Modisenyane v Health Professions Council of South Africa and Others (97000/2016) [2019] ZAGPPHC 561 (18 October 2019)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

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

(3) REVISED

Case number: 97000/2016

Date: 18/10/2019

In the matter between:

MODlSENYANE M P

APPLICANT

AND

HEALTH PROFESSIONS COUNCIL OF SOUTH

AFRICA

1ST RESPONDENT

THE ACTING REGISTRAR OF THE HEALTH

PROFESSIONS COUNCIL OF SOUTH AFRICA

2ND RESPONDENT

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL

3RD RESPONDENT

THE ROAD ACCIDENT FUND

4TH RESPONDENT

JUDGMENT

TOLMAY.J. J:

INTRODUCTION

[1] This is a review application in terms whereof the Applicant, inter alia, applied for the following relief:

1.1 Reviewing and setting aside the decision by the Third Respondent (the Tribunal) to the effect that the injuries sustained by the Applicant are not serious; and

1.2 That the Second Respondent (the Registrar) be directed to re­ appoint a new appeal tribunal to determine the dispute reviewed and to reconsider all medical legal reports in respect of the Applicant's injuries.

[2] The Applicant's claim for compensation for non-pecuniary loss, in the prescribed form (RAF4 Form), was submitted to the Fourth Respondent

(the RAF) in terms of Section 17 of the Road Accident Fund Act (the Act) read with the regulations.

[3] The RAF rejected the Applicant's RAF4 Form.

[4] The Applicant subsequently notified the First Respondent (the HPCSA) a d the Registrar of the dispute pertaining to the rejection of the RAF4 Form and accordingly provided the Registrar with the RAF5 and all medical legal reports necessary to assess the Applicant's injuries before the Tribunal.

[5] Subsequent to the aforesaid the Tribunal informed the Applicant that the injuries did not qualify as serious injuries as envisioned in the Act.

[6] The Applicant sought to review the decision in terms of the provisions of the Promotion of Administrative Justice Act, Act 3 of 200 (PAJA) on the following grounds:

6.1 That the action was materially influenced by an error of law (Section 6(2)(d) of PAJA); and/or

6.2 Because irrelevant considerations were taken into account or relevant considerations were not considered (Section 6(2)(e)(iii) of PAJA); and/or

6.3 That it amounted to arbitrary action and being procedurally unfair (Section 6(2)(e)(vi) of PAJA) and/or

6.4 was procedurally unfair and based upon reasons not properly advanced and/or disclosed to the Applicant.

THE LEGAL FRAMEWORK

[7] This application is subject to the new regime set out in the Act and the regulations promulgated in terms of the Act. The history and matrix of the legislative scheme is set out RAF v Duma & three similar cases[1].

[8] Section 17(1) and 17(1)(A) of the Act, and Regulation 3 provides that a claimant may only claim general damages against the Road Accident Fund where she/he has suffered "a serious injury''.

[9] A third party who wishes to claim for compensation from the non­ pecuniary loss is required to submit an assessment by a medical practitioner in accordance with Regulation 3. Regulation 3(1)(b) sets out the criteria which the medical practitioner must apply to assess whether a third party has suffered serious injury. Should the RAF not

be satisfied that the injury has correctly been assessed as serious, it must reject the report or direct the third party to undergo a further assessment.

[10] Should the third party not be satisfied with the rejection of the third party's serious injury assessment report, the third party must declare a dispute and lodge such dispute with the Registrar of the HPCSA.

[11] The Registrar of the HPCSA must, then, appoint a tribunal of at least three medical experts to determine whether the third party has indeed sustained a serious injury.

[12] In essence the process entails that a special tribunal consisting of members with expertise is called upon to adjudicate the seriousness of an injury in the event that the RAF rejected the claim as contemplated in the Act.

[13] Consideration of a "serious injury" involves a two tier process which is prescribed in terms of the Regulations,[2] and entails that the injury has to be assessed in terms of the American Medical Association (AMA) guides and whether the injuries

are of such a nature that it constitutes a whole person impairment of at least 30% in order to qualify, alternatively that the injury, if failing to reach the required 30% threshold, whether, in terms of Regulation 3(1)(b)(iii)(aa) to (bb), it complies with the requirements set out therein, in terms of the "narrative test" and constitutes a serious injury if it inter alia resulted in long term impairment or loss of body function or resulted in severe long term mental or behavioural disturbance or disorder.

[14] In order to comply with the process two different tests are applied. The first test is the assessment to establish whole body impairment. This is exclusively a clinical examination in terms of the prescribed guides, which results will seldom differ significantly between experts.[3] The second alternative test is applied in the event that a claimant does not meet the whole person impairment requirement and is the so-called "narrative test".

[15] The narrative test was formulated particularly to evaluate the individual circumstances of the injured person in order to assess whether the injury that was sustained has caused a long-term impairment or loss of body function or mental or behavioural disturbance or disorder.

[16] For purposes of the application of this test it is necessary to look at the particular circumstances of the patient in question in order to assess whether it constitutes a serious injury in terms of the narrative test.

[17] The nature of the appeal to the Tribunal is described in Duma as "'the appeal created by the regulation appears to be an appeal in the wider sense, that is a complete re-hearing of a fresh determination of the merits with additional evidence or information if needs be".[4] The Tribunal is not bound by the facts that served before the RAF nor the contents of the RAF4. In S G May v HPCSA & 3 others it was held that the Appeal Tribunal does have almost unfettered discretion[5]. The Tribunal's decision cannot be set aside unless it acted arbitrarily, capriciously or irrationally.[6]

[18] The Regulations clothes the Tribunal with wide powers as set out in Regulation 3(11) which enables the Tribunal to determine any issues and/or questions as a result of the injuries sustained. It may inter alia call for a further assessment[7] or order that further medical reports be obtained.[8]

[19] Section 33(1) of the Constitution gives everyone a right to administrative action that is procedurally fair. Procedural fairness is not to be equated with substantial fairness. Procedural fairness is a principle of good administration where context is all important and will depend on the circumstances of each case.[9]

[20] Procedural fairness is also one of the grounds of review in PAJA. Section 6(2)(c) of PAJA allows the review of administrative action on the grounds that the action was procedurally unfair. In terms of section 6(2)(d) of PAJA, administrative action may be reviewed if "the action was materially influenced by an error of law". Section 6(2)(f)(ii) of PAJA allows for a review where the administrative action is not rational. Section 6(2)(h) further makes provision for a review where the administrative action is unreasonable.

[21] The principles of legality require rational decision making.[10] Both the process by which the decision is made and the decision itself must be rational.

[22] In the Democratic Alliance case the court summarises the basis upon which the process can be attacked as being irrational, the following is said:

"In my view, the decision of the President as Head of the National Executive can be successfully challenged only if a step in the process bears no rational relation to the purpose for which the power is conferred and the absence of this connection colours the process as a whole and hence the ultimate decision with irrationality. We must look at the process as a whole and determine whether the steps in the process were rationally related to the end sought to be achieved and, if not, whether the absence of a connection between a particular step (part of the means) is so unrelated to the end as to taint the whole process with irrationality."[11]

[23] A rational connection is required between the power being exercised and the decision.

[24] It is important to note that there is a presumption, in review proceedings that the administrative action was taken without good reason should the administrator fail to give adequate reasons.[12]

[25] The furnishing of adequate reasons for a decision forms the cornerstone of a person's constitutional right to fair administrative justice. The principles are not novel and were articulated in the matter of Minister of Environmental Affairs & Tourism v Phambill Fisheries[13] where it was held as follows:

"What constitutes adequate reasons has been aptly described by Woodward J, sitting in the Federal Court of Australia, in the case of Ansett Transport Industries (Operations) (Pty) Ltd & Others v Wrath & Others (1983) 48 LAD 500 at 517 (lines 23-41) as follows:

'The passages from judgments which are conveniently brought together in Re Palmer & Minister of the Capital Territories 1978 23 ALR 196 at 206-7:1 ALD 183 at 193-4, serves to confirm my view that section 13(1) of the Judicial Review Act requires a decision maker to explain his decision in a way which enables the person aggrieved to say, in effect:

'even though I might not agree with it, I now understand why the decision went against me. I am now in a position to decide whether the decision has involved an unwarranted finding of facts, or an error or Jaw, which is worth challenging'.

This requires the decision makers to set out his understanding of the relevant law, any findings of facts on which his conclusion depends (especially of those facts having been in dispute): and the reasoning process which led him to those conclusions. He should do so in a clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such manners will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulae the statement. "

[26] To the same effect, it was stated in Hoexter[14] that:

"It is apparent that reasons are not reasons unless they are properly formulated. It must explain why action was taken or not take: otherwise they are better described as findings or other information."

[27] As such a decision of a Tribunal which fails to take into consideration the relevant information pending before it by an Applicant, failed to utilize its powers properly and failed to provide adequate reasons may be reviewed and set aside.

[28] In Pepcor Retirement Fund and Others v Financial Services Board,[15] the Supreme Court of Appeal held that an administrative decision has to be taken on an accurate factual basis as a result a material mistake of facts could render an administrative decision subject to review.

[29] If an error in law occurs a Court is obligated to interpret legislation granting powers to administrators as requiring the power to be exercised in a reasonable way.[16] A decision must be supported by the evidence and information, as well as the reasons given for it.[17]

THE MERITS

[30] The Applicant's claim for compensation for non-pecuniary loss in the prescribed form (RAF 4) was submitted to the RAF in terms of section 17 of the Act, read with the applicable Regulations. It provided for the envisaged two test reliance i.e. whole body impairment and/or the narrative test. The RAF formally rejected the Applicant's RAF 4 form and the dispute was referred to the HPCSA.

[31] The Applicant notified the HPCSA and the Registrar of the dispute and provided the Registrar with the necessary RAF 5 form and all the medico-legal reports necessary to assess the Applicant's injuries before the Tribunal.

[32] On 10 June 2014 the HPCSA addressed a letter to the Applicant's attorneys informing them inter alia that the Applicant's injuries did not qualify as serious injuries according to the narrative test and that the whole person impairment was calculated at 2%. It is important to note that the Tribunal consisted of two orthopaedic surgeons and a neurosurgeon.

[33] Subsequent to receiving the decision dated 17 May 2014 the Applicant requested reasons for the decision, which reasons were furnished on 25 July 2016.

[34] What appears from the Tribunal's decision is that it was decided on a majority basis that the Applicant's injuries were non-serious in the light of the fact that the Applicant merely suffered multiple soft tissue injuries and that he was discharged on the same day of the accident. There is however no indication that the Tribunal properly considered the narrative test or the Applicants alleged serious long term impairment, which according to expert reports filed, had a negative impact on the Applicant's acts of daily living and potential employment. This was fully set out in the reports of an orthopaedic surgeon, a clinical psychologist and occupational therapist. These reports were submitted to the HPSCA and the Tribunal.

[35] In the report of Dr Enslin an orthopaedic surgeon, it was stated that the Applicant stopped working as a result of his back and neck injury and due to the pain he experiences. The Applicant can according to him no longer be employed in the capacity as a councillor or in the construction business. Dr Enslin further stated that the accident had a devastating effect on the Applicant's ability to perform the work that he previously performed.

[36] In the report of Karen Havenga (a clinical psychologist), she stated that the accident caused the Applicant to lose his job as well as his accompanying stature that he maintained in his community. The Applicant is currently unemployed and he is dependent on his brothers to maintain his fan.,ily. Ms Havenga further stated that the Applicant presents with symptoms of depression and post-traumatic

stress. According to her he feels extremely hopeless and desperate, as he cannot function successfully in those spheres of his life which gave him a sense of identity and value.

[37] In the report of Rita van Biljon the occupational therapist it was stated that the Applicant's quality and enjoyment with which tasks were performed prior to the accident have been negatively affected by the impairments he sustained following the accident. She further mentioned that he enjoyed his work as a Councillor and that he was extremely passionate about his involvement with the community and that the only reason why he left his employment as a Councillor was due to the pain he experiences on a daily basis which limits his movement when carrying out his everyday tasks.

[38] It was submitted on the Applicant's behalf that the Tribunal's decision was merely based on an overall view of the Applicant's injuries and not the negative impact that the injuries had on the Applicant. It was also alleged that the Tribunal failed to properly consider the reports, which explained the reason why the Applicant qualifies under the narrative test. As already stated these reports formed part of the evidential material that served before the Tribunal.

[39] The Tribunal failed to address any aspect relating to the alleged serious long-term impairment of loss of body function or severe long term mental and/or behavioural disturbance of the Applicant in its decision and reasons. It also failed to request a clinical assessment of the Applicant or to obtain further medical reports.

[40] The clinical psychologist, orthopaedic surgeon and occupational therapist did an evaluation and clinical assessment of the Applicant before they compiled their reports. They did physical and psychologist examinations in order to come to their conclusions. It would seem that the Tribunal on the other hand considered the nature of the injuries in isolation and not the effect that it has on the Applicant.

[41] The Tribunal failed to properly consider the opinion of the orthopaedic surgeon, psychologist and occupational therapist that much is evident from what was stated in the answering affidavit. It merely stated that the Applicant allegedly lost his employment as a result of the chronic accident related pain and depression. It was also stated by the Tribunal that there was no objective evidence that conservative treatment had failed or would fail in dealing with pain management. There was no indication whatsoever in the answering affidavit that the Tribunal even considered the reports of the clinical psychologist or occupational therapist. All that was said regarding this is the following:

"In addition to the above, the Applicant also experienced mild to moderate form of depression, anxiety and post-traumatic stress disorder. Psychological and psychiatric treatment were recommended, from which the Applicant would benefit.

The applicant apparently lost his employment as a result of chronic accident related pain and depression."

[42] It is evident from a reading of the decision of the Tribunal, and its reasons dated 10 June 2014, as well as its answering affidavit, that the Tribunal did not consider the expert reports properly and therefore failed to take very relevant and pertinent information into consideration.

[43] In the light of the circumstances one would have expected a request for a clinical assessment and a request for further medical reports, more specifically a report from a psychologist.

[44] No mention is made by the Tribunal of the alleged long term mental and/or behavioural disturbances described by the clinical psychologist, or the physical limitations caused by the injuries and which caused the Applicant to be unable to continue his employment as described in the report of the occupational therapist.

APPLICATION OF THE FACTS TO THE LAW

[45] On a perusal of the reasons provided by the Tribunal in the letter dated 10 June 2014, it is evident that the reasons are inadequate, and, as a result hereof alone, the decision should be reviewed.

[46] This is so because regulation 3(12) states that the Tribunal must inform the Registrar of its "findings" and the Registrar in tum must inform the Applicant and the RAF of the "findings".

[47] In terms of Regulation 3(1)(b) (iii) the Tribunal had to consider whether Applicant's injuries resulted in a serious long-term impairment and severe long term mental or severe long-term behavioural disturbance.

[48] To this end, it is rather the sequelae of the injuries and not the injuries in isolation, that play a role in determining whether it resulted in a serious long-term impairment and severe long term mental or severe long-term behavioural disturbance. It is not clear from the reasons provided by the Tribunal whether it was aware of the law applicable to the subject matter of its decision.

[49] The Tribunal did not record any findings of fact in respect of the decision to be taken. It also did not record any factual findings in respect of the alleged serious long-term impairment and severe long term mental or severe long-term behavioural disturbance will have on the Applicant as set out in the reports which were before it.

[50] No reasons were given for the conclusions reached by the Tribunal that the Applicant's injuries will not lead to serious long-term impairment or severe long term mental or severe long-term behavioural disturbance, apart from the attempt to do so in the answering affidavit, which was totally insufficient as already stated.

[51] Due to the insufficient reasons, the decision does not comply with the constitutional imperative of a fair and reasonable administrative

decision.

[52] Considering the aforesaid and as indicated herein above, the Tribunal consisting of two orthopaedic surgeons and a neurologist and could not possibly have any factual basis to refute the expert evidence given by a clinical psychologist. Furthermore Dr Enslin's opinion was not properly considered.

[53] In the absence of evidence to the contrary and/or additional reports being obtained by the Tribunal utilizing the mechanisms of regulation 3(11), which gives it inter alia the power to request that the Applicant submit himself for further assessment, present himself in person to the Tribunal and direct that further medical reports be obtained,[18] they did not act either rational or reasonable in the execution of their duties. In the light of the reports before it, the Tribunal was obliged to investigate the matter further, the discretion that the Tribunal had to obtain such reports, must be exercised taking into account all the facts. If this is not done one may conclude that the administrative action was exercised unreasonably and arbitrarily.

[54] The Tribunal also made a material error in law in the interpretation of the empowering provisions which grants the Tribunal its decision­ making powers.

[55] In the Tribunal's answering affidavit the Tribunal states:

"It is significant to note that although the AMA Guides and the narrative test constitutes two different tests of assessment, they are however related to each other.

"The criteria under the AMA guides is always the starting point in the performance of an assessment and would ordinarily give one a good indication as to the severity or seriousness of the injury, even where the injury does not qualify as serious under that criteria.

This makes it under the narrative test easier and more objective, as it is informed by information already gathered in the assessment

under the AMA Guides"

[56] The aforementioned paragraph was dealt in detail in the matter TP Buthelezi v HPCSA & 3 Others.[19] In the matter of Buthelezi, the Court was confronted with a paragraph which was merely verbatim the same relating to the Tribunal 's approach when taking into consideration the narrative test. The Court in that instance stated as follows:

"The AMA Guides test relates to an objective assessment of the injuries sustained by the applicant whereas the narrative test is a subjective test, which specifically focuses on the subjective personal circumstances of each individual claimant. In using the objective assessment as a premise in adjudicating the dispute, I think the appeal Tribunal misdirected itself. It is on that basis that I am of the view that the appeal Tribunal's decision is not procedurally fair and ought to be set aside."

[57] In the matter of Mngomezulu v RAF[20] the following was stated:

"[54] The narrative test calls for an enquiry into various components of the persona including the physical, bodily, mental, psychological and aesthetic features of the injured plaintiff which may also take into consideration the likelihood of further surgery, lengthy rehabilitation treatment, future deterioration and complications as well as the risk of relapse."

[58] In the aforementioned matters it were held that the AMA Guides test relates to an objective test of the injuries sustained by the applicant whereas the narrative test is a subjective test which specifically focuses on the subjective personal circumstances of each individual claimant. In using the objective assessment as a premise in adjudicating the dispute, it was held that the Tribunal misdirected itself and on that basis it was found that the Tribunal's decision was not procedurally fair and ought to be set aside. It is quite apparent from a perusal of the regulations that there exist two distinctive tests and for obvious reasons. The injuries might not be serious, but the narrative test allows for an investigation into the impact on the third party including his/her psychological state.

[59] If one considers the principle of the reasonable decision maker test[21], having regard to the reports of the experts, the evidence that should have been considered by the Tribunal, it is apparent that no reasonable decision maker would have reached the decision in dismissing the appeal, without at least obtaining further medical

reports. No other reasonable decision maker would have reached the conclusion they arrived at without taking the steps that they were empowered to take in terms of the regulations, and to which reference was already made.

[60] Absent a call for the applicant to attend to the Tribunal to be examined or utilizing the other provisions of the regulations, the way and manner in which the members of the Tribunal reached the decision did not comply with the standards set and the norms that are to be applied in appeals.[22]

[61] The Tribunal has a discretion in terms of Regulation 3(10) and 3(11) to obtain inter alia further evidence or to request a clinical assessment,[23] but the Court is not satisfied that in this instance the Tribunal considered the relevant facts, nor that it applied the narrative test properly or at all. In this instance it was not a question of a difference of opinion between the Applicant's experts and the Tribunal, it was rather a total failure by the Tribunal to consider the matter properly.

[62] In the light of the circumstances of this matter it will be appropriate for a different Tribunal to reconsider the appeal properly constituted in terms of the regulation.

[63] The following order is made:

1. The decision of the Third Respondent dated 17 May 2014 to the effect that the injuries suffered by the Applicant are non-serious in terms of Section 17(1A) of the Road Accident Fund Act 56 of 1996 and its regulations are reviewed and set aside.

2. The Second Respondent is directed to re-appoint a new Appeal Tribunal to determine the dispute reviewed and set aside in paragraph 1 and to further reconsider all medico­ legal reports that served before the Tribunal in respect of the Applicant's injuries.

3. The Applicant is permitted to be present at the Appeal Tribunal hearing and the Applicant is permitted to provide further evidence pertaining to his injuries at the Tribunal hearing if he wishes to do so.

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

RG TOLMAY

JUDGE OF THE HIGH COURT

DATE OF HEARING:

11 SEPTEMBER 2019

DATE OF JUDGMENT:

18 OCTOBER 2019

ATTORNEY FOR APPLICANT:

VZLR INC

ADVOCATE FOR APPLICANT:

ADV W R DU PREEZ

ATTORNEY FOR 1ST , 2ND AND 3RD

RESPONDENTS:

KM MMUOE ATTORNEYS

ADVOCATE FOR RESPONDENTS:

ADV N FELGATE

[1] 2013(6) (SCA) (Duma) par 3 -10

[2] Regulation 3(1)(b)(ii) and 3(1)(b)(iii)(aa - dd)

[3] AMA guides. American Medical Associations Guide to the evaluation of permanent impairment. Sixth Edition. The 30% requirement is contained in addition regulations and not in the guide.

[4] Duma par26

[5] 1996/2016 (May)

[6] JH v HPCSA 2016(2) 93 (WCC)

[7] Regulation 3(11) (a)

[8] Regulation 3(11)(c)

[9] Hoexter supra, page 326, see also Chairman Board of Tariffs & Trades & Others v Brence Inc & Others 2001 (4) SA 511 (SCA)

[10] Democratic Alliance v President of the Republic of South Africa & Others 2013 (1) SA 248 (CC), par 33 to 34 (Democratic Alliance), par 34, see also Bel Porto School Governing Body & others v Premier Western Cape & others 2002(3) SA 265 (CC)

[11] Democratic Alliance par 37

[12] Section 5 (3) of PAJA

[13] 2003 (6) SA 407 (SCA) par 40

[14] Hoexter, The New Constitutional Administrative Law Vol 11 p 288, see also Monjane v HPCSA 7 3 others case number 54184/2016 par 13

[15] 2003 (6) SA 38 SCA, p 58 par 47, see also Government Employees Pension Fund v Buitendag 2007(4) SA 2 (SCA) par 17

[16] Zondi v MEC of Traditional and Local Government Affairs 2005(3) SA 59 (CC) at par 36 B­ l; section 33 of the Constitution

[17] Hoexter Administrative Law in South Africa, 1st ed, p 307

[18] C N Molapo v HPCSA & 3 Others, Case number 40327/2018 (Molapo), par 30

[19] Buthelezi par 52

[20] (04643/2010 {2011] ZAGPJHC 107 (8 September 2011)

[21] Sidumo & another v Rustenburg Platinum Mines ltd & others (2007) 28 ILJ 2405 (CC)

[22] See par 13.10 -13.11

[23] Adams v Health Professions Council for South Africa and others 28004/2016 [2017] ZAGPPHC 801 (November 2017), par 19 & 20,

Brown v Health Professionals Council of South Africa and others [2016] 2 All SA 62 (WCC) at par 40