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[2014] ZAGPPHC 4
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Alexander v Road Accident Fund Appeal Tribunal and Others (29722/12) [2014] ZAGPPHC 4 (16 January 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO.: 29722/12
DATE:
16 JANUARY 2014
NOT
REPORTABLE
In
the matter between:
MALAN,
JOSIAS
ALEXANDER
.................................................................................
Applicant
And
ROAD
ACCIDENT FUND APPEAL
TRIBUNAL
......................................
First
Respondent
THE
ROAD ACCIDENT
FUND
.............................................................
Second
Respondent
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
..................
Third
Respondent
MADUPE
N.P
..............................................................................................
Fourth
Respondent
THE
MINISTER OF
TRANSPORT
...............................................................
Fifth
Respondent
DR.P.
ENGELBRECHT
N.O.
.......................................................................
Sixth
Respondent
DR.
K. BLOEM
N.O.
................................................................................
Seventh
Respondent
DR.
F.P. DU PLESSIS
N.O.
.......................................................................
Eighth
Respondent
DR.
C. DE BEER
N.O.
.................................................................................
Ninth
Respondent
DR.
K.D. ROSSMAN
N.O.
..........................................................................
Tenth
Respondent
DR.
R. RAMDASS N.O.
'…..................................................................
Eleventh
Respondent
CORAM:
PZ EBERSOHN AJ DATE HEARD: 6th June 2013.
DATE
JUDGMENT HANDED DOWN: 16th January 2014
JUDGMENT
APPLICATION
EBERSOHN
AJ:
[1]
The applicant is a claimant against the second respondent the Road
Accident Fund for damages sustained in a motor accident.
[2]
The first respondent is the Appeal Tribunal who must sit in judgment
regarding appeals against certain decisions of the Fund..
[3]
The third, fourth and fifth respondents were cited as nominal
respondents.
[4]
The sixth to the eleventh respondents were the members of the first
respondent who allegedly dealt with the appeal of the applicant.
[5]
The applicant launched a review of the decision of the first
respondent who dismissed the appeal to it. A record, purporting
to be
the Appeal Record was subsequently delivered to the Applicant, in
terms of the provisions of Rule 53. The applicant did not
supplement
its founding papers as envisaged in terms of the provisions of Rule
53, and the respondents subsequently delivered their
opposing
affidavit.
[6]
The Applicant contends that it became apparent, from the opposing
affidavit that reference was made to certain documents, which
did not
form part of the Appeal Record, and that certain further
documentation must exist. which should have formed part of the
Appeal
Record, but which were not delivered to the applicant in terms of the
review notice. The Applicant seeks, by virtue of this
application,
relief entitling him to production and inspection of the documents
referred to in the Notice of Motion, either in
terms of the
provisions of Rule 35(12) or in terms of Rule 53(3) of the Uniform
Rules of Court so that these documents can also
be before the Court
who hears the main review' application..
[7]
Rule 35(12) reads as follows:
“
35(12).
Any party to any proceeding 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 inspection and to
permit him to make a copy or transcription thereof.
Any party failing
to comply with such notice shall not, save with the leave of the
court, use such document or tape recording in
such proceeding,
provided that any other party may use such document of such tape
recording.”
[8]
In paragraph 1 of the notice of motion, relying on Rule 35(12), the
applicant sought documents under ten different subparagraphs.
The
court had the advantage of reading the particulars which were indeed
supplied in the past.
[9]
In paragraph 2 of the notice of motion,, relying on Rule 53(3), the
applicant sought documents under ten different subparagraphs.
[10]
Rule 53(3) reads as follows:
“
53(3)
The registrar shall make available to the applicant the record
despatched to him as aforesaid upon such terms as the registrar
thinks
appropriate
to ensure its safety, and the applicant shall thereupon cause copies
of such portions of the record as may be necessary
for the purposes
of the review to be made and shall furnish the registrar with two
copies and each of the other parties with one
copy thereof, in each
case certified by the applicant as true copies. The costs of
transcription, in any, shall be borne by the
applicant and shall be
costs in the cause.”
[11]
The first respondent sat as a tribunal, it received inputs from its
members having studied the reports, the inputs were discussed,
minutes were to be kept for possible reviews or a referral back, and
a considered decision was then arrived at and recorded in
January
2012 nearly two months later. All that was recorded by the first
respondent regarding the applicant is to be found on pages
144/145 of
the record of the main application as part of the answering papers.
The copying is of poor quality and under the heading
Resolved
reference is made in I) to an unnamed source regarding alleged
injuries to the applicant and in II) Dr. Enslin is referred
to but
the back injuries he found to be present are not mentioned. It is
mentioned that according to the unnamed Occupational Therapist’s
report the applicant's work has not been affected
[12]
It is noted on page 134 of the main application that the hearing of
the Tribunal commenced at 9:00. Normally there is a tea
break at 11:
00 for 15 minutes and a lunch break between 13:00 and 14:00 and the
usual adjournment is at 16:00 or earlier. That
left 5 and % hours
(345 minutes) for the tribunal to sit. According to the agenda of the
tribunal to be found on page 135 of the
record of the main
application 31 matters were to be handled by the tribunal on that day
- an average of one in just about every
eleven minutes. The
applicant’s was no. 19 on the agenda (pages 144/145 of the
record of the main application) and his matter
was dealt within 11
lines of text. There are quite a number of matters which took
obviously a lot longer than 11 minutes which
lessens the average of
about 11 minutes per case. As mentioned no reference is made of the
injuries and findings of Dr, Enslin,
the orthopaedic surgeon of the
applicant’s cervival spine, on page 73 of that record and which
were apparently overlooked
by the occupational therapist. Yet, the
tribunal relying on her report found “that the patient's work
had not been affected.".
The tribunal clearly spent less than 11
minutes on the applicant’s matter despite the bundle of
documents the respondents
did make available numbering about 189
pages. How such a voluminous report could have been properly
discussed by six doctors and
decided in less than 11 minutes is not
clear.
[13]
The respondents claim that the notes and other documentation relating
to the hearing was destroyed. The source for this information
is
paragraph 12 (p 48 of this application) of the affidavit deposed to
by dr. P.R. Engelbrecht, the sixth respondent, which paragraph
reads
as follows:
“
12.
In regard to the notes of the other tribunal members, these are
handed back to the Third Respondent together with the meeting
packs.
I am advised that these are then destroyed. In this regard I refer to
the confirmatory affidavit of Mr. Matome Seisa. A
copy of the
confirmatory affidavit is attached hereto marked “PE2”.
[14]
The text of the confirmatory affidavit of Matome Theorda Seisa
(record p 58/59) reads as follows:
“
1,
I am an adult male person employed by the third respondent as a case
administrator for the RAF Appeal Tribunal.
2.
I am duly authorised to depose to this affidavit.
3.
The facts herein contained are, save where otherwise stated or the
context indicates to the contrary, within my personal knowledge
and
are both true and correct.
4.
I have read the answering affidavit deposed to by Tshepo Paul
Boikanyo on behalf of the second and third respondents and I confirm
the contents thereof as true and correct in so far as they relate to
me—
[15]
The hearsay evidence of dr. Engelbrecht regarding the notes being
destroyed were therefore not confirmed under oath by Matome
Theorda
Seisa whose affidavit is to be found on pages 58/59 of the record of
this application, or by anyone else. Matome in fact
confirmed an
affidavit of one Tshepo Paul Boikanyo which affidavit was, however
not attached to the papers and was nowhere else
referred to in the
papers.
[16]
It has now been placed on record by dr. Engelbrecht that notes were
in fact made by the other members of the Tribunal and used
at the
hearing although it does not appear from the typed roll regarding the
decisions of the Tribunal (record p. 136-154). Minutes
were obviously
also kept of the proceedings and the results typed. These typed
results were signed by dr. Engelbrecht on page 154
of the record only
on the 13th January 2012, about two months later. There is thus 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 applicant.
[17]
There is therefore no reason why an order cannot be granted calling
upon the respondents to make available within a stated
period of the
following items referred to in prayer 2 namely 2.2, 2.3, 2.4, 2.5,
2.6, 2.7 and 2.9.
[18]
Seeing that the matter is very urgent in view of the approaching
pre-trial and trial these documents must be supplied within
a very
short period.
[19]
Costs will follow the event and will include the costs of two
counsel.
[20]
The following order is made:
1.
The application succeeds and the First, Second, Sixth, Seventh,
Eighth, Ninth, Tenth and Eleventh respondents are ordered to
provide
the applicant’s attorneys on/or before the 27th January 2014
with the particulars/documents referred to in the followings
subparagraphs of the notice of motion: 2.2, 2.3, 2.4, 2.5, 2.6, 2.7
and 2.9.
2.
The second respondents is ordered to pay the costs of the application
which costs will include the fees of two counsel
P.Z.
EBERSOHN
ACTING
Judge OF THE HIGH COURT OF SOUTH AFRICA
Applicant’s
counsel:Adv. G. Scheepers
Adv. C.M. Dredge
Applicant’s
attorneys:Van Zyl Le Roux Inc
Ref.: Mr. J.B.
Grimbeeck/MW/371181
Tel. 012 435 9444
Counsel
for the Respondents Adv. N.H. Maenetjie SC
Adv.
P.G. Seleka
Respondent’s
Attorneys: Gildenhuys Lessing Malatji Inc
Tel. 012
428 8600 Ref.:
Mr.
T.Malatji/BC/01678035