M S v Chairman: The Appeal Tribunal and Others (28414/17) [2020] ZAGPPHC 165 (28 February 2020)

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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No: 28414/17

In the matter between:

M S

Applicant

and

THE CHAIRMAN: THE APPEAL TRIBUNAL

Under reference Number. RAF N008405/2013

1st Respondent

THE APPEAL TRIBUNAL

Under reference Number: RAF A/008405/2013

2nd Respondent

THE REGISTRAR OF THE HEALTH PROFESSIONS

COUNCIL OF SOUTH AFRICA

3rd Respondent

ROAD ACCIDENT FUND

4th Respondent

JUDGMENT

MNGQlBlSA-THUSI J

[1] The applicant seeks the review and setting aside of the Appeal Tribunal's (second respondent) decision made on 6 June 2016 in terms of which it decided that the applicant’s injury does not qualify as a 'serious injury' as' envisaged in s 17 of the Road Accident Fund Act[1] (“the Act"). Further, applicant seeks that the matter be referred back to the Appeal Tribunal for reconsideration, with the Registrar of the Health Professions Council of SA (third respondent) ("the Registrar"), directed to constitute an appeal panel within 90 days of the order and that the panel should include an occupational therapist, a clinical psychologist and an orthopaedic surgeon.

[2] During 24 April 2017 the applicant lodged a claim with the Road Accident Fund ("the RAF”), for damages suffered as a result of injuries sustained in a collision which occurred on 07 August 200a As a result of the collision, the applicant sustained a fracture of the right femur which was treated by open reduction and internal fixation where. an intramedullary nail was inserted. As part of his claim, the applicant also sought to be compensated for general damages.

[3] In pursuance of his claim for general damages, the applicant was assessed[2] by Or Aubrey M Mogotsi ("Dr Mogotsi") on 24 November 2012. Dr Mogotsi opined that the applicant may develop osteoarthritis of the right knee joint in future. Or Mogotsi concluded that the plaintiff has suffered 15% Whole Person Impairment ("WPI") and qualified under the narrative test.

[4] On 28 March 2013 the RAF rejected the assessment that the applicant suffered a serious injury. On 30 October 2013, the applicant referred the matter to the Registrar in accordance with regulation 3 of the Act. After the documents which served before the RAF were submitted to the Appeal Tribunal, the applicant subsequently submitted to the Appeal Tribunal reports of Dr Karen Adams (“Dr Adams"), a clinical psychologist and Ms Elsabe Krone ("Ms Krone"), an occupational therapist. The report of the clinical psychologist was based on an assessment done on 27 May 2014, after the RAF had rejected the applicant’s claim for general damages.

[5] On 1 February 2016, the third respondent informed the applicant's attorneys that an Appeal Tribunal panel was appointed consisting of the following members:

(i) Dr D Lekalakala (orthopaedic surgeon);

(ii) Dr FA Booyse (orthopaedic surgeon);

(iii) Dr T Ramokgopa (orthopaedic surgeon); and

(iv) Dr M Mokabane (neurosurgeon).

[6] On 02 February 2016, the applicant's attorneys sent a letter to the Registrar noting that the panel constituted of three orthopaedic

surgeons and a neurosurgeon and that it did not include an occupational therapist and/or a clinical psychologist. Further attached to the letter were, the RAF 4 form compiled by Dr Mogotsi; medico­legal reports prepared by Dr Adams and Ms Krone.

[7] On 6 June 2016 the second respondent, the Appeal Tribunal rejected the applicant's claim on the basis that he did not sustain a serious injury. The panel concluded that the applicant's impairment was less than 30% WPI. In a letter addressed to the applicant's attorneys , the second respondent stated that

“…

(i) Sustained fracture of right femur, treated by way of intramedullary internal fixation

(ii) The panel is unanimous that he does not qualify as serious considering that the fracture has united and there is no impairment on his functionality”.

[8] At the hearing of this matter and in view of the fact that these proceedings were launched 10 months after the Appeal Tribunal made its decision, the respondent raised the issue of the failure by the applicant to apply for condonation. It was submitted on behalf of the respondents that although the applicant sought condonation in its founding affidavit, he did so cursorily and not in terms of the rules of court by way of a notice of motion. The respondent argued that condonation should not be granted as the applicant has not set out fully his reasons why condonation should be granted. In this regard the respondent relies on various authorities.

[9] Section 7(1) of the Promotion of Administrative Justice Act[3] (''PAJA") provides that:

"Any proceedings for judicial review in terms of s 6(1) must be instituted without unreasonable delay and no later than 180 days after the date-

(a) subject to sub-section (2)(c), on Which any proceedings instituted in terms of internal remedies as contemplated in subsection 2(a) have. been concluded; or

(b) where no such remedies exist, on which the person concerned was informed of the· administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons”.

[10] Further, s 9 (1) of PAJA provides for the extension of the 180 day period for a fixed period by agreement between the parties or by a court on application. In terms of s 9 (2) a court may grant an application in terms of s 9(1) where the interests of Justice so require.

[11] In an application for condonation, a court has a discretion that is to be exercised judiciously, taking into consideration all the facts before it. The onus is on the applicant to show that the .granting of condonation will not be prejudicial to the respondent. In exercising its discretion whether or not to grant condonation, the court has to take into account (i) the degree of lateness or non-compliance; (ii) the explanation thereof; (iii) the prospects of success; (iv) the importance of the case; and (v) the respondent's interest in the finality of the matter[4].

[12] As appears from the applicant's supplementary heads dealing with the issue of condonation, the applicant has only dealt with authorities relied upon tor seeking condonation. The applicant has not set out the facts in his particular case which justify the granting of condonation. The applicant has further not given any particulars as to what caused the delay in instituting this application. In his founding affidavit, the applicant admits that the application was instituted outside the 180 day period as prescribed in PAJA. The only justification given by the applicant for condonation to be granted is that the respondents will not suffer any prejudice if condonation is granted.

[13] It is the respondents' contention that, taking into account the time it took the applicant to institute these proceedings, the delay is excessive and the applicant has not given a proper and detailed explanation for non-compliance with the Rules of this court.

[14] I am of the view that under the circumstances, besides the issue of prejudice, the applicant has not made out a case for condonation to be granted. However, for the sake of finality, condonation is granted in order for the merits of the dispute between the parties to be decided.

[15] The applicant seeks the review and setting aside of the second and third respondents' decisions on the following grounds:

15.1 that the procedure followed by the Appeal Tribunal was flawed in that the panel failed to consider the reports of Dr Adams and Ms Krone. It is the applicant's contention that had the panel taken into consideration the findings of the two medical experts, it would have come to the conclusion that the applicant's Injury qualified as serious under the narrative test. In general the two experts concluded that the injuries sustained by the applicant impacted on the applicant's enjoyment of life because the injuries had serious long term effects and that the applicant was suffering from a severe disorder due to chronic lower back pain. It was submitted on behalf of the applicant that by falling to consider the reports of Dr Adams and Ms Krone, the Appeal Tribunal's decision was materially influenced by an error of law and fell to be reviewed in terms of s 6(2)(d)[5] PAJA.

15.2 That the decision of the Appeal Tribunal must be reviewed in that it failed to consider the reports of Dr Adams and Ms Krone on the basis that these reports were not before the RAF when it considered the matter, the decision of the Appeal Tribunal was irrational in that if ignored to consider evidence before it[6]. Furthermore, it is the applicant's contention that the non-inclusion of a clinical psychologist and an occupational therapist in the panel, thereby failing to consider the sequelae of the applicant's injuries, the Appeal Tribunal did not take into account relevant considerations[7].

15.3 That it was irrational for the Appeal Tribunal to fail to include a clinical psychologist and an occupational therapist In the panel, considering the sequelae of the applicant's injuries. It was submitted that therefore the decision of the Appeal Tribunal was procedurally unfair in terms of s 6(c)[8] of PAJA.

15.4 That the decision of the second respondent was arbitrary or capricious in that in considering its decision, the Appeal Tribunal had limited itself only to the hospital records and ignored the applicants' clinical examination and "his lived experience" and the impact of the injuries. It was submitted that the decision fell to be reviewed and set aside in terms of Section 6(e)(vi)[9] of PAJA.

[16] On behalf of the applicant it was further argued that the Appeal Tribunal should have exercised its discretion in terms of Regulation 3(3)(d)[10] by inviting the applicant for a further assessment.

[17] The following submissions were made on behalf of the respondent Counsel submitted that, as appears from the answering affidavit, the Appeal Tribunal did have regard to the reports of the plaintiffs clinical psychologist and occupational therapist. Counsel, however, argued that the Appeal Tribunal was not bound by the conclusions ·of these experts as they were not medical practitioners as envisaged by the Act.

[18] Further, it was submitted that as Dr Mogotsi's report only dealt with the sequelae of the applicant's orthopaedic injury, there was no need for the Appeal Tribunal to have regard to the reports of the clinical psychologist and the occupational therapist. Counsel argued that since the Appeal Tribunal's panel consisted of three orthopaedic surgeons, such panel was constituted by relevant experts to assess the injuries of the applicant. Furthermore it was submitted that even though Dr Mogotsi had opined that the applicant may develop osteoarthritis, the Appeal Tribunal was of the view that this would in any case have resulted due to the- applicant's age. In the answering affidavit mention is also made of the fact that despite his injury, the applicant was still working and in the Appeal's Tribunal's opinion the injuries did not result in significant life altering consequences on the applicant 's life.

[19] A decision of the Appeal Tribunal is administrative action within the context of section33 (1) of the Constitution and is therefore

reviewable under section6 (1) of PAJA. Such decision must be 'lawful, reasonable and procedurally fair’[11].

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others[12] the Constitutional Court stated that:

"[45] What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected. Although the review functions of the court now have a substantive as well as a procedural ingredient; the 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·.

[20] The Act does not define what a 'serious injury' is. However, regulation 3(1)(b) sets out the method to be used in assessing an injury as 'serious' and provides that

"(b) The medical practitioner shall assess whether the third party’s injury is serious in accordance with the following method

(i) …;

(ii) If the injury resulted in 30% or more Impairment of the Whole Person as provided In the AMA Guide,[13] the Injuries shall be assessed as serious,

(iii) An injury which 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 loss of body function;

(bb) constitutes permanent serious disfigurement;

(cc) resulted in severe long-term mental or severe long-term behavioural disturbance or disorder; or

(dd) resulted in loss of a foetus.”

[21] In Road Accident Fund v Duma and Three Similar Cases[14], the court held that

"[19] ... In accordance. with the model that the legislature chose to adopt, the decision whether or not the injury of the third party is serious enough to meet the threshold requirement for an award of general damages was conferred on the Fund and not on the court. That much appears from the stipulation in section 3(3)(c) that the Fund shall only be obliged to pay general damages if the Fund - and not the court - is satisfied that the injury has correctly been assessed in accordance with the RAF 4 form a serious. Unless the Fund is so satisfied the plaintiff simply has no claim for general damages. This means that unless the plaintiff can establish the jurisdictional fact that the Fund is so satisfied, the, court has no jurisdiction to entertain the claim for general damages against the Fund”.

[22] Furthermore in Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others[15] the court stated that:

“[90] 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. A decision that is objectively irrational is likely to be made only rarely but, if this does occur, a Court has the power to intervene and set aside the irrational decision.”

[23] As pointed out in the Duma matter, the authority to determine whether an injury is 'serious' lies with the Fund. The constitution of the panel cannot be faulted as it was made up of independent and qualified experts. Even though the Tribunal has the power to seek additional information in order to make its decision, in this matter it had primarily to deal with Dr Mogotsi's report as the medical practitioner who had assessed the applicant. Further, it appears that the Appeal Tribunal did have regard to the reports of the occupational therapist and the clinical psychologist but in their wisdom decided that the applicant’s injury had no significant life changing effect on the applicant's personal life. The applicant's assertion that the Appeal Tribunal should have put more emphasis on the uncontroverted reports of the occupational therapist and the clinical psychologist has no merit as the assessment for purposes of claiming non­pecuniary damages has to be made by a medical practitioner. In this regard in Duma matter(above) the court held, with reference to an occupational therapist, that:

"[32] Both s 17(1A) of the Act and reg 3(1) require an assessment by a medical practitioner registered as such under the Health Professions Act 56 of 1974. The latter Act does not per se define a medical practitioner either, save to say that it is a person registered as such under that Act. However, the Health Professions Act distinguishes a 'medical practitioner' from a 'health practitioner' and defines the latter term as any person including a student, registered with the Health Professions Council in a profession registrable under that Act.

[33] There are 12 professions, each with its own professional board, registered under the Health Professions Act. One of these is the Medical and Dental Council. Another is the Occupational Therapy and medical Orthotics or Prosthetics (see e g 17 LAWSA 2 ed part 2 para 6). In the circumstances it is clear to me that 'medical practitioner' envisaged by s 17(1A) and reg 3(1) are those practitioners that are registered under the Medical and Dental Profession. In consequence it excludes health practitioners, such as occupational therapists dieticians, oral hygienists, and so forth, who are registered under other professions. It follows that, in my view, the Fund rightly decided that Ms Marks, who is an occupational therapist, did not qualify as a medical practitioner within the meaning of re 3(1)(a)".

[24] As correctly pointed out by counsel for the respondents, the Appeal Tribunal has a discretion whether or not to exercise its powers In terms of regulation 3(11). In MEC for Environment Affairs and Development Planning v Clairison's CC[16] the court of Appeal stated that

"[18] … 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 the court is no more than to ensure that the decision-maker has performed the function with which he was entrusted."

[25] I am therefore of the view that the applicant has not shown cause why the decision of the Appeal Tribunal should be reviewed and set aside.

[26] In the result the following order is made:

'The application is dismissed with costs'

_______________________

N P MNGQIBISA-THUSI J

JUDGE OF THE HIGH COURT

Appearances:

Counsel for Applicant Adv A C Diamond (instructed by Diamond Hamman & Associates)

Counsel for the Respondents: Adv M E Manala (instructed by Ramushu Mashlle Twala Inc)

[1] Act 56 of 1996, as amended by the Road Accident Amendment Act 19 of 2005

[2] Regulation3(3)(c) of the Road Accident Fund Regulations 2008 provides that "The Fund or an agents shall only be obliged to compensate a third party for non-pecuniary loss as provided in the Act if a claim is supported by a serious injury assessment report submitted in terms of the Act and these Regulations and the Fund or an agent is satisfied that the injury has been correctly assessed as serious in terms of the method provided in these Regulations”.

[3] Act 3 of 2000.

[4] Melanie v Santam Insurance Company Limited 1962 (4) SA 631 (A) at 532 C-F; Dial Tech CC v Hudson & Another (2007) 28 ILJ 1237 (LC).

[5] Section 6(2)(d) of PAJA provides that "The action was materially influenced by an error in law”.

[6] Section 6(2)(f)(ii(cc) of PAJA provides that "The action itself is not rationally connected to the information before the

administrator”.

[7] Section 6(2)(e)(iii) of PAJA provided that "The action was taken because relevant considerations were not considered".

[8] Section 6(2)(c) of PAJA provides that: “The action was procedurally unfair"

[9] Section 6(2)(e)(vi) of PAJA provides that "The action was taken arbitrarily or capriciously".

[10] Regulation 3(3)(d) provides that "If the Fund or an agent is not satisfied that the injury has been correctly assessed, the Fund or agent must - (i) reject the serious injury assessment report and furnish the third party with reasons for the rejection, or (ii) 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 Fund or an agent”.

[11] Section 33(1) of the Constitution.

[12] 2004 (4) SA 490 (CC)

[13] The American Medical Association's Guides to the Evaluation of Permanent Impairment. 6th Edition or such edition thereof as a Fund may from time to time give notice in the Gazette.

[14] 2013 (6) SA 9 (SCA)

[15] 2000 (2) SA 674 (CC)

[16] [2013] 3 All SA 491 (SCA).