Macala v Health Professions Council of South Africa and Others (9301/17) [2020] ZAGPPHC 107 (27 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 9301/17

27/2/2020

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

In the matter between:

VELAPHI JACOB MACALA

Applicant

and

HEALTH PROFESSIONS COUNCIL OF

SOUTH AFRICA

First Respondent

THE ACTING REGISTRAR OF THE HEALTH

PROFESSIONS COUNCIL OF SOUTH AFRICA

Second Respondent

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL

Third Respondent

THE ROAD ACCIDENT FUND

Fourth Respondent

JUDGMENT

AVVAKOUMIDES, AJ

INTRODUCTION:

1. This is an application for the review and setting aside of the decision of the Road Accident Fund Tribunal (The Tribunal) to the effect that the Applicant’s injuries do not constitute a “serious injury” as envisaged by section 17 of the Road Accident Fund Act, 56 of 1996 (as amended) (the Act). The Applicant also seeks an order that the dispute be referred back to the First Respondent so that a new Tribunal may be constituted to consider the dispute afresh.

2. It is unnecessary to deal with the legislative framework pertaining to the determination of a serious injury in terms of section 17(1) and 17(1A) of the Act, read with the applicable regulation.

3. It is trite that the Tribunal, in considering an appeal, does so in the wide sense, as such appeal is a complete re-hearing of, and fresh determination of the merits pertaining to the subject matter therein. See Road Accident Fund v Duma and the three related cases 20123 (6) SA 9 (SCA) at para 26.

4. The Respondents firstly submitted that the Applicant’s attorney does not have the required authority to act on behalf of the

Applicant in launching the application. In making this submission, the Respondents were unable to show that they had followed the

procedure laid down in Rule 7 of the Uniform Rules of Court and as a result, this point is not well founded.

5. The Respondents also contended that the review application has not been brought within the required 180-day period. The Applicant

submitted that the Respondents’ decision and reasons were communicated to the Applicant in a letter dated 30 August 2016 and there is no indication when this letter would have been received by the Applicant or his representatives. Assuming that the date of receipt is in fact 30 August 2016, it is common cause that the application was served on or about 17 February 2017, well within the 180 day limit. Again, this point is not well founded and stands to be rejected.

6. The Applicant submitted that the Third Respondent, notwithstanding an obligation, failed to provide the Applicant with adequate reasons for its decision that the Applicant’s injuries do not qualify as “serious” as envisaged by Section 17(1) and 17(1A) of the Act.

7. The Applicant submitted that regard being had to the Third Respondent’s letter of 30 August 2016, the Third Respondent’s purported reasons contained therein are wholly inadequate and do not come close to the threshold of adequacy as envisaged in terms of section 5 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In this regard the Applicant submitted that the Third Respondent failed to provide adequate reasons for its decision. The Applicant further submitted that, resulting from the failure to provide adequate reasons, or at the very least, in its answering affidavit, it is practically impossible for the Applicant to determine how the Third Respondent’s decision is supported by the evidence and information placed before it.

8. In the Third Respondent’s letter of 30 August 2016 the Applicant’s injuries are held to not qualify as serious under the narrative test because: “…however the panel is agreeable that he is employed as a machine operator, subsequently in garden services, and currently he is a security officer who is seemingly coping well…”.

9. The Applicant submitted that, in applying the narrative test, the Third Respondent was able to identify the Applicant’s injuries,

however failed to apply the second leg of the narrative test adequately, given the explanation contained in the letter of 30 August 2016.

10. Notwithstanding the Applicant’s medical reports of Dr Schutte and Dr Oelofse, the Third Respondent was provided with further reports of the occupational therapist, Ms Slabber and the industrial psychologist, Mr Moody, whose reports emphasize the impact that the injuries have had on the Applicant’s life including the seriousness of such injuries.

11. The Third Respondent was composed of three orthopaedic surgeons and one neurosurgeon. The Third Respondent had no other version of the impact pertaining to the Applicant’s injuries on his life other than the version of the Applicant’s reports which served before the Third Respondent. The Applicant submitted that the First Respondent’s members did not have the required expertise to dispute the reports of Mr Moody and Ms Slabber including their findings. Thus, argued the Applicant, that the Third Respondent could not have rejected the Applicant’s version without any contradictory information at its disposal.

12. The Applicant submitted that the Tribunal misinterpreted the method in applying the narrative test or simply failed to apply the narrative test correctly and as a result, the Third Respondent erred in this regard in all other elements of “seriousness” by focussing its decision solely on the employability of the Applicant and the unsupported statement to the effect that the Applicant is “seemingly coping well”.

13. Although the Applicant conceded that the Tribunal is not obliged to examine an applicant or to call for additional information, the Applicant submitted that the Tribunal, in exercising its discretion, was obliged to apply its mind and its failure to do so resulted in the Tribunal reaching a decision arbitrarily and/or capriciously. In this regard the Tribunal placed reliance upon Regulation 3(11)(h) to submit that the Tribunal may simply replace the assessment of any other medical practitioner with its own assessment if the majority of the members of the Tribunal considered it appropriate to do so.

14. The Applicant submitted that the Tribunal was under the mistaken belief that it can be merely called upon to approve the assessment of the independent medical experts or reject such assessment and replace the assessment with the Tribunal’s own assessment.

15. In Duma supra the Supreme Court of Appeal held that Regulation 3(1)(a) requires a medical practitioner to physically examine a claimant. The Applicant submitted that the word “assessment” used in Regulation 3(11)(h) carries the same meaning as in Regulation 3(1)(a). As a result, the Tribunal is therefore obliged, given its wide investigative and fact finding obligation, in the event that the Tribunal does not agree with the assessments submitted by independent medical experts, to call for the claimant either to be examined physically and consult with the members of the Tribunal, or at the very least, by an independent medical expert of the Tribunal’s own choice.

16. The Applicant submitted that even though the members of the Tribunal may be knowledgeable in their respective fields of medicine, such members cannot reasonably and justifiably overrule other medical experts without coming to a conclusion that such experts were wrong. To permit this, the Tribunal, without examining and consulting the Applicant itself or without being possessed of the medical reports of another expert which reports would differ from the findings of the reports before the Tribunal, would have difficulty to conclude that the reports of the experts serving before the Tribunal were wrong.

17. The Applicant lastly submitted that if one considers the principle of the reasonable decision-maker test (See Sidumo & Another v Rustenburg Platinum Mines Ltd and Others 2007 28 ILJ 2405 (CC)) and having regard to the expert reports and the evidence that should have been considered by the Tribunal, no reasonable decision-maker

would have reached the decision to dismiss the appeal. The Applicant submitted that the Tribunal would have found that the

Applicant’s injuries are in fact serious in terms of the narrative test, absent a clinical examination indicating contrary

findings.

18. The Respondents conceded that the Tribunal did not call for the Applicant to appear before it for examination, neither did the Tribunal call for additional information. With reference to various authorities, the Respondents submitted that the Tribunal was not

obliged to do so and could make its determination based on the information before the Tribunal. It would appear that the

Respondents’ argument does not take into account that the Applicant is entitled, not only to reasons for the Tribunal’s

decision, but the reasons furnished must be adequate and rational, given the contents of the medical reports serving before the Tribunal in the appeal. The mere say so by the Tribunal that it did have regard to all the reports before it and it did consider all the relevant facts is, in my view, insufficient. The Applicant is entitled to reasons for a decision and these reasons must be adequate and rational, regard being had to the reports before the Tribunal.

19. The Respondents referred to the decision in Koyabe and Others v Minister of Home Affairs and Others 2002 (4) CC where the court held as follows:

“Although the reasons must be sufficient, they need not be specified in minute detail nor is it necessary to show how every relevant fact weighed in the ultimate finding. What constitutes adequate reasons will therefore vary, depending the circumstances of the particular case. Ordinarily, reasons would be adequate if a complainant can make out a reasonable substantial case by ministerial review or an appeal”.

20. In my view, and with reference to Koyabe, the reasons given by the Third Respondent are insufficient, given the facts and reports before the Tribunal. One must take cognisance of the fact that the Fourth Respondent did not file any medico-legal reports and it is thus clear that the Tribunal was only possessed of the Plaintiff’s medico-legal reports. It would have been different if the Tribunal, possessed only with the Plaintiff’s medico-legal reports, provided its decision, and substantiated such decision with reference to the Plaintiff’s reports and to the expertise of the members of the Tribunal. This the Tribunal did not do.

21. Having considered the papers filed and having considered the various arguments of the parties, I am of the view that the Applicant has made out a proper case for the relief sought. In the circumstances, I make the following order:

21.1 The decision of the Third Respondent dated 29 July 2016 to the effect that the injuries suffered by the Applicant are not serious in terms of Section 17(1A) of the Road Accident Fund Act 56 of 1996, and its regulations, is hereby reviewed and set aside.

21.2 The Second Respondent is directed to re-appoint a new Appeal Tribunal to determine the dispute, reviewed and set aside in paragraph 1 above, and to further consider all medico-legal reports which served before the Tribunal in respect of the Applicant’s injuries.

21.3 It is ordered that the Applicant is permitted to be present at the Appeal Tribunal hearing and that the Applicant is permitted to

provide further evidence pertaining to her injuries at the Tribunal hearing if she wishes to do so.

21.4 The First Respondent is ordered to pay the costs of this application.

G.T. AVVAKOUMIDES

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Representation for Applicant:

W R du Preez

Instructed by:

VZLR Incorporated

Representation for First, Second

and Third Respondents:

L M Maite

Instructed by:

Moduka Attorneys