Sebokolodi v Health Professionals Council of South Africa and Others (1629/2020) [2021] ZAFSHC 32 (19 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable:

NO

Of Interest to other Judges: YES

Circulate to Magistrates: YES

Case No:1629/2020

In the matter between:

MODISE SAMUEL SEBOKOLODI

APPLICANT

and

HEALTH PROFESSIONALS COUNCIL

1ST RESPONDENT

OF SOUTH AFRICA

ROAD ACCIDENT FUND

2ND RESPONDENT

DR J SAGOR

3RD RESPONDENT

DR R MELVILLE

4TH RESPONDENT

DR H MOURAD

5TH RESPONDENT

CORAM:

OPPERMAN, J et NEKOSIE, AJ

JUDGMENT BY: NEKOSIE, AJ

HEARD ON:

23 NOVEMBER 2020

DELIVERED:

The judgment was handed down electronically by circulation to the parties’ legal representatives by email and released to SAFLII on 19 February 2021. The date and time for hand-down is deemed to be 19 February 2021 at 15h00.

[1] This is an application to review and set aside the decision of the Road Accident Fund Appeal Tribunal consisting of the Third, Fourth and Fifth Respondents dated 17 October 2019 that the injuries suffered by the Applicant in a motor vehicle accident which occurred on 28 February 2015 do not qualify as serious injuries; and thereby rejecting the Applicants claim for general damages in terms of the Road Accident Fund Act 56 of 1996 (hereinafter referred to as the RAF Act) and ancillary relief as more fully set out hereinafter.

[2] At the onset of the proceedings the Court inquired whether the Respondents were properly served because the papers did not contain prove thereof. Mr Berry, on behalf of the Applicant, submitted the returns of service which were to the Courts satisfaction and the application could proceed on an unopposed basis.

[3] The following relief is sought by the Applicant:

3.1 That the Applicant’s failure to institute these proceedings within the period allowed for in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (hereinafter referred to as PAJA) be condoned and that the relevant time period be extended to the date of hearing of the application, as provided for in section 9(1) of PAJA.

3.2 Reviewing and setting aside of the decision and finding of the Road Accident Fund Appeals Tribunal taken on 17 October 2019 that the injuries suffered by the Applicant in a motor vehicle accident which occurred on 28 February 2015 do not qualify as serious injuries and thereby rejecting the Applicant’s claim for general damages in

terms of the RAF Act.

3.3 That the issue as to whether the Applicant sustained a serious injury as contemplated by section 17(1A) of the RAF Act be referred back to the Road Accident Fund Appeals Tribunal for consideration by a tribunal constituted by a panel of members other than those that sat on the tribunal that made the decision taken on 17 October 2019.

3.4 That the Road Accident Fund Appeals Tribunal is ordered to investigate and decide upon the issue of a serious injury as contemplated in section 17(1A) of the RAF Act and exercise this power and function in accordance with the provisions of Regulation 3(11) of the Regulations promulgated under the RAF Act, GNR770 of 21 July 2008.

[4] The Applicant was involved in a motor vehicle accident on the road between Wesselsbron and Odendalsrus, Free State Province on 28 February 2015. He was a passenger in a vehicle which left the road and overturned. As a result of the accident, he sustained injuries which inter alia, consisted of fractures to his facial bones and various facial lacerations. The injuries subsequently resulted in unsightly and

visible scarring.

[5] The Applicant submitted a claim against the Second Respondent and eventually instituted action which included a claim for general damages. On 11 January 2019 the attorneys acting for the Second Respondent rejected the claim for general damages in terms of Regulation 3(3)(d)(i) on the basis that the Applicant’s injuries were not serious. The Second Respondent based its decision on the report of Dr Moloto, an orthopaedic surgeon.

[6] The Applicant appealed against the decision on 21 January 2019. The First Respondent acknowledged the appeal on 16 February 2019. The Third to Fifth Respondents considered the appeal on 15 October 2019 and the Second Respondent advised the Applicant on 17 October 2019 that the decision of the First Respondent was upheld.

[7] The Appeal Tribunal held that the injuries do not meet the 30% “Whole Person Impairment” requirement and that the Applicant's injuries also did not qualify in terms of the narrative test.

[8] Condonation is sought for the late filing of this application because the time in which this application was to be lodged expired on 18 April 2020 and the application was filed on 23 May 2020.

[9] Correspondence between the attorneys indicated that a decision was made to obtain a more recent report from the plastic surgeon Dr Pienaar to evaluate the prospects of successfully reviewing the 2nd Respondent's decision during January 2020. The national lockdown came into effect on 27 March 2020 and the attorney for the Applicant could only access his office on 4 May 2020. Dr Pienaar’s report was received on 11 May 2020.

[10] In light of the fact that the application was late by a relatively short period and the delaying effect of the national lockdown on the legal process in this matter and in general; the Court will condone the failure to adhere with the time limit.

[11] It is trite that a Court will not lightly interfere in administrative decisions taken by a body that is legislatively empowered to make a decision. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] the Constitutional Court formulated the test for review as follows:

“To summarise, Carephone held that s 145 of the LRA was suffused by the then constitutional standard that the outcome of an administrative

decision should be justifiable in relation to the reasons given for it. The better approach is that s 145 is now suffused by the

constitutional standard of reasonableness. That standard is the one explained in Bato Star: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.”

(Underlining is my emphasis)

[12] The question thus to be answered in this matter is whether the decision reached by the Road Accident Fund Appeals Tribunal is one that a reasonable decision maker could not reach.

[13] This matter is subject to the regime set out in the RAF Act, read with the Regulations promulgated in terms of the Act. In terms of section 17(1) and 17(1A) of the Act and Regulation 3, stating that a third party may only claim general damages against the Second Respondent, where he or she has suffered a "serious injury''. A serious injury is established if the person claiming suffered from a “Whole Person Impairment” (“WPI”) as set out in the Regulation of more than 30%, alternatively on a narrative test, suffered from a serious injury as described.

[14] The tribunal consisted of two orthopaedic surgeons and one neurosurgeon and they too relied on the report of Dr Moloto. The injuries of the Applicant, as elaborated on hereinunder, did not fall within the expertise of the tribunal.

[15] Dr Kahn, the independent medical examiner, who completed the Serious Injury Assessment Report, states the highly visible scar on the left cheek and the facial bone fracture culminates in a 3% Whole Person Impairment. He further states that the Applicant should qualify in terms of the narrative test as he has permanent serious disfigurement.

[16] Dr Pienaar, the plastic and reconstructive surgeon, notes the injuries as multiple facial lacerations (right cheek, preauricular, right nose, upper lip, left cheek, upper eyelid) and opines that the Applicant qualifies under the narrative test in terms of serious permanent disfigurement. He mentions the following pertaining to the Applicant:

“The accident has left this patient with serious impairment facial scarring and disfigurement which has subjected him to social rejection and stigmatization. It has affected his confidence and self-esteem. It has made him shy, withdrawn and self-conscious. It has affected his employability and earning capacity. It has affected his masculinity and intimate relationship with his wife and decreased his general enjoyment of life.”

[17] The clinical psychologist, Dr Stevens, states that the Applicant was markedly affected by the event on a psychiatric and psychological level. The Applicant developed PTSD and other depressive and anxiety symptoms for which he never received treatment.

[18] The observations of the aforementioned experts are in stark contrast with the view of Dr Moloto, the orthopaedic surgeon, on whose report the rejection of the claim is based. The examination of Dr Moloto appears rather superficial, understandably so, because the injuries sustained by the applicant falls outside his area of expertise.

[19] In determining whether the injuries sustained by the Applicant is serious I take guidance from Maleka v Health Professionals Council of South Africa and Others[2] where the following is stated:

‘[24] In view of the nature of general damages, the investigation must centre around the amount of pain and suffering which the Third Party suffered as a result of the injuries which have caused the long-term impairment or loss of a body function and the extent to which the Third Party's injuries caused the Third Party to suffer from a loss of amenities of life. If these consequences can be regarded as serious consequences for the Third Party, the injuries must be regarded as serious.

[25] The test to determine whether an injury is serious, is explained as follows in HB Klapper: The Law of Third Party Compensation, the learned author set out that "Pain and suffering include the pain, general discomfort and shock resulting from the bodily injury of a person and encompass both past and future pain and suffering as well as psycho-symptomatic experiences of pain after the amputation of a limb and pain and suffering resulting from medical procedures rendered necessary as a result of the bodily injury" and "Loss of amenities of life refers to the loss of a claimant's drive and capability to actively participate in the normal activities of life, recreation and social events which the claimant was accustomed to or participated in prior to the injury. This includes sexual urge and ability, infertility, loss of prospects or marriage, loss of general health, change of personality, loss of mental faculties, neurosis, insomnia, loss of life expectancy and the general anguish of having to cope with a disability”.“’

[20] An injury qualifies under the narrative test as serious, if the injury results in a serious long-term impairment or loss of a bodily function, which constitutes permanent serious disfigurement, resulting in severe long term mental or severe long term behavioural disturbance or disorder, or resulting in a loss of a foetus.[3]

[21] In view of the opinions by Drs Pienaar, Stevens and Kahn there is no doubt that the Applicant`s injuries are serious. There are long term physical and psychological consequences that the Applicant continues to suffer.

[22] The decision of the Second Respondent was based on the inaccurate report of Dr Moloto and in the absence of reports from the appropriate experts. In consequence I find that the decision taken by the Second Respondent was one that a reasonable decision maker could not have taken. The application stands to succeed. Costs were only claimed if the matter became opposed.

[23] ORDER

1. The Applicant’s failure to institute these proceedings within the time period allowed for in Section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (hereinafter called PAJA) is condoned and the relevant time period is extended to the date of hearing of this application as provided for in Section 9(1) of PAJA.

2. The Road Accident Fund Appeals Tribunal’s decision taken on 17 October 2019 is reviewed and set aside

3. The issue whether the Applicant sustained a serious injury as contemplated by Section 17(1A) of the Road Accident Fund Act 6 of 1996 is referred back to the Road Accident Fund Appeals Tribunal for reconsideration by a tribunal constituted by a panel of members other than those that sat on the tribunal that made the decision taken on 17 October 2019.

4. The Road Accident Appeals Tribunal is ordered to investigate, consider and decide upon the issue of a serious injury as contemplated by Section 17(1A) of the Road Accident Fund Act 56 of 1996 and exercise this power and function in accordance with the provisions of Regulation 3(11) of the Regulations promulgated under the Road Accident Fund Act 56 of 1996, GNR770 of 21 July 2008 (Road Accident Fund Regulations 2008).

5. No order is made as to costs as the matter is unopposed.

C. NEKOSIE, AJ

I concur.

M. OPPERMAN, J

On behalf of Applicant : Adv Berry

Instructed by : McIntyre & Van Der Post

12 Barns Street

BLOEMFONTEIN

On behalf of Respondent : No appearance

[1] 2008 (2) SA 24 (CC) at para [110].

[2] (26463/2017) [2019] ZAGPPHC 319 (10 July 2019) at para 22-23.

[3] Hamilton v Road Accident Fund (6058-14) [2015] ZAGPPHC 502 (19 June 2015).