Maleka v Health Professions Council of South Africa

• Jurisdiction: South Africa
• Judge: SM Maritz AJ
• Judgment Date: 10 July 2019
• Docket Number: 26463/2017
• Court: Gauteng Division, Pretoria
• Hearing Date: 10 July 2019
• Citation: 2019 JDR 1320 (GP)

SM Maritz AJ:

Introduction

[1]

This is an application to review and set aside the decision of the Third Respondent ("the RAF Appeal Tribunal or Tribunal or Third Respondent or Appeal Tribunal"), dated 19 February 2016, and ancillary relief as more fully set out in the Notice of Motion.

[2]

The Applicant's judicial review application is premised on the provisions of the Promotion of Administration Justice Act, 3 of 2000, ("PAJA") on the grounds that the action was materially influenced by an error of law and/or fact (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)(v) of PAJA) and being procedurally unfair. In argument, Counsel for the Applicant, raised a further point for review, being that the Appeal Tribunal failed to provide adequate reasons for its decision.

[3]

The application was heard on 2 May 2019 and the judgment was reserved.

Relief sought

The Applicant sought the following relief:

[4]

An order reviewing and setting aside the decision of the Third Respondent, dated 19 February 2016, pertaining to the effect of the injuries suffered by the Applicant and determining same to be non-serious

2019 JDR 1320 p3

SM Maritz AJ

in terms of section 17(1A) of the Road Accident Fund Act, 56 of 1996, ("RAF Act") and its Regulations;

[5]

An order referring the matter to a newly constituted Appeal Tribunal to determine the abovementioned dispute reviewed and set aside and to reconsider all medico-legal reports that served before the Tribunal in respect of the Applicant's injuries;

[6]

An order 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 his injuries at the Tribunal hearing if he wishes to do so; and

[7]

Costs against the First Respondent ("Health Professionals Council of South Africa or HPCSA or First Respondent"). In paragraph 74 of the Applicant's heads of argument he requested that the First and/or Third Respondents be ordered to pay the costs of the Applicant on a scale between party and party, jointly and severally, the one paying the other to be absolved.

The First, Second ("The Acting Registrar of the Health Professions Council of South Africa or the Acting Registrar of the HPCSA or Second Respondent") and the Third Respondent sought the following relief:

[8]

An order that the Applicant's application be dismissed with costs on an attorney and client scale.

2019 JDR 1320 p4

SM Maritz AJ

Brief Background

[9]

The Applicant, BENTJIE LUCAS MALEKA, a self-employed taxi business owner and a taxi driver of Maleka's Taxi's and owner of Cornerdrive Restaurant and Tavern and a Dairy Agent and owner of Maleka's Bottle Store, was a passenger in a minibus taxi vehicle, which was involved in a motor vehicle accident, which occurred on 10 December 2009. The accident occurred while he was asleep. The taxi rolled over and the Applicant was thrown out of the said vehicle and as a result thereof he sustained various injuries, as set out in the various medico-legal reports, attached to the Applicant's Founding Affidavit. After the accident he was taken by ambulance to the Boitumelo Hospital, Kroonstad and later transferred to St Helena Private Hospital, Welkom.

[10]

The Applicant's family structure consists of his spouse and three children.

[11]

The Applicant has instituted a claim for compensation for non-pecuniary damages ("general damages") against the Road Accident Fund ("The RAF or the Road Accident Fund or the Fourth Respondent") and submitted the prescribed RAF 4 form in terms of section 17 of the RAF Act. The Road Accident Fund has rejected the Applicant's claim and the matter was referred to RAF Appeal Tribunal, which found that the injuries suffered by him were non-serious.

[12]

A claim for general damages is a claim stemming from pain and suffering, which includes pain, general discomfort and shock resulting from the bodily injury of a person, loss of amenities of life and disfigurement. General damages can also be claimed in respect of shock, shock induced by physical injury, loss of general health and shortened life expectancy.

2019 JDR 1320 p5

SM Maritz AJ

The Road Accident Fund has an obligation to pay such damages only in circumstances where the injuries causing such damages have been determined as serious. The RAF Act and the Regulations prescribe the process of determination and the RAF Act requires pertinently that the injuries should be assessed in relation to the circumstances of the Claimant.

Legal Framework

[13]

The matter is subject to the new regime set out in the Road Accident Fund Act, 56 of 1996, read with the Regulations promulgated in terms of the Act.

[14]

In terms of section 17(1) and 17(1A) of the Act and Regulation 3, a third party may only claim general damages against the Road Accident Fund, the Fourth Respondent, where he or she has suffered a "serious injury". A third party who wishes to claim for compensation for non-pecuniary damages is required to submit to an assessment by a medical practitioner in accordance with Regulation 3(1)(a) and the third party shall obtain from the medical practitioner concerned a Serious Injury Assessment Report in terms of Regulation 3(3)(a).

[15]

A Serious Injury Assessment Form (RAF 4) must be completed, which indicate that 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 prescribed.

2019 JDR 1320 p6

SM Maritz AJ

[16]

The Applicant has obtained, completed and submitted the RAF 4 form as contemplated in section 17 read with Regulation 3 of the Act, to the Fourth Respondent.

[17]

Regulation 3(1)(b) of the Act prescribed the criteria that such a medical practitioner has to apply to assess whether a third party had suffered serious injuries. If the Fourth Respondent is not satisfied that the injury has correctly been assessed as serious it must reject the report or, direct the third party to undergo a further assessment.

[18]

The Applicant's RAF 4 form was rejected by the Fourth Respondent.

[19]

Pursuant to the aforesaid rejection the Applicant has requested dispute resolution in terms of Regulation 3(4) of the Act and has declared a dispute by lodging a prescribed dispute resolution form ("RAF 5") with the Acting Registrar of the Health Professions Council ("HPCSA") within 90 days of being informed of the rejection or the impugned assessment.

[20]

The Registrar of the HPCSA has to appoint a Tribunal of at least three (3) independent medical practitioners with expertise in the appropriate area of medicine.

[21]

In terms of Regulation 3(13) of the Act the determination by the Appeal Tribunal is final and binding.

[22]

A procedure by which the Appeal Tribunal enquires into the dispute is laid down by Regulations 3(4) to 3(13) of the Act. It includes, inter alia, the following:

2019 JDR 1320 p7

SM Maritz AJ

(a)

Both sides may file submissions, medical reports and opinions.

(b)

The Appeal Tribunal may hold a hearing for the purpose of receiving legal argument by both sides and seek the recommendation of a legal practitioner in relation to the legal issues arising at the hearing.

(c)

The Appeal Tribunal has wide powers to gather information, including the power to direct the third party to submit to a further assessment by a medical practitioner designated by the Tribunal; to do its own examination of the third party's injury; and to direct that further medical reports be obtained and placed before it.

[23]

It is important to note that the Appeal Tribunal is not bound by the reasons, if any, provided by the Road Accident Fund for the rejection of the RAF 4. The Appeal Tribunal is entitled "in the exercise of its wide investigative and fact-finding powers, ...(2) established for itself whether or not to assess the injury as serious, whatever the reasons of the fund might have been. [1]

[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.

2019 JDR 1320 p8

SM Maritz AJ

[25]

The test to determine whether an injury is serious, is explained as follows in HB Klopper: The Law of Third Party Compensation [2], 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."

[26]

The circumstances which have traditionally been taken into account is the nature and extent of the claimant's disability, the activities...