Health Profession Council of South Africa and Others v Ndumo and Another (48876/17) [2018] ZAGPPHC 426 (22 June 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED

Case No.: 48876/17

22/6/2018

HEALTH PROFESSION COUNCIL OF SOUTH AFRICA

1st Applicant

THE ACTING REGISTRAR OF HEALTH

PROFESSION COUNCIL OF SOUTH AFRICA

2nd Applicant

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL

3rd Applicant

And

J NDUMO

1st Respondent

THE ROAD ACCIDENT FUND

2nd Respondent

In re:

J NDUMO

Applicant

JUDGMENT

Senyatsi AJ

INTRODUCTION

[1] This is an application in terms of Rule 30A of the Uniform Rules to declare that the special power of attorney dated 23 March 2017 filed on behalf of the 1st Respondent on 4th August 2017 does not comply with Rules of this Court and or with the Applicants' request in terms of Rule 7(1).

[2] The application furthermore seeks an order that the special power of attorney does not authorise Van Zyl Le Roux Inc (VZLR) to launch the present proceedings on behalf of the 1st Respondent , and or to depose to affidavits on behalf of the 1st Respondent in these proceedings.

[3] The application furthermore seeks an order that the special power of attorney does not authorise VZLR to act on behalf of the 1st Respondent in these proceedings, and that the matter should be postponed sine die.

BACKGROUND.

[4] The first respondent instituted action against the second respondent, the Road Accident Fund. The claim for non-pecuniary loss was rejected on the basis that the injuries were not serious enough for acceptance by the 3rd applicant. It was held by the third applicant that the first respondent was not entitled to general damages.

[5] As a consequence of the rejection, the first respondent launched an application against the third applicant to review the rejection. The review application was instituted on behalf of the first respondent by VZLR Incorporated under case number 48876/17 on 27 July 2017.

[6] The mandate of VZLR was challenged by the applicants who filed notice in terms of Rule 7(1) of the Uniform Rules of this Court to prove their authority to launch the review proceedings.

[7] The review proceedings were opposed in terms of notice to oppose which was filed on 1 August 2017. The first respondent delivered the special power of attorney on 7 August 2017 as the consequences of which the applicants filed a Rule 30A Notice on 22 September 2017.

[8] In reaction to the application for review, the applicants challenged the authority of the first respondent's legal representatives. They contend that the special power of attorney does not authorise the attorneys to launch the review application.

[9] The first respondent's counsel contends that the Rule 30A Notice has lapsed. It was contended that after the Rule 30A notice was served on 22 September 2017, 10 (ten) day period lapsed and no further steps were taken by the applicants to launch an actual application in terms of Rule 30A.

[10] The first respondent served notice of set down of the review application on 9 October 2017 as no further steps had been taken by the applicants pertaining to their Rule 30A notice.

[11] The first respondent contents through his attorney that the actual Rule 30A application was served on 16 October 2017 well after the lapse of the time period for the applicants to file answering papers in the review application.

[12] The applicants contend that after inspecting the content of special power of attorney sent by the first respondent's attorneys, they dispute that VZLR are authorised by special power of attorney to act as attorneys of record on behalf of the first respondent in the review application.

[13] The applicants furthermore dispute that VZLR are authorised to depose to the affidavit on behalf of the first respondent in the review application and that the first respondent has authorised the launch of the review proceedings.

[14] They contend, furthermore, that they are prejudiced by the non-compliance with the rules of this Court in that the review application has costs implications and that should the first respondent fail in the main review application, there may be serious consequences for the first respondent.

[15] The content of the Special Power of Attorney complained of are as follows:

"I the undersigned,

Josia Ndumo

ID [….]

Do hereby nominate, constitute and appoint MESSRS GRIMBEEK VAN ROOYEN & PARTNERS INC and /or MESSRS VANZYL LE ROUX INC with Power of Substitution, to be my lawful Attorneys and Agents in my name, place and stead:-

1. To investigate the circumstances relating to the accident in which I was injured, which accident occured on 20 December 2013

2. To obtain from relevant hospitals and doctors concerned all facts ,medical records, accounts and details relating to my injuries.

3. To sign necessary claim forms on my behalf and therein to fix the amount of compensation claimable for damages (in the said Attorneys discretion).

4. To negotiate settlement with the Road Accident Fund and to agree with them on figures of settlement and to advise me thereof.

5. To sign any release or Discharge for the amount of settlement in order to receive and recover the said amount.

6. To receive the said settlement amount.

7. To discuss all matters necessary for the purpose of obtaining the necessary reports,etc, above mentioned, for which disbursements I shall be liable in addition to all my attorneys fees, whether by way of Attorney and Client fees or otherwise.

8. To do all that is necessary to finalise the said claim for compensation and in doing so1 I confirm this Power is irreversible.

9. INSOFAR as MESSRS GRIMBEEK VAN ROOYEN & PARTNERS INC and/or MESSRS VAN ZYL LE ROUX INC will be incurring disbursements and rendering services without me paying for same as the disbursements are incurred and services are rendered, I irrevocably and unconditionally authorise MESSRS GRIMBEEK VAN ROOYEN

& PARTNERS INC ATTORNEYS and/or MESSRS VANZYL LE ROUX INC as security for their fees and disbursements, to receive all funds in my name with respect to capital and costs and to deduct therefrom, as a first change and before any payment to any parties, their fees and disbursements.

10. I hereby unequivocally, unconditionally and irrevocably instruct the Road Accident Fund, to pay all sums due to me to the TRUST ACCOUNT OF GRIMBEEK VAN ROOYEN & PARTNER INC ATTORNEYS as instructed by GRJMBEEK VAN ROOYEN & PARTNERS INC ATTORNEYS such account currently at NEDBANK KROONSTAD, the branch code 112436 and account number [….] or any new TRUST ACCOUNT so nominated by GRIMBEEK VAN ROOYEN & PARTNER INC ATTORNEYS.

11. I understand that clauses 9 and 10 above are separable and divisible from the remainder of this special power of attorney and in the event of me terminating my mandate with attorney GRIMBEEK VAN ROOYEN & PARTNERS INC ATTORNEYS, clauses 9 and 10 will stand on their own and will be irrevocable."

I further wish to confirm that I hereby cancel all mandates which I allegedly gave to any other attorney or the Road Accident Fund and I further wish to confirm that I have requested MESSRS GRIMBEEK VAN ROOYEN & PARTNERS INC and/or MESSRS VAN ZYL LE ROUX INC to retrieve all documents that relate to this matter and which could possibly be in possession of any other attorney or the Road Accident Fund as I have instructed MESSRS GRJMBEEK VAN ROOYEN & PARTNERS INC and/or MESSR VAN ZYL LE ROUX INC to proceed with this matter up to finality.

And generally for effecting the purposes aforesaid, to do or cause to be done whatsoever shall be requisite, and full and effectually, for all intents and purposes, as I might or could do if personal presently and acting herein/hereby ratify, allowing and confirming and promising and agreeing to ratify, allow and confirm all and whatsoever may said Attorneys and Agents shall lawfully do, or cause to be done, by virtue of mere presents.

[16] The special Power of Attorney was signed at Kroonstad on the 23rd March 2015 by the first respondent.

[17] The issues to be determined can be summarised as follows:-

[17.1] whether the Rule 30A notice filed by the Applicants lapsed as the Rule 30A application was not brought within the time period stipulated in the Rules, and

[17.2] If the Rule 30A notice if found not to have lapsed, whether the Special Power of Attorney signed by the first respondent complies with Rule 7(1).

[18] As regards legal principles, Rule 30A provides as follows:-

"Where a party fails to comply with these rules or with a request made notice given pursuant thereto, any other party may notify the defaulting party that he/she intends, after the lapse of 10 days, to apply for an order that such rule notice or request be complied with or that the claim or defendence be struck out"

[19] To contextualise the objection to the disputed Special Power of Attorney, it is important to restate what the legal principles are pertaining to the assessment of seriousness or lack thereof of the injuries sustained in a claim against the Road Accident Fund and whether VZLR require a new power of attorney to launch the review application.

[20] The Road Accident Fund regulations published in the Government Gazette dated 29 July 2008 provide as follows:-

20.1 "(4) If a third party wishes to dispute the rejection of the serious

injury assessment report, or in the event 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 or the assessment of 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 assessment is disputed and include in such a report, medical reports and opinion as the disputants wishes as rely upon; and

(c) If the disputant is the Fund or agent, to provide all available contact details pertaining to the third party.

(5) (a) If the Registrar is not notified that the rejection or assessment is disputed in the manner and with the time provided in sub regulation (4), the rejection or the assessment shall become final and binding unless application for condonation is lodged with the Registrar as well as sent to the other party to the dispute."

[21] The Regulations were amended on 15 May 2013 and now contain a list of injuries in terms of Regulation 3(a), for the purposes of section 17, that are not regarded as serious.

[22] The power of attorney to act is regulated by Rule 7. Rule 7(1) provides as follows:-

"(1) Subject to the provisions of sub rules (2) and (3) a power of attorney to act need not be filed, but the authority of anyone acting on behalf of a party may, within 1O days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, where after such person may no longer act unless he satisfied the court that he.is authorised so to act, and to enable him to do so the court may postpone the hearing until the hearing of the action or application."

[23] Rule 7(4) provides as follows:-

"Every power of attorney filed by an attorney shall be signed by or on behalf of the party giving it, and shall otherwise be duly extended according to law; provided that where a power of attorney is signed on behalf of the party giving it, proof of authority to sign on behalf of such party shall be produced to the registrar who shall note that fact on the said power."

[24] The purpose of a power of a power is to establish the mandate of the attorney concerned and to prevent a person whose name is being used throughout the process from afterwards repudiating the process altogether and saying he had given no authority, and to prevent persons bringing an action in the name of a person who never authorised.[1]

[25] In Eskom v Soweto City Council[2] , in reaffirming the purpose of power of attorney, the Court stated the following:-

"The care displayed in the past about proof of authority was rational. It was inspired by the fear that a person may deny that he was party to litigation carried in his name. His signature to the process, or when that does not eventuate, formal proof of authority would avoid undue risk to the opposite party, to the administrations of justice and sometimes even to his own attorney."

[26] The wording of Rufe 7(1) makes it clear that it applies to both action and application proceedings[3].

[27] In South African Allied Workers' Union v De Klerk No[4] , Jansen J held as follows:­ "The power of attorney contemplated by Rule 7(1) is a power to take certain formal procedural steps, namely to issue process and to sign Court documentaiton such as a summons or notice of motion on behalf of a litigant. It does not contemplate a general authority by one person to another to represent him in legal proceedings. There is a clear distinction to be drawn between an attorney being mandated in the form required by Rule 7 to issue formal Court process, and the general authority of one litigant to act in all respects on behalf of others"

[28] Rule 7 does not prescribe the method of establishing authority where such authority is challenged.[5] In Gramford and Others NNO v Hiab AB,[6] Mailula J held as follows:

"Rule 7(1) does not prescribe the method of establishing authority where such authority is challenged. All the party whose authority is challenged has to do is to satisfy the Court that he has the necessary authority to act, which authority can even be obtained after the action has been instituted or the defence filed."

[29] I now deal with the argument that the Rule 30A was filed out of time. I have not been furnished with any authority by the first respondent for any basis to dismiss the application based on it being made out of time. As it would have been clear, I have analysed the legal principles on the basis of that the challenge to authority to act can be entertained by this Court.

[30] The first respondent's mandate given to the attorneys, is in my view acceptable. The claim for injuries has not been finalised as the application for review of the administrative decision to reject the general injuries as being not serious was launched within the time period allowed by the Regulations. The power to launch an application to review the decision seems to me to be covered by clause 8 of the special power of attorney.

[31] The review process was incidental to the main mandate to file the claim. In my view, that mandate as contained in the Special Power of Attorney was quite regular. It would be unreasonable to expect the first respondent to provide additional mandate for the review of the administrative decision directly related to his claim for personal damages for injuries against the second respondent.

[32] I am persuaded by the submission made on behalf of the first respondent that the challenge to the mandate is used as a delaying tactic for the review the decision that the injuries of the first respondent did not constitute serious injuries and that the first respondent was not entitled to general damages.

ORDER

[33] Consequently, I make the following order:-

The application is dismissed with costs.

M.L. SENYATSI

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

APPLICANT'S REPRESENTATIVES

COUNSEL

: ADV. N. FELGATE

INSTRUCTING ATTORNEYS : KM MMUOE ATTORNEYS

TEL- 012 435 9303

RESPONDENT'S REPRESENTATIVES

COUNSEL

: ADV. BERNETTE BERGENTHUIN

FIRST RESPONDENT

INSTRUCTING ATTORNEYS : VZLR INC

TEL- 011 484 0945

DATE OF HEARING

: 24 APRIL 2018

DATE OF JUDGMENT : 22 JUNE 2018

[1] See Van Loggerenberg Erasmus Superior Court Practice 2nd Edition Vol 2 at 01-93

[2] 1992 (2) SA 703 (W) at 705 E-F

[3] See Administrator, Transvaal v Mponyane 1990 (3) SA 407(W) at 409 D

[4] 1990 (3 ) SA 425 (E) at 436 F-J

[5] See Van Loggerenberg, ibid Dl -95

[6] 2000 (3) SA 635 (W) at 639J-640A