Pereko v Health Professions Council of South Africa and Others (9712/2018) [2020] ZAGPPHC 590 (16 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG HIGH COURT DIVISION, PRETORIA

Case No: 9712/2018

In the matter between:

MP PEREKO 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

Summary : Review of “findings” of an appeal tribunal (comprised of independent medical practitioners with expertise in the appropriate areas of medicine) constituted in terms of the regulations promulgated under the Road Accident Fund Act, 56 of 1996 in terms whereof the appeal tribunal determined that the injuries sustained by an applicant were found to be not serious.

Regulation 3(13) provides that the registrar “shall inform the parties of the findings of the appeal tribunal, which findings shall be final and binding”. Reasons, which explain why certain action has been taken, are to be distinguished from “findings” which inform the reasons for action being taken but do not in themselves constitute an explanation for administrative action. Held : Three judgments of this division, viz. Van der Walt v Road Accident Fund Appeal Tribunal and Others (18332/2018) [2019] ZAGPPHC 231 (6 June 2019); TP Motloung v Health Professions Council of South Africa & Others (9939/2018) [2020] ZAGPPHC 81 (26 February 2020) and Madonsela v Road Accident Fund Appeal Tribunal and Others (97059/16) [2020] ZAGPPHC 448 (10 July 2020) which hold that reasons are to accompany the findings of an appeal tribunal when rendering their findings to the parties, are clearly wrong. In the absence of the applicant seeking reasons in terms of section 5 of PAJA, the Court had to consider the contents of the answering affidavits filed by the members of the appeal tribunal to determine whether there were reasons for their findings. In the event, the conduct of the appeal tribunal survived judicial scrutiny. Application to review dismissed.

JUDGMENT

GW Girdwood, AJ

1 The test for departing from a judgment from one's own court is set high so that it is only done in few cases and then only after anxious

consideration. This judgment has been delayed, as a consequence. In my judgment there are at least three judgments

of this division which, in my respectful view, are clearly wrong.

2 The applicant seeks an order thus:

“1. Reviewing and setting aside the decision of the third respondent dated 30 June 2017 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;

2 That 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 in respect of the applicant’s injuries; and

3 That the applicant be permitted to be present at the Appeal Tribunal Hearing; and that the applicant be permitted to provide further evidence pertaining to her injuries at the Tribunal hearing if she wishes to do so.” (emphasis added)

The Statutory Regime

3 Following an amendment the Road Accident Fund Act, 56 of 1996 (the RAF Act), the obligation of the fourth respondent (the RAF) to compensate a third party for non-pecuniary loss is limited to compensation for a “serious injury”, which is paid by way of a lump sum.[1] Assessment of a serious injury is based on a prescribed method adopted after consultation with medical service providers.[2] Such assessment must be reasonable in ensuring that injuries are assessed in relation to the circumstances of the third party.[3] The assessment is carried out by a registered medical practitioner.[4] The Regulations promulgated in terms of the RAF Act (the Regulations)[5] provide that a third party who wishes to claim compensation for non-pecuniary loss must submit to an assessment by a medical practitioner.[6] The medical practitioner must assess whether the third party's injury is serious in accordance with the following considerations:

3.1 The minister must publish in the Gazette (after consultation with the Minister of Health) a list of injuries which are not regarded as serious.[7]

3.2 If the injury resulted in 30 per cent or more "impairment of the whole person", as provided in the American Medical Association's

guidelines (the AMA Guides),[8] the injury must be assessed as serious.[9]

3.3 An injury which does not result in 30 per cent or more impairment of the whole person may only be assessed as serious if that injury:[10]

3.3.1 resulted in a serious long-term impairment or loss of a body function;

3.3.2 constitutes permanent serious disfigurement;

3.3.3 resulted in severe long-term mental or severe long-term behavioural disturbance or disorder; or

3.3.4 resulted in loss of a foetus.

4 The tests set out in the preceding sub-paragraph (ie in terms of reg 3(1)(b)(iii)) are popularly referred to as the narrative test.[11]

5 The costs of an assessment are borne by the RAF if the third party's injury is found to be serious and the RAF is saddled with overall liability in terms of the Act.[12] The RAF must, however, reject “with reasons” a serious injury assessment report if it is not satisfied that the injury has been correctly assessed.[13] The RAF may also direct that the third party submit him or herself, at the cost of the RAF, to a further assessment before a medical

practitioner designated by the RAF, to ascertain whether the injury is serious.[14]

6 The Regulations provide for a dispute resolution mechanism in circumstances where the medical practitioner has assessed an injury

as "not serious", or where the RAF has rejected a serious injury assessment report by a medical practitioner in terms of which the injury has been assessed as "serious".[15] Upon notification of the rejection of the serious injury assessment report by the RAF, a disputant must lodge a dispute with the Registrar of the Health Professions Council of South Africa (the second respondent).[16]

7 Within 15 days of being notified of a dispute or notified that condonation is granted to the disputant, the registrar must inform the other party to the dispute in writing and provide copies of all the submissions, medical reports and opinions submitted by the disputant to the other party.[17] After being informed of the dispute, the other party may in writing and within 60 days notify the registrar which submissions, medical

reports and opinions are placed in dispute and attach to the notification the submissions, medical reports and opinions relied

upon.[18]

8 After receiving the notification from the other party or at the end of the 60-day period, the registrar must refer the dispute for consideration by an appeal tribunal (the third respondent) paid for by the RAF.[19]

9 The appeal tribunal consists of three independent medical practitioners with expertise in the appropriate areas of medicine. These experts are appointed by the registrar, who designates one of them as the presiding officer of the appeal tribunal.[20] The registrar may appoint an additional independent health practitioner to assist the appeal tribunal in an advisory capacity.[21] The appeal tribunal may decide to conduct a hearing in order to consider legal arguments.[22] The appeal tribunal has the power to:[23]

9.1 direct that the third party submit him- or herself, at the cost of the RAF, to a further assessment to ascertain whether the injury is serious (by a medical practitioner designated by the appeal tribunal);

9.2 direct that the third party present him- or herself in person to the appeal tribunal to examine the third party's injury and to assess whether the injury is serious;

9.3 direct that further medical reports be obtained and placed before the appeal tribunal;

9.4 direct that the relevant pre- and post-accident medical, health and treatment records pertaining to the third party be obtained and made available to the appeal tribunal;

9.5 direct that further submissions be made by one or more of the parties and stipulate the time frame within which such further submissions must be placed before the appeal tribunal;

9.6 refuse to decide a dispute until a direction has been complied with;

9.7 determine whether, in its majority view, the injury concerned is serious;

9.8 confirm the assessment of the medical practitioner or substitute its own assessment for the disputed assessment performed by the medical practitioner, if the majority of the members of the appeal tribunal consider it appropriate to substitute;

9.9 confirm the rejection of the serious injury assessment report by the RAF or accept the report, if the majority of the members consider this appropriate.

10 Regulation 3(13) provides that the registrar “shall inform the parties of the findings of the appeal tribunal, which findings shall be final and binding”. (my emphasis)

11 This application concerns a review of such “findings” by the appeal tribunal, despite the relief sought and indeed the entire basis of the application being premised upon the same as constituting a “decision” as ordinarily understood in the context of administrate action.

What is meant by “findings”?

12 Whereas reg 3(3)(d)(i) provides that the RAF must reject “with reasons” a serious injury assessment report if it is not satisfied that the injury has been correctly assessed before the dispute resolution mechanism is triggered which is ultimately determined by an appeal tribunal, reg 3(13) makes express provision for the “findings” of the appeal tribunal being final and binding. These are choice words.

13 In administrative law a distinction is commonly drawn between reasons, or statements which explain why certain action has been taken, and findings of fact or law, which inform the reasons but do not in themselves constitute an explanation for administrative conduct.[24] Findings, although they do not explain the decision, provide an important backdrop to the reasons that do explain the decision.[25]

14 Reasons are not really reasons unless they are properly informative. They must explain why action was taken or not taken; otherwise they are better described as findings or other information.[26] In Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd & Anor 2003 (6) SA 407 (SCA) Schutz JA said as follows:

“[40] 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 and Another v Wraith and Others [1983] FCA 179; (1983) 48 ALR 500 at 507 (lines 23 41), as follows:

'The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206-7; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: ''Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.'

This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions

depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only.”

To the same effect, but more brief, is Hoexter The New Constitutional and Administrative Law vol 2 at 244:

'(I)t is apparent that reasons are not really reasons unless they are properly informative. They must explain why action was taken or not taken. otherwise they are better described as findings or other information.' “

15 In Gavric v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC) Theron J said as follows in the judgment of the Court:[27]

“The Supreme Court of Appeal in Phambili explained the value of giving reasons as enabling an aggrieved person to understand why the decision went against her and decide whether or not to challenge the decision. It is clear from Phambili that the reasons should consist of more than mere assertions, and should refer to the relevant facts and law, as well as the reasoning processes leading to those conclusions.”

16 It is thus clear that there is a distinction between what constitutes a “finding” on the one hand, and “reasons” on the other.

The findings of the appeal tribunal and the absence of reasons accompanying such findings

17 The appeal tribunal consisted of four independent medical practitioners with expertise in the appropriate areas of medicine:

17.1 Dr J Crosier (orthopaedic surgeon);

17.2 Dr J Reid (neurologist);

17.3 Dr Szabo (orthopaedic surgeon); and

17.4 Dr AJ Lamprechts (orthopaedic surgeon).

18 Rendering its findings on 17 July 2017 the appeal tribunal recorded as follows:

“Pre-accident age and circumstances:

19Yr F. Pedestrian. Grd 12. BA Degree in Law. Student

Post-accident circumstances:

unemployed

Injuries:

Fracture left clavicle – conservative management. 1 Molar tooth fractured – extracted. Abrasion forehead. Left knee injury. Laceration left side chin. Contaminated wound left shoulder. Wound cleaned and discharged same day in shoulder sling.

Reported problems:

Left shoulder and left knee pain.

Examination/assessment findings:

Hospital notes: Left shoulder wound and right ankle injury. No mention of a knee injury. Patient left hospital walking. X-rays clavicle – healed in good alignment. Full ROM shoulder. AC-joint normal with no pain.

WPI:

8% (Schutte)

Narrative test / disability:

Non-serious musculoskeletal injury.

Appeal Tribunal Decision:

Non-serious.” (the findings)

19 The findings do not contain any reasons for such findings. Obviously, they did not need to. Or did they? There are at least three judgments of this division which determine that they do.

19.1 In a judicial review of the appeal tribunal’s finding that the applicant’s injuries were not serious Janse Van Nieuwenhuizen J said as follows in Van der Walt v Road Accident Fund Appeal Tribunal and Others (18332/2018) [2019] ZAGPPHC 231 (6 June 2019) :

“GROUNDS FOR REVIEW

[20] In the founding affidavit filed on behalf of the applicant, the following is, inter alia, stated:

“16. The conclusion provided by the first and third respondent(s) states that the injury is not considered serious, but does not specifically indicate and/or motivate its findings with regard to both components of the serious injury assessment, namely, the whole body impairment (“WPI”) test, as well as under the “narrative test”.

17. The first and third respondents simply highlight certain facts in their assessment namely, injuries sustained by the applicant and a history of shoulder operations for recurrent dislocation.

…

19. It is apposite to draw this Honourable Court’s attention to the paucity of ANNEXURE A, namely, that the reasons for the first respondent’s findings and/or administrative decision are lacking.”

[23] In casu, the relevant law is contained in regulation 3(1)(b)(iii)(aa) referred to supra. In the result, the appeal tribunal had to consider whether the applicant’s injuries resulted in a serious long-term impairment.

[24] 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. This aspect is dealt with in the medico-legal reports filed by the applicant in support of the dispute resolution. It is not clear from the reasons provided by the appeal tribunal whether it was aware of the law applicable to the subject matter of its decision.

[25] The next step is for the decision maker to record any findings of fact in respect of the decision to be taken. In casu the appeal tribunal did not record any factual findings in respect of the long-term impairment the injuries will have on the applicant. The recording of facts is in respect of the applicant’s physical injuries which only forms the basis for the inquiry in question.

[26] Lastly the reasons for the conclusion reached by the decision maker should be set out.

[27] No reasons are given for the conclusion reached by the appeal tribunal that the applicant’s injuries will not lead to serious long-term impairment. In the result and due to the insufficient reasons, it is simply impossible to determine whether the decision complies with the constitution imperative of fair and reasonable administrative

decisions.

[28] In the result, the review should succeed.” (emphasis added)

19.2 It is not evident from that judgment what reasons, if any, were proffered in the answering affidavit by the members constituting the appeal tribunal for the findings made by them. Any reasoning as may have been forthcoming in such affidavits and which may have sufficed for the purposes of lawful administrative action it seems, with respect, to have been overlooked. It is clear from that judgment that the absence of reasons accompanying the appeal tribunal’s findings was determinative of the review succeeding.

19.3 In another judgment concerning a judicial review of the appeal tribunal’s finding that the applicant’s injuries were not serious, Avvakoumides AJ held as follows in TP Motloung v Health Professions Council of South Africa & Others (9939/2018) [2020] ZAGPPHC 81 (26 February 2020) :

“37. The Third Respondent submitted that the four members of the Tribunal did take into account all the reports before them and unanimously came to the conclusion that the Applicant's injuries did not constitute serious injuries. The Third Respondent however was unable to show that the decision of the Tribunal (quoted above) was accompanied by reasons for the decision arrived at and this is where the First Respondent's argument fails.

…..

39. The Tribunal simply came to the conclusion that the Applicant's injuries are not serious. There is an obligation upon the Tribunal to furnish reasons for the decision it arrived at. This the Tribunal did not do.” (emphasis added)

19.4 The learned judge in that matter proceeded to review and set aside the “decision” of the appeal tribunal, despite the appeal tribunal having given reasons for its findings in its answering affidavit.

19.5 Likewise, in Madonsela v Road Accident Fund Appeal Tribunal and Others (97059/16) [2020] ZAGPPHC 448 (10 July 2020), Teffo J said as follows with respect of the findings of the appeal tribunal :

“48. … The letter dated 18 May 2016 is in my view not clear. The reasons given are not properly informative. It does not explain why the action was taken. The applicant challenges the decision taken on the basis that all the reports which were considered before the decision was taken, were from the applicant’s experts and they all assessed the applicant’s injuries as serious in terms of the narrative test. There were no reports from the second respondent[28] to counter the reports which served before the first respondent[29].

49. It was therefore necessary, in my view, for the decision-maker to set out his understanding of the law, any findings of fact on which his conclusions depend, and the reasoning process which led him to those conclusions. That was not done.

[51] The appeal tribunal had to consider whether the applicant’s injuries resulted in a serious long-term impairment or loss of body function or constitutes permanent serious disfigurements. It is the sequelae of the injuries and not the injuries per se, that play a role in the determination thereof. The reports filed by the applicant’s experts, in particular, Dr Fayman, which served before the first respondent, discuss the relevant aspects. The decision of the Tribunal is silent on whether the assessment of the injury was done in terms of either the WPI or the Narrative Test. It is only in the answering affidavit that it is contended that the applicant’s injuries did not qualify for general damages under both tests. I am therefore not persuaded that there are reasons in the letter of 18 May 2016 explaining why the decision was taken.

[52] Rationality entails that the decision is founded upon reason (Minister of Home Affairs and Others v Scalabrini Centre and Others 2013 (1) SA 248 (CC) at paras 33-34). Without reasons the decision cannot be rational.” (emphasis added)

20 The judgments in Van der Walt, Motloung and Madonsela hold that in the absence of the appeal tribunal providing reasons which are to accompany their findings, a review is bound succeed.

21 The principles of stare decisis require that I follow those decisions unless satisfied that they are clearly wrong.[30] A judge is entitled to depart from an earlier judgment if satisfied that it was clearly incorrect. The test for departing from a judgment from one's own court is set high so that it is only done in few cases and then only after anxious consideration.[31]

22 The right to reasons for administrative action is governed by s 5 of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA).

Section 5(1)-(2) provides :

“(1) Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become

aware of the action, request that the administrator concerned furnish written reasons for the action.

(2) The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.” (emphasis added)

23 S 5 of PAJA portrays a “request-driven regime”, in that reasons must be furnished to affected persons who assert the right to be furnished with reasons.[32] In other words, s 5 of PAJA does not give a person an automatic right to receive reasons (unless the administrative action falls within the ambit of s 5(6) of PAJA).[33]

24 In the absence of reasons being requested under PAJA, one would look to the contents of the answering affidavit on behalf of the appeal tribunal for the reasons given in relation to the findings of such tribunal in determining that the injuries suffered were not serious for the purposes of s 17(1A) of the RAF Act.

25 The express language of the Regulations refers to “findings” of the appeal tribunal.

26 As explained earlier in this judgment, there is a distinction between what constitutes a “finding” on the one hand, and “reasons” on the other. I might add that the Regulations contemplate that at the stage prior to the appeal tribunal being seized with the appeal – one which is by its nature an appeal in the wide sense, that the RAF must reject “with reasons” a serious injury assessment report if it is not satisfied that the injury has been correctly assessed.[34] If that occurs a disputant has an election to refer the disputed rejection of a disputant’s injury assessment as being not serious to the second respondent who will in turn refer the disputed assessment to the appeal tribunal. Before reaching the appeal stage the disputant would already have been furnished with reasons for the rejection by the RAF of the serious injury assessment by dint of reg 3(3)(d)(i). The disputant would thus, armed with reasons, be able to act accordingly by supplementing what deficiencies might have been

apparent – bearing in mind that the hearing before the appeal tribunal is a fresh determination of the matter based on whatever

additional submissions, medical reports and opinions may be forthcoming.[35] Taking into account the powers conferred upon the appeal tribunal as provided for in reg 3(11)(a)-(i), which, as the Supreme Court of Appeal has already determined in Gouws[36] are clearly directed at a determination of whether the injuries sustained are serious within the narrative test (which itself is by its very nature a value judgment), it is then logical why the appeal tribunal is only obliged to provide findings without accompanying

reasons when rendering its determination of the appeal. When drafting the Regulations, and in particular reg 3(11) – (13), the Minister may well have had in mind the desire to let the expert medical specialists go about their determination as expeditiously as possible requiring factual findings when determining the appeal, as opposed to requiring those medical specialists to set out their understanding of the relevant law, together with their findings of fact on which their conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led them to those conclusions, when rendering their findings. No doubt, the efficiency of an appeal tribunal’s work would be impeded (bearing in mind an appeal tribunal’s obligation to render their findings within 90 days[37] of the referral of the dispute by the registrar of the second respondent to an appeal tribunal) if the latter scenario was intended.

But that would not dispense with the need to provide reasons. In the former scenario the appeal tribunal would need to provide reasons for their findings in due course if an aggrieved person sought them in terms of a request under PAJA. In the absence of any such request an appeal tribunal would need to provide reasons for its findings in its answering affidavit in an application to review an appeal tribunal’s findings.

27 I am, with great respect to the learned Judges who decided the contrary, of the view that the decisions in Van der Walt, Motloung and Madonsela to the effect that reasons are to accompany the findings of an appeal tribunal when rendering their findings to the parties, are clearly wrong.

28 I proceed to deal with the grounds of review.

Grounds of review

29 The founding affidavit is deposed to by the applicant’s attorney. Curiously, no confirmatory affidavit from the applicant is attached to the papers. The respondents do not take issue with this.

30 The applicant did not, in response to the appeal tribunal’s findings, request reasons in terms of s 5 of PAJA. Instead, a dispute was lodged with the second respondent, for ultimate determination by the appeal tribunal.

31 The application for review of the appeal tribunal’s findings is based “on the grounds that the action was materially influenced by an error of law (section 6(2)(d) of PAJA) and/or because irrelevant

considerations were taken into account or relevant considerations were not considered (section 6(2)(e)(iii) of PAJA) and/or that it amounts to arbitrary action (section 6(2)(e)(vi) of PAJA) and being procedurally unfair”. In support of thereof the founding affidavit contains the following material allegations:

31.1 The appeal tribunal, by majority decision, decided that the applicant had sustained non-serious musculoskeletal injuries.

31.2 The appeal tribunal failed to properly consider the narrative test in the light of reports submitted on the applicant’s behalf which qualified her injuries under that test as having serious long-term impairment and, therefore, serious.

31.3 The appeal tribunal failed to consider the additional medico-legal reports submitted to them on 26 June 2017 because they were not

referred to in the findings. The reports were from Dr Hoffman (plastic, reconstructive & cosmetic surgeon); Ms van Biljon

(occupational therapist); Mr Moodie (industrial psychologist); Ms Hearne (clinical psychologist); and joint minute of occupational

therapists.

31.4 The joint minute of occupational therapists records that the applicant sustained a fractured left clavicle and soft tissue injury to the left knee with meniscus and collateral ligament injuries. They conclude that the applicant should be able to cope with occupation “of a sedentary to light demand, with occasional aspects of low-range medium demand”.

31.5 Mr Moodie opined that for as long as the applicant did not have surgery the applicant would execute her duties with great discomfort and pain which would likely deteriorate with time.

31.6 Dr Hoffman opined the applicant had sustained scarring over her legs as a result of the injuries. He recorded that the applicant found her scarring troublesome because it was visible and unsightly. Dr Hoffman opined that scar revision surgery would be of minimal benefit because the scarring would always be visible and permanent.

31.7 Ms Hearne opined that the applicant continued to experience pain and discomfort as a result of the injuries she sustained and that her injuries have impacted her activities of daily living. She further opined that the applicant suffered from moderate depression and mild anxiety.

31.8 One occupational therapist opined that the applicant’s activities of daily living had been affected because she can no longer swim or go to the gym on account of the pain in her left knee and shoulder. She opined that the applicant has residual capacity for sedentary to light work.

31.9 The findings of the appeal tribunal was merely an overall view on the applicant's injuries which only took into account injury suffered by her and not the negative impact which these injuries have occasioned in terms of her productivity and employment.

31.10 The appeal tribunal:

31.10.1 formed a medical opinion despite the fact that no clinical examination was performed on the applicant by members of the tribunal;

31.10.2 failed to call for additional evidence, if there were issues of concern to them come up more specifically having regard to the seriousness of the applicant’s injuries based on the narrative test;

31.10.3 decided not to call upon the applicant to attend a hearing in order for the tribunal to examine and/or refer the applicant for an additional opinion and x-rays of her injuries, thus being able to form an opinion with regard to long term effects with respect to her productivity and future employment;

31.10.4 did not act procedurally because it was necessary to have regard to all expert reports and/or to direct that the applicant be assessed by another expert and/or to follow a proper procedure of a hearing in order to decide the issues in dispute, none of which we exercised by the tribunal.

31.10.5 is not the correct form to consider the narrative test applicable to the applicants injuries for a number of reasons.

31.11 The Regulations in their current form do not permit the applicant of an adequate opportunity to have legal arguments advanced on her behalf and a right to fair administrative action was therefore restricted by the process as provided for by the Regulations. Because the Regulations are not attacked this ground is without foundation.

31.12 Finally, in support of the averment that the findings were made in ignorance of material facts, it is alleged that the appeal tribunal materially misdirected itself by not paying proper heed to the opinions expressed in the expert reports filed which led to a materially unreasonable decision in respect of the finding,

alternatively that there was a failure on the part of the majority of the tribunal to properly apply the narrative test on the available evidential material and that they were therefore materially influenced by an error of law and/or fact alternatively that the decision made in the circumstances amounted to arbitrary action and was procedurally unfair.

32 The answering affidavit on behalf of the appeal tribunal is deposed to by the chairman of that tribunal, Dr Crosier. He explains as follows :

32.1 Each member of the tribunal was furnished copies of the following documents : the RAF form completed by Dr Menge on 29 July 2015; the medical report by Dr Menge; the serious injury impairment report by Dr Schutte; the RAF4 form completed by Dr Schutte; the rejection letter from Maponya Attorneys; the report by Dr Oelofse; the report by Dr Bellew (diagnostic radiologist); the RAF1; a copy of the applicant’s ID; the hospital records; the report by Dr Hoffmann (impairment assessment report); the RAF4 form by Dr Hoffmann; the joint minutes by Ms Ndzungu and Ms De Klerk; the report by Mr Moodie; the report by Dr Hoffmann (plastic, reconstructive and cosmetic surgeon); the report by Ms Hearne; and the medico-legal report by Ms De Klerk.

32.2 When the appeal tribunal convened, each member had the opportunity to state his or her opinion on the injury or injuries, the findings

thereof including the sequelae thereof. Dr Crosier explains that the opinions of each of the members of the appeal tribunal were debated between them and they unanimously resolved to make the findings as set out above, concluding that the applicant’s injuries were not serious.

32.3 Dr Crosier explained that the tribunal properly considered and applied the narrative test. They had due regard to all reports and findings of such reports. Dr Crosier proceeds to highlight certain statements and findings in such reports before making the following summary:

32.3.1 The hospital records make no mention of a left knee injury and the applicant left the hospital walking. The accident occurred in 2013. Dr Menge’s report was made in 2015. He found that the applicant suffered from a fracture to her left clavicle, that the applicant had deep contaminated abrasions of the right shoulder, left knee and left elbow and that the right upper molar was extracted.

32.3.2 It was clear from the records that the applicant was treated after the accident for;

32.3.2.1 abrasions of the forehead;

32.3.2.2 lacerations;

32.3.2.3 tenderness of the left clavicle; and

32.3.2.4 fracture of the left clavicle.

32.3.3 The applicant was treated inter alia with an arm sling and her GCS was 15/15. Her wounds were cleaned and sutured and x-rays revealed and confirmed the fracture of the left clavicle. The applicant was then discharged on the same day. She was prescribed pain medication.

32.3.4 Neither Dr Menge nor Dr Schutte found any permanent serious disfigurement. Dr Hoffmann’s report was however made in 2017 (four years after the accident). X-rays of the right ankle were reported as normal. The wounds healed without complication and the applicant had no further complaints regarding the injuries to her right shoulder, left elbow or face. She experienced no pain or discomfort in her right ankle from about three weeks after the accident. She did experience pain to her left shoulder and left knee. Although the hospital records make no mention of a left knee injury, a report found that the applicant suffered a soft tissue injury, which is not a serious injury in terms of the Regulations.

32.3.5 The radiological examination noted that there was evidence of a previous transverse fracture of the clavicle. Modulation deformity and radiological callus was noted bridging the facture line. In respect of the left knee, it was essentially noted as a normal knee x-ray.

32.3.6 Regarding the scarring, the report by Dr Hoffmann referred to the left knee, which the hospital records make no mention of. Regarding the fracture of the clavicle it was noted that it healed well with a slight boney callus formation over the old fracture site and that the scarring was aesthetically acceptable. The WPI of 3% was therefore rejected.

32.3.7 The applicant was a student. She is now unemployed, but she completed her degree in 2016. The applicant struggles to do physical labour as well as undertaking household chores. In respect of the left clavicle injury, she has pain in her shoulder

during most physical activities. She experiences pain in the left knee on a daily basis. Under Amenities of Life the

applicant’s examination all noted “EASY” and under “ADL” none were marked “impossible”. The applicant will be able to cope with the physical demands of a career in “Governance and Political Transformation”.

The industrial psychologist specifically noted that the applicant was a fairly equal competitor in the open labour market.

32.3.8 Recommended treatment was noted as NSAIDs and analgesics together with physiotherapy. Should that not have the desired effect, then local steroid injections should be considered. The applicant would benefit from two to four hours of occupational therapy, a PGAP programme, including physiotherapy and/or biokinetic intervention. The applicant currently uses Ibuprofen for pain in the left shoulder and knee.

32.3.9 No significant symptoms of any psychiatric disorder and no cognitive impairment were indicated on assessment. The applicant appeared to have average intellectual ability. One assessor specifically stated that the applicant is likely to find appropriate employment.

The applicant had moderate depression. The applicant feels discouraged. The applicant felt that the changes to her

appearance made her less attractive. The applicant had mild anxiety and symptoms of PTSD. From a physical perspective, the injuries and sequelae had a restrictive impact on the applicant’s functioning.

32.3.10 Under posture, flexibility and ambulation the indication was slight or no limitation to some limitation. No indication of significant limitations. The x-rays revealed that the clavicle healed with good alignment. Furthermore, the AC-joint was normal with no pain.

32.4 The members of the tribunal were provided with enough medical reports and findings to enable them to consider the applicant’s appeal and that further submissions, whether oral or written, or a physical examination of the applicant, was neither required nor necessary.

32.5 They applied their minds to all findings and statements in the documents provided and made a value judgment.

32.6 The members of the tribunal consisted of three orthopaedic surgeons and one neurologist who, unanimously, concluded by applying their expertise, experience and knowledge to the documents submitted and the findings therein, to the effect that the applicant suffered non-serious musculoskeletal injury.

32.7 The tribunal specifically considered and applied the narrative test by inter alia considering the consequences of the injury or combination thereof to the applicant. They were aware that the applicant, with her injuries, responded well to conservative treatment and that her condition was expected to improve should she conscientiously keep to the programmes recommended. The members of the tribunal rejected the finding that the scarring was a permanent serious

disfigurement. One of the findings in this regard referred to the left knee which was not noted in the hospital records. The clavicle was noted as aesthetically acceptable. They found that the applicant had a previous injury in this regard. They also took cognisance of the Regulations which provides that any sequelae in the form of pain or discomfort as a result of an injury listed in terms of (aa) to (nn) (of the Regulations) and any mild or moderate form of depression, anxiety, chronic headaches or post-traumatic stress disorder are not to be regarded as serious injury.

32.8 The tribunal had due regard to all documents before it and considered and debated all of the reports fairly and reasonably.

Discussion

33 As to the alleged deficiency of the answering affidavit being deposed to only by one member of the appeal tribunal without confirmatory

affidavits from the other members, the same objection was raised in Ramosoeu v Health Professions Council of South Africa and others [2019] JOL 45388 (GP). In that matter Potterill J said as follows :[38]

“There were no confirmatory affidavits of Drs Duma and Beddulp attached to that of the deponent who was the third member of the Tribunal. All the members agreed with the decision and it was not a majority decision. This point in limine is purely formalistic, does not take the matter any further and is to be rejected. There is simply no prejudice to Ramosoeu and there is no lacuna in the Appeal Tribunal's opposition. This could however be a valid point raised if the decision was a majority decision, i.e. one member did not agree and the Appeal Tribunal should in future at least aver that the deponent has the authority to depose on behalf of the other Tribunal members and not only on: "/ am duly authorised to depose to this affidavit on behalf of the first and second Respondents”.

34 Dr Crosier made the specific averment that he was authorised on behalf of the remaining members of the appeal tribunal to depose thereto on their behalves. He says that he personally participated in the deliberations of the appeal tribunal and that he and his fellow members considered all of the documents in the appeal. For the reasons given in Ramosoeu, the same challenge in these proceedings is accordingly bad.

35 Neither the decision of the Fund nor the findings of the appeal tribunal are subject to an appeal to the court.[39] Control is however maintained by the courts by means of review proceedings under PAJA.[40]

36 Citing Nair [41] in written argument, applicant’s counsel concedes that in taking the appeal tribunal on judicial review, the process entails an enquiry which is not aimed at whether the appeal tribunal was correct in its conclusion, but whether the appeal tribunal’s finding was so unreasonable that no reasonable person could have reached it.

37 Fabricius J pointed out in LJ Venter v HPCSA and Others – a judgment of this division (96671/2016, 20 November 2018) as follows:

“[4] The mere fact that I, on the merits, might have reached a different conclusion, would not justify such a finding. Its finding is a medical value judgment in regard to which the members have special qualifications and expertise.”

38 The powers of the appeal tribunal set out in reg 3(11) are clearly directed at a determination of whether the injuries sustained are serious within the narrative test.[42] Accordingly, the applicant’s contention that the appeal tribunal is not the correct forum to consider the narrative test and that the test should, instead, be undertaken the court, falls to be rejected. The model that the legislature chose to adopt, namely the decision whether or not the injury of a third party is serious enough to meet the threshold requirement (namely that the injury is serious) is conferred on the RAF and not on the court.[43]

39 I have read all the medical reports, opinions and the affidavits. It is clear that the appeal tribunal came to its own conclusion on the basis of its expertise and experience. It is not for this court to second-guess the opinions and experts in this context.

The Regulations give the appeal tribunal certain powers which it may exercise, depending on the facts.

40 In argument much was made of alleged failures on the part of the appeal tribunal by ignoring the findings of Drs Oelofse and Hoffman, both of whom opined that the applicant’s injuries qualified under the narrative test as serious injuries.

41 The test is whether the appeal tribunal performed its functions in good faith, reasonably and rationally and it bears repeating that a review is not concerned with the correctness of a decision, but whether the functionary concerned performed the function with which it was entrusted.[44] The law remains that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how far a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.[45]

42 On behalf of the appeal tribunal Dr Crosier stated as follows :[46]

“The tribunal's decision was with respect justified on the acceptable evidence and a reasonable person in the position of the tribunal on the evidence disclosed in the record could have reached the same conclusion . The decision by the tribunal was a value judgment

exercised in good faith. The tribunal, with respect, exercised and performed the function entrusted to it and the weight or lack of it attached to certain findings and considerations was within the tribunal’s discretion. The tribunal had due regard to all documents before it and considered and debated the reports fairly and reasonably.”

43 In particular, the appeal tribunal rejected the finding that the applicant’s scarring was a permanent serious disfigurement.

The tribunal was of the view that the applicant’s injuries would respond well to conservative treatment; that her condition was expected to improve should she adhere to the programmes identified; and that in terms of the Regulations[47] certain identified injuries were not to be regarded as serious injuries.

44 In argument counsel sought refuge in the judgment of Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 132 (20 May 2019) for the proposition that statutory powers which confer a power on a functionary as “a power coupled with a duty to use it” in rejecting the argument that a functionary has the discretion to “opt-out”, as inconsistent with an interpretation that best promotes the spirit, purport and objects of the Bill of Rights. As I understand the argument, because reg 3(11) affords the appeal tribunal various powers they accordingly obliged to use them. As a general proposition that may be so. Regard, however, must be had to the facts and the reasons given by the members of the appeal tribunal : they were satisfied that they were provided with enough medical reports and findings to enable them to consider the appeal and that further submissions, whether oral or written, including any physical examination of the applicant was neither required nor necessary. That is the end of the complaint, as I understand it, for the appeal tribunal not exercising the power to direct a further medical assessment of the applicant. Reliance upon the judgment in Democratic Alliance is accordingly misplaced.

45 I have read the reports and opinions placed before the appeal tribunal. The hospital records make no mention of a left knee injury.[48] The applicant left the hospital walking.[49] The accident occurred in 2013.[50] The records reflect that the applicant was treated for abrasions of the forehead, lacerations, tenderness of the left clavicle and fracture of the left clavicle.[51] Her final diagnosis was a “clavicle fracture”.[52] Her wounds healed without complication and the applicant had no further complaints regarding the injuries to right shoulder, left elbow or to her face. The radiological examination noted that there was evidence of a previous transverse fracture of the clavicle.[53] Regarding the scarring, the report by Dr Hoffman referred to the left knee which the hospital records make no mention of.[54] Regarding the fracture of the clavicle it was noted that it healed well with a slight bony callus formation over the old fracture site and that the scarring was aesthetically acceptable. After the accident the applicant completed her degree. Under Amenities of Life the applicant’s examination all noted “EASY” and under ADL none were marked “impossible”. The applicant will be able to cope with the physical demands of a career in Governance and Political Science having graduated with a BA degree majoring in those subjects. A psychologist opined that she was functional and likely to find employment.[55] The industrial psychologist noted that the applicant was a fairly equal competitor in the open labor market. Recommended treatment was noted as NSAIDs and analgesics together with physiotherapy. Should that not have the desired effect, then local steroid injections

should be considered. The applicant only used ibuprofen for pain in the left shoulder and knee. All of this was apparent to the appeal tribunal and was information available to it for the purposes of making a determination.

46 Ultimately, the issue is about whether the appeal tribunal’s finding was so unreasonable that no reasonable person could have reached it. In my judgment the answer to that question is, no. The findings of the appeal tribunal were not materially influenced by an error of law; irrelevant considerations were not taken into account; relevant considerations were taken into account; the findings did not constitute arbitrary action and neither was the process procedurally unfair.

47 In the result, the application is dismissed, with costs.

______________________

GW Girdwood

Acting Judge of the High Court

Appearances:

For the Applicant: Adv GR Egan

Instructed by: VZLR Inc.

1st Floor, Block 3

Monument Office Park

Cnr Elephant & Steenbok Streets

Monument Park, Pretoria

Tel. 012 – 435 9444

Ref: B Singh/md/MAT97129

Email: bhavna@vzlr.co.za & marna@vzlr.co.za

For 1st, 2nd and 3rd

Respondents: Adv R Schoeman

Instructed by: Ramulifho Inc.

Suite 21A

Garsfontein Office Park

645 Jacquiline Drive

Garsfontein, Pretoria

Tel. 012 – 993 5340

Ref: NKL/HPCSA

Email: louisaman@telkomsa.net

Date heard: 4 May 2020

Date of judgment: 16 October 2020

[1] S 17(1). The RAF is only 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 the Regulations), and if the RAF is satisfied that the injury has been correctly assessed as serious in terms of the method provided in the Regulations: reg 3(3)(c). "Non-pecuniary loss" comprehends damages under the heads more commonly referred to as "general damages". Damages in respect of "pecuniary loss" are usually referred to as "special damages" in delict. Compensation for the loss of earning capacity, which properly falls to be characterised as part of "general damages" is claimable as pecuniary loss in terms of the Act under the label "future loss of income", subject to maximum levels determined in accordance with s 17(4)(c) read with s 17(4A).

[2] S 17(1A)(a)

[3] Id

[4] ie a medical practitioner registered as such under the Health Professions Act 56 of 1974; s 17(1A)(b).

[5] GN R770 of 2008 Government Gazette 31249, 21 July 2008. These Regulations came into operation on 1 August 2008

[6] Reg 3

[7] Id

[8] American Medical Association's Guides to the Evaluation of Permanent Impairment (6ed), as defined in reg 1(ii).

[9] Reg 3(1)(b)(ii).

[10] Reg 3(1)(b)(iii).

[11] Road Accident Appeal Tribunal & Others v Gouws and Anor 2018 (3) SA 413 (SCA), at 419B

[12] Reg 3(2)(a)(iii). The RAF may, at its cost, at the request of a third party, make available to the third party the services of, or refer the third party to, a medical practitioner for assessment and to a health care provider if it decides that there is a reasonable prospect that the medical practitioner might assess the injury to be serious in circumstances where the third party lacks sufficient funds to obtain an assessment: reg 3(2)(b).

[13] Reg 3(3)(d)(i).

[14] Reg 3(3)(d)(ii). The RAF is obliged to either accept this further assessment or dispute it in the manner provided for in the Regulations: reg 3(3)(e).

[15] Reg 3(4).

[16] Reg 3(4)(a). There is a 90-day time period, although an application for condonation is possible: reg 3(5).

[17] Reg 3(6).

[18] Reg 3(7)(a)-(b).

[19] Reg 3(8)(a).

[20] Reg 3(8)(b). The Regulations also provide that a party may lodge an objection against these appointments: reg 3(9)(b).

[21] Reg 3(8)(c).

[22] Reg 3(10).

[23] Reg 3(11)(a)-(i).

[24] Cora Hoexter : Administrative Law in South Africa (2nd ed), p461

[25] Id

[26] Id

[27] At par 69. Footnotes omitted

[28] ie the RAF.

[29] ie the appeal tribunal.

[30] Klaassen v Benjamin 1941 TPD 80 at 90; Shabalala v Attorney-General, Transvaal, and Another; Gumede and Others v Attorney-General, Transvaal 1995 (1) SA 608 (T) at 618D – H. Whatever revisions may be required to the rules governing stare decisis in the light of structural changes to the courts effected by the Superior Courts Act 10 of 2013, there is no reason to believe that they should affect this principle. In this regard see M Wallis : “Whose decisis must we stare?” (2018) 135 SALJ1.

[31] Per Wallis JA in Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal & Others 2018 (4) SA 107 (SCA) at par 8.

[32] cf Koyabe v Minister for Home Affairs 2010 (4) SA 327 (CC) where it was held that read together s 33(2) of the Constitution and PAJA entitled the applicants to reasons in the absence of a request – for the mechanism for requesting reasons “indicates a prior entitlement to reasons in the first place”. (at para 60n55).

[33] Section 5(6)(a)-(b) of PAJA: (a) In order to promote an efficient administration, the Minister may, at the request of an administrator, by notice in the Gazette publish a list specifying any administrative action or a group or class of administrative actions in respect of which the administrator

concerned will automatically furnish reasons to a person whose rights are adversely affected by such actions, without such person

having to request reasons in terms of this section. (b) The Minister must, within 14 days after the receipt of a request referred to in paragraph (a) and at the cost of the relevant administrator, publish such list, as contemplated in that paragraph.

[34] Reg 3(3)(d)(i).

[35] Regulation 3(4) provides as follows: 'If a third party wishes to dispute the rejection of the serious injury assessment report, or in the event of either the third party or the fund or the agent disputing the assessment performed by a medical practitioner in terms of the Regulations, the disputant shall: (a)within 90 days of being informed of the rejection or the assessment, 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 the assessment is disputed and include such submissions, medical reports and opinions as the disputant wishes to rely on; and (c)if the disputant is the Fund or agent, provide all available contact details pertaining to the third party.'

[35] Regulation 3(4) provides as follows:

'If a third party wishes to dispute the rejection of the serious injury assessment report, or in the event of either the third party or the fund or the agent disputing the assessment performed by a medical practitioner in terms of the Regulations, the disputant shall:

(a)within 90 days of being informed of the rejection or the assessment, 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 the assessment is disputed and include such submissions, medical reports and opinions as the disputant wishes to rely on; and

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

[36] Supra, n11

[37] Reg 3(12).

[38] At par 4

[39] Road Accident Fund v Duma and Others 2013 (6) SA 9 (SCA) at 19J

[40] Id

[41] Dumani v Nair and Another 2013 (2) SA 274 (SCA), at par 22

[42] Gouws, par 12

[43] Duma, at 17F

[44] MEC for Environmental Affairs and Development Planning v Clairison's CC 2013 (6) SA 235 (SCA), para 18, 22

[45] Id

[46] Answering affidavit, pp267-268 par 17

[47] Reg 3(1)(b)(1)(aa)-(pp), which includes inter alia scarring provided there is no resulting permanent serious disfigurement, any sequalae in the form of pain and discomfort, and any mild or moderate form of depression, anxiety, chronic headaches or post-traumatic stress disorder.

[48] pp83-101

[49] p95, p101

[50] p101

[51] p29

[52] p101

[53] p56, pp67-68

[54] p108

[55] p172