Health Professions Council of South Africa and Others v Maraz and Others (A179/2019) [2021] ZAGPPHC 876 (9 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A179/2019

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: YES

DATE: 9 SEPTEMBER 2021

In the matter between:

THE HEALTH PROFESSIONS COUNCIL

OF SOUTH AFRICA

FIRST APPELLANT

REGISTRAR OF THE HEALTH PROFESSIONS

COUNCIL OF SOUTH AFRICA

SECOND APPELLANT

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL

THIRD APPELLANT

and

J MARAZ

FIRST RESPONDENT

M J MAHLANGU

SECOND RESPONDENT

ROAD ACCIDENT FUND

THIRD RESPONDENT

JUDGMENT

Coram Raulinga J, Basson J and Strijdom AJ

INTRODUCTION

1. This appeal relates to the decision of the Road Accident Fund Appeal Tribunal ("the Tribunal'), wherein it considered the injuries that were sustained by the first and second respondents and held that they are not serious injuries as defined by the road Accident Fund Act 56 of 1996 ("the Act') and the Road Accident Fund Regulations ("the Regulations").

2. The respondents brought applications to review and set aside the decision of the Tribunal in terms of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA'). The court a quo granted the review applications and set aside the Tribunal's decisions.[1]

3. The appellants are before us on appeal directed against the whole of the judgment in the court a quo, leave to that effect having been granted by the court a quo.[2]

4. In the review application the first respondent (Maraz) contends that:

4.1 The Tribunal's decision does not mention all the expert reports that served before it. It must then follow that such reports were not taken into account;

4.2 The Tribunal misdirected itself by not paying proper heed to the opinions expressed in the expert reports filed;

4.3 The Tribunal failed to provide reasons for its decision.

5. The second respondent (Mahlangu) contends that,

5.1 The Tribunal failed to properly consider the medico legal reports,

5.2 The Tribunal failed to properly address serious long-term impairment and serious disfigurement;

5.3 The Tribunal did not pay proper heed to the legal opinions expressed in the expert reports filed;

5.4 The Tribunal failed to provide reasons for its decision;

5.5 The Tribunal failed to direct that Mahlangu be assessed by another expert.

6. In the appellant's notice of appeal, the grounds of appeal in respect of the first respondent (Maraz) are as follows: The Learned Judge erred in finding that;

6.1 The Road Accident Fund Appeal Tribunal ("the Tribunal') as a panel of experts acts in an advisory capacity;

6.2 There are no minutes of the deliberations or recordings and no transcript of the Tribunal's deliberations was available.

6.3 The discretion exercised by the decision maker should be discerned from the record and from an evaluation of the facts on record.

6.4 There is no merit in the suggestion that the first respondent ("Maraz') launched an application before seeking reasons and should therefore be satisfied with the reasons in the answering affidavit.

6.5 This honourable court is required to glean from the record whether the Tribunal applied its mind to what it was empowered to do in light of the information before it. Not engaging in this exercise would open flood gates to having reasons being supplemented in an answering affidavit where they were not given in the record.

6.6 If the record is silent on the reasons, then Maraz's contention that the findings in the medico-legal reports remain uncontested should stand;

6.7 It is acknowledged in the findings that there were various expert reports by the occupational therapist and the psychologists, without mentioning that Maraz was seen by an orthopaedic surgeon.

6.8 It is important for the record to correctly reflect in column 3 that Maraz provided additional reports and to mention the expert by name and to give reasons in the column for why the Tribunal was of the view that regardless of such reports, on the narrative tests the injury remained non-serious i.e which aspects of those reports were rejected.

6.9 There is no indication in the record that objective consideration was given to the reports.

6.10 The learned Judge erred in placing undue emphasis on the requirement to produce a record of the deliberations and for the Tribunal's reasons to be reflected in such deliberations.

6.11 The learned Judge erred in ignoring her own findings that Maraz's failure to request reasons for the decision means that the Tribunal is justified in giving extensive reasons in the answering affidavit.

6.12 The learned Judge erred in failing to distinguish between decisions and the reason for the decision, together with the Tribunal's obligations insofar as each of these aspects are concerned.

7. The grounds of appeal in respect of the second respondent (Mahlangu)

can be summarised as follows: The learned Judge erred in finding that:

7.1 Dr Oelofse's report recommended that there be further assessments of the second respondent ("Mahlangu').

7.2 No reasons were given by the Tribunal as to why Dr Oelofse's recommendation (for Mahlangu to be assessed further) was not accepted as warranting a further assessment.

7.3 In light of Dr Oelofse's recommendation and in the interest of justice it is appropriate to order that the reports of Dr Hofmann and Rita van Biljon be considered for purposes of assessing the injuries of the applicant.

7.4 The learned Judge erred in ignoring her own findings that the subsequent reports were filed after the Tribunal had taken a decision and that it was not appropriate to request that the second respondent's case be reconsidered by the panel in light of fresh medico-legal reports being present.

7.5 The learned Judge erred in granting relief under the "further and alternative" relief without affording the applicants an opportunity to be heard on the appropriateness of such relief.[3]

8. In terms of section 17(1) of the Act, a claimant may only claim

general damages if he has suffered a "serious injury". In terms of section 17(1A) the assessment of a serious injury ''shall be based on a prescribed method" and "shall, be carried out by a medical practitioner''.

9. Section 26 (1A) of the Act provides that the Minister may make

regulations regarding "the method of assessment to determine whether... a serious injury has been incurred" and "the resolution of disputes arising from any matter provided for in this Act".

10. Regulation 3 prescribe the procedure for the assessment of a serious injury. This procedure includes the following requirements:

10.1 A third party who wishes to claim for compensation for a non-pecuniary loss is required to submit to an assessment by a medical practitioner in accordance with the Regulations.[4]

10.2 Regulation 3(1)(b) prescribes the criteria the medical practitioner must apply in the assessment whether a third party has suffered serious injury;

10.3 A third party whose injury has been assessed as serious, is required to obtain a serious injury assessment report from the medical practitioner concerned.[5]

10.4 The RAF is only required to compensate a third party for non-pecuniary loss if a claim is supported by a serious injury assessment report and the RAF is satisfied that the injury has been correctly assessed as serious by the method spell out in the Regulations.[6]

10.5 If the RAF is not satisfied that the injury has been correctly assessed as serious, it must reject the serious injury assessment report or direct the third party to undergo a further assessment.[7]

10.6 If the third party disputes the RAF's rejection of the serious injury assessment report, it must then lodge a dispute with the Tribunal.[8]

11. The criteria to be applied by the RAF and the Tribunal in assessing the seriousness of the injury is set out in Regulation 3(1)(b).

11.1 Firstly, if the injury falls under the list of specific non-serious injuries set out in the Regulations, then it is automatically regarded as not being a serious injury.[9]

11.2 Secondly, provided that the injury does not fall under this list, it must then be assessed using the American Medical Association's Guides ("AMA Guides') to the Evaluation of Permanent Impairment. If the injury scores 30% or more Whole Person Impairment ("WPI') on this assessment, it is then a serious injury.[10]

11.3 Thirdly, if the injury scores less than 30% (WPI on the AMA Guides, it may then still be assessed as serious under the narrative test. This involves asking whether the injury resulted in a serious long-term impairment or loss of a body function; constitutes permanent serious disfigurement, resulted in severe long- term mental or severe long-term behavioural disturbance or disorder; or resulted in loss of a foetus.[11]

12. For purposes of this judgment, it is only the second and third of these methods that are relevant.

13. The WPI ratings of the first and second respondents are 10% and 16% respectively.[12]

14. The respondents do not contend that their WPI scores were erroneously given or are inaccurate. They seek to rely on the narrative test.

15. The Tribunal in the matter of the first respondent (Maraz) comprised of two orthopaedic surgeons, a neurosurgeon and the Presiding Officer, Dr Mabuya.[13] (an occupational medicine practitioner).

16. Dr Mabuya stated that the appeal of Maraz consisted of, inter alia, the following reports:

16.1 RAF 5 Form: Referral of Dispute

16.2 RAF 1 Form: Claim Form

16.3 RAF4 Form: Serious Injury Assessment by Dr Van Zyl

16.4 X-ray report by Dr Bellew

16.5 Report by Dr Van Zyl

16.6 Medico-legal report by A Strydom

16.7 Medico-legal report by Ms van Biljon

16.8 Medico-legal report by Dr Enslin.

17. The Tribunal deliberated and resolved that based on medical evidence the first respondent's injuries do not reach WPI of 30% and do not constitute serious injuries under the narrative test.[14]

18. The Tribunal in the matter of the second respondent (Mahlangu) comprised of two orthopaedic surgeons and a neurosurgeon.[15]

19. The Tribunal deliberated and resolved that based on medical evidence the second respondent's injuries do not reach WPI of 30% and do not constitute injuries under the narrative test.[16]

20. The following report were inter alia considered by the Tribunal in the appeal of the second respondent.[17]

20.1 RAF 5 Form: Referral of Dispute

20.2 RAF 1 Form: Claim Form

20.3 RAF 4 Form: Serious Injury Assessment by Dr Oelofse

20.4 Medico-legal report by Dr Oelofse

20.5 X-ray report from Burger Radiologists

20.6 Hospital records

21. In terms of Regulation 3(13) the findings of the Tribunal are final and binding.

22. Nearly 2 months after receipt of the decision of the Tribunal Mr Mahlangu sent a letter to the first appellant requesting that the Tribunal reconsider its decision in light of the reports of Dr Hoffmann and Ms van Biljon, which reports were attached to the same letter.[18]

23. Dr Crosier stated that:

"The reports of Dr Hoffmann and Ms van Biljon are seen by the Tribunal for the first time in these proceedings. In any event, there is nothing in those reports which would have changed the decision of the Tribunal. The facts contained in the report of Dr Hoffmann, as was the case with the report which served before the Tribunal, do not establish serious permanent disfigurement as contemplated in the regulations."[19]

24. The court a quo's main finding is effectively that the reasons for the impugned decision should be contained in the record filed in terms of rule 53 of the Uniform Rules ("the record'). It holds that if the record does not reflect the reasons for the decision, then the impugned decisions stand to be reviewed and set aside.[20]

25. Having found that the reasons for the decision were not recorded in the record, the court a quo then failed to consider the reasons for the decision as provided in the Tribunals answering affidavits.

26. In their answering affidavits, the Tribunal gave comprehensive reasons for its findings based on the medical evidence placed before it.

27. Similarly to Maraz's case, the high water mark for Mahlangu's case is that the Tribunal failed to properly consider the medico-legal reports and to provide reasons for its decision.

28. The right to reasons for administrative action is governed by section 5 of PAJA.

29. Hoexter concludes that the request driven regime of section 5 of PAJA would be overridden where one can expect administrators to provide reasons in the absence of a prior request. [21]

30. In this matter the respondents could have sought reasons, however, they did not do so.

31. Regulations 3(13) states that "the Registrar shall inform the parties of the findings of the appeal Tribunal". It is only upon request that the obligation to furnish reasons arises.

32. In the absence of such request the reasoning of the Appeal Tribunal is to be found in the Tribunal's answering affidavits, read together with the Rule 53 record which served before the Tribunal.

33. It was held in Maluka vs Road Accident Fund[22] that:

"The Tribunal considered all the information submitted by the applicant. The Tribunal supplied the reasons for the findings in the answering affidavit."

34. In my view the court a quo erred in finding that there was an obligation on the Tribunal to provide reasons for its decision in circumstances where a request for reasons has not been made. I am further of the view that the court a quo failed to consider the reasons for the decisions of the Tribunal as stated in its answering affidavits.

35. It was submitted by the first and second respondents that the Tribunal materially misdirected itself by not paying proper heed to the opinions as expressed in the expert report filed of record which leads to a martially unreasonable decision, alternatively there was a failure on the part of the majority to properly apply the narrative test.

36. The appellants argued that it is not open to the respondents to contend that insufficient weight was given to the contents of the

medico-legal reports.[23]

37. The rationality standard does not mean that courts can or should substitute their opinions for the opinions of those in whom the power has been vested. It is trite that a court cannot interfere with a decision simply because it disagrees with it, or considered that the power was exercised inappropriately.

38. The court a quo found that the resolutions of the Tribunal must make specific mention of each report that was considered by the Tribunal thus suggesting that the failure to specify each report means that such report was not considered by the Tribunal. There are no requirements that stipulate how the Tribunal's resolution should be compiled. It was in my view sufficient for the Tribunal to state it in the findings that various reports of the medical experts were considered and to then specify the names of such reports in the answering affidavit.

39. The court a quo found that there should be further assessment of Mr Mahlangu as recommended by Dr Oelofse. The court a quo remarked that:

"No reasons were given by the Tribunal why this aspect of Dr Oelofse's recommendation was not accepted as warranting a further assessment". [24]

40. It was argued by the respondents that the Tribunal failed to consider the power it could exercise in terms of regulations 3(10) and (11).

41. In J H v Health Professions Council of South Africa 2016 (2) SA 93 (WCC) it was held that the Tribunal is entitled but not obliged to direct that further medical reports be obtained.

42. In terms of Regulation 3(11) the Tribunal had a discretion whether to call for reports and assessments.

43. The respondents argued that there was a failure on the part of the Tribunal to properly apply the narrative test on the available evidential material.[25]

44. It is trite that the narrative test may only be used after the WPI / AMA test has been completed and the claimant has not achieved the 30% rating. The narrative test requires an expert opinion of whether a given injury is "serious" or "severe" and whether the impairment is "permanent or "long-term".[26] This is pre-eminently an area where a reasonable decision-maker could reach a range of outcomes. Once that is so, a court cannot conclude that a decision to adopt one such outcome is irrational or unreasonable.[27]

45. The WPI rating of the respondents are 10% and 16% respectively.

46. Dr Crosier in his answering affidavit in respect of Mr Mahlangu stated as follows: "The assessment under the narrative test calls for a value judgment, conducted in the context of the circumstances of the third party by persons with relevant expertise and experience. The above is the process followed by the Tribunal when considering the appeals, including the applicants".[28]

47. Dr Crosier also denied that the Tribunal failed to properly apply the narrative test, or to apply any of its powers. In respect of Maraz, Dr Mabuya, in his answering affidavit, denied that the Tribunal failed to consider the applicant's injuries or serious long-term impairments or the narrative test. He further stated that the Tribunal considered all reports placed before them.[29]

48. In Maluleka v Road Accident Fund and others[30] it was held:

"This is not a borderline case where the narrative test can be used to push the WP/ closer than 30% as the WPI only indicated a 14% impairment. Although the applicant argues that the score of 14% WP/ should not be taken into account it cannot be disregarded as irrelevant. The narrative would have to be extreme to justify the Appeal Tribunal's 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."

49. Having considered the papers and submissions made by the appellants and respondents, I am of the view that the Tribunal in respect of the first and second respondent exercised its powers on a rational and reasonable manner. I am also of the view that the actions of the Tribunal were not procedurally unfair.

50. In the result the following order is made:

a. Condonation is granted for non-compliance with the time periods for filling of the appellants' notice of appeal, appeal records, heads of argument and practice note;

b. The appeal is upheld with costs including the costs of the application for leave

to appeal;

c. The order of the court a quo is set aside and substituted with the following order:

“The review applications (re Maraz and Mahlangu) are dismissed with costs”

STRIJDOM J J

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

I agree.

RAULINGA J

JUDGE OF THE HIGH COURT

I agree and It Is so ordered.

BASSON J

Date of hearing: 28 JULY 2021

Date of Judgment: SEPTEMBER 2021

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 9 SEPTEMBER 2021.

Appearances:

For the Appellant: Adv L Kutumela

(Instructed by: Gildenhuys Malatji Inc)

For the Respondent: Adv. M Jacobs

(Instructed by: Van Zyl Le Roux Inc)

[1] Vide: Caselines, court order; 077-pp508

[2] Vide: caselines, court order 077•pp526.

[3] Vide: Caselines; notice of appeal -077 pp 527

[4] Vide: Regulation 3(1) (a)

[5] Vide: regulation 3 (3) (a)

[6] Vide: Regulation 3(3)(d)

[7] Vide: Regulation 3(3)(d)

[8] Vide: Regulation 3 (13)

[9] Vide: regulation 3 (1)(a)(i)

[10] Vide: Regulation 3 (1)(a)(i)

[11] Vide: Reulations 3(1) (a) (ii).

[12] Vide: Caselines; 077-pp258 to 259

[13] Vide: Caselines; 077 pp 271 to 273 answering affidavit.

[14] Vide: Caselines; 077-pp274 (para 12)

[15] Vide: Caselines; 077-pp97 (para 9)

[16] Vide: Caselines; 077 pp 97- (para 11)

[17] Vide: Caselines; 077 pp96 (para 7)

[18] Vide: Caselines; 077 ppl21 (para 75.1)

[19] Vide: Caselines; 077 pp 122 (para 75.4)

[20] Vide: Caselines; judgment -077 pp 505 (para 27).

[21] Vide: Hoexter Administrative law in South Africa, 2 ed page 485.

[22] Vide: (48032\2011) (2014) ZAGPPHC 340 (11June 2014); Brown v the Health Professions Council of South Africa and Others (2016) JOL 34788 (WCC)

[23] Vide: MEC for Environmental Affairs v Clairisons' CC 2013 (6) SA 255 (SCA) at para 22

[24] Vide: Caselines; 077 pp 506 (para 27)

[25] Vide: Caselines; 077 -pp21(para 8)

[26] Vide: Road Accident Fund v Duma and three related cases [2012] ZASCA 169 (27 November 2012) at paragraph 34.37

[27] Vide: Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC).

[28] Vide: Caselines; 077 p 111 (para 52) and 077-pp1245 (para 77.3)

[29] Vide: Caselines; 077-pp293 (para 68.1)

[30] Vide: (48032\2011) (2014) ZA GPPHC 340 (11 June 2014)