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[2015] ZAGPPHC 405
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Modibedi v Health Professions Council South Africa and Others (17403/2014) [2015] ZAGPPHC 405 (23 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No: 17403/2014
DATE:
23/6/2015
In
the matter between:
MAFELANE
PETRUS MODIBEDI
APPLICANT
and
HEALTH
PROFESSIONS COUNCIL SOUTH AFRICA
1
ST
RESPONDENT
THE
REGISTRAR OF THE HEALTH
PROFESSIONS
COUNCIL
2
ND
RESPONDENT
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL
3
RD
RESPONDENT
THE
ROAD ACCIDENT
FUND
4
TH
RESPONDENT
DR
D
LEKALAKALA
5
TH
RESPONDENT
DR
V
CLOSE
6
TH
RESPONDENT
DR
BLIGNAUT
7
TH
RESPONDENT
DR
SHAHZAD
8
TH
RESPONDENT
JUDGMENT
A.M.L.
PHATUDI J:
INTRODUCTION
[1]
This is a review application in terms of section 6(1) read with
section 6(2)(g) of Promotion of Administrative Justice
Act 3 of
2000 (PAJA). The applicant seeks an order formulated as follows:
‘
3.1.
That the second Respondent’s express, alternatively tacit,
further alternatively implied, confirmation
of the appointment, made
in terms of Regulation 3 (8) of the Road Accident Fund Regulations
2008, of the Fifth, Sixth, Seventh
and/or Eighth respondents as
members of the Third Respondent;
3.2.
The Second Respondent’s failure to substitute any one or more
of the initial appointments,
made in terms of Regulation 3 (8) of the
Road Accident Fund Regulations 2008, in respect of the Fifth, Sixth,
Seventh and/or Eighth
Respondents as members of the Third Respondent;
and/or
3.3.
The Third Respondent’s alternatively the Fifth to Eighth
Respondents’, determination,
in terms of Regulation 3 (11) of
the Road Accident Fund Regulations 2008, that the Applicant’s
injuries do not warrant a
30% whole person impairment rating and/or
that the Applicant’s injuries do not qualify the Applicant
under the narrative
test.
3.4.
The Third Respondent’s, alternatively the Fifth to Eighth
Respondents’, failure to
postpone the hearing of the appeal and
to refer same back to the Second Respondent for a proper
determination of the appointments,
after receiving an objection from
the Applicant pertaining to the appointment of the Fifth to Seventh
Respondents as members of
the Third Respondent
.’
[2]
The applicant further seeks an order as to costs against the First
and Second respondents alternatively jointly and severally
against
the Third to Eighth respondents respectively, the one paying the
other to be absolved and that the Third, alternatively
the Fifth to
Eighth respondent(s) and the Fourth respondent be ordered to pay
costs of this application jointly and severally with
any award as to
costs granted against the First and Second respondents the one paying
the other to be absolved, if they oppose
this application.
[3]
The First to Third and Fifth to Eighth respondent(s) raises in
limine
point that the review application was not instituted within 180 days
from the date upon which the applicant became aware of the
administrative action and the reasons thereof as enacted in PAJA. The
applicant contends that the request for reasons interrupted
the
running of 180 days.
FACTS
[4]
On 18 February 2009, the applicant was involved in a motor vehicle
accident. He sustained injuries. He was then hospitalised
at
Boitumelo Hospital. It is apparent from the papers that the applicant
lodged the claim with the Fourth respondent (RAF). On
20 November
2012, RAF rejected the applicant’s serious assessment report.
The RAF, through their legal representative advised
the applicant,
‘
if
[he] wishes to dispute the rejection of the serious injury assessment
report, [he] can do so by following the procedure (dispute
resolution
tribunal process) as set out in paragraphs 3(4) to 3(13) of the Road
Accident Fund Regulations 2008
’
[5]
The applicant, acting on the advice of RAF, lodged an appeal on 13
December 2012 against the RAF decision with the First Respondent.
On
21 May 2013 the applicant was notified by letter that his appeal has
been placed on the agenda for consideration by the Third
respondent
on the 14 June 2013. He was further appraised that the second
respondent had appointed the Fifth to Eighth respondents
to
constitute the Third respondent. The First respondent further stated
in their letter that ‘…
[they]
request that any objection of the appointment of a member [of the
Third respondent] be lodged with [their] office…
together with
a motivation, within ten (10) working days of receipt of this
letter.
’
[6]
On 28 May 2013, the applicant objected to the appointment of three
(3) out of four (4) members of the Third respondent. He opined
that
the said three (3) members of the Third respondent are well known to
the firm of attorney representing him and further that
they (the
three members) acted predominantly on behalf of the Fourth respondent
in RAF matters. He felt uncomfortable to be subjected
to a panel of
members of the Third respondent that is constituted primarily out of
doctors acting for the RAF. He further opined
that it is not
unreasonable to believe that, in the circumstances,
‘
a
reasonable apprehension exists that the three members [objected to]
and or the entire panel, will not bring an impartial mind
in
adjudicating the matter’.
[7]
In response thereto, the First respondent wrote a letter dated 4 June
2013 in which it is stated: ‘
Please
be advised that we will recommend to the Appeal Tribunal that the
consideration of the matter be deferred to the next meeting
of Appeal
Tribunal consisting of different experts. Please take note that
further communication will be addressed to you
in due course’
[8]
There is no evidence that the First respondent advised the applicant
of the next meeting of the Appeal Tribunal. On 21
June 2013,
the applicant annexed to his letter the medico-legal report prepared
by one expert. He further enquired:
‘
Kindly
further also advise when the next Appeal Tribunal meeting will take
place’
[9]
The applicant received no response to the said letter. The applicant
learned from the First respondent letter dated 15 July
2013 where it
is stated:
‘
We
refer to the above matter and hereby inform you that Road Accident
Fund Appeal Tribunal resolved at its recent meeting held on
14 June
2013 as follows:
(i)
…
(ii)
…
(iii)
The
panel considered the results and agreed that this patient does not
reach the 30% whole person impairment nor does he qualify
under the
narrative test.
’
[10]
In response thereto, the applicant wrote two (2) letters, both dated
17 July 2013 to the First respondent protesting against
the decision
to proceed with the matter on the 14
th
June 2013 in their absence. The applicant opined in one of the two
letters that ‘
the
conduct of the Appeal Tribunal was irregular’.
In the
other letter, the applicant requested reasons in terms of section 3
of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) for:
‘
(aa)
the panel’s failure to postpone the matter after receiving an
objection from the [applicant’s] legal representative...
and
(bb)
For [the Third respondent’s] decision to find that the
[applicant’s] injuries [do] not qualify as serious
’
[11]
The applicant further requested the Third respondent to provide him
with the requested reasons within “
SIXTY
(60) DAYS”
from
17 July 2013. The applicant stated in his Founding Affidavit
‘
Notwithstanding
the expiry of the 60 (sixty) day period in terms of the request, …
the First to Third respondents, failed
and/or refused to provide
reasons for the administrative actions…
’
THE
LAW
[12]
Promotion of Administrative Justice Act 3 of 2000 (PAJA) has been
enacted
‘
[to]
give effect to the right to administrative action that is lawful,
reasonable and procedurally fair and to the right to written
reasons
for administrative action as contemplated in section 33 of the
constitution of the Republic of South Africa, 1996…’
[13]
Section 5 provides:
1.
‘
Any
person whose rights have been materially and adversely affected by
administrative action and who has not been given reasons
for the
action may, within 90 days after the date on which that person became
aware of the action or might reasonably have been
expected to have
become aware of the action, request that the administrator concerned
furnish written reasons for the action.
2.
The
administrator to whom the request is made must, within 90 days after
receiving the request, give that person adequate reason
in writing
for the administrative action.
3.
If
an administrator fails to furnish adequate reasons for an
administrative action it must, subject to subsection (4) and in the
absence of proof to the contrary, be presumed in any proceedings for
judicial review that the administrative action was taken without
good
reason.
4.
(a)
An administrator may depart from the requirement to furnish adequate
reasons if it is reasonable and justifiable in the
circumstances, and
must forthwith inform the person making the request of such
departure.
(b)
….
[14]
Section 6 (1) provides that
‘
Any
person may institute proceedings in a court or tribunal for the
judicial review of an administrative action.’
[15]
Section 7 provides that
(1)
‘
Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date-
(a)
Subject
to subsection (2)(c), on which any proceedings instituted in terms of
internal remedies as contemplated in subsection (2)(a)
have been
concluded; or
(b)
Where
no such remedies exist, on which the person concerned was informed of
the administrative action, became aware of the action
and the reasons
for it or might reasonably have been expected to have become aware of
the action and the reasons.
(2)
(a)
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.’
SUBMISSIONS
[16]
Mr Scheepers for the applicant submits that the Third respondent’s
decisions only came to the knowledge of the applicant
on 16 July
2013. The applicant requested reasons which were never provided. He
concedes that 180 days from 16 July 2013 expired
on 16 January 2014
that renders the applicant’s application out of time. He
submits that the 180 days if calculated from
the 13 September 2013,
being the 60
th
day on which the First and/or Third respondent ought to have provided
reasons as requested by applicant on 17 July 2013, would
fall on 13
February 2014, which would mean that the application was brought
within 180 days as prescribed in PAJA.
[17]
Mr Motau for the respondents submits that the applicant failed to
comply with the time frame prescribed in PAJA and further
that the
applicant failed to apply for an extension of the 180 days as
envisaged into section 9 of PAJA.
EVALUATION
[18]
It is common cause between parties that the applicant only became
aware of the Third respondent action on the 15 July 2015.
It is
further common cause that the applicant launched the review
application on 4 February 2014.
[19]
The issue to be determined is whether the applicant’s
application for review was, firstly brought within the prescribed
180
days period and secondly, whether request for reasons interrupts the
running of the prescribed 180 days period.
[20]
It is clear from the reading of section 7(1) of PAJA that proceedings
for judicial review brought in terms of section 6(1)
must be
instituted without reasonable delay and not later than 180 days after
the date on which the person concerned was informed
of the
administrative action, became aware of the action and the reason for
it.
[21]
The applicant conceded to have been informed of the administrative
action through the First respondent’s letter dated
15 July
2013. He, on his version, became aware of the action as at the 16
July 2013. On the applicant’s concession, the application
for
review that was instituted on the 4 February 2014 is out of the 180
days prescribed in terms of section 7(1) (b).
[22]
Variation of the period of 90 or 180 days referred to in section 5
and 7 respectively, may be extended for a fixed period by
agreement
between the parties or, failing such agreement, by the a court or
tribunal on application by the person or administrator
concerned.
(Section 9(1) (b)).
[23]
Any person, such as the applicant, whose rights have been adversely
affected by administrative action and has not been provided
with
reasons for the action, may within 90 days after the date on which
that person, (as the applicant), became aware of the action,
request
the administrator concerned to furnish written reasons for the
action.
[24]
The applicant complied with the provisions of section 5(1). He
requested reasons within 90 days after the date (17 July 2013)
on
which he became aware of the action (16 July 2013). Reasons were
never furnished.
[25]
It is trite that any proceedings for judicial review must be
instituted without unreasonable delay and not later than 180 days
after the date on which the person concerned was informed. The
request for reasons envisaged in terms of section 5(1) must be made
within 90 days. The 90 days referred to in section 5(1) must, in my
view, be construed to be within 180 days prescribed in terms
of
section 7(1). This brings me to the conclusion that the 90 days
prescribed in terms of term of section 5(1) within which the
applicant may request reasons does not interrupt or suspend or extend
the running of 180 days prescribed in terms of section 7(1).
Interruption, suspension or extension of such a time frame can be
effected either by agreement between parties or failing such
agreement, by a court or tribunal on application by either party.
[26]
There is no evidence of any agreement between the parties to extend
either 90 days or 180 days referred to in section 5 and/or
7 for a
fixed period. There is further no evidence that either a court or
tribunal ordered an extension of such time limits in
favour of either
party. In the absence of such extension this court has no authority
to entertain the review application at all.
(
Opposition
to Urban to Tolling Alliance and Others v South African National
Roads Agency Ltd and others (90/2013)
[2013] ZASCA 148
(9 October 2013) paragraph [26].
[27]
Brandt JA further penned that
‘
that
does not mean that after the 180 day period, an enquiry into the
unreasonableness of the applicant’s conduct becomes
entirely
irrelevant
’
.
The question of whether the delay was reasonable or unreasonable, is
still a ‘
factor
to be taken into account in determining whether an extension should
be granted or not
.’
(footnotes omitted). In the absence of the application for
condonation and or application for variation of time as provided
in
terms of section 9(1) (b), this court has no authority to entertain
the review application at all.
[28]
The applicant’s counsel conceded that the review application
launched on 4 February 2013 is out of the prescribed 180
day period
calculated from either 15 or 16 July 2013. This court is thus
prevented by the provisions of section 7(1) of PAJA from
considering
the merits of the review application.
[29]
It is trite that costs follow the event. The respondents succeed with
their
in
limine
point and are thus entitled to costs. The respondents did not seek
for costs of two counsel.
In
the result, I make the following order:
Order:
1.
The
point in limine is upheld.
2.
The
applicant’s application is dismissed with costs.
A.M.L.
Phatudi
Judge
of the High Court
On
behalf of the Applicant: Van Zyl Le Roux Inc.
Floor
1, Block 3
Monument
Office Park
Monument
Park
Pretoria
Adv.
GJ Scheepers
On
behalf of the 1
st
to 3
rd
and
5
th
to 8
th
Respondents: Gildenhuys Malatji Inc.
GMI
House, Harlequins Office Park
164
Totius Street
Groenkloof
Pretoria
Adv.
Terry Motau SC
Adv. R Tshetlo