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[2014] ZAGPPHC 340
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Maluka v Road Accident Fund and Others (48032/2011) [2014] ZAGPPHC 340 (11 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 48032/2011
Date:
11 June 2014
In
the matter between:
SYLVESTER
TREVOR
MALUKA
.........................................................................................
Applicant
And
ROAD
ACCIDENT
FUND
.............................................................................................
First
Respondent
HEALTH
PROFESSIONS COUNCIL OF
SA
........................................................
Second
Respondent
MINISTER
OF
TRANSPORT
.....................................................................................
Third
Respondent
DR
DA
BIRREL
..........................................................................................................
Fourth
Respondent
DR
A
SHAZA
.................................................................................................................
Fifth
Respondent
DR
D
LEKALAKALA
.................................................................................................
Sixth
Respondent
DR
M DE
GRAAD
...................................................................................................
Seventh
Respondent
MS
S
MOSES
..............................................................................................................
Eighth
Respondent
JUDGMENT
PRETORIUS
J,
[1]
This is an application for the review of
the finding of the Road Accident Tribunal (comprising the Fourth to
Eighth Respondents).
The finding was received on the 16
th
July 2012, in terms of which the Applicant was found not to be
entitled to claim for general damages in terms of the Road Accident
Fund Act. It was deemed that the Applicant did not sustain a serious
injury and therefore did not comply with the so-called narrative
test
on which he had relied in his appeal.
[2]
The plaintiff suffered injuries in a motor
vehicle accident. He contends that the injury should be treated as a
“serious injury”.
A “serious injury” is
defined by the Road Accident Fund Act 1956 of 1996 (“The RAF
Act”) and the 2008 Road
Accident Regulations. Regulation 3 (1)
(ii) (iii) provides:
“
(ii)
If the injury resulted in 30 per cent or more Impairment of the Whole
Person as provided in the AMA Guides, the injury shall
be assessed as
serious.
(iii) an injury
does not result in 30 or more impairment of the whole person may only
be assessed as serious if that injury:
(aa) resulted in
a serious long term impairment or loss of body function; and if that
(bb) constitutes
serious permanent disfigurement; and if that
(cc)
…”
[3]
The applicant is subject to the new regime
as he was involved in a motor accident after 1 August 2008. He can
only claim for general
damages if he had suffered a “serious
injury” in terms of section 17 (1) and (1A) of the Act and the
Regulations.
[4]
Section 17 (1) (A) provides:
“
17.
Liability of Fund and agents.—(1) The Fund or an agent shall—
(a)
subject to this Act, in the case of
a claim for compensation under this section arising from the driving
of a motor vehicle where
the identity of the owner or the driver
thereof has been established;
(b)
subject
to any regulation made under
section
26
, in the case of a claim for compensation under this section
arising from the driving of a motor vehicle where the identity of
neither
the owner nor the driver thereof has been established,
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties
as employee: Provided that
the obligation of the Fund to compensate a third
party
for non-pecuniary loss shall be limited to compensation for a serious
injury as contemplated in
subsection
(1A)
and
shall be paid by way of a lump sum.
(1A)(a)Assessment
of a serious injury shall be based on a prescribed method adopted
after consultation with medical service providers
and shall be
reasonable in ensuring that injuries are assessed in relation to the
circumstances of the third party.
(b)The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act, 1974”
[5]
The respondent is thus only required to
compensate a third party for non-pecuniary loss if his claim is
supported by a serious injury
report and if the respondent is
satisfied that the injury has been correctly assessed as serious. In
the event that it is found
to be a serious injury the applicant will
qualify to claim general damages.
[6]
In the guideline published by the Health
Professions Council of South Africa Appeal Tribunals in the
South
African Medical Journal as Health Professions Council of South Africa
Serious Injuries Narrative Test Guideline SAMJ Vol 103
No 10 (2013)
HJ
Edeling set out which criteria will
be considered to decide whether injuries have resulted in significant
life changing sequelae:
“
In
determining changes in individual circumstances the following
individual circumstances should be taken into consideration
:
-
Basic and advanced activities of daily
living (conveniently set out in the AMA Guides 4, page 3 – 4;
-
Personal amentities such as sporting and
other recreational activities;
-
Life roles such as parent, child,
sibling, spouse, spouse, father, friend, breadwinner and mental
supervisor, caregiver etc;
-
Independence or degree of dependency;
-
Educational status and capacity;
-
Employment status and capacity.”
[7]
The applicant’s case was considered
and rejected by an independent Appeal Tribunal constituted by the
Health Professions Council
of South Africa. The Tribunal consisted of
three orthopaedic surgeons and a neurosurgeon. The expertise of these
medical specialists
is not in dispute and is common cause.
[8]
The finding by the Tribunal was that the
applicant had not suffered serious injuries. It is further common
cause that the decision
of the Appeal Tribunal is a decision governed
by the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
[9]
In
Road
Accident Fund v Duma and Three Similar Cases
2013 (6) SA 9
(SCA)
at paragraph 19e the Supreme Court of Appeal decided:
“
Stated
somewhat differently, in order for the court to consider a claim for
general damages,
the
third party must satisfy the Fund, not the court, that his or her
injury was serious.
Appreciation of this basic principle, I think, leads one to the
following conclusions:
(a)
Since the Fund is an organ of state
as defined in s 239 of the Constitution and is performing a public
function in terms of legislation,
its decision in terms of regs
3(3)(c) and 3(3)(d), whether or not the RAF 4 form correctly
assessed 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.
(b)
If the Fund should fail to take a
decision within reasonable time, the plaintiff's remedy is under
PAJA.
(c)
If the Fund should take a decision
against the plaintiff, that decision cannot be ignored simply because
it was not taken within
a reasonable time or because no legal or
medical basis is provided for the decision, or because the court does
not agree with the
reasons given.
(d)
A decision by the Fund is subject to
an internal administrative appeal to an appeal tribunal.
(e)
Neither the decision of the Fund nor
the decision of the appeal tribunal is subject to an appeal to the
court. The court's control
over these decisions is by means of the
review proceedings under PAJA.
”
(Court’s
emphasis)
[10]
I have to agree with counsel for the first
respondent that the only function this court has is to consider
whether the applicant
has established a ground of review in the
present circumstances. This is not an appeal where the court can
consider the extent
of injuries and whether the Tribunal had made the
correct decision in this regard.
[11]
The criteria for assessing the seriousness
of an injury are set out in Regulations 3 (1) (b) (ii) and (iii) as
set out above.
[12]
In
MEC for
Environmental Affairs & Dev Planning v Clairison’s CC
2013
(6) SA 235
(SCA)
at paragraph 18 the
Supreme Court of Appeal once again set out the function of a court in
a review application as:
“
It
bears repeating that a review is not concerned with the correctness
of a decision made by a functionary, but with whether he
performed
the function with which he was entrusted. When the law entrusts a
functionary with a discretion it means just that:
the
law gives recognition to the evaluation made by the functionary to
whom the discretion is entrusted, and it is not open to a
court to
second-guess his evaluation. The role of a court is no more than to
ensure that the decision-maker has performed
the function with which
he was entrusted.
”
(Court’s
emphasis)
[13]
The purpose of
the current scheme, due to the amendments to the Road Accident Fund
Act and Regulations in 2008 is to implement the
recommendations of
the Satchwell Commission where it was found in the Commission report,
V2 p 1150, paragraphs 36.186 to 36.187
that:
“
It
is essential that bold steps be taken to ensure that the proposed
road accident benefit scheme is relieved of the burden of paying
compensation or benefits which are neither financially nor morally
justifiable.
It
appears that the only real merit in awarding compensation for pain
and suffering or loss of amenities or enjoyment of life it
to
provide
victims who have sustained catastrophic injuries and/or life changing
impairment with the finance which provides for lifestyle
changes and
leisure pursuits in ways which cannot be expected of a road accident
benefit scheme.
For
this reason any such benefits should be known as ‘life
enhancement benefits’.”
(Court’s
emphasis)
[14]
This
was confirmed in
Road
Accident Fund v Lebeko
Oupa
William
[2012]
ZASCA 159
(15 November 2012)
at paragraph 3:
“
total
of general damages paid out to victims who sustained minor injuries
and did not suffer any long-term disability far exceeded
the total
amount paid out to those who sustained serious injuries, which
resulted in long-term disability.
”
[15]
The applicant lives in a four bedroomed
house with a kitchen and sitting room. His family gets water from a
tap in the yard. The
applicant had to repeat grade 11 as he lost a
lot of time out of school due to his injury. He than passed grades 11
and 12. At
present he is not computer literate and does not have a
driver’s license.
[16]
Due to his injury he cannot reach his back
with his right hand. He cannot carry a bucket with water in his right
hand and cannot
perform heavy gardening or heavy maintenance. The
occupational therapist found that the deformity of the right arm with
shortening
of the humerus prevents him from playing soccer or
performing heavy domestic chores.
[17]
When the applicant’s serious injury
assessment report was rejected, the applicant declared a dispute,
which resulted in the
Registrar of the Health Professions Council of
South Africa, the second respondent, to constitute a Tribunal,
consisting of at
least three medical experts to determine whether the
applicant has a serious injury. The Appeal Tribunal’s finding
is final
and binding and there is no appeal. A neurologist and
occupational therapist were appointed in terms of Regulation 8 (c) to
assist
the Tribunal.
[18]
The Whole Person Impairment (WP1) test is
to apply rigorous and precise assessment to the various body
functions concerned. In
Law Society of
South Africa and Others v Minister of Transport and Another
2010 (11)
BCLR 1140
(GNP)
at paragraph 6.9
Fabricius AJ held:
“
The
30% WPI threshold in the AMA 6 (“the impairment of the whole
person”), on the other hand, can be used by those victims
who
obviously suffered a serious injury, and who wish to substantiate
their claim for general damages with reference to an objective
medical assessment, and one which has the advantage of minimising the
potential for disputes.
The
narrative test then presents an opportunity for those who believe
that the injury may not be assessed as 30% WPI under the AMA
Guides,
but that the injury resulted in serious consequences to them, so that
they should nevertheless qualify for general damages.
First respondent therefore contends that, viewed as a collective, the
three-part test is the best possible assessment method it
could have
chosen.”
(Court’s emphasis)
[19]
If the score in such an assessment is 30%
or more, it is regarded as a serious injury. In the present instance,
Dr F Booyse, the
orthopaedic surgeon who assessed the applicant,
scored 14% WPI and the applicant will not qualify for general damages
on the WPI
scale, as the score is far below the required 30%. He can
only rely on the narrative test, once it had been established that he
does not qualify according to the WPI test.
[20]
In the present application for review the
applicant does not rely on the WPI test, but on the narrative test.
[21]
In
RAF v Duma
(
supra
)
at paragraphs 34 to 37 the Supreme Court of Appeal held:
“
In
sum the inevitable inference to be drawn from the contents of the
report is that it was never intended that an assessment could
bypass
the AMA/WPI test.”
[22]
To determine whether an injury is serious
according to the narrative test requires an expert opinion to
determine whether an injury
is serious or permanent. The narrative
test, according to the applicant, was applied in the present instance
due to the fact that
he will be exposed to a serious long term
impairment and loss of body function. This is not a borderline case
where the narrative
test can be used to push the WPI closer than 30%,
as the WPI only indicated a 14% impairment.
[23]
The Tribunal was composed of three
orthopaedic surgeons and a neurosurgeon. The main complaint by the
applicant is that the Tribunal
did not avail itself of the provisions
of regulation 11 by directing further assessments or by examining the
applicant or obtaining
further medical reports or directing the
applicant to make further submissions.
[24]
The narrative test requires an expert
opinion, therefor four experts were appointed to the Tribunal in this
instance.
[25]
In
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC)
Ngcobo J held at paragraph 265:
“
The
complaint must be directed at the method or conduct and not the
result of the proceedings. And the reasoning of the decision-maker
must not be confused with the conduct of the proceedings. There is a
fine line between reasoning and the conduct of the proceedings,
and at times it may be difficult to draw the line; there is
nevertheless an important difference.
Determining
whether the commissioner has committed a gross irregularity will
inevitably require the reviewing court to examine the
reasons given
for the award. In doing so the reviewing court must be mindful of the
fact that it is examining the reasons
not to determine whether
the conclusion reached by the commissioner is correct but whether the
commissioner has committed a gross
irregularity in the conduct of the
proceedings.
”
(Court’s emphasis)
and
further:
“
The
right to a fair hearing before a tribunal lies at the heart of the
rule of law. And a fair hearing before a tribunal is a prerequisite
for an order against an individual and this is fundamental to a just
and credible legal order.
”
[26]
The complaint by the applicant is that the
medical experts on the Tribunal acted irrationally or unreasonably in
concluding that
the applicant’s injuries did not pass the
narrative test. It must be mentioned that in these matters a
reasonable decision
maker can reach a range of outcomes.
[27]
Although the applicant argues that the
score of 14%WPI should not be taken into account it cannot be
disregarded as irrelevant.
The narrative would have to be extreme to
justify the Appeal Tribunal finding that the applicant had suffered a
“serious
injury”. The Tribunal set out the reasons for
their finding that the applicant had not suffered a serious injury in
the answering
affidavit.
[28]
Although Dr Booyse, the orthopaedic
surgeon, reported that at the time of assessment the applicant was
complaining of pain in the
proximal arm and shoulder with associated
reduction in flexion, extension and abduction, the Tribunal noted
that the muscle power
in the shoulder and forearm was reported as
normal (5/5).
[29]
Dr AG Terblanche, the radiologist, reported
on 27 September 2010 that the x-ray showed a malunited fracture
proximal humeral metaphysis
with angulation, which is quantified by
Dr Booyse as 42°. The gleno-humeral joint space, A – C
joint and acromio- coracoid
were reported as normal, which resulted
in the Tribunal concluding that the fracture was extra-articular. An
ultrasound of the
shoulder, done almost two years after the accident,
showed the rotator-cuff and supra-spinatus muscle to be intact and
there was
no impingement on dynamic examination.
[30]
The information before the tribunal showed
that a previous fracture had healed after conservative treatment and
good union had taken
place. The x-ray and ultrasound showed that the
shoulder and A – C joints were normal with no signs of a
rotator cuff tear
or impingement.
[31]
The tribunal did not agree with dr Booyse’s
opinion regarding a corrective osteotomy, as the tribunal found that
the shoulder
is a non-weight bearing joint and there is no need to
correct the angulation. An operation would not improve the
biomechanics of
the shoulder and could result in worse complications,
such as a frozen shoulder. These findings by the Tribunal are not
challenged
by the applicant in the replying affidavit.
[32]
The addendum report compiled by Dr Booyse
did not set out any facts which could be considered as facts that
could be used to support
his conclusion regarding the narrative test.
The tribunal did not agree with Dr Booyse that a shoulder replacement
would become
necessary in time. The applicant’s career
preferences of traffic officer or paramedic were considered and the
conclusion
was that he would be an equal competitor in the open
labour market.
Procedurally
unfair:
[33]
The applicant challenges the decision of
the Tribunal as procedurally unfair, irrational and that the
Tribunal failed to take
into consideration the powers it could
exercise in terms of Regulations 3 (10) and (11).
[34]
Section 6
(2) (c) of the
Promotion
of Administrative Justice Act, Act
3 of 2000
provides:
“
6
Judicial review of administrative action
(1)
…
(2)
A court or tribunal has the power to
judicially review an administrative action if-
(a)
…
(b)
…
(c)
the action was procedurally unfair;
”
[35]
According to the applicant the Tribunal
should have investigated the appeal by calling for collateral
information to assess the
injury to the applicant’s shoulder in
relation to his personal circumstances. The applicant states that the
failure by the
Tribunal is irrational and procedurally unfair. In
Pharmaceutical Manufacturers Association
of SA and Another: In Re Ex Parte President of the Republic of South
Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
Chaskalson P held:
“
The
setting of this standard does not mean that the Courts can or should
substitute their opinions as to what is appropriate
for the
opinions of those in whom the power has been vested. As long as the
purpose sought to be achieved by the exercise of public
power is
within the authority of the functionary,
and
as long as the functionary's decision, viewed objectively, is
rational, a Court cannot interfere with the decision simply because
it disagrees with it or considers that the power was exercised
inappropriately.
”
(Court’s
emphasis)
[36]
In
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
O’Regan J held in
paragraph 48:
“
[48]
In treating the decisions of administrative agencies with the
appropriate respect, a Court is recognising the proper role of
the
Executive within the Constitution. In doing so a Court should be
careful not to attribute to itself superior wisdom in relation
to matters entrusted to other branches of government. A Court
should thus give due weight to findings of fact and policy decisions
made by those with special expertise and experience in the field. The
extent to which a Court should give weight to these considerations
will depend upon the character of the decision itself, as well as on
the identity of the decision-maker.
A
decision that requires an equilibrium to be struck between a range of
competing interests or considerations and which is to be
taken by a
person or institution with specific expertise in that area must be
shown respect by the Courts.
”
(Court’s
emphasis)
[37]
The fact that there can be no appeal in
these matters was reiterated in
Road
Accident Fund v Duma
(
supra
):
“
The
Court’s control over these decisions is by means of the review
proceedings under PAJA.”
[38]
In
MEC for
Environmental Affairs v Clairison’s CC
2013 (6) SA 235
(SCA)
the court found in paragraph 22:
“
[22]
What was said in Durban Rent Board is consistent with present
constitutional principle and we find no need to reformulate what
was
said pertinently on the issue that arises in this case.
The
law remains, as we see it, that when a functionary is entrusted with
a discretion, the weight to be attached to particular factors,
or how
far a particular factor affects the eventual determination of
the issue, is a matter for the functionary to decide,
and as he acts
in good faith (and reasonably and rationally) a court of law cannot
interfere.”
(Court’s
emphasis)
[39]
The tribunal applied its mind in this
instance, as set out in the answering affidavit. Cogent reasons were
given for the decision
as the Tribunal had considered all the
information placed before it to determine the seriousness of the
injury. The Tribunal did
not deem it necessary to call for further
investigations as the experts were satisfied that they could reach a
decision with the
information available to them. It must be mentioned
that the applicant failed to seek reasons for the decision at the
time that
the finding was made available. In terms of section 5 of
Promotion of Administrative Justice Act
he
could have requested the reasons for the finding from the
Tribunal.
[40]
In this instance the court has to take
cognisance of the finding by the Supreme Court of Appeal in
Minister
of Environmental Affairs and Tourism And Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA)
:
“
The
essential message of this judgment is that it is not the function of
a Court to sit in appeal on decisions to grant fishing
allocations,
or to constitute itself as an authority as to how to make such
allocations. That, however much it is denied, is what
the respondents
are asking us to do.”
and
in
Bato Star Fishing (Pty) Ltd v Minister of Enviromental Affairs
and Others
(supra)
further:
“
In
determining the proper meaning of
s 6(2)(h)
of PAJA in the light of
the overall constitutional obligation upon administrative
decision-makers to act 'reasonably', the approach
of Lord Cooke
provides sound guidance. Even if it may be thought that the language
of
s 6(2)(h)
, if taken literally, might set a standard such that a
decision would rarely if ever be found unreasonable, that is not
the
proper constitutional meaning which should be attached to the
subsection. The subsection must be construed consistently with
the Constitution and in particular s 33 which requires
administrative action to be 'reasonable'.
Section
6(2)(h) should then be understood to require a simple test, namely
that an administrative decision will be reviewable if,
in Lord
Cooke's words, it is one that a reasonable decision-maker could not
reach.
”
(Court’s
emphasis)
[41]
It must be emphasized that the Tribunal
made its decision on the expert reports provided to it by the
applicant. The applicant’s
assertion that the Tribunal failed
to take into consideration the contents of the reports before it or
that the Tribunal’s
decision is not rationally connected to the
information set out in the reports is patently incorrect. I find that
the Tribunal’s
decision was rational and cannot be faulted in
this regard.
[42]
The complaint of procedural unfairness must
be examined. The applicant avers that the tribunal should have called
for more information
and legal submissions in terms of Regulations 3
(10) and 3 (11).
[43]
These regulations provide:
“
(10) (a) If
it appears to the majority of the members of the appeal tribunal that
a hearing for the purpose
of considering legal arguments may be
warranted, the presiding officer of the appeal tribunal shall notify
the Registrar to this
effect in writing, stating reasons.
…
(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.
(b)
Direct, on no less than five days
written notice, that the third party present himself or herself in
person to the appeal tribunal
at a place and time indicated in the
said notice and examine the third party’s injury and assess
whether the injury is serious
in terms of the method set out in these
Regulations.
(c)
Direct that further medical reports
be obtained and placed before the appeal tribunal by one or more of
the parties.
(d)
Direct that relevant pre- and
post-accident medical, health and treatment records pertaining to the
third party be obtained and
made available to the appeal tribunal.
(e)
Direct that further submissions be
made by one or more of the parties and stipulate the time frame
within which such further submissions
must be placed before the
appeal tribunal.
(f)
Refuse
to decide a dispute until a party has complied with any direction in
paragraphs
(a)
to
(e)
above.
(g)
Determine whether in its majority
view the injury concerned is serious in terms of the method set out
in these Regulations.
(h)
Confirm the assessment of the
medical practitioner or substitute its own assessment for the
disputed assessment performed by the
medical practitioner, if the
majority of the members of the appeal tribunal consider it
appropriate to substitute.
(i)
Confirm the rejection of the serious
injury assessment report by the Fund or an agent or accept the
report, if the majority of the
members of the appeal tribunal
consider it is appropriate to accept the serious injury assessment
report.”
[44]
It must be stressed that there is no
obligation on the Tribunal to request additional information, but it
can be requested should
the Tribunal require it. In this instance
three orthopaedic surgeons and a neurologist considered all the
reports and found that
the applicant had not suffered a “serious
injury” or “a serious long-term impairment”. They
did not deem
it necessary to act in terms of Regulations 3 (10) and 3
(11).
[45]
I cannot find that the Tribunal acted
procedurally unfair, as four experts had considered the reports and
did not require any further
information as they were satisfied with
the reports remitted by the applicant. The applicant did not apply or
indicate that further
investigation was required having regard to all
the facts. The submission that the members of the Tribunal acted in a
procedurally
unfair manner is dismissed.
Reasonableness
and rationality:
[46]
Did the Tribunal act reasonably when
finding that the injuries the applicant had sustained were not
serious as provided for in the
Act and Regulations?
[47]
To determine reasonableness the court has
to consider the Tribunal’s decision with reference to the
record of proceedings.
This decision should not not be measured by
the decision the court would or could make, or to require that it
must be perfect.
The court cannot substitute its own views on the
merits of the applicant’s appeal to the Tribunal, unless the
court finds
that the Tribunal did not act reasoanble and that the
finding of the Tribunal was not rational under the circumstances.
[48]
In
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
(supra)
O’Regan J held a paragraph 45:
“
T
he
distinction between appeals and reviews continues to be significant.
The Court should take care not to usurp the functions of
administrative agencies.
Its
task is to ensure that the decisions taken by administrative agencies
fall within the bounds of reasonableness as required
by the
Constitution.
”
(Court’s emphasis)
[49]
In
Calibre
Clinical Consultants (Pty) Ltd and Another v National Barganing
Council for the Road Freight Industry and Another
2010 (5) SA 457
(SCA)
Nugent JA found:
“
[59]
On the second count - whether the decision was one that was so
unreasonable that no reasonable person could have made it -
there is
considerable scope for two people acting reasonably to arrive at
different decisions. I am not sure whether it is
possible to
devise a more exact test for whether a decision falls within the
prohibited category than to ask, as Lord Cooke did
in R v Chief
Constable of Sussex, ex parte International Trader's Ferry Ltd
62
-
cited with approval in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others -
whether
in making the decision the functionary concerned 'has struck a
balance fairly and reasonably open to him [or her]'.
”
(Court’s
emphasis)
[50]
The Tribunal considered all the information
submitted by tha applicant. The Tribunal supplied the reasosns for
its finding in the
answering affidavit,. These reasons were not
challenged by the applicant in the replying affidavit. If I apply the
principles as
set out in the above
dicta
to the applicant’s argument that the decision of the Tribunal
was not reasonable or rational, then this ground of review
cannot
succeed.
[51]
The applicant has failed to convince me on
a balance of probabilities that the finding by the Tribunal should be
reviewed and set
aside for the reasons I have set out.
[52]
The following order is made:
1.
The application is dismissed;
2.
The applicant to pay the costs, including
the costs of the two counsel in respect of the first respondent.
_____________________
Judge
C Pretorius
Case
number : 48032/2011
Heard
on : 28 May 2014
For
the Applicant : Adv Strydom
Instructed
by : Schutte De Jong
For
the 1
st
Respondent : Adv Budlender
:
Adv Ramano
Instructed
by : Routledge Modise INC
For
the 2
nd
,4
th
– 8
th
Respondent
: Adv Matou SC
Adv
Seleka
Instructed
by : Gildenhuys & Malatji INC
Date
of Judgment : 11 June 2014