Boqwana v Road Accident Fund Appeal Tribunal

• Jurisdiction: South Africa
• Judge: AS Zono AJ
• Judgment Date: 12 November 2019
• Docket Number: 3823/2018
• Hearing Date: 24 October 2019
• Court: Eastern Cape Local Division – Mthatha
• Citation: 2019 JDR 2278 (ECM)

Zono AJ:

[1]

The applicant approached this court in terms of Rule 53 of the Uniform Rules of this court. The applicant seeks the following relief to be granted:

(1)

Review and setting aside first respondent's decision dated 23 April 2018 rejecting applicant's appeal on the basis that applicant's injuries

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sustained in a motor vehicle accident occurred on 15 March 2014 were not serious.

(2)

Ordering the first and second respondents to pay costs in this application jointly and severally one paying the other to be absolved.

(3)

Ordering the third, fourth, fifth respondents to pay costs of this application jointly and severally one paying the other to be absolved only in the event of them opposing same.

(4)

That the above Honourable Court grants such further and / or alternative relief.

[2]

The matter is opposed by the first and second respondents. In opposition of the matter the first respondent duly delivered its notice to oppose and answering affidavit. The second respondent only filed Notice to Oppose. During the date of hearing both respondents were represented by their counsels and heads of argument were filed by all the parties. The participants in the matter were the applicant, first and second respondent. They participated on an equal footing.

[3]

Before dealing with the merits of the application I find it prudent to deal with the concessions made by or on behalf of the first and second respondents. Both respondents conceded that the impugned decision be reviewed and set aside. On behalf of the first respondent it was submitted that it is inexcusable that the first respondent has not dispatched record of proceedings relating to applicant's appeal to this court in terms of Rule 53(1) of the Uniform Rules. It was requested on behalf of the first respondent that an order be made remitting the matter back to the first respondent for proper application of mind

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and decision. Lastly the first respondent conceded that the first respondent took the impugned decision without recourse to the relevant and necessary information first respondent sought to apply that it be not mulcted in costs. The sole basis for that application is that, so it was argued, the first respondent was never furnished with the necessary papers relating to the appeal. It was firmly submitted that the relevant papers were sent only to the registrar of the Health Profession Council of South Africa. On behalf of the second respondent a similar application was made that the second respondent be not mulcted in costs. Second respondent's reason for such an application was somewhat different. The second respondent submitted that because the actual litigation and engagement was between the applicant and the first respondent and that it was not an actual participant in the proceeding, it should be saved from paying costs.

[4]

The applicant on the other hand sought costs order against the first and second respondents jointly and severally. It appeared to be an in surmountable obstacle to escape the general Rule that costs should follow the result. It was not disputed that the applicant is, by reason of the concessions made, a successful party in the proceedings. I will deal with this principle later in this judgment. With a view to dispel first respondent's suggestion that the necessary documents were sent not to the first respondent, applicant's counsel made two submissions: firstly he referred the court to the provisions of regulation 4 and 8 of the Road Accident Act commonly known as Road Accident Fund Regulations, 2008 promulgated in terms of or under Section 26 of the Road Accident Fund Act 56 of 1996, (the Regulations). The meaty and beneficial part of the Regulations is Sub Regulation 4(a) which reads 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

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the assessment performed by a medical practitioner in terms of these 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." The argument went on to say that it is not a mistake that the Registrar received the documents, because the Registrar is a or serves as a reception office or point of the first respondent. The Registrar is a functionary statutorily empowered to receive documents relating to the rejection of the serious injury assessment report on behalf of the first respondent. I was further referred to paragraph 15 of the founding affidavit where the following is said "on 10 July 2017 I wrote a letter to the first respondent requesting the said dispute resolution and the said letter was accompanied by assessment reports mentioned above which were compiled by Dr Kumbirai. Dr Lekgwara and Dr Mtati together with duly completed RAF5 form which is a request form for dispute resolution." In the answering affidavit the first respondent does not meaningfully deal with the fact that these documents we sent to him but only limits itself to the denial of receipt of comprehensive report by Dr Lekgwara.

[5]

With regard to the second respondent's attempt to escape costs, I have already found that it was an equal participant as the first respondent. The fact that it did not file answering affidavit is neither here nor there. Of importance is the relief sought in paragraph 2 of the Notice of Motion, which is a prayer for costs against the first and second respondents jointly and severally one paying the other to be absolved. I

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am mindful of the fact that the second respondent is cited, inter alia, on the basis that it rejected applicant's medical reports without any basis. First respondent did the same. First respondent's decision was a continuation of a harm started by the second respondent. I find no basis why the first and second respondents cannot be mulcted in costs jointly and severally. Having found that the impugned decision is liable to be reviewed and set aside, it follows that costs have to follow that event. In what follows I deal with important aspects of the case which support the aforesaid finding over and above that there were concessions correctly made so by first and second respondents' counsels.

[6]

The applicant brought this application with the sole purpose of reviewing the first respondent's decision of the 23 April 2018. The basic attack launched by the applicant on the impugned decision is that the first respondent took the decision without having had regard to the crucial information that would enable it to arrive at a proper decision. Annexure LB5 to the applicant's founding affidavit is a request for dispute resolution sent for the attention of the first respondent and...