THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 56/2017
Reportable
In the matter between:

THE ROAD ACCIDENT APPEAL TRIBUNAL                            FIRST APPELLANT
THE HEALTH PROFESSIONS COUNCIL OF
SOUTH AFRICA

SECOND APPELLANT
PROF G J VLOK NO                                                                   THIRD APPELLANT
DR C F KIECK NO                                                                   FOURTH APPELLANT
DR C LIEBETRAU NO                                                                FIFTH APPELLANT
DR R K MARKS NO                                                                     SIXTH APPELLANT

and

LARTZ GOUWS                                                                       FIRST RESPONDENT
ROAD ACCIDENT FUND                                                    SECOND RESPONDENT

Neutral citation:
RAF & others v Gouws & another (056/2017) [2017] ZASCA 188
(13 December 2017)
Coram:
Navsa, Saldulker & Mocumie JJA and Tsoka & Makgoka AJJA
Heard:
14 November 2017
Delivered:

13 December 2017
Summary:

Interpretation and application of Road Accident Fund Act 56 of
1996 and Regulations thereunder – primary purpose of Appeal Tribunal is to
determine a dispute concerning seriousness of injury – Appeal Tribunal does not

have final say on question of link between the driving of a motor vehicle and the
injuries allegedly sustained – causation to be determined by court.

__________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Tuchten J sitting as
court of first instance):

The appeal is dismissed with costs including the costs of two counsel.

_________________________________________________________________
JUDGMENT
_________________________________________________________________
Navsa ADP (Saldulker & Mocumie JJA and Tsoka & Makgoka AJJA concurring.)

[1] This appeal, with leave of the court below (Tuchten J), concerns the ambit of
the powers of the first appellant, the Road Accident Appeal Tribunal (the Tribunal).
The question for determination is whether it is within the Tribunal’s statutory remit to
finally determine the nexus between the injuries allegedly sustained, on which a
claim for compensation is premised, and the driving of a motor vehicle. The
appellants, which include The Road Accident Appeal Tribunal, The Health
Professions Council of South Africa1 (HPCSA) and the four members who, at its
instance, served on the Tribunal, contend that it is indeed within the Tribunal’s
statutory power to make such a determination. The first respondent, Mr Lartz Gouws,
who is a claimant for purposes of s 17 of the Road Accident Fund Act 56 of 1996
(the Act), contends otherwise. The court below, the Gauteng Division of the High
Court, Pretoria found in favour of Mr Gouws. It is that decision against which the
present appeal is directed. The appeal turns on the interpretation and application of
the relevant statutory provisions. The background is set out hereafter.

1 Established in terms of s 2 of the Health Professions Act 56 of 1974.

[2] Mr Gouws allegedly sustained injuries as a result of being struck by a motor
vehicle whilst walking in a parking area and being flung over two vehicles in the
vicinity. The collision was said to have occurred on 24 July 2010. On 16 August 2012
Mr Gouws lodged a claim for compensation with The Road Accident Fund (the
Fund), a statutory insurer, under s 17 of the Act. At this juncture, it is convenient to
consider the circumstances under which the Fund, established under s 2 of the Act,
is liable to compensate a claimant.

[3] In terms of s 17(1), the Fund, inter alia, is ‘obliged to compensate any person
(the third party) for any loss or damage which the third party has suffered as a result
of any bodily injury . . . caused by or arising from the driving of a motor vehicle by
any person at any place within the Republic, if the injury . . . is due to the negligence
or other wrongful act of the driver or of the owner of the motor vehicle or of his or her
employee in the performance of the employee’s duties as employee’. (My emphasis.)
The proviso in s 17(1), following immediately on the aforesaid quoted part, reads as
follows:
‘Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss
shall be limited to compensation for a serious injury as contemplated in subsection (1A) and
shall be paid by way of a lump sum.’ (My emphasis.)
Section 17(1A) reads as follows:
‘(a) Assessment of a serious injury shall be based on a prescribed method adopted after
consultation with medical service providers and shall be reasonable in ensuring that injuries
are assessed in relation to the circumstances of the third party.
(b) The assessment shall be carried out by a medical practitioner registered as such under
the Health Professions Act 1974 (Act 56 of 1074).’ (My emphasis.)

[4] Consonant with s 17(1A), s 26 of the Act enables the Minister to ‘make
regulations regarding any matter that may be prescribed in terms of [the] Act, or
which it is necessary or expedient to prescribe in order to achieve or promote the
object of [the] Act’. The object of the Fund, set out in s 3 of the Act, is ‘the payment
of compensation in accordance with [the] Act for loss or damage wrongfully caused
by the driving of motor vehicles’. Sections 26(1) and 26(1A) provide:
‘(1) The Minister may make regulations regarding any matter that shall or may be prescribed
in terms of this Act or which it is necessary or expedient to prescribe in order to achieve or
promote the object of this Act.

(1A) Without derogating from the generality of subsection (1), the Minister may make
regulations regarding –
(a)
the method of assessment to determine whether, for purposes of section 17, a
serious injury has been incurred;
(b)
injuries which are, for the purposes of section 17, not regarded as serious injuries;
(c)
the resolution of disputes arising from any matter provided for in this Act.’ (My
emphasis.)

[5] The prescribed method referred to in ss 17(1A), 26(1) and 26(1A) is to be
found in the Regulations promulgated under the Act (the Regulations).2 Regulation
3(1)(b) dictates how an assessment of an injury in terms of s 17(1A)(a) of the Act is
to be conducted by the medical practitioner concerned. It provides as follows:
‘(b) The medical practitioners shall assess whether the third party’s injury is serious in
accordance with the following method:
i)
The Minister may publish in the Gazette, after consultation with the Minister of
Health, a list of injuries which are for purposes of Section 17 of the Act not to be
regarded as serious injuries and no injury shall be assessed as serious if that
injury meets the description of an injury which appears on the list.
ii)
If the injury resulted in 30 % or more impairment of the whole person as provided in
the AMA Guides,3 the injury shall be assessed as serious.
iii)
An injury which does not result in 30 % or more impairment of the whole person
may only be assessed as serious if that injury:
(aa) Resulted in serious long term impairment or loss of body function;
(bb) Constitutes permanent serious disfigurement;
(cc) Resulted in severe long term mental or severe long term behavioural
disturbance or disorder; or
(dd) Resulted in loss of a foetus.’ (My emphasis.)
I pause to note that both s 17(1) of the Act and Regulation 3(1)(b), in terms, limit the
assessment by the medical practitioner to one concerning the seriousness of the
injury.

[6] Prior to the submission of his claim, Mr Gouws’ injuries were assessed by
Dr M de Graad, an orthopaedic surgeon, who, on his behalf, completed the
prescribed RAF4 form. At this stage it is necessary to have regard to the relevant

2 Road Accident Fund Regulations, GN R770, GG 31249, 21 July 2008.
3 American Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition.

part of Dr de Graad’s report submitted to the Fund in which she stated the following
in relation to his injuries:
‘5. SERIOUS INJURY: THE NARRATIVE TEST
5.1 Serious long term impairment or loss of body function.
Shoulder replacement on the left Artrodesis of the right thumb. Both upper limbs involved
that is restricting him from doing his normal work.’
The description set out above is one, ostensibly, within the ambit of Regulation
3(b)(iii)(aa).

[7] On 18 October 2012 Mr Gouws’ claim for compensation in relation to general
damages was rejected by the Fund. The material part of the letter written to him on
behalf of the Fund informing him of that fact reads as follows:
‘Be informed that the Fund rejects your client’s claim for general damages on the basis that:
Dr M de Graad assessed your client in accordance with the prescribed assessment method
and concluded that the injury is not serious, as evidenced by the Serious Injury Assessment
Report (RAF 4), we await your medico legal reports and photographs of injuries.’
As is clear from what is set out earlier, Dr de Graad, contrary to what is set out in the
aforesaid letter, did assess Mr Gouws’ injuries as being serious. Counsel on behalf
of the Tribunal rightly did not seek to justify the stated basis for the decision rejecting
Mr Gouws’ claim. Simply put, the basis for the Fund’s decision was fallacious. Mr
Gouws understandably was aggrieved by the fund’s rejection of his claim on the
basis set out above.

[8] I interpose to state that in terms of Regulation 3(3)(d) the Fund, if not
satisfied that the injury has been correctly assessed:
‘[M]ust:
(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 or an agent.’
Those are the options open to the Fund. In the event of a further assessment,
Regulation 3(3)(e) provides as follows:
‘The Fund or an agent must either accept the further assessment or dispute the further
assessment in the manner provided in these Regulations.’

There was no further assessment but there was a rejection of the report. A dispute
arose. In the event of a dispute both the claimant and the Fund have a right to refer a
dispute to an appeal tribunal. In relation to these options and the dispute resolution
provided for by way of an appeal process, see the decision of this court in RAF v
Faria 2014 (6) SA 19 (SCA), paras 30-32.

[9] The Regulations, in some detail, provide for an appeal process. This is
foreshadowed by s 26(1A)(c) of the Act, set out in para 4 above. Regulation 3(4)
provides 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 the assessment
performed by a medical practitioner in terms of the 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 submissions; medical reports and opinions as the disputant
wishes to rely on; and
c)
if the disputant is the Fund or agent, provide all available contact details pertaining
to the third party.’

[10] The procedure set out in the preceding paragraph and further procedures for
the finalisation of an appeal process provided for in Regulation 3 were followed by
Mr Gouws. On 22 February 2013, after an exchange of correspondence with the
Registrar of the HPCSA4 in relation to a prospective consideration by an appeal
tribunal of the dispute referred to it by Mr Gouws, his attorneys submitted a further

4 The Registrar of the HPCSA has the responsibility to appoint members of the Tribunal and provide
administrative support to the Tribunal. See definition of ‘Registrar’ in Regulation 1 and Regulation
3(8), which reads as follows:
‘(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.
(b) The appeal tribunal consists of three independent medical practitioners with expertise in the
appropriate areas of medicine, appointed by the Registrar, who shall designate one of them as the
presiding officer of the appeal tribunal.
(c) The Registrar may appoint an additional independent health practitioner with expertise in any
appropriate health profession to assist the appeal tribunal in an advisory capacity.’
‘Registrar’ is defined in the Regulations as the ‘Registrar of the Health Professions Council of South
Africa established in terms of section 2 of the Health Professions Act, 1974 (Act No. 56 of 1974)’.

‘medico-legal’ report by Dr de Graad dated 19 February 2013, past hospital records,
a radiological report, consultation notes of a neurosurgeon, a letter from Dr Jonker,
an orthopaedic surgeon, clinical evaluation notes by Dr Julyan, another orthopaedic
surgeon, theatre notes by Dr Julyan and further consultation notes by a radiologist.
The documents submitted were all directed at showing that the injuries sustained
were serious within the meaning of that expression provided for in Regulation
3(1)(b). The tests set out in Regulation 3(1)(b)(iii) are popularly referred to as the
narrative test.

[11] On 21 July 2014, Mr Gouws was informed that the third, fourth, fifth and sixth
appellants had been appointed to determine the appeal. On 26 August 2014, Mr
Gouws was informed of the outcome of his appeal. The letter informing him of this,
by the HPCSA, on behalf of the Tribunal, bears repeating in its entirety:
‘We refer to the above matter and hereby inform you that Road Accident Fund Appeal
Tribunal resolved at its recent meeting held on 01 August 2014 as follows –
i.
He is currently 50 years old of age. On 24 July 2010 he was in an accident where
he sustained soft tissue injury to his left forearm, tenderness in his chest.
ii.
There is no indication that he had acute injury to his left shoulder or his right thumb
as well as the carpal tunnels.
iii.
The committee took notice that he had various surgery procedures which include a
bicep tendon repair. Posterior bank card repair and later on an athetosis of first metal
Carpal Phalangeal Joint of the right thumb.
iv.
He also had a posterior bank card repair as well as a coronary bypass.
v.
With all the information available the committee cannot find a link between his left
shoulder and his right thumb as well as the carpal tunnels.
vi.
The committee must take notice that he was a karate instructor and with the
information available the committee cannot bring the accident to his present condition
as well as his surgeries he had.
vii.
With all the information available the committees is of the opinion that his injuries
are not serious under the Narrative test.
We trust you find the above in order.’

[12] The powers of the Tribunal set out in Regulation 3(11) are clearly directed at
a determination of whether the injuries sustained are serious within the narrative test.

For example, Regulations 3(11)(a) and (b) which are part of the overall powers of the
Tribunal, provide:
‘(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.
(b)
Direct, on no less than five days written notice, that the third party present himself
or herself in person to the appeal tribunal at a place and time indicated in the said notice
and examine the third party’s injury and assess whether the injury is serious in terms of
the method set out in these Regulations.’
In term of regulation 3(11)(g) an appeal tribunal has the power to:
‘(g) Determine whether in its majority view the injury concerned is serious in terms of the
method set out in these Regulations.’
In terms of regulations 3(11)(h) and (i) the Tribunal has the power to:
‘(h) Confirm the assessment of the medical practitioner or substitute its own assessment for
the disputed assessment performed by the medical practitioner, if the majority of the
members of the appeal tribunal consider it appropriate to substitute.
(i) Confirm the rejection of the serious injury assessment report by the Fund or an agent or
accept the report, if the majority of the members of the appeal tribunal consider it is
appropriate to accept the serious injury assessment report.’

[13] As is apparent, the Tribunal took the view that Mr Gouws’ injuries were not
causally connected to the collision referred to above. At this stage it is necessary to
record that in terms of Regulation 3(13) the findings of a Tribunal ‘shall be final and
binding’. I consider it necessary at this stage to repeat what is set out in para 11
above, namely, that in terms of ss 3(11)(a) and (b), what is in contestation before an
appeal tribunal is the correctness of the medical practitioner’s assessment of the
seriousness of the injuries allegedly sustained and consequently the correctness or
otherwise of the Fund’s rejection of the report.

[14] Subsequent to the decision of the Tribunal being communicated to Mr
Gouws, his attorneys submitted further extensive documentation to the Tribunal in
support of his contention that the injuries he sustained were directly attributable to
the collision described above. The Tribunal did not have regard to the further

information supplied as it had already made its decision. For present purposes it is
not necessary to deal with the dispute concerning the nature and consequences of
the clinical observations made by medical personnel who attended to Mr Gouws
soon after the collision and why invasive shoulder surgery was only performed a few
days later. We are also not required to deal with the persuasiveness or otherwise of
all the documentation in favour of, or against the view that the injuries were not
sustained as a result of or connected to the collision. Furthermore, in deciding this
case the relevance of Mr Gouws being a karate instructor need not be determined.

[15] For completeness I record that in her medico-legal report, Dr de Graad said
the following concerning the carpal tunnel syndrome that Mr Gouws complained of:
‘Mild carpal tunnel syndrome:
The carpal tunnel syndrome is not necessarily related to the injuries. It is uncommon for men
to develop carpal tunnel syndrome. One must thus give the patient the benefit of the doubt
and conclude that there is a nexus between a carpal tunnel syndrome and the injuries
sustained. Provision must be made for carpal tunnel release of both hands.’
That conclusion does not appear to detract from the seriousness of the shoulder
injury which Dr de Graad had regard to in assessing the seriousness of Mr Gouws’
injuries.

[16] Aggrieved by the Tribunal’s decision, Mr Gouws applied to the court below
for, inter alia, the following relief:
‘1. That the First Respondent’s decision of 1 August 2014 under reference number
RAFA/001125/2013 be reviewed and set-aside.
2. That the matter is referred back to the Road Accident Fund Appeal Tribunal (First
Respondent) for reconsideration by a different panel to be constituted by the Registrar of the
Third Respondent.
3. That the Road Accident Fund Appeal Tribunal as appointed in paragraph 2 above, be
directed to inter alia take into account all relevant and available hospital records, radiological
reports, consultation notes, letters, clinical evaluations, theater reports and medical legal
reports as appear from this application of the Applicant and all such further documents that
may become available before the hearing of the appeal.’

[17] Mr Gouws complained that the Tribunal had disregarded the documentary
expert evidence supplied by him, which accepted that his shoulder injury was related

to the accident and that it resulted in serious long term impairment. Furthermore, in
his founding affidavit, he stated that if the Tribunal had been concerned about the
nexus between his injuries and the collision referred to earlier, it had the power, in
terms of Regulations 3(11)(a) to (e) to obtain further information. Mr Gouws stated
that he had no idea why the fact that he was a karate instructor had been taken into
account. In a supplementary affidavit, he stated that from the record supplied in
terms of Rule 53 of the Uniform Rules, there appears to have been no basis upon
which the undisputed information supplied by experts on his behalf was rejected. In
his replying affidavit Mr Gouws complained that he had not been apprised that
causality was in issue and had therefore not been given an opportunity to deal with
it. He also denied that the Tribunal has the power to consider questions regarding
the nexus between the injuries and the collision.

[18] Tuchten J, in adjudicating Mr Gouws’ application, had regard to the methods
to determine the seriousness of an injury identified in Regulation 3. The court below
took into account the history of the assessment by Dr de Graad of Mr Gouws’ injuries
and his appeal to the Tribunal. The following appears at para 9 of the judgment of
the court below:
‘The tribunal thus found that the injuries which the applicant had suffered had not been
caused by the accident on 24 July 2010. The applicant took the decision of the tribunal on
review. The applicant asks that the decision of the tribunal be set aside and the matter
remitted for consideration afresh. Whether the review should succeed is before me for
adjudication. It was common cause between counsel that it was implicit in the decision of the
tribunal that the tribunal had found that its jurisdiction extended to the issue of causation.’

[19] The court below considered the submission on behalf of the appellants that it
was implicit in terms of the Act and the Regulations that a determination with regard
to causation was within the Tribunal’s statutory remit. The following are the material
parts of the judgment of the court below:
‘Counsel conceded that legal causation remained indeed for the court to decide in due
course but submitted that the question whether medical causation was established in a
particular case had been entrusted in first instance to the Fund and then to the tribunal.
Medical causation, counsel said, was to be found in the interrelationship between the injury
and the pathology which gives rise to it. But counsel had difficulty in identifying the separate

scopes, if any of medical and legal causation in relation to the present dispute. I do not see
any myself.
Furthermore, I think division of the duty to decide causation between the Fund and the
Tribunal on the one hand and the court on the other would potentially give rise to intolerable
confusion as to the boundaries of jurisdiction. To compound the confusion, this suggested
role of the Fund and the tribunal would only arise when the issue of a serious injury was
raised. In all other cases, on the analysis of counsel for the opposing respondents, the court
would retain complete (ie not merely partial) jurisdiction to determine causation. It seems to
me improbable and unwieldy for certain aspects of causation arising in certain categories
cases to be withdrawn from the jurisdiction of the court while other aspects of other
categories remain.
If counsel’s submission is correct, then if a tribunal finds an injury or set of injuries to be
serious, on whatever ground, then the Fund would be disabled from arguing at the trial that
the plaintiff had not established causation. This could have far reaching and even absurd
consequences.
The courts have for decades determined causation. Difficult questions arise in this regard
from time to time. In my view the courts, duly informed by expert evidence and argument,
are better suited to make this adjudication than the administrative decision makers in
question.’

[20] The court below concluded that there was nothing in the language of the
legislation concerned which empowered the Tribunal to determine whether the
injuries assessed by it were caused by or arose from the driving of a motor vehicle. It
made an order in the terms set out in para 15 above and ordered the second
appellant to pay Mr Gouws’ costs, including the costs of two counsel.

[21] It is against the order referred to in the preceding paragraph that the present
appeal is directed. Before us counsel on behalf of the Tribunal accepted that there
was no express provision in the Act or the Regulations that conferred on it the power
to determine finally whether the injuries submitted to it for assessment were caused
by or arose out of the driving of a motor vehicle. Counsel on behalf of the Tribunal
persisted with the position adopted in the court below, namely that it was implicit in
the legislation that the Tribunal had that power. In this regard, reliance was placed
on the decision of this court in Johannesburg Municipality v Davies & another 1925
AD 395. It was submitted on behalf of the Tribunal that the scheme of the Act and

the Regulations was to ensure that deserving and qualifying claims are met. This, so
it was argued, could only be achieved if the cause and the extent of the injury or
injuries involved were determined. Section 17 of the Act, so it was contended, makes
it clear that the injury for which a claimant is to be compensated must be caused by
or arise from the driving of a motor vehicle.

[22] Furthermore, so it was asserted, Regulation 3(11)(d), which clothes the
Tribunal with the power to examine pre- and post-accident medical reports when it
assesses the seriousness of the injury, supports the argument that it is implicit in the
Regulations that the Tribunal has the power to determine the connection between
the injuries and the event allegedly giving rise to them.

[23] A further argument on behalf of the Tribunal is that it is rightly within the
professional terrain of medical experts to determine cause and effect in relation to
injuries. Support for this latter contention was sought to be found in an article by M
Slabbert and H J Edeling entitled ‘The Road Accident Fund and Serious Injuries: The
Narrative Test’.5 The following are the quotes upon which reliance were placed. First,
where the authors take issue with the ‘loose’ use of the word injury:
‘Problems arise in relation to the loose use of the word “injury” where the context appears to
relate to complications, impairment or disability. This can easily lead to confusion. In
essence “injury” refers to the physical damage that occurs at the moment of the accident,
“complication” to the subsequent pathological developments, “impairment” to the long-term
symptoms and losses resulting from the injuries, and “disability” to the effects of the
impairment on the various elements of the individual’s life taking into account the
circumstances.’
Second, where the authors question the adequacy of the prescribed RAF 4 report
form:
‘Point 4 refers to the AMA Guides rating which should be completed if the injury sustained
does not appear on the non-serious list of injuries. In point 4.1 the doctor is required to
describe the nature of the motor vehicle accident, despite the fact that he or she often has
no knowledge or limited knowledge of what happened and he or she must therefore
speculate. It would be more relevant to ask the doctor whether he or she is satisfied that the

5 M Slabbert and H J Edeling ‘The Road Accident Fund and Serious Injuries: The Narrative Test’
(2012) 268 PELJ 15 2.

injured was indeed injured in a motor vehicle accident, and whether the injuries claimed for
were in fact caused by the motor vehicle accident in question.’

[24] The submissions on behalf of the Tribunal are superficially attractive. After
all, the proposition that the Act and Regulations were designed to ensure that
deserving and qualifying injuries are compensated is unassailable. So, it seems to
follow, and one would expect that the Tribunal ought to be able to decide finally
whether the injuries calling for assessment did indeed arise out of or were caused by
the driving of a motor vehicle. However, one has to weigh these submissions in light
of the provisions of the Act and the Regulations and view them against first principles
and policy considerations.

[25] In Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others [1998] ZACC 17; 1999 (1) SA 374 (CC) and
Pharmaceutical Manufacturers Association of South Africa & another: In re ex parte
President of the Republic of South Africa & others [2000] ZACC 1; 2000 (2) SA 674
(CC), the Constitutional Court made it clear that it is a fundamental principle of our
law that public power can only be exercised within the bounds of the law.
Repositories of power can only exercise such power as has been conferred upon
them by law.6 This is a description of the principle of legality.

[26] It will be recalled that even though counsel on behalf of the Tribunal
conceded that there was no express provision conferring upon it the power of finally
deciding the question of causation, he nevertheless submitted that such power,
having regard to the object of the Act, could be implied in terms of Davies. The
following is the relevant dictum relied on:
‘Here it may be as well to remark that the rule that a power is to be implied to do that which
is reasonably incidental to what has been expressly authorised is no new rule of construction
of statutes, it is merely an example of a proper implication to draw.’7

[27] As stated above, the general rule is that express powers are needed for the
actions and decisions of administrators.8 As pointed out by Professor Hoexter,

6 Paras 56-58 of Fedsure and paras 17-20 of the Pharmaceutical case.
7 At 402.

implied powers may, however, be ancillary to the express powers or exist either as a
necessary or reasonable consequence of the express powers.9 Furthermore, the
author goes on to state that ‘a court will be more inclined to find an implied power
where the express power is of a broad, discretionary nature – and less inclined
where it is a narrow, closely circumscribed power’.10 Where the administrative action
or decision is likely to have far reaching effects, it is less likely that a court will in the
absence of express provisions find implied authorisation for it.11

[28] The Road Accident Fund Amendment Act 19 of 2005 (Amendment Act),
which came into effect on 1 August 2008 brought about significant changes to the
Act. It limited the Fund’s liability for compensation in respect of claims for non-
pecuniary loss (general damages) to situations where a serious injury as defined in
the Act has ensued. That has been dealt with above, in brief, under the discussions
of sections 17 and 26 of the Act and the Regulations. The Amendment Act also, by
way of the introduction of s 21, abolished certain common law claims which for
present purposes we need discuss no further. The Amendment Act also limited the
amount of compensation the Fund is obliged to pay in relation to claims for loss of
income or for a dependent’s loss of support, arising from the bodily injury or death of
a victim of a motor accident. These are far-reaching changes expressly catered for in
the legislation.

[29] The amendments in express terms referred to in the preceding paragraph
militate against importing the far-reaching suggested powers of the Tribunal that will
see it have the final word on the question of causation. The power of the Minister to
make regulations in terms of s 26(1A)(c), namely, for the resolution of disputes
arising from any matter provided for in this Act, is the genesis for the power of the
Tribunal. Regulation 3 bears the title ‘Assessment of serious injury in terms of
section 17(1A)’. That subsection, as discussed above, directs that the assessment of
an injury shall be based on ‘a prescribed method’. This, of course, relates first to an
assessment by a medical practitioner and thereafter has relevance in the appeal

8 See also Cora Hoexter Administrative Law in South Africa 2 ed (2012) at 43.
9 Ibid at 44 and the authorities cited there, namely, Lekhari v Johannesburg City Council 1956 (1) SA
552 (A) at 567A and Chonco v Minister of Justice and Constitutional Development 2010 (4) SA 82
(CC).
10 Page 45.
11 Page 45.

process, which is directed at determining whether the assessment by the medical
practitioner was rightly made. In this regard, both the Fund and the claimant may be
disputants.12

[30] In the present case, the Tribunal, an appellate body, purported to have the
power to decide finally upon the question of causation. In this regard the second to
sixth appellants, in their answering affidavit relied expressly on the powers conferred
upon the Tribunal by Regulation 3(13). The Fund was cited as a respondent in the
court below but did not participate in the proceedings in the court below or in this
court. It appears that the Fund considered itself bound by the Tribunal’s decision.
Thus, it did not contend that it ultimately had the prerogative to concede or challenge
causation.

[31] In paras 10 and 11 of its judgment, set out in para 19 above, the court below
reflected that the Tribunal adopted the position that it had the power to decide on
whether there was a nexus between the injuries allegedly sustained and the driving
of a motor vehicle. In para 10, Tuchten J noted that whilst counsel on behalf of the
Tribunal had conceded that ‘legal causation’ was ultimately for the courts to decide, it
was nevertheless submitted that ‘medical causation’ was the preserve of the Fund
and the Tribunal. The court below went on to state that counsel on behalf of the
Tribunal had difficulty in distinguishing between ‘medical’ and ‘legal’ causation. As
stated above, in para 11, Tuchten J recorded that the division of the ‘duty’ to decide
causation between the court on the one hand, and the Tribunal on the other, would
give rise to ‘intolerable confusion as to the boundaries of jurisdiction’.

[32] In heads of argument filed in this court on behalf of the Tribunal, it latterly
appears to be suggested that the Tribunal is entitled to ‘express an opinion’ on the
nexus between the driving of a motor vehicle and the alleged injuries. This attempt to
dilute its earlier position is negated by the provisions of Regulation 3(13) on which,
inter alia, it had relied and by the passive attitude of the Fund. That Regulation
makes ‘findings’ of the Tribunal final and binding. In para 49 of its heads of argument
the Tribunal stated:

12 See Regulations 3(4) and (5).

‘The facts of this matter, considered against the authorities referred to above, indicate that
the Tribunal was authorised and enjoined to consider and pronounce upon the link between
the injury and the accident relied upon.’
This demonstrates confused thinking on the part of the Tribunal. When the Tribunal
‘pronounces’ on causation it must be considered to arrive at a finding which would
then, in terms of Regulation 3(13) be final and binding. As set out in para 30 above,
the Fund appears to have considered itself bound by the Tribunal’s finding in relation
to causation.

[33] The medical practitioner who conducts the initial assessment of the
seriousness of the injury is not, in making that assessment, precluded from
expressing a view on whether the injury was caused by or arose from the driving of a
motor vehicle. In the event of the medical practitioner casting doubt on whether there
was a link between the alleged injury and the driving of a motor vehicle, the Fund
can decide whether to contest causation or to concede it. In adopting a position on
whether to contest causation, the Fund is not limited to the views expressed by the
medical practitioner, but may have or acquire other information to inform its decision.
In the ordinary course causation is an issue that is ultimately decided by the courts.
A dispute between the Fund and a claimant in relation to causation has to be
referred to a court for adjudication. When that issue is decided by a court, it does not
follow that medical practitioners are necessarily the only experts upon whom reliance
may be placed. Courts are not bound by the view of any expert. They make the
ultimate decision on issues on which experts provide an opinion.

[34] If, after the initial assessment by the medical practitioner, the Fund exercises
the option of a rejection of the report, a dispute arises in relation to the correctness of
the assessment of the seriousness of the injury by the medical practitioner and
where, as far as the Fund is concerned, causation is not in issue, that dispute is left
to be dealt with by the Tribunal, which will have the last say on the matter, subject of
course to whether that decision is susceptible to judicial review. In the present case,
as described in para 7 above, the Fund disputed the assessment of the injury on
fallacious grounds. The Fund did not inform Mr Gouws that causation was in issue
nor did it independently adopt a position in relation thereto. It wrongly abdicated that
position to the Tribunal. As pointed out above, the contestation before the Tribunal

could only be in relation to the assessment by the medical practitioner of the
seriousness of the injury and the finality of its decision is in relation to that aspect.

[35] The effect of what is suggested on behalf of the Tribunal is that the
jurisdiction of the court is ousted. The only challenge to a decision by the Tribunal in
relation to causation on the suggested basis will therefore be in the form of a review
which, contrary to the suggestion on behalf of the Tribunal, will not be time or cost
efficient. One might rightly ask where the funding for such an exercise will come from
and how it might impact on indigent persons.

[36] Having regard to the authorities and principles set out in para 25 above, it is
necessary to bear in mind that the power given to the Tribunal in terms of the
legislation is narrowly circumscribed. It is not of a broad discretionary nature, which
would allow for further powers to be implied. The Tribunal cannot have the final say
in relation to causation. That power is not provided for.

[37] Moreover, the power contended for is not a necessary or reasonable
consequence of the express powers of the Tribunal or of the Fund. On the contrary,
if the contentions on behalf of the Tribunal are upheld, it will be oppressive in relation
to claimants and, as stated above, will deny them access to courts on an issue
traditionally reserved for adjudication by them. A finding against the suggested
power does not enervate the provisions of the Act. The Fund maintains the right to
challenge or concede causation. The Fund’s view could be informed by information it
has acquired or has at its disposal at any time before or during litigation and in this
regard is not restricted to only the medical evidence at its disposal. As hinted at in
para 12 of the judgment of the court below, if the submissions on behalf of the
Tribunal were to be upheld the result might well be that the Fund itself will be
stripped of its power to decide the issue of causation in the event of an appeal
tribunal deciding causation against it.

[38] The article by Slabbert and Edeling, referred to in para 23 above, on which
reliance was placed by counsel on behalf of the Tribunal, takes the matter no further.
The authors’ criticism of para 4.1 of the injury assessment report form (RAF 4)
detracts from the submission that the Tribunal has the final say on causation. The

authors state that the medical practitioner is required to describe the nature of the
motor vehicle accident ‘despite the fact that he or she often has no knowledge or
limited knowledge of what happened and he or she must therefore speculate’. One
might rightly ask how, in the absence of complete knowledge or information, the
medical practitioners and, indeed, the Tribunal, can have the final say on causation.

[39] As stated above, Mr Gouws was given no notice that causation was an issue
that was going to be addressed by the Tribunal and was not afforded an opportunity
to make representations, either on whether a conclusion of the kind finally arrived at
was justified or on whether a final decision on that issue was within the Tribunal’s
statutory remit.

[40] It is up to the Legislature to decide whether to intervene and detract further
from the right of claimants, perhaps on the basis of affordability and ultimately in the
interest of the public, by way of further legislative amendments. In that event there
will no doubt be careful scrutiny by affected parties of the constitutionality of such
provisions. Following on this judgment the legislature, or the Minister, may consider
whether, for the purposes of greater clarity regarding prospective disputes, including
those with greater complexity than the present one,13 legislative change is called for.
That is an aspect beyond our remit. Returning to the present case, in my view,
principle and policy compel a conclusion against the Tribunal. The essential findings
of the court below cannot be faulted.

[41] In light of the above, the following order is made:
The appeal is dismissed with costs including the costs of two counsel.

___________________
M S Navsa
Acting Deputy President

13 In the present case the dispute, as it finally appears to have crystallised, after a finding by the
Tribunal, even though the initial basis for the rejection by a medical practitioner was erroneous, was
whether the shoulder injury assessed as serious by the medical practitioner, was caused by or arose
from the driving of a motor vehicle. The seriousness of the shoulder injury, per se, does not appear to
have been in dispute. Prospectively, questions might arise about whether a differentiated assessment
by a medical practitioner is competent in the event of a concern about whether some of a number of
injuries are related to or arose from the driving of a motor vehicle. The Act and the Regulations
appear to have been crafted on the basis of causation not being in issue.

Appearances:

For the Appellant:
L Kutumela

Instructed by:

Gildenhuys Malatji Inc., Petoria

Honey Attorneys, Bloemfontein

For the Respondent:
F A Ras SC (with him M Tromp)

Instructed by:

Johan van de Vyver Attorneys, Pretoria

Symington & De Kok Attorneys, Bloemfontein

SUPREME COURT OF APPEAL SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
13 December 2017

STATUS
Immediate

RAF & others v Gouws & another (056/2017) [2017] ZASCA 188

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today, the Supreme Court of Appeal (SCA) dismissed an appeal brought by the appellants, the Road
Accident Appeal Tribunal (the Tribunal) and others against a judgment of the Gauteng Division of the
High Court, Pretoria (the court a quo), in favour of the respondent, Mr Lartz Gouws (Mr Gouws). The
issue at the nub of this appeal concerned the question as to whether it is within the Tribunal’s
statutory remit to finally determine the nexus between the injuries allegedly sustained, on which a
claim for compensation is premised, and the driving of a motor vehicle.

The dispute between the parties which gave rise to this appeal emanates from the following factual
background. Mr Gouws allegedly sustained injuries as a result of being struck by a motor vehicle on
24 July 2010, whilst walking in a parking area and being flung over two vehicles in the vicinity. On 16
August 2012 Mr Gouws lodged a claim for compensation with The Road Accident Fund (the Fund), a
statutory insurer, under s 17 of the Road Accident Fund Act 56 of 1996 (the Act). In terms of s 17(1)
of the Act, the Fund’s liability is limited to compensating a third party for general damages – or non-
pecuniary loss, as it is called in the section – to instances where he or she suffered ‘serious injuries’
within the meaning of s 17(1A) of the Act.

At present, there are three methods of determining what constitutes a serious injury for purposes of
the Act. They are identified in Regulation 3 of the Road Accident Fund Regulations (the Regulations).
Firstly, the Minister of Transport may publish, after consultation with the Minister of Health, a list of
injuries which are for purposes of section 17 of the Act not to be regarded as serious injuries. No
injury shall be assessed as serious if that injury meets the description of an injury which appears on
the list. Secondly, if the injury resulted in 30 percent or more Impairment of the ‘Whole Person as
provided in the AMA Guides’, the injury shall be assessed as serious. Thirdly, an injury which does
not result in 30 percent or more Impairment of the Whole Person may only be assessed as serious if
that injury resulted in a serious long-term impairment or loss of a body function, constituted

permanent serious disfigurement, resulted in severe long-term mental or severe long-term
behavioural disturbance or disorder or resulted in loss of a foetus.

Prior to the submission of his claim for compensation, Mr Gouws submitted himself to an assessment
by a medical practitioner as required by the Regulations. In her assessment, Dr de Graad concluded
that Mr Gouws required a shoulder replacement on the left and an arthrodesis of the left thumb. At the
time of his accident Mr Gouws was a shift boss at a mine. Dr de Graad believed that the injuries
restricted him from doing his normal work. She considered Mr Gouws to have suffered serious long
term impairment or loss of a body function. On 18 October 2012 Mr Gouws’ claim for compensation in
relation to general damages was rejected by the Fund on the erroneous basis that Dr de Graad had
not assessed the injury as being serious. Mr Gouws was aggrieved and resorted to an appeal.

In the event of a dispute arising concerning the assessment by a medical practitioner, the Regulations
provide for an appeal process to the Tribunal consisting of three independent medical practitioners
appointed by the Registrar of the second appellant, the Health Professions Council of South Africa
(HPCSA). Mr Gouws’ appeal was adjudicated at a formal level in accordance with the Regulations.
On 26 August 2014, Mr Gouws was informed of the outcome of his appeal. The Tribunal upheld the
Fund's rejection of the serious assessment injury report. It did so on the basis that it could not find a
link between Mr Gouws’ serious injury and the driving of a motor vehicle. It noted that Mr Gouws was
a karate instructor.

In the court a quo, it was held that there was nothing in the language of the legislation concerned
which empowered the Tribunal to determine whether the injuries assessed by it were caused by or
arose from the driving of a motor vehicle. It therefore reviewed and set aside the decision of the
Tribunal and it remitted the matter to the Tribunal for reconsideration by a different panel to be
constituted by the Registrar of the HPCSA.

Before the SCA the Tribunal accepted that there was no express provision in the Act or the
Regulations that conferred on it the power to determine finally whether the injuries submitted to it for
assessment were caused by or arose out of the driving of a motor vehicle. Counsel on behalf of the
Tribunal persisted with the position adopted in the court a quo, namely that it was implicit in the
legislation that the Tribunal had that power. It was submitted on behalf of the Tribunal that the scheme
of the Act and the Regulations was to ensure that deserving and qualifying claims are met. This, so it
was argued, could only be achieved if the cause and the extent of the injury or injuries involved were
determined. Section 17 of the Act, so it was contended, makes it clear that the injury for which a
claimant is to be compensated must be caused by or arise from the driving of a motor vehicle

The SCA rejected the submissions on behalf of the Tribunal. The power contended for was far
reaching. It was oppressive to claimants and denied them access to courts on an issue traditionally
reserved for adjudication by them. Such dramatic change had to be expressly catered for.
Furthermore, the power given to the Tribunal was to decide the question of the seriousness of the
injury and was not of a broad discretionary kind, allowing for the power contended for to be implied. A
finding against the suggested power does not enervate the provisions of the Act. The Fund maintains
the right to challenge or concede causation. The Tribunal does not have the power to decide finally
the question of causation.

The appeal was dismissed with costs.