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[2016] ZAECMHC 41
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Gogoba v Road Accident Fund (1212/16) [2016] ZAECMHC 41 (30 August 2016)
IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 1212/16
Not
Reportable
Heard
on: 18/08/16
Delivered
on: 30/08/16
In
the matter between:
MAWANDE
GOGOBA
Applicant
and
ROAD
ACCIDENT
FUND Respondent
JUDGMENT
NHLANGULELA
DJP:
[1]
Pursuant to the road accident that the applicant was involved in on
11 May 2009 he, as obliged in terms of the Regulations to
the Road
Accident Fund Amendment Act 56 of 1996 aa (the Act), submitted to
medical examination by his own doctor and clinical psychologist,
Dr
R.A. Olivier and Ms N. Mtati respectively. He obtained reports
from these specialists. He also obtained a radiologist’s
report on the fracture of his tibia. These reports were duly
lodged by him with the Road Accident Fund. Form RAF4 was
also
prepared and filed on his behalf with the Fund. The purpose of
the filing was to claim compensation for non-pecuniary
loss sustained
due to the accident.
[2]
The Fund conceded the
merits
of the applicant’s claim
but rejected the claim on
quantum,
acting in terms of
Regulation 3 (3)(d)(i) to the Act, on the basis that the applicant
did not sustain serious injuries that would
entitle him to be paid
compensation. I quote hereinunder the respondent’s
reasons for the rejection of the applicant’s
claim as set out
in annexure “SD 1”:
- “The
injuries managed well conservatively with no impairment nor
complication documented.
- The narrative test
indicate mild head injury with chronic headache but there is no
clinical evidence of such symptoms.
- Pains is not
considered serious injury in RAF Act. RAF4 Form indicate
mal-union with no radiology report and chronic pain
of the knee and
leg”.
[3]
Aggrieved by the rejection of his claim, the applicant, acting in
terms of Regulation 3 (4) to the Act, lodged a dispute with
the
Registrar of the Health Professions Council of South Africa.
This procedure warrants that the Appeal Tribunal of the
Council must
adjudicate the dispute by considering the full circumstances that led
to the dispute including the reasons for rejection
of the injury
assessment.
[4]
Whilst the adjudication of the appeal was pending the applicant saw
it fit to bring the present proceedings before this Court
seeking a
relief that the Fund be directed to furnish adequate written reasons
for the rejection of the serious injury assessment
report of Dr
Olivier within 20 days from the date of the order of the Court.
I was informed that such proceedings are predicated
on the provision
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA); s 5
thereof which is entitled: “Reasons
for administrative
action”. In formulating a case under PAJA the applicant
stated in the founding affidavit that the
reasons given by the Fund
are not good enough or are not adequate reasons as to why they said
that the injuries are not serious.
He alleges that they are
inadequate in that the Fund did not respond pertinently to the expert
reports of Dr Olivier and Ms Mtati,
it did not have recourse to a
radiologist’s report and that it ignored certain clinical
notes. It appears that the
materials alluded to had been
submitted to the Registrar in support of the applicant’s case
that is still due to be adjudicated
by the Appeal Tribunal. It
was contended on behalf of the applicant that without good and/or
adequate reasons the applicant
will be unable to present his case on
appeal before the Tribunal.
[5]
For the purpose of completeness I must also highlight the objection
of the applicant that the reasons given by the Fund fall
to be
invalidated by reason that the person who drafted them, Mr Lutendo of
the Fund, is “just a claims handler” who
was not
medically qualified to make an injury assessment report as he did.
[6]
Whilst the Fund, on the one hand, denies that, firstly, the appellant
was not given reasons and, secondly, the reasons given
are
inadequate, it, on the other hand, raised a special point that the
present application is
lis pendens
in that the Appeal Tribunal
is as yet to adjudicate the dispute.
[7]
At the outset of the proceedings I raised the question with the legal
representatives as to whether entertainment of the dispute
in this
Court will not amount to a usurpation of the appeal powers presently
vested in Appeal Tribunal in terms of legislation.
I did not
quite get a satisfactory answer but a strong reaction that the
principles of
lis pendens
do not apply because the cause of
action pleaded on affidavit is different from the one that is going
to be adjudicated before
the Tribunal. On the report about the
s 5 claim, I was urged to find that the case of,
inter alia
,
Transnet Ltd v Goodman Brothers (Pty) Ltd
[2000] ZASCA 151
;
2001 (1) SA 853
(SCA), at para. [5] and
Minister of Environmental Affairs and
Tourism and Others v Phambili Fisheries and Another
[2003] 2 All
SA 616
(SCA) at para. [40] provides a good reason for the matter to
be adjudicated in this court.
[8]
It was submitted on behalf of the Fund that the provisions of s 7 (2)
of PAJA intertwines with the defences of
lis pendens
in such a
way that the applicant cannot bring the present application without
first exhausting the internal remedy of an appeal
as prescribed by
the Legislature. I was not persuaded by the argument that s 7
(2) of PAJA has no bearing to the present
matter as the application
brought is not a review proceedings. To the extent that the
impugned decision of the Fund, the
administrator, cannot be set aside
without reviewing by a court of law the argument cannot be
sustained. Even a consideration
based on s 5 of PAJA as relied
upon by the applicant calls for invocation of judicial review power
of this Court.
[9]
The question as to why the applicant saw it fit to by-pass the
internal appeal remedy without seeking an exemption as he was
enjoined to do so in terms of s 7 (2) of PAJA was not answered by the
applicant. Therefore, the power vested in this Court
in terms
of s 7 (2)(b) kicks in. I will deal with this power later on in
this judgment.
[10]
In my opinion the decision on the issue of
lis pendens
puts
paid to the competency of a relief based on s 5 of PAJA. In so
far as the cases referred to the Court,
Transnet and Phambili,
are
relevant to s 5 there is no need to deal with them. But I find
that the case of
Wycliffe Simuyu Koyabe and 2 Others v Minister of
Home Affairs and 2 Others:
Constitutional Court Case CCT 53/08,
[2009] SACC 23 is relevant. It deals with the principle that a
litigant armed with an
internal remedy provided to him/her by statute
is obliged to first exhaust that remedy before proceeding to a court
to seek judicial
review under PAJA. Since it is common cause
that the applicant in this case is afforded an internal remedy in
terms of the
regulations to the Act, it will suffice, for present
purposes, to refer to the statement of the Constitutional Court in
the
Koyabe
judgment at 16 para. [34]. It was said:
“
Thus …
PAJA… requires that available internal remedies be exhausted
prior to judicial review of an administrative
action.”
[11]
See also the case of
Nichol and Another v The Registrar of Pension
Fund and Others
2008 (1) SA 383
(SCA) at para. [15] and Plasket:
“The Exhaustion of Internal Remedies and Section 7 (2) of the
Promotion of Administrative
Justice Act 2 of 2000”
(2002) 119
SALJ 50.
The statement in
Koyabe
is anchored on these
reference materials.
[12]
Most unfortunately for the applicant the conclusion I am able to
reach, with respect, is that he must first exhaust the appeal
internal remedy as provided to him in the regulations to the Act.
[13]
It now remains to deal with the issue of
lis pendens
.
For the respondent to succeed on this issue, it must prove the
requirements that are set out in the case of
Nestlé (South
Africa)(Pty) Ltd v Mars Inc.
2001 (4) SA 542
(SCA) at 549B
namely:
(a)
there must be a litigation pending,
(b)
the other proceedings must be pending between the same parties or
their privies,
(c)
the pending proceedings must be based on the same cause of action,
and
(d)
the pending proceedings must be in respect of the same subject
matter.
[14]
These requirements are proved in this case. Much was said in
argument on behalf of the applicant that in this matter
the cause of
action is compelling the furnishing of adequate reasons whereas the
cause of action before Appeal Tribunal is the
determination of the
validity of those reasons. I do not agree. The argument
overlooks the fact that reasons underpinning
the decision were
supplied by the Fund. And they are intelligible in my
view. The contention that the reasons
furnished do not justify
the decision that was made seems to me to be the issue lying at the
heart of the appeal adjudication process.
It is a contention
that calls for this Court to assess the quality of the reasons given
including whether Mr Lutendo was qualified
to make the assessment
underpinning the reasons given by the respondent. To do so
would be tantamount to usurping the power
of the Appeal Tribunal.
That I cannot do. And the evidence that the Fund has supplied
adequate reasons and that it
has not more reasons to supply means to
me that the battle lines have been drawn for the appeal process to
roll. It seems
to me that that the Appeal Tribunal will have to
deal with the adequacy, validity or otherwise of the reasons that
inform the decision
of the Respondent. That being the case it
cannot be said that the dispute between the parties is not
lis
pendens.
[15]
The respondent has achieved success on the issue of
lis pendens.
The appropriate order to be made with regard to the objection based
on s 7 (2) of PAJA is that the applicant must be sent
back to the
Appeal Tribunal and continue to exercise his remedies there.
Costs will have to be paid by the applicant for
his wasteful pursuit
of this application. But certainly not on a punitive scale as
contended for on behalf of the respondent
because I have not detected
malice on the part of the applicant.
[16]
I must say something about the special points raised,
albeit
in
a muted fashion, concerning the alleged deponent’s lack of
authority to act on behalf of the respondent and, as a consequence,
the striking off of the answering affidavit made by the deponent.
The deponent’s affidavit contains allegations by
an attorney on
points of legal procedure rather than pure facts with regard to the
decision made by the Fund. In so far as
the objections were not
centred around the absence of a power of attorney
per se
I
have no doubt in my mind that it was in the interest of applicant
himself to be heard on the special points on PAJA and
lis pendens
without delay and unnecessary attended costs. There was no
demur on the part of those legally representing the applicant
with
regard thereto. Thefore the deponent who was armed with a power
of attorney did not have to obtain authority to depose
to an
affidavit, and moreso in that the affidavit deals with procedural
irregularities adopted by the appellant.
[17]
In the result the following order shall issue:
“
The
application is dismissed with costs.”
__________________
________________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Attorney
for the applicant :
Mr M. Pangwa
:
c/o Caps Pangwa & Associates
MTHATHA.
Counsel
for the respondent :
Adv. S. Y. Malunga
Instructed
by
:
Mnqandi Inc
MTHATHA.