Modisenyane v Health Professions Council of South Africa

• Jurisdiction: South Africa
• Judge: RG Tolmay J
• Judgment Date: 18 October 2019
• Docket Number: 97000/2016
• Court: Gauteng Division, Pretoria
• Hearing Date: 11 September 2019
• Citation: 2019 JDR 2425 (GP)

Tolmay J:

INTRODUCTION:

[1]

This is a review application in terms whereof the Applicant, inter alia, applied for the following relief:

1.1

Reviewing and setting aside the decision by the Third Respondent (the Tribunal) to the effect that the injuries sustained by the Applicant are not serious; and

1.2

That the Second Respondent (the Registrar) be directed to re-appoint a new appeal tribunal to determine the dispute reviewed and to reconsider all medical legal reports in respect of the Applicant's injuries.

[2]

The Applicant's claim for compensation for non-pecuniary loss, in the prescribed form (RAF4 Form), was submitted to the Fourth Respondent (the RAF) in terms of Section 17 of the Road Accident Fund Act (the Act) read with the regulations.

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[3]

The RAF rejected the Applicant's RAF4 Form.

[4]

The Applicant subsequently notified the First Respondent (the HPCSA) and the Registrar of the dispute pertaining to the rejection of the RAF4 Form and accordingly provided the Registrar with the RAF5 and all medical legal reports necessary to assess the Applicant's injuries before the Tribunal.

[5]

Subsequent to the aforesaid the Tribunal informed the Applicant that the injuries did not qualify as serious injuries as envisioned in the Act.

[6]

The Applicant sought to review the decision in terms of the provisions of the Promotion of Administrative Justice Act, Act 3 of 2000 (PAJA) on the following grounds:

6.1

That the action was materially influenced by an error of law (Section 6(2)(d) of PAJA); and/or

6.2

Because irrelevant considerations were taken into account or relevant considerations were not considered (Section 6(2)(e)(iii) of PAJA); and/or

6.3

That it amounted to arbitrary action and being procedurally unfair (Section 6(2)(e)(vi) of PAJA) and/or

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6.4

was procedurally unfair and based upon reasons not properly advanced and/or disclosed to the Applicant.

THE LEGAL FRAMEWOKD:

[7]

This application is subject to the new regime set out in the Act and the regulations promulgated in terms of the Act. The history and matrix of the legislative scheme is set out RAF v Duma & three similar cases. [1]

[8]

Section 17(1) and 17(1)(A) of the Act, and Regulation 3 provides that a claimant may only claim general damages against the Road Accident Fund where she/he has suffered "a serious injury".

[9]

A third party who wishes to claim for compensation from the non-pecuniary loss is required to submit an assessment by a medical practitioner in accordance with Regulation 3. Regulation 3(1)(b) sets out the criteria which the medical practitioner must apply to assess whether a third party has suffered serious injury. Should the RAF not be 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.

[10]

Should the third party not be satisfied with the rejection of the third party's serious injury assessment report, the third party must declare a dispute and lodge such dispute with the Registrar of the HPCSA.

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[11]

The Registrar of the HPCSA must, then, appoint a tribunal of at least three medical experts to determine whether the third party has indeed sustained a serious injury.

[12]

In essence the process entails that a special tribunal consisting of members with expertise is called upon to adjudicate the seriousness of an injury in the event that the RAF rejected the claim as contemplated in the Act.

[13]

Consideration of a "serious injury" involves a two tier process which is prescribed in terms of the Regulations, [2] and entails that the injury has to be assessed in terms of the American Medical Association (AMA) guides and whether the injuries are of such a nature that it constitutes a whole person impairment of at least 30% in order to qualify, alternatively that the injury, if failing to reach the required 30% threshold, whether, in terms of Regulation 3(1)(b)(iii)(aa) to (bb), it complies with the requirements set out therein, in terms of the "narrative test" and constitutes a serious injury if it inter alia resulted in long term impairment or loss of body function or resulted in severe long term mental or behavioural disturbance or disorder.

[14]

In order to comply with the process two different tests are applied. The first test is the assessment to establish whole body impairment. This is exclusively a clinical examination in terms of the prescribed guides,

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which results will seldom differ significantly between experts. [3] The second alternative test is applied in the event that a claimant does not meet the whole person impairment requirement and is the so-called "narrative test".

[15]

The narrative test was formulated particularly to evaluate the individual circumstances of the injured person in order to assess whether the injury that was sustained has caused a long-term impairment or loss of body function or mental or behavioural disturbance or disorder.

[16]

For purposes of the application of this test it is necessary to look at the particular circumstances of the patient in question in order to assess whether it constitutes a serious injury in terms of the narrative test.

[17]

The nature of the appeal to the Tribunal is described in Duma as "'the appeal created by the regulation appears to be an appeal in the wider sense, that is a complete re-hearing of a fresh determination of the merits with additional evidence or information if needs be". [4] The Tribunal is not bound by the facts that served before the RAF nor the contents of the RAF4. In S G May v HPCSA & 3 others it was held that the Appeal Tribunal does have almost unfettered discretion [5] . The

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Tribunal's decision cannot be set aside unless it acted arbitrarily, capriciously or irrationally. [6]

[18]

The Regulations clothes the Tribunal with wide powers as set out in Regulation 3(11) which enables the Tribunal to determine any issues and/or questions as a result of the injuries sustained. It may inter alia call for a further assessment [7] or order that further medical reports be obtained. [8]

[19]

Section 33(1) of the Constitution gives everyone a right to administrative action that is procedurally fair. Procedural fairness is not to be equated with substantial fairness. Procedural fairness is a principle of good administration where context is all important and will depend on the circumstances of each case. [9]

[20]

Procedural fairness is also one of the grounds of review in PAJA. Section 6(2)(c) of PAJA allows the review of administrative action on the grounds that the action was procedurally unfair. In terms of section 6(2)(d) of PAJA, administrative action may be reviewed if "the action was materially influenced by an error of law". Section 6(2)(f)(ii) of PAJA allows for a review where the administrative action is not rational.

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Section 6(2)(h) further makes provision for a review where the administrative action is unreasonable.

[21]

The principles of legality require rational decision making [10] . Both the process by which the decision is made and the decision itself must be rational.

[22]

In the Democratic Alliance case the court summarises the basis upon which the process can be attacked as being irrational, the following is said:

"In my view, the decision of the President as Head of the National Executive can be successfully challenged only if a step in the process bears no rational relation to the purpose for which the power is conferred and the absence of this connection colours the process as a whole and hence the ultimate decision with irrationality. We must look at the process as a whole and determine whether the steps in the process were rationally related to the end sought to be achieved and, if not, whether the absence of a connection between a particular step (part of the means) is so unrelated to the end as to taint the whole process with irrationality." [11]

[23]

A rational connection is required between the power being exercised and the decision.

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[24]

It is important to note that there is a presumption, in review proceedings that the administrative action was taken without good reason should the...