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[2014] ZAGPPHC 33
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Malan v Road Accident Fund Appeal Tribunal and Others (29722/12) [2014] ZAGPPHC 33 (16 January 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NO.:
29722/12
DATE: 16 JANUARY
2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
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: 6
th
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 w
r
ere
discussed, minutes w
r
ere
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 1 1;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 w
r
as
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 corrcct 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 13
th
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 27
th
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/MVV/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