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[2019] ZAECMHC 67
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Boqwana v Road Accident Fund Appeal Tribunal and Others (3823/2018) [2019] ZAECMHC 67 (12 November 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION – MTHATHA]
CASE NO. 3823/2018
Heard on:   24
October 2019
Delivered on: 12
November 2019
In
the matter between:
LULEKA
BOQWANA
Applicant
and
ROAD
ACCIDENT FUND APPEAL TRIBUNAL AND OTHERS
Respondents
JUDGMENT
ZONO AJ
[1]
The applicant approached this court in terms of Rule
53 of the
Uniform Rules of this court.  The applicant seeks the following
relief to be granted:
(1)
Review and setting aside first respondent’s
decision dated 23
April 2018 rejecting applicant’s appeal on the basis that
applicant’s injuries sustained in a motor
vehicle accident
occurred on 15 March 2014 were not serious.
(2)
Ordering the first and second respondents to pay
costs in this
application jointly and severally one paying the other to be
absolved.
(3)
Ordering the third, fourth, fifth respondents to
pay costs of this
application jointly and severally one paying the other to be absolved
only in the event of them opposing same.
(4)
That the above Honourable Court grants such further
and / or
alternative relief.
[2]
The matter is opposed by the first and second respondents.
In
opposition of the matter the first respondent duly delivered its
notice to oppose and answering affidavit.  The second
respondent
only filed Notice to Oppose.  During the date of hearing both
respondents were represented by their counsels and
heads of argument
were filed by all the parties.  The participants in the matter
were the applicant, first and second respondent.
They
participated on an equal footing.
[3]
Before dealing with the merits of the application I find
it prudent
to deal with the concessions made by or on behalf of the first and
second respondents.  Both respondents conceded
that the impugned
decision be reviewed and set aside.  On behalf of the first
respondent it was submitted that it is inexcusable
that the first
respondent has not dispatched record of proceedings relating to
applicant’s appeal to this court in terms
of Rule 53(1) of the
Uniform Rules.  It was requested on behalf of the first
respondent that an order be made remitting the
matter back to the
first respondent for proper application of mind and decision.
Lastly the first respondent conceded that
the first respondent took
the impugned decision without recourse to the relevant and necessary
information first respondent sought
to apply that it be not mulcted
in costs.  The sole basis for that application is that, so it
was argued, the first respondent
was never furnished with the
necessary papers relating to the appeal.  It was firmly
submitted that the relevant papers were
sent only to the registrar of
the Health Profession Council of South Africa.  On behalf of the
second respondent a similar
application was made that the second
respondent be not mulcted in costs.  Second respondent’s
reason for such an application
was somewhat different.  The
second respondent submitted that because the actual litigation and
engagement was between the
applicant and the first respondent and
that it was not an actual participant in the proceeding, it should be
saved from paying
costs.
[4]
The applicant on the other hand sought costs order against
the first
and second respondents jointly and severally.  It appeared to be
an in surmountable obstacle to escape the general
Rule that costs
should follow the result.  It was not disputed that the
applicant is, by reason of the concessions made, a
successful party
in the proceedings.  I will deal with this principle later in
this judgment.  With a view to dispel
first respondent’s
suggestion that the necessary documents were sent not to the first
respondent, applicant’s counsel
made two submissions: firstly
he referred the court to the provisions of regulation 4 and 8 of the
Road Accident Act commonly known
as
Road Accident Fund
Regulations, 2008
promulgated in terms of or under
Section 26
of the Road Accident Fund Act 56 of 1996, (the Regulations).
The meaty and beneficial part of the Regulations is Sub Regulation
4(a) which reads as follows: “
if a third party wishes to
dispute the rejection of the serious injury assessment report, or in
the event of either the third party
or the Fund or the agent
disputing the assessment performed by a medical practitioner in terms
of these regulations, the disputant
shall:
(a)
within 90 days of being informed of the rejection or the assessment,
notify the registrar
that the rejection or the assessment is disputed
by lodging a dispute resolution form with the registrar.”
The argument went on to say that it is not a mistake that the
Registrar received the documents, because the Registrar is a or
serves
as a reception office or point of the first respondent.
The Registrar is a functionary statutorily empowered to receive
documents
relating to the rejection of the serious injury assessment
report on behalf of the first respondent.  I was further
referred
to paragraph 15 of the founding affidavit where the
following is said “
on 10 July 2017 I wrote a letter to the
first respondent requesting the said dispute resolution and the said
letter was accompanied
by assessment reports mentioned above which
were compiled by Dr Kumbirai. Dr Lekgwara and Dr Mtati together with
duly completed
RAF5 form which is a request form for dispute
resolution.”
In the answering affidavit the first
respondent does not meaningfully deal with the fact that these
documents we sent to him but
only limits itself to the denial of
receipt of comprehensive report by Dr Lekgwara.
[5]
With regard to the second respondent’s attempt to escape costs,
I have already
found that it was an equal participant as the first
respondent.  The fact that it did not file answering affidavit
is neither
here nor there.  Of importance is the relief sought
in paragraph 2 of the Notice of Motion, which is a prayer for costs
against
the first and second respondents jointly and severally one
paying the other to be absolved.  I am mindful of the fact that

the second respondent is cited, inter alia, on the basis that it
rejected applicant’s medical reports without any basis.

First respondent did the same.  First respondent’s
decision was a continuation of a harm started by the second
respondent.
I find no basis why the first and second
respondents cannot be mulcted in costs jointly and severally.
Having found that
the impugned decision is liable to be reviewed and
set aside, it follows that costs have to follow that event.  In
what follows
I deal with important aspects of the case which support
the aforesaid finding over and above that there were concessions
correctly
made so by first and second respondents’ counsels.
[6]
The applicant brought this application with the sole purpose of
reviewing the first
respondent’s decision of the 23 April
2018.  The basic attack launched by the applicant on the
impugned decision is
that the first respondent took the decision
without having had regard to the crucial information that would
enable it to arrive
at a proper decision.
Annexure LB5
to the applicant’s founding affidavit is a request for
dispute resolution sent for the attention of the first respondent and

decision.  It listed and enclosed various documents that would
be necessary for proper taking of decision.  Those documents,

which are inter alia, expert reports, demonstrate that the applicant
has pass the necessary threshold level for serious injuries

assessment.  The threshold level for serious injuries is 30%
whole person impairment.  The aforesaid reports demonstrated
44%
whole person impairment which is way beyond the minimum threshold.
Of importance, that is not denied by the respondents.
The first
respondent only pleads that those documents were not in its
possession.
[7]
Regretably, the first respondent failed to make means
to obtain the
documents listed in Annexure LB5.  Those documents were reports
of the following Doctors: Dr T Kumbirai, Dr
N. Mtati, Dr Lekgwara,
completed RAF4 Form and completed RAF5 Form.  The first
respondent deals with the allegations about
submission of those
documents as follows:  “
the
documents were never in possession of such reports hence the appeal
was dismissed.  Alternatively, the scanty information
that we
had was not sufficient to make out a case for the applicant.”
While
it does not tell the nature of scanty information it had, the first
respondent continued to allege as follows: “
when
the file from the applicant reached the tribunal we were told to
peruse the papers and thereafter reach a finding.  We
did that
and on the papers before us and there was no sufficient evidence to
prove serious head injuries hence we dismissed the
appeal.”
In the
light of what I had found and what I will say herein below, I find
that these allegations are untenable, farfetched and palpably

impossible and they warrant rejection merely on these papers.
[1]
The whole tenor of the answering affidavit is bereft of a sound basis
for failure to obtain those listed documents.  The applicant

told the court what was sent for the attention of the first
respondent and the nature of those documents was demonstrated.

The first respondent on the other hand does not disclose the nature
of the scanty information it had before and during the taking
of the
decision.  The first respondent was aware of the nature of
documents that were meant to be sent to it even before the
taking
decision.  That information was easily identifiable from the
letter that is annexed as Annexure LB5 to applicant’s
founding
papers.
[8]
Even if I am wrong in the above finding, the first respondent
would
still not succeed.  Even a benevolent approach of upholding
first respondent’s version and arrive at a conclusion
that the
respondent was indeed not in possession of the documents alleged to
have been sent under cover of Annexure “LB5”
Road
Accident Fund Regulations 2008
would
still be against the first respondent.  It would still not be
saved by the “
Plascon
– Evans Rule
.”
[2]
First respondent’s powers are set out in
Regulation
11 of Road Accident Fund Regulation, 2008.
The Regulation reads as follows:
(11)
The appeal tribunal shall have the following powers:
(a)  Direct that
the third party, submit 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.
(c)  Direct that
further medical reports be obtained and placed before the appeal
tribunal by one or more of the parties.
(d)  Direct that
relevant pre – and port 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.
[9]
Regulation 12 provides that “
unless there has not been
compliance with directions issued in terms of the Regulation 11(a) to
(e) above, the appeal tribunal shall
notify the Registrar of its
findings within 90 days after the referral of the dispute in terms of
Sub-regulation 8, or such additional
period as the Registrar may on
application from the appeal tribunal authorise in writing.”
This regulation gives effect to Regulation 11.  Regulation
11 was promulgated solely to empower and give directions to the first

respondent in the event that it is faced with paucity of
information.  The first respondent enjoys a vast power to obtain

information so as to enable it to arrive at a fair decision.
The second purpose for promulgating this regulation was to combat
and
avoid arbitrary taking of decisions.  A decision taken without
the invocation of the provisions of Regulation 11, where
exigencies
and merits of the case demand that is ordinarily arbitrary.
There was not even an attempt by the first respondent
to obtain the
required information in terms of the means outlined in the
regulation.  There is not an inkling of a suggestion
that there
were reasons that impeded the invocation of the Regulation.
[10]
Even prior to the advent of the Constitutional dispensation, powers

conferred on administrators were inevitably accompanied by an implied
duty to exercise the power.
[3]
The first respondent clearly failed to exercise power statutorily
conferred upon it for public benefit.  There is no
justification
for that failure instead it became a source of arbitrariness.
This court has the power to judicially review
an administrative
action if the action was taken arbitrarily or capriciously.
[4]
[11]
As it has been demonstrated in paragraph 7 above, the deponent in
the
first respondent’s answering affidavit stated that “
when
the file from the applicant reached the tribunal we were told to
peruse the papers and thereafter reach a finding.”
The
deponent describes himself as the then chairperson of the Tribunal
that heard the appeal of the applicant when it served before
the
first respondent.  The paragraph continues to state that “
we
did that and on the papers before us and there was no sufficient
evidence to prove serious head injuries hence we dismissed the

appeal.”
It appears that the first respondent in
taking the impugned decision in the manner it did was responding to
instruction given to
it.  Provisions of Regulation 11 were never
invoked because the first respondent was instructed to just peruse
the file and
reach a decision.  It is not stated who told the
first respondent to peruse the file and reach a finding without the
necessary
or sufficient evidence.  What is certain is that the
first respondent took the decision because of unauthorised or
unwarranted
dictates of another person.  Decisions of that kind
are liable to be set aside on judicial review in terms of
Section
6(2)(F)(IV) of PAJA.
[12]
The decision was taken not in terms of the law but because of the

dictates of another person.   Regulation 11 is a vehicle
towards decision taking.  It provides means in terms of
which
decisions can be taken.  Failure to employ the means aforesaid
renders the decision taken without them unlawful.
Kampempe J
had an occasion of saying that “1.
State
functionaries, no matter how well – intentioned may only do
what the law empowers them to do.  That is the essence
of the
principle of legality, the bedrock of our constitutional
dispensation, and has long been enshrined in our law.  86.

The Rule of law does not permit an organ of state to reach what way
turn out to be a correct outcome by any mean..  On the
contrary
the Rule of law obliges an organ of state to use the correct legal
process.”
[5]
The legal process is what is provided for in Regulation 11.
There is therefore no rational connection between the means and
the
ends.
[6]
[13]
Finally on this point, there is authority for preposition that a

decision must be supported by the evidence and information before the
administrator as well as the reasons 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.
[7]
It is now clear that first respondent’s decision was irrational
for it was without evidence and information for taking
thereof.
The decision is not supported by evidence or information which
allegedly served before or sent for the attention
of the first
respondent.
[14]
On 7 May 2018, pursuant to the receipt of the first respondent’s

decision and upon realization that it contained no reason for it, the
applicant caused a letter to be penned and forwarded to the
first
respondent requesting reasons for the decision.  No reasons were
furnished notwithstanding that request.  It is
now clear that
the decision was indeed taken without reasons.  Rationality
entails that the decision is founded upon reason
– in contra –
distinction to one that is arbitrary – which is different to
whether it was reasonably made.
[8]
Jafta JP, as he then was, had this to say “
an
administrative decision can only be justified by the reasons
underpinning it.  It is those reasons which would show whether

the decision is rational or not.  If it is not, it cannot be
allowed to attend and must be set aside.”
[9]
The decision in question was clearly irrational in the circumstances.
[15]
Judicial review is concerned with determining whether the impugned

acts were made within the ambit of the empowering legislation, and in
accordance with the precepts of such law, in particular,
and the
constitution, in general.  I therefore find that the impugned
decision was not made in accordance with the empowering
provisions
and it therefore offends the principle of legality.  It is
accordingly found liable to be set aside.
[16]
This court is the repository of a remedial power to remit the matter

for reconsideration by the first respondent with or without
directions.
[10]
It is within
my discretion to exercise this power especially in the light of the
relief the applicant is seeking in Paragraph 1
of her Notice of
Motion.  She is not seeking a relief reviewing and setting aside
the proceedings that served before the first
respondent, but only
seeking an order reviewing and setting aside a decision.  The
practical effect of setting aside a decision
is that the proceedings
are still extant before the tribunal.
[11]
The adverse effect of not giving directions to the first respondent
will be that it will stymie not only the proceedings before
it but
also the main proceedings in this court under which this application
was brought.  The main action has to be finalised

expeditiously.  The approach I intend to follow is not unusual
in the courts of this country in matters of this nature.
[12]
[17]
On a conspectus of all evidence and papers before me it has been

established that the applicant has made out a proper case,
accordingly this application should succeeds with costs.
[18]
In the result the following order shall issue:
1.
The first respondent’s decision dated 23 April 2018, rejecting
applicant’s appeal on the basis
that applicant’s injuries
sustained in a motor vehicle accident on 15 March 2014 are not
serious, is hereby reviewed and
set aside.
2.
The matter is hereby remitted back to the first respondent for
reconsideration.
3.
The first respondent is hereby directed to determine the dispute
within 60 days of this order and when determining
the dispute,
consider the following documents:
Applicant’s
RAF4, RAF5, Medico legal reports by Dr Mtati and Dr Lekgwara.
3.
The first respondent is directed to obtain any additional information
that may be necessary for determination
of the seriousness of
applicant’s injuries.
4.
The first and second respondents are ordered to pay costs of this
application, jointly and severally, the one
paying the other to be
absolved.
____________________________
A.S.
ZONO
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES:
Attorney
for the Applicant   :                  Mr

Pangwa
CAPS
PANGWA AND ASSOCIATES
MTHATHA
Counsel
for the 1
st
Respondent    :
Adv Ngumle
Instructed
by

:          MESSRS
MZILENI AND ASSOCIATES
MTHATHA
Counsel
for the 2
nd
Respondent   :          Adv
Nabela
Instructed
by

:       SMITH TABATA INC
MTHATHA
[1]
Wightman t/a JW Construction v Head four (Pty) Ltd 2008(3) SA 371
SCA AT 375F – 376B , South Africa Veterinary Council
and
Another v Szymanski 2003(4) SA 42 (SCA) Para 24.
[2]
Plascon -  Evans Ltd v Van Reibeek Paints (Pty) Ltd 1984(3) SA
623(A).
[3]
Chatabai v Union Government (Minister of Justice)
1929 AD 281
at
785; Mpayipheli v Minister of Social Development and Another
(3956/16) [2017] ZAECMHC 15 (13 June 2017) Para 15.
[4]
Section 6(2)(e)(iv) of PAJA.
[5]
Head of Department, Department of Education, Free State Province v
Welkom High School and Another 2014(2) SA 228 (CC) Para 1
and 86.
[6]
Minister of Home Affairs and Others v Scalabrini Centre and Others
2013(b) SA 421 SCA.
[7]
Cora Hoexer: Administration Law in South Africa, 1
st
edition, Page 307.
[8]
Minister of Home Affairs and Others v Scalabrini Centre and Others
(supra).
[9]
Mafongosi and Others v VDM and Others 2002(3) ALL SA 271 (TK) Para
15, Sikutshwa v MEC for Social Development, Eastern Cape and
Another
2009(3) SA 47 Para 69.
[10]
Section 8(1)(c)(i) of PAJA.
[11]
Matiwane v President of the Republic of South Africa and Others
2019(3) ALL SA 2019 (ECM) Para 27.
[12]
RAF v Duma and Others 2013(6) SA 9 SCA; May v Health Professions
Council of South Africa and Others (1996/2016)
[2017] ZAGPHC 739(28
November 2017).