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[2019] ZAGPPHC 342
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Kau v Health Professions Council of South Africa and Others (75673/2016) [2019] ZAGPPHC 342 (6 August 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES
Case Number: 75673/2016
6/8/2019
In
the matter between:
M
C KAU
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
KUBUSHI J
INTRODUCTION
[1]
The issue that came for determination in
this opposed application was who of the four respondents was
responsible to pay the costs
incurred by the applicant. The applicant
in its papers prayed for an order of costs against the Health
Professions Council of South
Africa ("the first respondent")
and in court the argument was extended to include the Acting
Registrar of the Health
Professions Council of South Africa ("the
second respondent") and the Road Accident Fund Appeal Tribunal
("the third
respondent"), jointly and severally. The first,
second and third respondents ("the respondents"), in
opposing the
application are denying that they are liable to pay the
costs.
[2]
The issue emanates from the application
launched by the applicant for the judicial review of the third
respondent's decision in
finding that the injury the applicant
suffered in a motor vehicle collision was non-serious for purposes of
the Road Accident Fund
Act 56 of 1996 ("the Act") read with
its Regulations.
[3]
The actual relief sought by the
applicant is couched as follows in the review application:
3.1
Reviewing
and setting aside the decision of the third respondent dated 1 April
2016 to the effect that the injuries suffered by
the applicant are
non-serious in terms of section 17 (1A) of the Act and its
Regulations.
3.2
That
the first respondent is 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.
3.3
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/her injuries at the Tribunal hearing if
he/she wishes to do so.
3.4
That
the first respondent be ordered to pay the costs of this application.
BACKGROUND MATRIX
[4]
The review application originated from a
claim which the applicant had instituted against the fourth
respondent in terms of the
Act, for compensation of damages suffered
by the applicant as a result of the collision. Amongst others, the
applicant claimed
for general damages (non-pecuniary damages), which
claim in terms of the Act is limited to compensation for serious
injury.
[5]
In order to succeed in such a claim, the
Act requires the injury sustained by the third party to be assessed
as serious. The prescribed
method of assessment is contained in
regulation 3 of the Regulations issued in accordance with the Act.
The applicant's injury
was, in terms of the narrative test,
[1]
assessed as serious by Dr D Menge and Dr D Hoffman. According to the
doctors' assessment, the applicant was found to have serious
long-term impairment or loss of body function as well as permanent
serious disfigurement which will cause pain and suffering requiring
treatment. This assessment of serious injury was also confirmed by
the orthopaedic surgeon who examined the applicant.
[6]
Based on such assessment, the applicant
submitted his claim for compensation for general damages with the
fourth respondent. In
terms of the requirements of the Act, for the
fourth respondent to compensate the applicant it (the fourth
respondent) must be
satisfied that the injury was correctly assessed.
The fourth respondent was not satisfied with the applicant's
assessment and rejected
the claim.
[7]
When such a claim has been rejected, the
applicant must follow a dispute resolution procedure set out in the
Regulations.
[2]
The dispute resolution procedure is in essence an appeal against the
decision of the fourth respondent in rejecting the assessment
of
serious injury.. The appeal lies with the third respondent. As
prescribed in the Regulations, it is the duty of the second
respondent as an official of the first respondent to constitute the
third respondent for the adjudication of the dispute.
[8]
The applicant complied with all the
requirements of the Regulations in lodging the dispute which was
finally presented to the third
respondent for adjudication. The
decision of the third respondent was that the applicant's injury
constitutes a non serious
musculo-skeletal injury and the
rejection of the assessment by the fourth respondent was confirmed.
[9]
The applicant was aggrieved by the
decision of the third respondent and launched an application to
review and set aside that decision
together with an ancillary order
for costs against the first respondent. The application was opposed
by the respondents.
[10] Subsequent
to setting the trial action down for hearing in respect of the other
heads of damages,
and before the review application was heard, the
fourth respondent, pursuant to a settlement agreement with the
applicant, conceded
to the granting of an order that the appllcant be
awarded compensation for general damages. Based on this order, the
applicant
transmitted a letter to the first respondent seeking a
tender for the payment of costs occasioned in the review application,
to
date of that letter. Despite the request for the tender of costs,
the respondents proceeded to deliver their answering affidavit
which
necessitated the reply thereto by the applicant.
[11]
When the parties appeared before me, the
applicant abandoned prayers 1 to 3 in the notice of motion and only
the issue of costs
was argued.
THE APPLICANTS ARGUMENT
[12]
The applicant's argument in this regard
is that
as a
successful
litigant he should be indemnified for the expenses to which he has
been put through having been unjustly compelled to
initiate the
review application. According to the applicant, by virtue of being
awarded general damages by the fourth respondent,
the substratum of
the review application fell off. He was, therefore, successful in
obtaining the relief he sought in respect of
the prayers abandoned
and, thus, entitled to the prayer remaining in the notice of motion
for cost.
[13]
The applicant's further argument is that
he is a
bona fide
applicant
and has been awarded the general damages and should not be left out
of pocket. He argued for costs against the first respondent
or
alternatively against the respondents, jointly and severally. In
support of his argument, the applicant referred me to the judgments
in
M Kotze v Health Professions
Council of South Africa
&
Others,
[3]
TP Buthelezi v Health Professions Council of South Africa
&
Others
[4]
and SG
May
v Health Professions Council of South Africa
&
Others,
[5]
as well as regulation 3 (14)
(a)
and
(b).
Like
in this instance, the three judgments dealt, respectively, with the
application for the review of the decision of the Road
Accident Fund
Appeal Tribunal. In all three judgments the respective applicants
were successful and were awarded costs. In
Kotze
and
May,
the respective courts made an order
of costs to be paid jointly and severally by the first, second and
third respondents, whereas
in
Buthelezi
the order for costs was against the
first respondent only. The costs orders in the three judgments were
granted without any reasons
proffered by the respective courts for
the cost order awarded.
[14] The
applicant argues that if the cost order is granted against the
respondents, they would be
entitled to recover such costs from the
fourth respondent in accordance with regulation 3 (14)
(a)
and
(b).
The sub-regulation provides that the fourth respondent
shall bear the reasonable costs of the first respondent arising from
sub-regulations
(4) to (13) as agreed between the first respondent
and the fourth respondent or as determined by the Minister. The
fourth respondent
shall also bear the reasonable fees and expenses of
the persons appointed in terms of sub regulation (8) and (10)
(b).
Sub-regulations (4) to (13) deals with the dispute
resolution procedure followed when a party is aggrieved by the fourth
respondent's
rejection of the serious injury assessment report. In
terms of sub-regulation (8) the second respondent is empowered to
appoint
members of the third respondent whose services are paid for
by the fourth respondent. Whereas in accordance with sub
regulation
(10)
(b)
the second respondent has the authority to
appoint a person with legal background to consider any legal argument
presented to the
second respondent by the presiding officer of the
third respondent.
THE RESPONDENTS' ARGUMENT
[15] Conversely,
the submission by the respondents is that they should not be held
liable for the
costs of the application. According to the respondents
the applicant is not entitled to the costs of the application
because: firstly,
the application has been abandoned and without any
hearing and final determination of the application, there can be no
cost order
against the respondents. Secondly, the fourth respondent
had no authority to settle the award of general damages with the
applicant
since the matter was now in the hands of the first
respondent and/or third respondent. The third respondent having
adjudicated
the dispute made a decision rejecting the assessment,
which decision was final and binding - and until the decision has
been reviewed
and set aside by a court of law, it stands. In addition
there is no provision in the Regulations that authorises the fourth
respondent
to overrule the decisions of the third respondent. Lastly,
there is no specific relief sought against the fourth respondent in
the review application and thus the settlement of the general
damages' claim has no effect on the review application.
[16]
In support of their argument, the
respondents relied on the following regulations: regulation 3 (5)
(a), (h),
(9)
(b)
(iii)
and (13) and the judgment in
Master
of the High Court North Gauteng High Court, Pretoria v Enver Mohamed
Motala NO
&
Others,
[6]
which dealt with the effect of orders not rescinded.
THE ISSUE
[17]
The crux is whether the settlement of
the award of general damages by the fourth respondent has any effect
on the third respondent's
decision to reject the assessment of
serious injury of the applicant. Put differently, the crux is whether
the concession by the
fourth respondent to compensate the applicant
has the effect of overruling the decision of the third respondent.
THE DISCUSSION
[18]
The applicant's argument is that the
fourth respondent can overrule the decision of the third respondent
because the third respondent
is brought into being by the fourth
respondent in terms of the Regulations to serve a specific function.
The third respondent is,
according to the applicant, not a higher
body than the fourth respondent. To the contrary, the respondents'
contention is that
the fourth respondent cannot overrule the findings
of the third respondent which, unless set aside by a court of law,
are final
and binding.
[19]
The process of adjudicating the dispute
declared by the third party against the decision of the fourth
respondent is provided for
in regulation 3 of the Regulations. In
terms of regulation 3 (3)
(c)
the
fourth respondent shall only be obliged to compensate a third party
for non-pecuniary loss as provided for in the Act if such
a claim is
supported by a serious injury assessment report and the fourth
respondent is satisfied that the injury has been correctly
assessed
as serious in terms of the method
provided
for in the Regulations. Where the fourth respondent rejects the
assessment, the third party must notify the second respondent,
in the
manner and within the time period provided for in the Regulations,
that the rejection or the assessment is disputed. If
the second
respondent is not notified, the rejection or the assessment shall
become final and binding unless an application for
condonation is
lodged. If late notification is not condoned, the rejection or the
assessment shall become final and binding.
[20]
Where the third party has notified the
second respondent about the dispute, the process is out of the hands
of the fourth respondent,
so to speak, and falls in terms of the
Regulation within the domain of the first respondent. It is the duty
of the first respondent,
through the second respondent who is its
officer, to constitute the third respondent to adjudicate the
dispute. In terms of regulation
3 (13), the findings and decisions of
the third respondent when adjudicating the dispute, are final and
binding.
[21]
The respondents rely on paragraph 14 in
Motala in support of their proposition that the decision on the
fourth respondent to settle
the applicant's claim for general damages
had no effect of the third respondent's decision to reject the
serious injury assessment
report because the decision of the third
respondent is final and binding. The paragraph relied on reads as
follows:
"[14] ln my view,
as l have demonstrated, Kruger AJ was not empowered to issue and
therefore it was
incompetent for him to have issued the order that he
did. The learned judge had usurped for himself a power that he did
not have.
That power had been expressly left to the Master by the
Act. His order was therefore a nullity. In acting as he did, Kruger
AJ
served to defeat the provisions of a statutory enactment. lt is
after all a fundamental principle of our law that a thing done
contrary to a direct prohibition of the law is void and of no force
and effect
Schierhout v Minister of Justice
1926 AD 99
at
109). Being a nullity a pronouncement to that effect was unnecessary.
Nor did it first have to be set aside by a court of equal
standing.
For as Coetzee J observed in
Trade Fairs and promotions (Pty) Ltd
v Thomson
&
Another
1984 (4) SA 177
(W) at 183E: '[i]t
would be incongruous if parties were bound by a decision which is a
nullity until a Court of an equal number
of Judges has to be
constituted specially to hear this point and to make such a
declaration'. (See also
Suid-Afrikaanse Sentrale Ko
operatiewe Graanmaatskappy Bpk v Shifren
&
Others and the
Taxing Master
1964 (1) SA 162
(0) at 1640-H.)
[22]
Although I am in agreement with the
respondents that the decision of the third respondent was final and
binding and could not be
overruled by the fourth respondent's
settlement of the applicant's general damages, I, however, do not
think that
Motala
finds
application in the facts and circumstances of the matter before me,
in particular, the passage quoted above. This is so because
Motala
dealt with a decision made by a
court of law whereas the decision in this instance is an
administrative decision reviewable in terms
of the provisions of the
Promotion of Administrative Justice Act, No. 3 of 2000
.
[23]
There are a number of judgments where
this principle has been affirmed, like for instance, the judgments of
the Supreme Court of
Appeal and the Constitutional Court in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others,
[7]
MEC for Health, Eastern Cape
&
Another v Kirkland Investments (Pty)
Ltd t/a Eye and Lazer Institute,
[8]
Merafong City v AngloGold Ashanti Ltd
[9]
and
Department
of Transport and Others v Tasima (Pty) Ltd.
[10]
[24]
In
Oudekraal,
the Supreme Court of Appeal
developed the principle that an unlawful act may produce legally
recognisable consequences. In that
judgment the administrator had
granted a developer an extension to comply with the conditions for
lodgement of a general plan after
the expiry of the period of
lodgement prescribed by the City's Ordinance. The court having made a
finding that the administrator’s
action was unlawful and
invalid at the outset. questioned whether such action should simply
be disregarded as if it had never existed.
The court came to the
conclusion that until the administrator’s approval is set aside
by a court in proceedings for judicial
review it exists in fact and
it has legal consequences that cannot simply be overlooked.
[11]
[25]
The principle enunciated in
Oudekraal
was first afforded judicial
recognition by the Constitutional Court in
Kirkland
where the court restated the
principle as follows at paragraph 101 thereof:
"[101] . . . invalid administrative action
may not simply be ignored . . . until set aside by proper process:
[26]
The principle was further reaffirmed by
the Constitutional Court in
Merafong
where the Minister had overturned
Merafong Municipality's decision to levy a surcharge on water for
industrial purposes used by
AngloGold. The court found that as a good
constitutional citizen, the municipality was supposed to either
accept the Minister's
ruling as valid or to challenge it in court.
but not to ignore it. The court explained the import of
Oudekraal
and
Kirkland
at paragraph 41 that
"government
cannot simply ignore an apparently binding ruling or decision on the
basis that it is invalid'
and that
the decision
"remains legally
effective until properly set aside"
by
a court of law.
[27]
In
Tasima,
the Department sought, by means of a
collateral challenge, to impugn a decision of its official to extend
an agreement with Tasima
on the ground that such extension was in
contravention of section 217 of the Constitution,
section 38
of the
Public Finance Management Act 1 of 1999
and the Treasury Regulations.
The court held that although no invalid administrative decision may
'morph into a valid act' it may
have a binding effect because of its
mere factual existence until it is set aside by a court of law. The
court further observed
that the principle does not offend the
doctrine of objective invalidity as it merely preserves the fascia of
legal authority until
the decision is set aside by a court and until
that happens the decision remains legally effective, despite the fact
that it may
be objectively invalid.
[12]
[28]
I find the principle discussed in the
aforementioned judgments to be apposite to the facts of the
application in this instance.
The principle finds application in that
a decision once made, exists in fact and it has legal consequences
that cannot be simply
ignored.
[29]
Similarly, in this instance, the
findings of the third respondent, once made, were final and binding
and unless set aside by a court
of law, they should stand. It was not
for the fourth respondent and/or the applicant to simply ignore the
decision already made
by the third respondent when they entered into
the settlement agreement to award the general damages.
[30] Even though
the substratum of the applicant's claim in the review application
fell off, once
the general damages were paid, that did not have any
effect on the decision of the third respondent which required being
set aside
by the court before it could be ignored. The applicant
instead of arguing the review application opted to abandon the
prayers that
formed the substratum of the application which had the
effect of having abandoned the application. Since the application has
been
abandoned the applicant cannot, as such, be entitled to the
costs of an abandoned application.
[31]
I do agree, as well, that the applicant
as the successful party, in the sense that he succeeded in his claim
for general damages,
ought not to be left out of pocket for the
expenses incurred in instituting the review application. However,
such costs cannot
be placed on the shoulders of the respondents. The
respondents are not the cause of the applicant having to unjustly, as
he states,
being compelled to initiate the review application.
[32]
The argument by the applicant that the
third respondent is brought into being by the fourth respondent in
terms of Regulations to
serve a specific function is not sustainable.
The authorities stated in paragraph [23] of this judgment, bears
that.
[33]
Furthermore, since it is common cause
that the findings of the third respondent have not been reviewed and
set aside, I have to
hold, therefore, that the applicant has failed
to make out a case for an award of costs against either the first
respondent or
the respondents jointly and severally. The application
stands to be dismissed.
[34]
Consequently, the application is dismissed with costs.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
Appearance:
Applicant's Counsel
:
Adv P. A. Venter
Applicant's Attorneys
:
VZLR Incorporated
The
Respondents' Counsel
:
Adv R. Schoeman
(First, Second and Third Respondents)
The
Respondents' Attorneys
:
Ramulifho Attorneys.
(First, Second and Third Respondents)
Date
of hearing
:
14 May 2019
Date
of judgment
:
06 August 2019
[1]
Regulation 3 (1) (b) provides that-
"(b) The medical practitioner shall assess whether the third
party's injury is serious in accordance with the following
method:
(i)
…."
(ii) If
the injury resulted in 30 per cent 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 per cent 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
and severe long-term behavioural disturbances
or
disorder; or
(dd)
result ed in loss of a foetus."
(Referred to as The Narrative Test).
[2]
Regulation 3 (3) - (9).
[3]
(23764/2018)(20191 HGDP (10 M ay 2019).
[4]
(3039/2017) (2019) HGDP (17 April 2019).
[5]
(199 6/2016) (2017) HGDP ( 28 November 2017).
[6]
(172/11)
(2011) ZASCA 238
(1 December 2011).
[7]
2004 (6) SA 222 (SCA)
[8]
2014 (3) SA 481 (CC)
[9]
2017 (2) SA 211 (CC)
[10]
2017 (2) SA 622
(CC)
[11]
Para 26.
[12]
Para 147.