IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2024-023448
Date of hearing: 30 April 2025
Date delivered: 29 May 2025
DELETE WHICHEVER IS NOT APPLICABLE
{1) REPORTABLE: Y;g/NO
{2) OF INTEREST TO OTHERS J~DGES: '!'E"S/NO
{3) RE..Y.tSED
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DATE SIGNATURE
In the application between:
SENKWE SIMON MMAMOTHAMA
and
THE HEAL TH PROFESSIONS COUNCIL
OF SOUTH AFRICA
THE CHAIRPERSON OF THE ROAD
ACCIDENT FUND APPEAL TRIBUNAL
THE ROAD ACCIDENT FUND
APPEAL TRIBUNAL Applicant
First Respondent
Second Respondent
Third Respondent
1
THE ROAD ACCIDENT FUND Fourth Respondent
JUDGMENT
SWANEPOEL J:
[1] This is an application to review and set aside the third respondent's
("the Tribunal") dismissal of an appeal against the decision of the fourth
respondent to reject the applicant's claim for non-pecuniary damages on
the basis that his injuries are not serious.
[2] The applicant was involved in a motor vehicle accident on 12
August 2014, as a result of which he was injured, allegedly suffering a
head, shoulder and back injury. The applicant issued summons against
the fourth respondent ("the fund") during 2016. In terms of s 17 (1) of the
Road Accident Fund Act, 56 of 1996 ("the Act"), the Fund is liable 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 ... caused by
or arising from the driving of a motor vehicle by any person at any place
within the Republic, if the injury ... is due to the negligence or other
wrongful act of the driver or of the owner of the 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." (my emphasis)
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[3] The applicant duly issued summons for loss of income and for
general (non-pecuniary) damages . S 17 (1 A) provides that a serious
injury shall be assessed in the following manner -
"(a) ... [by a] prescribed method adopted after consultation with
medical services 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, 197 4 (Act
56 of 1974)."
[4] S 26 of the Act provides that the Minister may make Regulations to
prescribe any matter which in terms of the Act may be prescribed, and,
consequently , on 21 July 2008 the Minister caused the Road Accident Fund
Regulations to be published .1 Regulation 3 prescribes the manner in which an
allegedly serious injury is to be assessed -
[4.1) The Minister may publish a list of injuries that are not to be
regarded as serious;
[4.2) If the injury results in 30% impairment of the Whole Person as
provided in the AMA guides, the injury shall be assessed as serious;
[4.3) An injury that does not result in a 30% or more impairment may
only be assessed as serious if that injury:
[4.3.1] resulted in a serious long-term impairment or loss of body
function;
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[4.3.2] constitutes permanent serious disfigurement;
[4.3.3] resulted in severe long-term mental or severe long-term
behavioural disturbances or disorder; or
[4.3.4] resulted in the loss of a foetus.
[5] In conducting the assessment the medical practitioner must apply
the American Medical Association guides ("AMA" guides). This method of
assessment is called the 'narrative test'. Therefore , if a third party does
not qualify by reason of a WPI of 30% or more, it may qualify on the
narrative test.
[6] The applicant was assessed by Dr. PR Engelbrecht, an
orthopaedic surgeon, who completed the prescribed RAF-4 form. Dr
Engelbrecht assessed the applicant's Whole Person Impairment at 60%.
Dr Engelbrecht reported that the applicant suffered a soft tissue injury to
the right hip, an injury to his shoulder, thoracic-lumbar spine, and
compression fractures. In addition, his vision was impaired after the
accident, and he had an injury to his neck at C6 level.
[7] As a result of the injuries, the applicant suffers constant pain. He
cannot lift his right arm, nor can he pick up heavy objects, and he has a
loss of sensation in that arm. His right hip pains constantly and is stiff. His
memory has also been affected, and has a sensory deficit in his left arm.
[8] A psychiatrist , Dr D Shevel, conducted an assessment, and
similarly, he completed an RAF-4 form. He opined that the applicant had
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sustained ongoing psychiatric sequelae as a result of the accident. The
applicant is markedly depressed. Dr. Shevel diagnosed the applicant with
severe pervasive depression secondary to a general medical condition.
He considered that the applicant had sustained a 20% WPI as a result of
the accident.
[9] The applicant lodged the RAF-4 forms with the Fund on 26 March
2020 and 16 November 2020 respectively. Having considered the
reports, the Fund rejected the RAF-4 on 5 August 2022 on the basis that
no clinical records from the first treating hospital had been submitted.
[10] Regulation 3 (4) provides a dispute resolution mechanism when
the Fund rejects an injury as non-serious -
"(4) If a third party wishes to dispute the rejection of the serious injury
assessment report, or in the event that either of 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 of 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
submissions , medical reports and opinions as the disputant
wishes to rely upon; and
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(c) if the disputant is the Fund or agent, provide all available
contact details pertaining to the third party.
[11] The applicant duly lodged a dispute with the Registrar that
culminated in the eventual appointment of four medical practitioners as
the Appeal Tribunal, of which the second respondent was the
chairperson. The Tribunal consisted of an orthopaedic surgeon, a
neurosurgeon, a psychiatrist and a clinical psychologist. The third
respondent was also presented with the report of Dr. A Smuts, a
neurologist, and of Dr. M Mazabow, a neuropsychologist. Both of these
reports supported the conclusion to which Drs. Engelbrecht and Shevel
had come.
[12] An appeal tribunal has the following powers2:
[12.1] To direct the third party to submit himself to a further
assessment;
[12.2] To direct that the third party shall present himself or herself
to the Appeal Tribunal;
[12.3] To direct that further medical reports shall be obtained by
either party;
[12.4] To direct that the third party's pre-and post-accident
medical, health and treatment reports be obtained;
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[12.5] To direct that further submissions must be made by either
party;
[12.6] To refuse to decide a dispute until a party has complied
with any direction;
[12.7] To determine whether, in the majority view, an injury is
serious;
[12.8] to confirm the medical practitioner 's assessment or to
substitute it with its own assessment;
[12.9] to confirm the rejection of the serious injury assessment or
to accept the report.
[13] On 7 July 2023 the first respondent advised the applicant's
attorney that the Appeal Tribunal had considered the matter, and had
determined that the injury "may be classified as non-serious on the
narrative test." The first respondent was requested to provide reasons for
its decision, and on 6 September 2023 the first respondent replied that it
stood by the decision. It said -
"In light of the above, the Tribunal is satisfied that the patient's injuries
do not qualify as serious in respect of 5.1, 5.2, 5.3 and 5.4 of the
narrative test."
[14] Noticeably absent from the two letters mentioned above is any
reference to the WPI assessment, and that Dr Engelbrecht had assessed
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the applicant on a substantially higher WPI than the statutory minimum of
30% which is required to qualify the injuries as serious.
[15] The applicant then launched this application, seeking to review and
set aside the decision of the second and third respondents under the
Promotion of Administrative Justice Act, 3 of 2000 ("PAJA"). There was
no dispute that the decision is reviewable under PAJA. The first
respondent and its appeal tribunal are organs of state, and the decision
taken by the tribunal is administrative action.
[16] The material grounds for review are the following (I do not mention
all):
[16.1] That the tribunal was not authorized to do so by the
empowering provision;
[16.2] The action was materially influenced by an error of law
and/or fact;
[16.3] The action was taken because irrelevant considerations
were taken into account or relevant considerations were not
considered;
[16.4] The tribunal exceeded their powers by usurping the
function of a court to rule on causation.
[17] In the founding affidavit the applicant pointed out that the tribunal
had not mentioned the WPI assessment , and had only based its decision
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on the narrative test. The applicant also speculated that if the tribunal had
come to its decision because it considered that the injuries did not result
from the accident, then it exceeded its powers as the causation question
may only be determined by a Court.
[18] In its answering affidavit the respondents were at pains to explain
the workings of the tribunal. Having done so, the respondents explained
the basis of the decision. They say that immediately after the accident the
applicant did not seek immediate medical treatment , only doing so the
following day. The suggestion seems to be that the injuries suffered in the
accident were not serious. They discounted the head injury on the basis
that the hospital notes did not record a history of head injury, nor of loss
of consciousness. The hip and shoulder injury were ascribed to causes
other than the accident. As for the spinal injuries, the tribunal was of the
view that had they been the result of the accident, they would most likely
not have been overlooked, and would have been recorded by the hospital.
In short, the tribunal expressed the view that, although the applicant
suffered from these injuries, they were not the result of the accident.
[19] Significantly , the tribunal did not dispute the WPI assessments of
Ors. Engelbrecht and Shevel. However, the deponent to the answering
affidavit alleges that -
"The members of the tribunal are, unanimously , of the opinion that the
experts arrived at the WPI ratings of 22% and 60% by including ratings
for impairments that are not attributable to injuries the patient had
sustained in the accident on 12 August 2014."
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[20] The respondents strongly argue that it is within the tribunal's
powers for it to consider the nexus between the injury and the accident,
and to opine on whether the injury is related to the accident or not.
[21] It is uncertain why the respondents take this approach as the issue
has been dealt with categorically by the Supreme Court of Appeal. In
Road Accident Appeal Tribunal v Gouws and Another 3 the matter
concerned a claim by a pedestrian who was struck down by a motor
vehicle. He was assessed by a medical practitioner who assessed his
injuries as serious on the narrative test. The Fund rejected the injury
assessment on the incorrect basis that the injuries had been found not to
be serious.
[22] An appeal to the tribunal was unsuccessful as the tribunal took the
view that the reported injuries were not causally connected to the
accident. The High Court (per Tuchten J) held that the tribunal was not
empowered to make a determination on causation. The learned judge
said -
"The courts have for decades determined causation. Difficult questions
arise in this regard from time to time. In my view the courts, duly informed
by expert evidence and argument , are better suited to make this
adjudication than the administrative decision makers in question."
[23] The Supreme Court of Appeal approved of this view.4 In respect of
the tribunal's assertion that it is entitled to consider causation, the Court
said the following:
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'This demonstrates confused thinking on the part of the Tribunal. When
the tribunal 'pronounces ' on causation, it must be considered to arrive at
a finding which would then, in terms of reg 3 (13) be final and binding.
As set out above, the Fund appears to have considered itself bound by
the tribunal's finding in regard to causation ."
[24] If the Tribunal's approach were to be adopted, consider the
following hypothetical scenario: The Tribunal concludes that a third
party's injuries are not causally linked to the accident. The Fund adopts
that finding and refuses to accept the injuries as serious, and the court is
then precluded from considering general damages. The third party forges
ahead, though, on a claim for loss of earnings and proves that the injuries
were indeed caused by the accident. The absurd result is that the third
party is not entitled to general damages based on an incorrect finding by
the Tribunal, but succeeds in proving damages due to loss of earnings.
Such an absurdity cannot be allowed.
[25] On whether the Tribunal acted within the boundaries of the
empowering provision, the Court said the following:
"[36] Having regard to the authorities and principles set out in [25]
above, it is necessary to bear in mind that the power given
to the Tribunal in ·terms of the legislation is narrowly
circumscribed . It is not of broad, discretionary nature, which
would allow for further powers to be implied. The Tribunal
cannot have the final say in relation to causation. That is not
provided for."
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[26] It is therefore clear that the tribunal was not empowered by the
Regulations to decide on causation , and it has acted outside of the
empowering provision. In making the decision the Tribunal took irrelevant
considerations (the possibility of other causes for the injuries) into
consideration. I have other concerns with the decision. The Tribunal
initially rejected the RAF-4 assessment as it did not, in its view, satisfy the
narrative test. When the Tribunal was requested for reasons, it said that
the applicant had not qualified on paragraphs 5.1, 5.2, 5.3 and 5.4 of the
narrative test.
[27] At no stage did the Tribunal make any reference to the WPI test,
nor did it mention causation as a factor in its decision making. Only in its
answering affidavit did the Tribunal say that it had been of the view that
the injuries were not related to the accident. The WPI assessment by Ors.
Engelbrecht and Shevel was not challenged in itself.
[28] I accept that simply because a decision maker does not refer to a
specific consideration in its finding, that does not mean that the
decisionmaker did not consider that aspect. However, in this case, it
seems to me, the Tribunal was fixed on considering the narrative test,
and likely did not even consider the WPI assessment. In doing so it
ignored relevant considerations .
[29] Even if I am wrong on the latter aspect, there is no argument to be
made that the Tribunal acted within its powers. The decision must be set
aside.
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[30] I make the following order:
[30.1) The decision of the second and third respondent
dated 7 July 2023, to reject the RAF-4 serious injury
assessment by Drs. Engelbrecht and Shevel, is reviewed and
set aside.
[30.2] The matter is referred back to the first respondent for
the appointment of a different Appeal Tribunal in terms of
Regulation 3 of the Road Accident Fund Regulations , 2008.
(30.3] The second and third respondents shall pay the costs
of the application jointly and severally on Scale C.
[30.4) This judgment shall be disclosed by the first
respondent to the Appeal Tribunal appointed in terms of
paragraph 2 above.
Counsel for the applicant:
Instructed by:
Counsel for the respondents: SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Adv. H Marais
Salome Le Roux
Attorneys
Adv. M Moloi
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Instructed by:
Heard on:
Judgment on: Sefanyetso Attorneys
30 April 2025
29 May 2025
1 R 770 dated 21 July 2008, published in Government Gazette no. 31249
2R3(11)
3 2018 (3) SA413 (SCA)
4 Road Accident Appeal Tribunal v Gouws and Another 2018 (3) SA 413 (SCA) at [32]
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