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[2016] ZAGPPHC 466
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Road Accident Fund Appeal Tribunal v Malan (A1/2015) [2016] ZAGPPHC 466 (14 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.A1/2015
14/6/2016
Reportable:
No
Of
interest to other judges: No
In
the matter between:
ROAD
ACCIDENT FUND APPEAL
TRIBUNAL APPELLANT
and
JOSIAS
ALEXANDER
MALAN RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The appeal before us is against the whole of the judgment of Ebersohn
AJ, which was handed down on 15 January 2014, in which
the appellant
as the first respondent in the proceedings before the court a
quo,
together with the third, fourth and the sixth to the eleventh
respondents in the court a
quo
("the respondents in the
court a
quo
proceedings") were ordered to provide the
respondent, the applicant in the court a
quo,
with the
documents referred to in prayers 2.2, 2.3, 2.4, 2.5, 2.6, 2.7 and 2.9
of the notice of motion to the respondent's application
to compel.
[2]
The respondent is not opposing the appeal and has filed a notice to
abide the decision of the court.
[3]
The respondent is a claimant against the Road Accident Fund ("the
Fund"), the second respondent in the proceedings
before the
court a
quo,
for personal injury sustained during a motor
vehicle collision. The appellant on the other hand is the Appeal
Tribunal that must
sit in judgment regarding appeals against certain
decisions of the Fund. In this instance, the appellant sat in
judgment of the
Fund's decision that the injury sustained by the
respondent was not a serious injury as envisaged in the
Road Accident
Fund Act 56 of 1996
. The appellant confirmed the decision of the Fund
and dismissed the respondent's appeal to it. The respondent has, as
such, launched
a review application against that decision of the
appellant.
[4]
The application that served before the court a
quo
was an
application, pursuant to the review application, to compel the
appellant together with the respondents in the court a
quo
proceedings, to provide a better response to the respondent's
notice in terms of uniform
rule 35
(12), alternatively to provide the
respondent with a proper record in terms of uniform
rule 53
(3).
[5]
The application to compel arose after the respondent received the
papers opposing the review application and realised that specific
reference was made to certain documents which did not form part of
the review record; and, it was also clear from the reading of
the
opposing papers that certain documents exist, to which specific
reference was not made, but which are relevant to the determination
of the review application.
[6]
It is on this basis that a notice in terms of uniform
rule 35
(12)
was served upon the appellant and the respondents in the court a
quo
proceedings. The appellant and the respondents in the court a
quo
proceedings, replied to the respondent's notice in terms of
rule
35
(12) in essence informing the respondent that they are unable to
produce any of the documents requested therein. It appears that
the
respondent was not satisfied by that reply and as such his attorneys
of record addressed a letter to the attorneys of record
of the
appellant and the respondents in the court a
quo
proceedings,
insisting on the production of the said documents and explaining why
it was necessary that the respondent be provided
with the documents
in question. Erring on the side of caution, the respondent also
delivered a notice in terms of uniform
rule 53
(3) in which he sought
the same documents as in the
rule 35
(12) notice, on the allegation
that the review record was incomplete. The respondent did not receive
any response to the two notices
hence the application to compel.
[7]
In their answering affidavit to the respondent's application to
compel, the appellant and the respondents in the court a
quo
proceedings responded as follows:
7.1. Except for
paragraphs 1.2 and 1.3 of the notice of motion of the application in
terms of uniform
rule 35
(12), all the other paragraphs in the notice
of motion, that is paragraphs 1.1, part of 1.3, 1.4 to 1.10, relate
to the production
of documents to which no reference is made in the
answering affidavit to the review application of the appellant and
the respondents
in the court a
quo
proceedings.
7.2. As regards the
request in paragraph 1.2 (repeated in paragraph 2.2) of the notice of
motion, the appellant and the respondents
in the court a
quo
proceedings have tendered the chairperson's notes to the
respondent. These notes were kept by the appellant regarding its
decision
in this matter.
7.3. As regards to the
notes of the other tribunal members, these are handed back to the
case administrator, the third respondent
in the court a
quo
proceedings, together with the meeting packs and are then
destroyed. In this regard the deponent referred to the confirmatory
affidavit
of Mr Matome Seisa ("Mr Seisa") the appellant's
case administrator at the time.
7.4. Documents requested
in paragraph 1.4 to 1.6 and part of 1.3, do not exist.
[8] The submission of the
appellant and the respondents in the court
a quo
proceedings,
was that the respondent was not entitled to use uniform
rule 35
(12)
to request the production of documents that are not referred to in
the answering affidavit to the review application. The
contention
being that only documents to which reference is made in the
opponent's affidavits or pleadings, may be procured in terms
of this
subrule.
[9]
It was further submitted by the appellant and the respondents in the
court a
quo
proceedings that when an incomplete record of
proceedings has been handed to the registrar the proper procedure to
follow is in
terms of uniform
rule 30A
and not uniform
rule 53
(3).
The respondent has as such utilised a wrong procedure and is out of
time to can rely on the provisions of uniform
rule 53
(3).
[10]
In its judgment, the court a
quo
decided the matter on the
basis of uniform
rule 53
(3) and ordered the appellant to provide the
respondent with documents referred to in paragraph 2.2 (all the notes
of the members
of the appellant), 2.3 (the minutes of the appellant's
proceedings recorded by the case administrator), 2.4 (records
relating to
consideration and deliberation on individual rating,
etc), 2.5 (record of apportionment and whether the decision was made
by way
of consensus or not ), 2.6 (record relating to factors taken
into account and advice received from the additional members, etc),
2.7 (documents which did not form part of the submissions by the Road
Accident Fund) and 2.9 (a log showing a total number of appeals
heard
and the time spent on each).
[11]
In its reasons for judgment, the court a
quo
found that the
evidence of the chairperson of the appellant, Dr P R Engelbrecht ("Dr
Engelbrecht"), as contained in the
appellant's answering
affidavit, on which it relied as proof that some of the documents
required to be produced were destroyed,
was hearsay evidence as it
was not confirmed under oath by Mr Seisa, the appellant's case
administrator.
[12]
It needs to be stated that from the record it seems that Mr Seisa had
deposed to an affidavit confirming the allegations in
the answering
affidavit by the appellant's chairperson, Dr Engelbrecht, to the
effect that the notes by the individual members
of the Tribunal
together with the meeting packs were handed to him (Mr Seisa) and
thereafter destroyed. However, instead of confirming
the allegation
in the answering affidavit of Dr Engelbrecht, he confirmed that of Mr
Tshepo Paul Biokanyo ("Mr Boikanyo").
It is on that basis
that the court a
quo
rejected the allegations by Dr
Engelbrecht as hearsay evidence.
[13]
The appellant sought leave, from the court a
quo,
to appeal
against its judgment and orders. Leave was also sought to introduce
new evidence in order to correct the error in the
confirmatory
affidavit of the appellant's case administrator, wherein Mr Seisa
incorrectly stated that he was confirming the allegations
in the
answering affidavit of Mr Boikanyo, when he should in fact have
referred to the answering affidavit deposed to by the chairperson
Dr
Engelbrecht. In deciding the two applications, the court a
quo
concluded that there is no likelihood of another court coming to
a different decision and dismissed both applications with costs.
The
appellant is thus before us having petitioned the Supreme Court of
Appeal.
[14]
Therefore, at issue in this appeal are the following issues:
14.1. Whether the
documents requested by the respondent constituted part of the review
record;
14.2. Whether the court a
quo
erred in directing the appellant to produce documents that
do not exist; and
14.3. Whether the
appellant should be given leave to adduce new evidence in order to
rectify the error in Mr Seisa's confirmatory
affidavit.
[15]
The appellant's argument as contained in his heads of argument is
that -
15.1. Firstly, the court
a
quo
ought not to have ordered the production of the
documents because they do not exist and, in any event, did not form
part of the
review record.
15.2. Secondly, the court
a
quo
ought to have permitted the introduction of the
additional affidavit because no prejudice would be suffered, and the
evidence tendered
is material to the determination of the matter and
it was in the interest of justice to permit the introduction of the
limited
evidence.
[16]
The contention is that the court a
quo
erred in finding that
the chairperson did not have personal knowledge of the fact that the
documents ordered to be produced did
not exist and that all relevant
documents had been disclosed as part of the review record. The
argument being that the chairperson's
evidence in this regard was
sought to be confirmed by Mr Seisa in his confirmatory affidavit, but
for the error. It was in the
interest of justice for the court a
quo
to overlook what was plainly an obvious error and find that by
reason of the mistake in Mr Seisa's affidavit there was no valid
reason on record
"why copies of the notes regarding the
minutes and the discussion notes of the Tribunal members cannot be
made available"
to the respondent, so the argument goes.
[17]
Sub-rule 35 (12) provides as follows:
"Any party to any
proceedings may at any time before the hearing thereof deliver a
notice as near as may be in accordance with
Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his or her inspection and to permit
him or her to make a copy or transcription thereof.
Any party failing
to comply with such notice shall not, save with leave of the court,
use such document or tape recording in such
proceedings provided that
any other party may use such documents or tape recording."
[18]
There is
prima
facie
an
obligation on the applicant to produce documents for inspection if
called upon to do so under
Rule 35
(12). The rule is subject to a
limitation that if the document is not in the applicant's possession
and he or she cannot produce
it, the court will not compel him or her
to do so. The
onus
is,
however, on the applicant to set up facts relieving him or her of
this obligation.
[1]
[19]
In my opinion the appellant has discharged the burden placed on it to
prove that the documents requested have been destroyed
and do not
exist. It is evident from the evidence of the appellant contained in
the sworn statement of
Dr Englebrecht that the
documents do not exist. Dr Engelbrecht states in the affidavit that
the notes in regard to the other tribunal
members are handed back to
the appellant's case administrator Mr Seisa, together with the
meeting packs and are thereafter destroyed.
The trial court ought to
have accepted this evidence. There is no evidence by the respondent,
on oath, gainsaying this evidence.
The respondent merely questioned
the regularity of the decision to destroy the documents which is of
no moment for purposes of
the issues before us. Whether or not the
notes should have been destroyed is beside the point. The actual fact
is that the notes
have been destroyed and are no longer available for
production by the appellant.
[20]
The court a
quo
misdirected itself in rejecting Dr
Engelbrecht's evidence as hearsay evidence merely on the error in the
confirmatory affidavit
of Mr Seisa. It is evident that Mr Seisa's
affidavit contained an obvious error which the court a
quo
ought to have condoned. The court a
quo
further misdirected
itself in failing to allow the introduction of the new evidence
tendered by Mr Seisa which corrected the initial
confirmatory
affidavit. This new evidence ought to have been allowed because it is
material and has an important influence on the
outcome of the case.
[21]
I am in agreement with the appellant's submission that the documents
requested by the respondent do not form part of the record
of review
and, on that basis alone the court a
quo
should not have
ordered their production. The notes requested are not like the
minutes and the discussions of the tribunal members
during its
sitting but are personal notes made by the members in preparation for
the Tribunal meetings and can therefore not be
said to constitute
part of the review record.
[22]
In the circumstances the appeal stands to be upheld.
[23]
I therefore make the following order:
1. The appeal is upheld
with costs.
2. The order of the court
a
quo
is set aside.
_________________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
I
AGREE
_________________________
N.B
TUCHTEN
JUDGE
OF THE HIGH COURT
I
AGREE, AND IT IS SO ORDERED
_________________________
N.
RANCHOD
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD
ON THE
: 01/06/2016
DATE
OF JUDGMENT
: 14106/2016
APPELLANT'S
COUNSEL
: ADV. N.H MAENETJE
APPELLANT'S
ATTORNEYS
: GILDENHUYS MALATJI INC.
RESPONDENTS'
COUNSEL
:NO APPEARANCE
RESPONDENTS'
ATTORNEY
:VAN ZVL LE ROUX INC.
[1]
See Unilever pie and Another v Polagric (Pty) Ltd
2001 (2) Sa 329
(C) At 338c - D.