of review is simply not an initial ground of review, was
added as an afterthought in the
replying affidavit, is prejudicial to
the Appeal Tribunal and is accordingly not entertained and dismissed.
The Appeal Tribunal’s
lack of procedural fairness
[9]
In the founding affidavit it was submitted that Ramosoeu is
astonished that the Appeal Tribunal did
not call her to appear before
them and examine her injuries thus enabling the Tribunal to form an
opinion with regards to the long-term
effect of her serious
impairment or loss of a bodily function.
[10] In terms
of Regulations 3(a) and 3(1)(b) a medical practitioner is to assess
whether the third party’s injury
is serious in accordance with
the criteria stated in Regulation 3(1)(b)(iii). I agree with my
sister Pretorius in
Maluka v The Road Accident Fund and Others
(48032/2011) [2014] ZAGPPHC 340
paras 22 and 24 that
it should be stressed that there is no obligation on an Appeal
Tribunal to request additional information and
the same applies to
the Tribunal’s power to call persons to appear before it.
On the facts placed before RAF and the
Appeal Tribunal there is
simply no reason to call Ramosoeu and/or to call for further
evidence.
[11]
Upon perusal of the documents before RAF and the Appeal Tribunal this
court, cannot find that the Appeal
Tribunal and RAF’s
assessment of the serious injury as not constituting a serious injury
in terms of the narrative test was
a mistake of fact or error in
law. But, in any event, nowhere in Ramosoeu’s founding
affidavit is it alluded to as
what the mistake of fact, or error in
law is that the Appeal Tribunal made and these averred grounds also
need no further address.
[10]
I accordingly make the following order:
10.1
The applicant’s application is dismissed with costs.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 9299/17
HEARD
ON: 20 June 2019
FOR
THE APPLICANT: ADV.H.A.A. KRIGE
INSTRUCTED
BY: VZLR Incorporated
FOR
THE 1
ST
AND 2
ND
RESPONDENTS: ADV.
I.P. NGOBESE
INSTRUCTED
BY: Moduka Attorneys
DATE
OF JUDGMENT: 29 July 2019
[1]
Standard Bank of South Africa v Sewpersadh
2005 (4) SA 148
(C) at 153H-154J
[2]
Page 110 para 4
[3]
Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting
Co (Durban) (Pty) Ltd
1980 (1) SA 313
(D) at 316A
[4]
Molusi v Voges NO
[2015] 3 All SA 131
(SCA) at paras [20] and
[39]