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[2015] ZAGPPHC 50
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Mothibi v Road Accident Fund (83573/14) [2015] ZAGPPHC 50 (6 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 83573/14
DATE: 6 FEBRUARY
2015
IN THE MATTER
BETWEEN
K V
MOTHIBI
....................................................................................................
APPLICANT
and
ROAD ACCIDENT
FUND
...........................................................................
RESPONDENT
JUDGMENT
LEGODI, J
[1] This is a review
of the Road Accident Fund’s alleged failure to take a decision
as envisaged in Regulation 3(3)(c) of
Fund Regulations 2008
promulgated in terms of
section 26
of the
Road Accident Fund Act No
56 of 1996
read together with the provisions of
section 6(2)(g)
of
the
Promotion of Administrative Justice Act 3 of 2000
. The
application was brought in the unopposed motion roll.
[2]
Section 6(1)
of
the
Promotion of Administrative Justice Act provides
that any person
may institute proceedings in a court or a tribunal for the judicial
review of an administrative action. On the
other hand, subsection (2)
(g) thereof provides that a court or tribunal has the power to
judicially review an administrative action
if the action concerned
consists of a failure to take a decision.
[3]
Regulation
3(3)(c)
and (d) of the Regulations under the Road Accident Fund Act
provides:
“
(c)
The Fund or an agent shall only be obliged to compensate a third
party for non-pecuniary loss as provided in the Act if a claim
is
supported by a serious injury assessment report submitted in terms of
the Act and these Regulations and the Fund or an agent
is satisfied
that the injury has been correctly assessed as serious in terms of
the method provided in these Regulations.
(d) If the Fund
or an agent is not satisfied that the injury has been correctly
assessed, the Fund or an agent must:
(i) Reject the
serious injury assessment report and furnish the third party with
reasons for the rejection; or
(ii) 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
Fund or an agent. ”
[4] The applicant,
Ms Kelebogile Veronica Mothibi was involved in a motor vehicle
collision on the 2 December 2010. On the 18 November
2011 she lodged
a third party claim against the Road Accident Fund, amongst others,
an amount for general damages was claimed.
[5] On the 1
December 2011 she was examined by an orthopeadic surgeon, one Dr Hans
B Enslin and submitted a report to the applicant’s
attorneys.
On the 7 September 2012 a serious injury assessment report, so called
RAF4 form completed by Dr Eslin was submitted
to the Road Accident
Fund. Till up to the 6 December 2012, the Fund had not indicated its
decision as envisaged in Regulation 3(c)
and (d) quoted above. A
letter was then addressed to the Fund to enquire about its decision
on the serious injury assessment report.
Many months thereafter, that
is, on the 10 September 2014, the Fund through its attorneys filed
what is, referred to as ‘Notice
of objection’ wherein is
stated as follows:
“
BE
PLEASED TO TAKE NOTICE THAT THE defendant objects to the plaintiff’s
RAF4 assessment of serious injuries’
BE PLEASED TO
TAKE FURTHER NOTICE that the defendant will refer the matter to HPCSA
[6] The applicant in
an email dated the 6 October 2014 responded to the notice of
objection as follows:
"Kindly take
notice that your rejection in terms of Regulation 3(3)(c) and (d) of
the Road Accident Fund Regulations is defective
in two ways:
(1) You
objected/rejected our client’s RAF4 form without providing
reasons for your rejection as directed by the Regulations.
(2) You, as the
defendant, intend to refer the matter to the HPCSA.
We
want to inform you that the Regulations do not make provision for the
Road Accident Fund (Defendant) to refer any matter to the
HPCSA
regarding Regulation 3(3)(c) and
(d).
We therefore
request that you provide us with a proper election in terms of
Regulation 3(3)(c) and (d), on failure of which we will
proceed with
an application in terms of PAJA to compel you to provide us with
same”.
[7] It is clear that
the Fund has taken a decision in terms of which it rejected the
assessment report submitted on behalf of the
applicant. This is
common course. For example, in paragraph 10.3 of the founding
affidavit the applicant states as follows:
“
10.3
The Applicant then sent a letter, a copy of which is hereto attached
marked annexure “F" to the Respondent’s
attorneys of
record informing them that their rejection is defective in two ways,
namely:
10.3.1 They
objected/rejected our client's RAF4 Form without providing reasons
for their rejection as directed by Regulation 3(3)(d)(i)
of the Road
Accident Fund Regulations;
10.3.2 The
respondent intends to refer the matter to the HPCSA, even though the
Applicant has sole discretion whether he/she wants
to refer his/her
case to the HPCSA, and not the Respondent”.
[8] The rejection of
the RAF4 is therefore acknowledged. The rejection is disputed and the
grounds of the dispute or challenge are
set out. This raises the
issue whether the applicant should not have pursued the route set out
in Regulation 3(4)(a) and (b). It
provides as follows:
“
(4)
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;
(b) in such
notification set out the grounds upon which the rejection or the
assessment is disputed and include such submission,
medical reports
and opinions as the disputant wishes to rely upon;’’
[9]
Section 7(2)(a)
of the
Promotion of Administrative Justice Act 3 of 2000
provides
that subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act, unless
any internal
remedy provided for in any other law has first been exhausted.
Subsection (c) states that a court or tribunal may
in exceptional
circumstances and on application by the person concerned, exempt such
person from the obligation to exhaust any
internal remedy if the
court or tribunal deems it in the interest of justice.
[10] True, the Fund
is an organ of state as defined in section 239 of the Constitution.
It is performing a public function in terms
of legislation, its
decision in terms of regulation 3(3)(c and (d) whether or not the
RAF4 form is correctly assessed, declaring
the claimant’s
injury as “serious”, constitutes administrative action’
as contemplated by the Promotion
of Administrative Justice Act 3 of
2000 “(PAJA”). A decision is defined in PAJA to include
the making of a determination.
The position is therefore governed by
the provisions of PAJA.
[11] The decision
which the applicant seeks to review is not preceded by exhaustion of
internal remedy as set out in Regulation
3(4) quoted in paragraph 8
of this judgment. This is fatal to the applicant’s case. Until
internal remedies have been exhausted,
the review application is
pre-mature.
[12]
Inasmuch as the applicant seeks to suggest that he is entitled to
bring the present application for the reasons that the Fund
is not
entitled to refer the dispute around the rejection to Health
Professions Council and that no reasons for the rejection as
required
in regulation 3(3) have be given, I find it necessary to refer to
what Brand JA said in Duma’s matter
1
.
He stated:
“
Recognition
that the Fund’s decision to reject the plaintiff’s RAF4
forms constituted administrative action, dictates
that until that
decision was set aside by a court of review or over-turned in an
internal appeal, it remained valid and binding
...The fact that the
Fund gave no reasons for the rejection or that the reasons given are
found to be unpersuasive or not based
on proper medical or legal
grounds, cannot detract from this principle
2
.
”
[13] Brand JA then
in paragraph 26 proceeded as follows:
“
As
to
the Fund’s obligation to provide reasons for its decision, it
is true that it is pertinently constrained to do so by regulation
3(3)(d)(i). But, as I have said, the Fund’s failure to comply
with this obligation cannot render the decision invalid per
se. As a
matter of principle, I suppose the claimant can compel the Fund to
give reasons in terms of section 5 ofPAJA
3
”’
[14] Now in his
notice of motion, the applicant seeks relief as follows:
‘‘
TAKE
NOTICE THAT
the
Applicant intends to apply to the above Honourable Court for a review
of the following administrative action:
The Respondent’s
refusal and/or failure to take a decision in terms of Regulation
3(3)(c) or 3(3)(d) of the Road Accident
Fund Regulations, 2008
promulgated in terms of section 26 of the Road Accident Fund Act, No
56 of 1996 (hereinafter referred to
as “the Regulations”)
timeously, alternatively within a reasonable time:
And request an
order in the following terms:
1. That the
Respondent be directed to take a decision as required in terms of
Regulation 3(3)(c) or 3(3)(d) of the Regulations within
10(TEN) days
from date of service of this order, on whether or not the Respondent:
1.1 Is satisfied
that the Applicant’s injury has been correctly assessed as
serious in terms of the method provided for in
the Regulations, or;
1.2 Rejects the
Serious Injury Assessment report;
1.3 Direct the
Applicant to submit herself, at the cost of the Respondent, to a
further assessment;
1.4 In the case
where the Respondent rejects the serious injury assessment report,
the Respondent MUST furnish the Applicant with
reasons for the
rejection;
2. That the
Respondent pays the costs of this Application;
3. That such
further and/or alternative relief as the Court may deem expedient, is
granted to the Applicant”.
[15] The relief
sought as drafted is a bit confusing. The decision, as indicated
earlier in paragraphs 5 and 6 of this judgment,
has been taken. The
decision may not have been taken timeously or without reasons, but
that does not mean that the Fund has refused
and or failed to take a
decision. For this reason, I am prepared to proceed on the basis that
the review is about the rejection
of the Serious Injury Assessment
report (RAF4) of Dr H B Enslin. Therefore paragraphs 1.1, 1.2 and 1.4
of the relief sought as
quoted above are of no consequence. Prayer
1.3 can be the subject of decision envisaged in regulation 3(11)(a).
It provides 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”.
[16] Therefore, once
the Registrar of the Health Professional Council has referred the
dispute to the appeal tribunal in terms of
regulation 3(8)(a) the
applicant will be at liberty, if needs be, to request the appeal
tribunal to act in terms of regulation
3(11)(a). Regulation 3(8)(a)
provides as follows:
“
(8)(a)
After receiving the notification from the other party or the expiry
of the 60 day period, referred to in subregulation (6),
the Registrar
shall refer the dispute for consideration by an appeal tribunal paid
for by the Fund”.
[17] In my view, the
fact that Brand J as quoted in paragraph 13 above, in passing, made
mention of the claimant’s apparent
right to compel the Fund to
furnish reasons for its rejection of serious injury assessment, I do
not understand him to say, a claimant
is justified to by-pass the
internal remedy process created in terms of the regulations.
[18] Consequently, I
hereby make an order as follows:
17.1
The applicant’s application for review is hereby postponed
sine
die.
17.2 The applicant
is hereby directed if she so wishes, to lodge a dispute resolution
form with the Registrar as envisaged in regulation
3(4) with the
resultant need for application for condonation to be lodged with the
Registrar in terms of regulation 3(5).
17.3 No order as to
costs.
M F LEGODI
JUDGE OF THE HIGH
COURT
FOR
THE APPLICANT:
J
H RABIE ATTORNEYS
C/O VAN ZYL ROUX
INC.
1
st
Floor, Block 3, Monument Office Park
71 Steenbok Avenue
MONUMENT PARK
REF: J
RABIE/md/MAT52365
TEL: 012 435 9444
FOR
THE RESPONDENT:
T M
CHAUKE ATTORNEYS
Church Street, Sammy
Marks Square
PRETORIA
REF:
MKHAWANE/NJ/RAF/M050045
TEL: 012 326 8711/2
HEARD ON:
JUDGMENT DELIVERED:
05/02/2015
1
Road
Accident Fund
v
Duma
and Others
2013
1 ALL 543 (SCA)at551 par. 19(a).
2
See
Duma
supra
at par. 24 at553.
3
See
Duma
supra
at par 26 at 554.