Van Aswegen v Health Professions Council of South Africa and Others (4246/2018) [2019] ZAGPPHC 509; 2021 (3) SA 238 (GP) (3 September 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED.

CASE NO: 4246/2018

3/9/2019

In the matter between:

N J VAN ASWEGEN

Applicant

(REF: RAFA/002461/16)

and

HEALTH PROFESSIONS COUNCIL OF SOUTH

AFRICA

First Respondent

THE ACTING REGISTRAR OF THE HEALTH

PROFESSIONS COUNCIL OF SOUTH AFRICA

Second Respondent

ROAD ACCIDENT FUND APPEAL TRIBUNAL

Third Respondent

ROAD ACCIDENT FUND

Fourth Respondent

JUDGMENT

KUBUSHI J,

FACTUAL BACKGROUND

[1] Following from a motor vehicle accident that occurred on 21 December 2012, in which the applicant suffered personal injuries as a passenger, the applicant submitted a claim for compensation for non-pecuniary loss ("general damages") with the Road Accident Fund ("the fourth respondent").

[2] In terms of the Road Accident Fund Act 56 of 1996 ("the Act") a claim for compensation for general damages is limited to compensation for serious injury. Section 17 of the Act provides that the fourth respondent has an obligation to pay general damages only in circumstances where the injuries causing such damage have been determined as serious. An injury is assessed as serious in terms of a method of assessment prescribed in the Regulations issued in accordance with the Act ("the Regulations").

[3] Regulation 3 of the Regulations requires a claim for compensation for general damages to be submitted with the fourth respondent by submitting the RAF4 form. The RAF4 form submitted by the applicant was completed by Dr JJ Schutte ("Dr Schutte"), who made a finding that the applicant had a Whole Person Impairment ("WPI") of 12%. The Regulations stipulate that an injury that does not result in at least 30% WPI may only be assessed as serious if that injury resulted in a serious long-term impairment or loss of body function. Dr Schutte, using what is referred to as the 'narrative test', made a finding that the applicant sustained serious long-term impairment which could cause loss of bodily function. The fourth respondent rejected the applicant's RAF4 form and informed her accordingly.

[4] On 24 November 2016, approximately 1O days after being notified of the rejection of the RAF4 form, the applicant filed the RAF5 form with the Registrar of the HPCSA ("the second respondent") requesting a dispute resolution in terms of regulation 3 (4). A dispute resolution is an appeal which ordinarily lies with the third respondent. Attached to the RAF5 form was, amongst others, the RAF4 form completed by Dr Schutte and the medico-legal report by Dr Oelofse, which the applicant relied on for her appeal.

[5] On 11 April 2017 the applicant was notified that the appeal would be considered by the third respondent on 21 April 2017. Notification was also given of the members who would constitute the Appeal Tribunal ("the third respondent"). Four independent medical practitioners with expertise in the appropriate area of medicine were appointed to constitute the third respondent in order to consider the appeal.

[6] On 20 April 2017 (a day before the appeal hearing) the applicant served additional medico-legal reports on the second respondent. The said medico-legal reports were by: Dr PJ Viljoen - an ear nose and throat specialist; Ms Rieta van Biljon - an occupational therapist; and Kotze & De Bruyn - industrial psychologists.

[7] On 21 April 2017 the third respondent considered the applicant's appeal and came to a conclusion that the applicant's injuries were non-serious musculoskeletal injuries and did not qualify as serious injuries in accordance with the narrative test. It is important to note that when the third respondent set to consider the applicant's appeal, the medico-legal reports of Dr Schutte and Dr Oelofse were the only ones that served before the third respondent.

[8] Being not satisfied with the finding of the third respondent, the applicant launched this application, essentially to review and set aside the third respondent's findings. The applicant's gravamen being that not all the medico-legal reports she had presented for the appeal served before the third respondent when the appeal was heard.

THE ISSUE

[9] The main issue is whether the applicant is entitled to review the decision of the third respondent that determined her injury as non-serious. The respondents, in opposition to the relief sought by the applicant have raised a point in limine that there was a failure by the applicant to apply for condonation for the late filing of the medico-legal reports that were submitted on 20 April 2017 whereas those that served before the third respondent justified the finding that the applicant had not suffered a serious injury.

THE ARGUMENTS

[10] In substantiation of their point in limine, the respondents argued that since the third respondent is a creature of statute, there had been a failure by the applicant to comply with the requirements of the Regulation. Therefore, the contention is that the applicant does not have justification to rely on the grounds that the administrative action (the decision) of the third respondent qualifies to be reviewed as premised on the provisions of the Promotion of Administrative Justice Act, 2000 ("PAJA"). According to the respondents, this is so because,

10.1 firstly, when the other medico-legal reports were submitted on 20 April 2017, the third respondent's documentation had already been finalised and forwarded to the third respondent whose sitting was in Cape Town whereas the additional medico-legal reports were submitted in Pretoria;

10.2 secondly, the applicant did not comply with the provisions of regulation 3 (4) which requires the applicant to, inter alia, include in its dispute resolution form all the medico-legal reports upon which the applicant wishes to rely;

10.3 lastly, there was no need to present the additional medico-legal reports to the third respondent because the applicant had failed to apply for condonation. This according to the respondents meant that there was no obligation on the second respondent to provide the additional medico-legal reports to the third respondent and no obligation on the third respondent to consider those reports without the applicant having applied for condonation. All submissions, medico-legal reports and opinions the applicant wished to rely on had to be presented together with the lodging of the dispute resolution form alternatively within 90 days of being informed of the rejection of the RAF4 form.

[11] The applicant's proposition is that the purpose of regulation 3 (4) (a) to (c) is to achieve the timeous lodging of a dispute regarding, inter alia, the fourth respondent's rejection of the applicant's serious injury assessment report in such a manner as to inform the respondents of the grounds upon which the rejection is attacked which grounds should include submissions, medical reports and opinions relied upon by the applicant. Timeous lodgement of the dispute is necessary in order to prevent the rejection by the fourth respondent becoming final and binding. The purpose of lodging the dispute timeously is not to prevent, on pain of having to apply for condonation, the advancement of further submissions, medical reports and opinions in support of the grounds upon which the fourth respondent's rejection is being attacked. Such an approach is overly technical and formalistic and contradictory to the provisions of regulation 3 (11) from which it clearly appears that additional evidence and submissions might be called for. A specific procedure by which the additional evidence and submissions is obtained is not prescribed.

THE LAW

[12] Regulation 3 (4) provides for a condonation procedure in regard to a dispute as to the rejection of the serious injury assessment form by the fourth respondent. The said regulation stipulates that, in such circumstances, the disputant shall:

(a) within 90 days of being informed of the rejection of 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.

It is on this regulation that the respondents rely for their point in limine.

APPLICATION OF THE LAW TO FACTS

[13] In analysing the arguments raised by the parties, I do so, acknowledging that my approach has drawn generously from the cogently reasoned arguments of the applicant in her heads of argument. I, as a result, find the respondents' propositions legally untenable.

[14] I am in agreement with the applicant's exposition as set out here above. At the time when the additional medical reports were submitted, the appeal procedure had been validly instituted and there was substantial compliance with the provisions of the Regulations. It is correct that there is no procedure by which further reports or submissions could be presented to the third respondent. Without that procedure in place, it cannot be said that the applicant who desired to place further evidence before the third respondent cannot do so or should be prevented from doing so.

[15] I must, also, state that it was not the second respondent's prerogative to decide whether the applicant was entitled to present additional reports and whether those reports were validly presented. It was upon the second respondent to notify the third respondent of the additional reports. The third respondent, in turn, would decide on the question whether those reports would be considered or not. That the second respondent took upon itself to make a decision which the third respondent ought to have made, rendered the administrative action invalid, in my view.

[16] Sight should also not be lost of the fact that the second respondent is only but an administrative arm of the first respondent and does not form part of the third respondent. The functions, duties and powers of the second respondent are overtly set out in the Regulations and are distinct from those of the third respondent. It is the second respondent that has the authority to establish the third respondent but the second respondent has no authority or power to usurp the authority and power of the third respondent and take it upon itself to make decisions on behalf of the third respondent. That it cannot do as it is not provided for in the

Regulations.

[17] The respondents concede in their heads of argument that even if it can be argued that the provisions of regulation 3 (5)[1] granting the empowerment of the third respondent to condone late filing of a request for a dispute as stipulated in the rules regarding the 90 day period, it clearly is the position that the third respondent has the discretionary powers to grant condonation.

The respondents go further to argue that there was a flagrant disregard of the rules of the third respondent by the applicant in

failing to apply for condonation or in filing the reports with the registrar in Pretoria a day before the hearing of the appeal when the appeal was being heard in Cape Town.

[18] Even though the respondents' argument is misguided in the context of the issue in casu, the argument, however, indicates that the respondents are well aware that it is the third respondent which has the discretionary power to consider condonation applications and not the second respondent. The respondents are, also, aware that the second respondent ought to have sent the additional medical reports to the third respondent for consideration of whether to consider the reports or not, or at the very least to make them aware that such reports have been submitted.

[19] The respondents' submission that the third respondent is a creature of statute is indeed correct. This, similarly, applies to the second respondent who must comply with the provisions of the Regulations. It is quite clear, that the respondents misconstrued the application of regulation 3 (4). In an attempt to apply the provisions of the sub-regulation, the second respondent erroneously concluded that the submission by the applicant of additional medical reports, beyond the 90 day period stipulated in regulation 3 (4), was invalid in the absence of a condonation application.

[20] The proposition by the respondents that there was no obligation on the second respondent to provide the additional medico-legal reports to the third respondent and no obligation on the third respondent to consider those reports without the applicant having applied for condonation is similarly flawed.

[21] Clearly, this is an incorrect interpretation of the sub-regulation. Condonation, in terms of this sub-regulation 3 (4), is in respect of the dispute resolution procedure in circumstances where the decision of the fourth respondent had already become final and binding. Condonation is then required to undo such a result. Following on the aforesaid reasoning, I am in agreement with the applicant that the second respondent's decision not to present the additional medico-legal reports to the third respondent in the absence of a condonation application is wrong in law and procedurally unfair in that the audi rule and the provisions of section 3 of PAJA[2] were ignored or not applied in a fair and flexible manner as a result of which the third respondent failed to consider the additional

medico-legal reports of the applicant. Furthermore, this resulted in the applicant not being provided a reasonable opportunity to make relevant presentations and present relevant additional evidence which was available to the applicant and was made available to the second respondent.

[22] It is on this basis that I have to conclude that the second respondent's approach, on its own, is procedurally unfair and renders the third respondent's decision invalid and subject to be reviewed and set aside. In addition, the conduct of the third respondent in failing to take into account the applicant's additional medico­ legal reports which the applicant had made available is procedurally unfair and renders its decision of 21 April 2017, invalid and subject to be reviewed and set aside. The relief sought by the applicant ought to be granted.

OTHER ISSUES

[23] In prayer 2 of the notice of motion the applicant seeks an order that the second respondent be directed to re-appoint a new Appeal Tribunal to determine the dispute reviewed and set aside and to further reconsider all medico-legal reports served before the third respondent in respect of the applicant's injuries.

[24] The second ancillary relief is contained in prayer 3 of the notice of motion in which the applicant seeks an order that she be permitted to be present at the newly established Appeal Tribunal; and that she be permitted to provide further evidence pertaining to her injuries at the Tribunal hearing if she wishes to do so.

[25] I do agree that the matter should be remitted back for reconsideration before a newly appointed Appeal Tribunal. But, I do not think that I should be prescriptive as to how the new Tribunal should conduct the dispute resolution. The powers of the Tribunal are succinctly set out in regulation 3 of the Regulations and it is for that Tribunal to decide on how it should carry out those powers and not for this court to direct it.

COSTS

[26] Ordinarily a cost order follows the successful party. In this instance the applicant is the successful party whose costs should be paid by the first, second and third respondents. It is common cause that no specific relief is sought against the fourth respondent in this case and a costs order against it would be inappropriate. In its papers the applicant seeks an order of cost against the first respondent and such order ought, in my view, to be granted.

ORDER

[27] I, therefore, make the following order:

1. The application is granted.

2. The decision of the third respondent under file RAFA/002461/16 dated 21 April 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, is reviewed and set aside.

3. The second respondent is ordered to re-appoint a new Appeal Tribunal to determine the dispute reviewed and set aside in paragraph 2 above and to further reconsider all the medico-legal reports available in respect of the applicant's injuries.

4. The first respondent is ordered to pay the costs of this application.

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

Appearance:

Applicant's Counsel

: Adv. E.P Van Rensburg

Applicant's Attorneys

: VZLR INC. ATTORNEYS

Respondents' Counsel

: Adv. M. Hugo

Respondents' Attorneys

: MBOWANE ATTORNEYS INC.

Date of hearing

:15 May 2019

Date of judgment

: 03 September 2019

[1] 3. Assessment of serious injury in terms of section 17 (1) (A) (1) … (5) (a) If the Registrar is not notified that the rejection or the assessment is disputed in the manner and within the time period provided for in subregulation (4), the rejection or the assessment shall become final and binding unless an application for condonation is lodge d with the Registrar as well assent or delivered to the other party to the dispute."

[1] 3. Assessment of serious injury in terms of section 17 (1) (A)

(1) …

(5) (a) If the Registrar is not notified that the rejection or the assessment is disputed in the manner and within the time period provided for in subregulation (4), the rejection or the assessment shall become final and binding unless an application for condonation is lodge d with the Registrar as well assent or delivered to the other party to the dispute."

[2] "3. Procedurally fair administrative action affecting any person (1) Administrative act ion which materially and adversely affects the rights or legitimate

expectations of any person must be procedurally fair. (2) (a) A fair administrative procedure depends on the circumstances of each case. (b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) - (i) adequate notice of the nature and purpose of the proposed administrative action; (ii) a reasonable opportunity to make representations; (iii) a clear statement of the administrative action; (iv) adequate notice of any right of review or internal appeal, where applicable; and (v) adequate notice of the right to request reasons in terms of section 5."

[2] "3. Procedurally fair administrative action affecting any person

(1) Administrative act ion which materially and adversely affects the rights or legitimate

expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the circumstances of each case.

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) -

(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make representations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to request reasons in terms of section 5."