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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 83573/14

DATE: 6 FEBRUARY 2015

IN THE MATTER BETWEEN

K V MOTHIBI....................................................................................................APPLICANT

and

ROAD ACCIDENT FUND...........................................................................RESPONDENT

JUDGMENT

LEGODI, J

[1] This is a review of the Road Accident Fund’s alleged failure to take a decision as envisaged in Regulation 3(3)(c) of Fund Regulations 2008 promulgated in terms of section 26 of the Road Accident Fund Act No 56 of 1996 read together with the provisions of section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000. The application was brought in the unopposed motion roll.

[2] Section 6(1) of the Promotion of Administrative Justice Act provides that any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action. On the other hand, subsection (2) (g) thereof provides that a court or tribunal has the power to judicially review an administrative action if the action concerned consists of a failure to take a decision.

[3] Regulation 3(3)(c) and (d) of the Regulations under the Road Accident Fund Act provides:

“(c) The Fund or an agent shall only be obliged to compensate a third party for non-pecuniary loss as provided in the Act if a claim is supported by a serious injury assessment report submitted in terms of the Act and these Regulations and the Fund or an agent is satisfied that the injury has been correctly assessed as serious in terms of the method provided in these Regulations.

(d) If the Fund or an agent is not satisfied that the injury has been correctly assessed, the Fund or an agent must:

(i) Reject the serious injury assessment report and furnish the third party with reasons for the rejection; or

(ii) Direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a further assessment to ascertain whether the injury is serious, in terms of the method set out in these Regulations, by a medical practitioner designated by the Fund or an agent. ”

[4] The applicant, Ms Kelebogile Veronica Mothibi was involved in a motor vehicle collision on the 2 December 2010. On the 18 November 2011 she lodged a third party claim against the Road Accident Fund, amongst others, an amount for general damages was claimed.

[5] On the 1 December 2011 she was examined by an orthopeadic surgeon, one Dr Hans B Enslin and submitted a report to the applicant’s attorneys. On the 7 September 2012 a serious injury assessment report, so called RAF4 form completed by Dr Eslin was submitted to the Road Accident Fund. Till up to the 6 December 2012, the Fund had not indicated its decision as envisaged in Regulation 3(c) and (d) quoted above. A letter was then addressed to the Fund to enquire about its decision on the serious injury assessment report. Many months thereafter, that is, on the 10 September 2014, the Fund through its attorneys filed what is, referred to as ‘Notice of objection’ wherein is stated as follows:

“BE PLEASED TO TAKE NOTICE THAT THE defendant objects to the plaintiff’s RAF4 assessment of serious injuries’

BE PLEASED TO TAKE FURTHER NOTICE that the defendant will refer the matter to HPCSA

[6] The applicant in an email dated the 6 October 2014 responded to the notice of objection as follows:

"Kindly take notice that your rejection in terms of Regulation 3(3)(c) and (d) of the Road Accident Fund Regulations is defective in two ways:

(1) You objected/rejected our client’s RAF4 form without providing reasons for your rejection as directed by the Regulations.

(2) You, as the defendant, intend to refer the matter to the HPCSA.

We want to inform you that the Regulations do not make provision for the Road Accident Fund (Defendant) to refer any matter to the HPCSA regarding Regulation 3(3)(c) and (d).

We therefore request that you provide us with a proper election in terms of Regulation 3(3)(c) and (d), on failure of which we will proceed with an application in terms of PAJA to compel you to provide us with same”.

[7] It is clear that the Fund has taken a decision in terms of which it rejected the assessment report submitted on behalf of the applicant. This is common course. For example, in paragraph 10.3 of the founding affidavit the applicant states as follows:

“10.3 The Applicant then sent a letter, a copy of which is hereto attached marked annexure “F" to the Respondent’s attorneys of record informing them that their rejection is defective in two ways, namely:

10.3.1 They objected/rejected our client's RAF4 Form without providing reasons for their rejection as directed by Regulation 3(3)(d)(i) of the Road Accident Fund Regulations;

10.3.2 The respondent intends to refer the matter to the HPCSA, even though the Applicant has sole discretion whether he/she wants to refer his/her case to the HPCSA, and not the Respondent”.

[8] The rejection of the RAF4 is therefore acknowledged. The rejection is disputed and the grounds of the dispute or challenge are set out. This raises the issue whether the applicant should not have pursued the route set out in Regulation 3(4)(a) and (b). It provides as follows:

“(4) 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 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;

(b) in such notification set out the grounds upon which the rejection or the assessment is disputed and include such submission, medical reports and opinions as the disputant wishes to rely upon;’’

[9] Section 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000 provides that subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act, unless any internal remedy provided for in any other law has first been exhausted. Subsection (c) states that a court or tribunal may in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.

[10] True, the Fund is an organ of state as defined in section 239 of the Constitution. It is performing a public function in terms of legislation, its decision in terms of regulation 3(3)(c and (d) whether or not the RAF4 form is correctly assessed, declaring the claimant’s injury as “serious”, constitutes administrative action’ as contemplated by the Promotion of Administrative Justice Act 3 of 2000 “(PAJA”). A decision is defined in PAJA to include the making of a determination. The position is therefore governed by the provisions of PAJA.

[11] The decision which the applicant seeks to review is not preceded by exhaustion of internal remedy as set out in Regulation 3(4) quoted in paragraph 8 of this judgment. This is fatal to the applicant’s case. Until internal remedies have been exhausted, the review application is pre-mature.

[12] Inasmuch as the applicant seeks to suggest that he is entitled to bring the present application for the reasons that the Fund is not entitled to refer the dispute around the rejection to Health Professions Council and that no reasons for the rejection as required in regulation 3(3) have be given, I find it necessary to refer to what Brand JA said in Duma’s matter¹. He stated:

“Recognition that the Fund’s decision to reject the plaintiff’s RAF4 forms constituted administrative action, dictates that until that decision was set aside by a court of review or over-turned in an internal appeal, it remained valid and binding ...The fact that the Fund gave no reasons for the rejection or that the reasons given are found to be unpersuasive or not based on proper medical or legal grounds, cannot detract from this principle². ”

[13] Brand JA then in paragraph 26 proceeded as follows:

“As to the Fund’s obligation to provide reasons for its decision, it is true that it is pertinently constrained to do so by regulation 3(3)(d)(i). But, as I have said, the Fund’s failure to comply with this obligation cannot render the decision invalid per se. As a matter of principle, I suppose the claimant can compel the Fund to give reasons in terms of section 5 ofPAJA³”’

[14] Now in his notice of motion, the applicant seeks relief as follows:

‘‘TAKE NOTICE THAT the Applicant intends to apply to the above Honourable Court for a review of the following administrative action:

The Respondent’s refusal and/or failure to take a decision in terms of Regulation 3(3)(c) or 3(3)(d) of the Road Accident Fund Regulations, 2008 promulgated in terms of section 26 of the Road Accident Fund Act, No 56 of 1996 (hereinafter referred to as “the Regulations”) timeously, alternatively within a reasonable time:

And request an order in the following terms:

1. That the Respondent be directed to take a decision as required in terms of Regulation 3(3)(c) or 3(3)(d) of the Regulations within 10(TEN) days from date of service of this order, on whether or not the Respondent:

1.1 Is satisfied that the Applicant’s injury has been correctly assessed as serious in terms of the method provided for in the Regulations, or;

1.2 Rejects the Serious Injury Assessment report;

1.3 Direct the Applicant to submit herself, at the cost of the Respondent, to a further assessment;

1.4 In the case where the Respondent rejects the serious injury assessment report, the Respondent MUST furnish the Applicant with reasons for the rejection;

2. That the Respondent pays the costs of this Application;

3. That such further and/or alternative relief as the Court may deem expedient, is granted to the Applicant”.

[15] The relief sought as drafted is a bit confusing. The decision, as indicated earlier in paragraphs 5 and 6 of this judgment, has been taken. The decision may not have been taken timeously or without reasons, but that does not mean that the Fund has refused and or failed to take a decision. For this reason, I am prepared to proceed on the basis that the review is about the rejection of the Serious Injury Assessment report (RAF4) of Dr H B Enslin. Therefore paragraphs 1.1, 1.2 and 1.4 of the relief sought as quoted above are of no consequence. Prayer 1.3 can be the subject of decision envisaged in regulation 3(11)(a). It provides as follows:

“(11) The appeal tribunal shall have the following powers:

(a) Direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a further assessment to ascertain whether the injury is serious, in terms of the method set out in these Regulations, by a medical practitioner designated by the appeal tribunal”.

[16] Therefore, once the Registrar of the Health Professional Council has referred the dispute to the appeal tribunal in terms of regulation 3(8)(a) the applicant will be at liberty, if needs be, to request the appeal tribunal to act in terms of regulation 3(11)(a). Regulation 3(8)(a) provides as follows:

“(8)(a) After receiving the notification from the other party or the expiry of the 60 day period, referred to in subregulation (6), the Registrar shall refer the dispute for consideration by an appeal tribunal paid for by the Fund”.

[17] In my view, the fact that Brand J as quoted in paragraph 13 above, in passing, made mention of the claimant’s apparent right to compel the Fund to furnish reasons for its rejection of serious injury assessment, I do not understand him to say, a claimant is justified to by-pass the internal remedy process created in terms of the regulations.

[18] Consequently, I hereby make an order as follows:

17.1 The applicant’s application for review is hereby postponed sine die.

17.2 The applicant is hereby directed if she so wishes, to lodge a dispute resolution form with the Registrar as envisaged in regulation 3(4) with the resultant need for application for condonation to be lodged with the Registrar in terms of regulation 3(5).

17.3 No order as to costs.

M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE APPLICANT: J H RABIE ATTORNEYS

C/O VAN ZYL ROUX INC.

1^st Floor, Block 3, Monument Office Park

71 Steenbok Avenue

MONUMENT PARK

REF: J RABIE/md/MAT52365

TEL: 012 435 9444

FOR THE RESPONDENT: T M CHAUKE ATTORNEYS

Church Street, Sammy Marks Square

PRETORIA

REF: MKHAWANE/NJ/RAF/M050045

TEL: 012 326 8711/2

HEARD ON:

JUDGMENT DELIVERED: 05/02/2015

¹Road Accident Fund v Duma and Others 2013 1 ALL 543 (SCA)at551 par. 19(a).

²See Duma supra at par. 24 at553.

³See Duma supra at par 26 at 554.

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