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[2018] ZAGPPHC 748
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Motau and Another v Health Professions Council of South Africa and Others (29967/2016, 30323/2016) [2018] ZAGPPHC 748 (23 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION,)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 29967/2016
30323/2016
23/2/2018
In
the matter between:
KT
MOTAU (Case
No-29967/2016)
APPLICANT
MM
MASILELA (Case
No-30323/2016)
APPLICANT
and
HEALTH
PROFESSIONS COUNCIL
OF
1
st
RESPONDENT
SOUTH
AFRICA
THE
REGISTRAR OF THE
HEALTH
2
nd
RESPONDENT
PROFESSIONS
COUNCIL OF SOUTH AFRICA
ROAD
ACCIDENT FUND APPEAL TRIBUNAL
3
rd
RESPONDENT
ROAD
ACCIDENT
FUND
4
th
RESPONDENT
JUDGMENT
Before:
HOLLAND-MUTER
A/J:
[1]
The applicants each instituted a separate claim against the 5
th
respondent ( the "Fund") for damages they suffered as a
result of the respective motor vehicle accidents. The dispute
between
the applicants and the Fund is whether the Fund is liable under the
provisions of
section 17(1)
of the
Road Accident Fund Act 56 Of 1996
to compensate them for general da mages-or non-pecuniary loss,
as it is called in the section- to instances where the applicants
suffered 'serious injuries' within the meaning of
section 17(1A)
of
the Act.
[2]
In
terms of the provisions of
section 17(1)
the Fund was liable to
compensate the applicants but the all important limitation to this
proviso in
section 17(1A)
introduced during 2005 limits the Fund's
liability in these in stances to so-called serious injuries as
assessed in the prescribed
way as determined by
Regulation 3
published in the Government Gazette of21 July 2009, the regulations.
[3]
This
assessment is done by a medical practitioner under the Health
Professions Act 56 of 1974 and on the basis of the "prescribed
method", to mean prescribed under section 26. In terms of
regulation 3(3)(a) a third party who has been assessed, shall obtain
from the medical practitioner concerned a serious injury assessment
report, this report also referred to as the completed RAF 4
report.
[4]
Both
applicants lodged their respective claims with a completed RAF 4 form
respectively annexed to their claims. Both applicants'
assessments in
the respective RAF 4 forms were rejected by the Fund, the matters
taken on the prescribed appeal to the 3rd respondent
(the RAF Appeal
Board) where both appeals were unsuccessful, hence these review
applications. The Motau appeal heard on 9 September
2015 and the
Masilela appeal heard on 14 October 2015.
[5]
Regulation
3 provides for the assessment of a serious injury in terms of section
l 7(1A). Three different scenarios are possible:
5.1
The
Minister may publish a list of injuries which do not qualify as
serious. If a third party's injury fall within this description,
the
in jury shall qualify as serious. This is not applicable in
these two matters. See regulation 3(1)(b)(i).
5.2
If
the medical assessment results in a 30 % or more impairment of the
Whole Person (WPI) as provided in the AMA Guides, the injury
must
be
assessed as serious. See regulation 3(1)(b)(ii).
5.3
If
the injury does not qualify as serious under 5.2 above, regulation
3(1)(b)(iii) provides that such injury may be assessed under
the so
called
'narrative
test'
to
determine whether the injury is serious or not. See regulation
3(1)(b)(iii) where an injury which does not result in 30% or more
WPI, may be assessed as serious if that injury results in a serious
long term impairment or loss of a body function or constitutes
permanent serious disfigurement or long term mental disturbance etc.
Both matters resort under this provision.
[6]
The
Fund is only liable to compensate a third party's claim for general
damages if the claim is supported by a serious injury assessment
and
the Fund is satisfied that the injury has been correctly assessed. If
not, the Fund must either reject the third party's RAF
4 form and
give reasons therefore or direct the third party to submit
him/herself to a further assessment by the Fund's designated
medical
practitioner. See regulation 3(3)(d). The Fund rejected both
applicants' RAF 4 forms.
[7]
An
aggrieved third party may declare a dispute in terms of regulation
3(4) and the matter will then be referred to an appeal tribunal
of
three independent medical practitioners with the necessary expertise
in the appropriate area of medicine, appointed by the registrar
of
the Health Professions Council (HPCSA), the 2
nd
respondent in both matters.
[8]
Regulation
3(4) to 3(13) lays down the procedure to be followed by the tribunal
to enquire into the dispute. This includes that
both parties may file
submissions, medical reports and opinions. The tribunal may hold a
hearing for the purpose of receiving legal
arguments by both sides
and may seek the recommendation of a legal practitioner in relation
to the legal issues arising at the
hearing. The tribunal has wide
powers to gather information and may direct that further medical
reports be obtained.
[9]
The
action performed by the Fund to consider the RAF 4 form and to reject
the assessment of the injury, and the tribunal to consider
the
dispute amounts to the performing of an administrative action. See
Road
Accident Fund v Duma and three related cases (Health Professions
Council of South Africa) /2012/ ZASCA 169 (27 November 2012)
par
(19]. Neither the Fund's rejection of the
RAF
4
assessment
nor the Tribunal's decision is subject to an appeal to the court. The
court's control over these administrative actions
is by means of the
review proceedings under the provisions of the Promotion of
Administrative Justice Act 3 of2000 (known as
'PAJA').
LEGAL
NATURE OF THE GENERAL GROUNDS OF REVIEW:
[10]
When
deciding the dispute before it, the Tribunal should keep in mind the
following to ensure that its decision will be in accordance
with the
requirements for a valid administrative action:
10.1
The
decision should be taken on an accurate factual basis to ensure that
no material
mistake/error
of fact
renders
the decision subject to review. See
Dumani
v Nair and Another
2013 (2) SA 274
SCA par [29). De Ville,
in
Judicial
Review of Administrative Action
in
South
Africa Butterworths
,
on p 171 states that the validity of an administrative action will
only be affected where the decision was materially influenced
by an
error of fact, ie it would have made a difference in the outcome of
the decision had the error of fact not been made. See
S
A Veterinary Council of South Africa v Veterinary Defence Association
2003 (4) SA 546
SCA p 40-44.
Section
6(2)(f)(ii)(cc) of
PAJA
provides
for review if the action itself is not .rationally connected to the
information before the tribunal.
10.2
Section
6(2)(d) of
PAJA
provides
that the administrative action may be reviewed if the action was
materially influenced by an error of law. See
De
Ville supra on p 152-154.
10.3
When
reviewing an administrative action of an organ, the court should
interpret the relevant legislation, ie regulation 3 in this
in
stance, granting powers to administrators with reference to the power
to be executed in a reasonable way. See O'Regan J
in New
National
Party of South Africa v Government of the RSA 1999 (3) SA191 CC
par126:
"determining
what procedural fairness and reasonableness require in a given case,
will depend amongst other things, on the
nature of the power".
See
De
Ville supra 212-214.
10,4
PAJA
recognizes rationality as a ground for review in section
6(2)(f)(ii) meaning that in essence a decision must be supported by
the
evidence and information before the administrator as well as the
reasons given for it.
10.5
Section
33(1) of the Constitution of the Republic of South Africa, Act 108 of
1996 (hereafter referred to as the "Constitution"),
gives
everyone the right to administrative action that is procedurally
fair. A fair administrative procedure is dependent on the
circumstances of each individual case. See section 3 of
PAJA.
10.6
Although
an effected person must be given a reasonable opportunity to make
representations, this does not automatically mean the
person has a
right to be heard in person. This will be depend on the specific
circumstances of the case. See
De
Ville supra 254.
The
administrator has a discretion to exercise in deciding whether to
hear the person to present and dispute information and arguments.
The
audi
alteram partem
maxim
means the other party must be heard before the decision is made.
Procedural fairness does not mean that all the technical
rules of
evidence which apply in a court of law need to be followed. See
De
Ville supra 255.
10.7
The
tribunal must be impartial. It is nowhere alleged that the tribunal
in these two matters where bias and it is not necessary
to discuss
this aspect further.
10.8
The
tribunal must give reasons for its decision. It is not possible to
state what constitutes sufficient or adequate reasons. It
will depend
on each individual case. The gravity of the administrative act will
determine the degree of particularity of the reasons.
See
Moletsane
v Premier of the Free State 1996(2)SA 95 O on 98G-H.
See
De
Ville supra 292
on
the adequacy of reasons.
10.9
If
the administrator (the tribunal in these applications) already has
given its reasons for the decision as required by section
5 of
PAJA
before the decision is challenged, it will be undesirable to
elaborate thereon once it is served with an application. It may
however
provide a background to the decision in its opposing
affidavit. See
De
Ville supra 313.
[11]
The
question to be answered in both cases is whether the reasonable
administrator, with the evidence disclosed, would have reached
the
same decision that the tribunal reached? If not, the matter referred
back to a newly appointed tribunal to re-consider the
issues on all
the evidence presented.
CASE
NO 29967 / 2016: MT MOTAU:
[12]
From
the record received from the tribunal in terms of Rule 53 the
following is clear:
12.1
The
tribunal considered the matter on 9 September 2015.
12.2
The
applicant presented the following relevant medico-legal reports;
12.2.1
RAF
5 form;
12.2.2
RAF
4 as completed by Dr Schutte;
12.2.3
RAF
4 and narrative test completed by Dr Erlank;
12.2.4
Medico-legal
report by Dr Oelofse;
12.2.5
RAF
1 form.
12.3
The
tribunal considered the matter on 9 September 2015 and found that the
injuries are not serious as contemplated in the Act.
12.4
The
applicant's matter was number 4.21 on the schedule of the tribunal
on the said date and a short summary is found on p 118
of the record
bundle. From the notes it is clear that no reference is made to the
report of Dr Oelofse. The tribunal also held
that it was not
convinced that the reports on the hip pathology was accident related.
12.5
The
Fund made no submissions and filed no medico-legal reports on its
behalf. It can be accepted that the decision was made on the
evidence
submitted on behalf of the applicant. The fact that the tribunal had
reservations on the information in some of the reports
which led to
the decision, in my view called for an explanation to the tribunal by
the applicant on these aspects to reach clarity
on the hip pathology
and Dr Oelofse's report. In my view this leads to the finding that
the tribunal did not consider all evidence
presented and that the
applicant should have been present to clarify the uncertainty of the
tribunal's concerns with regard to
the hip pathology. This was a case
where the
audi
alteram partem
maxim
should have been applied in having the applicant in person or re
presented before the tribunal.
[13]
The
attempts by the chair of the tribunal to "correct" the
incomplete rea sons by way of the averments in the opposing
affidavit, if taken into account what was stated above by
De
Ville
(par
10.9 above), is undesirable and amounts to the proverbial second bite
of the cherry.
[14]
I
am therefore of the view that the decision of the 2nd respondent
should be set aside and that the 1st respondent should re-appoint
a
new tribunal to determine the dispute. See order below.
CASE
NUMBER 30323 / 2016: M M MASILELA:
[15]
From
the record received from the tribunal in terms of Rule 53 the
following is clear:
15.1
The
tribunal considered the matter on 14 October 2015.
15.2
The
applicant presented the following relevant medico-legal reports:
15.2.1
RAF
5 form;
15.2.2
Report
by Dr L Berkowitz;
15.2.3
RAF
4 and narrative test completed by Dr JD Erlank;
15.2.4
RAF
4 and narrative test completed by Dr TJ Enslin;
15.2.5
Medico-legal
report by Dr K Truter.
15.2.6
RAF
1 form.
15.3
The
tribunal considered the matter on 14 October 2015 and found that the
injuries were not serious as contemplated in the Act.
15.4
The
applicant's matter was number 3.7 on the schedule of the tribunal on
the said date and a short summary of the proceedings is
found on p 43
of the record. It is clear from these notes that only Dr T Enslin's
report was considered. Nothing is recorded about
the other
medico-legal reports submitted to the tribunal.
15.5
The
Fund made no submissions and filed no medico-legal reports on its
behalf. It can therefore be accepted that the decision was
made on
the evidence submitted on behalf of the applicant. The applicant's
attorneys further also requested the tribunal to address
the tribunal
to hear evidence with regard to the alleged injury. It was submitted
that it would be in the best interest of all
the parties if evidence
be heard and oral arguments be submitted. See letter dated 15
September 2015 on p 32-33. This request to
be present and to address
the tribunal was ignored in toto and no response was coming from the
tribunal. In my view this amounts
to an unfair procedure and the
ignorance of the well known maxim of
audi
alteram partem.
The
tribunal in all probabilities never considered such request and never
gave any reasons why such request was not considered at
all.
[16]
As
indicated in par [13] above, the attempt by the chair of the tribunal
to "correct" the record in the opposing affidavit
is
undesirable.
[17]
As
in the instance of Mudau above, I am of the view that the decision of
the 2
nd
respondent should be set aside and the 1
st
respondent should reappoint a new tribunal to re-consider all the
medicolegal reports and/or consider hearing the applicant in
person
or hear legal arguments on behalf of the applicant.
ORDER:
A:
CASE NUMBER 29967 / 2016: K T MUDAU:
[1]
The
decision of the 2nd Respondent as decided on 9 September 2015 d
communicated on 15 October 2015 to the effect that the injuries
suffered by the Applicant ( KT Mudau) are non-serious in terms of
Section l 7(1A) of the
Road Accident Fund Act, Act
56 of 1996 and its
regulations is set aside;
[2]
The
1
st
Respondent is directed to re-appoint a new Appeal Tribunal to
determine the dispute reviewed and set aside in prayer 1 above and
to
further reconsider all medical-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 further
evidence pertaining to his injuries at the Tribunal hearing if
requested by the Tribunal;
[4]
That
the 2
nd
Respondent be ordered to pay the costs of this application.
B:
CASE NUMBER 30323 / 2016: M M MASILELA:
[5]
The
decision of the 2
nd
Respondent as decided on 14 October 2015 and communicated on 2
December 2015 to the effect that the injuries suffered by the
applicant
(MM Masilela) are non-serious in terms of
Section 17(1A)
of
the
Road Accident Fund Act, Act
56 of 1996 and its regulations is set
aside;
[6]
The
1
st
Respondent is directed to re-appoint a new Appeal Tribunal to
determine the dispute reviewed and set aside in prayer [5] above
and
to further reconsider all medical-legal reports that served before
the Tribunal in respect of the Applicant's injuries;
[7]
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
requested the Tribunal;
[8]
That
the 2
nd
Respondent be ordered to pay the costs of this application.
[9]
Both
applications were heard on the same day and both applicants and the
respondents were represented by the same counsel at the
hearing. Both
counsel's fees are restricted to one day fee for the hearing.
J
HOLLAND-MUTER AJ
23
FEBRUARY 2018
Date
of hearing of both matters: 25 October 2017.
Judgment
delivered:
23
February 2018
FOR
APPLICANTS:
Adv
HHA KRIEGE
Attorneys:
VZLR
Ref:
JB GRIMBEEK/sp/MAT414187
Tel:
012-435 9444
FOR
RESPONDENTS:
Adv
L NYONGIWA
Attorneys:
GILDENHUYS MALATJI
Ref:
T MALATJI/T MAODI/HMA/01777262
Tel:
012-428 8600