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[2016] ZASCA 59
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Compensation Solutions (Pty) Ltd v Compensation Commissioner (072/2015) [2016] ZASCA 59; (2016) 37 ILJ 1625 (SCA) (13 April 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 072/2015
DATE:
13 APRIL 2016
Reportable
In
the matter between:
COMPENSATION
SOLUTIONS (PTY)
LTD
................................................................
APPELLANT
And
THE
COMPENSATION
COMMISSIONER
..................................................
FIRST
RESPONDENT
THE
DIRECTOR-GENERAL, DEPARTMENT
OF
LABOUR
.................................................................................................
SECOND
RESPONDENT
THE
MINISTER OF
LABOUR
......................................................................
THIRD
RESPONDENT
Neutral
citation
:
Compensation
Solutions (Pty) Ltd v The Compensation Commissioner
(072/2015)
[2016] ZASCA 59
(13 April 2016)
Coram:
Maya AP, Cachalia, Pillay, Petse and Dambuza JJA
Heard:
4 March 2016
Delivered:
13
April 2016
Summary:
Contempt of court – repeated
failure by the Compensation Commissioner to comply with a settlement
order of which he was aware
– settlement order has the full
force of a court order – commissioner not establishing
reasonable doubt that his non-compliance
was not wilful and mala fide
–appellant proved requisites for civil contempt of court and
the commissioner’s committal
to prison therefor.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Hughes J sitting as court of
first instance):
(a)
The appeal is upheld with costs including the costs of two counsel.
(b)
Paragraph 1 of the order of the court a quo is set aside and replaced
with the following:
‘
1
The first respondent, Mr Shadrack
Shivumba-Homu
Mkhonto, is declared to be in contempt of
paragraphs 1, 2, 5 and 6 of the court order of 31 July 2009 under
case number 35047/2009.
2
The first respondent is accordingly sentenced to undergo three
months’ imprisonment suspended for a period of five years
on
condition that he is not convicted of contempt of court committed
within this period.
3
The first respondent is ordered to pay the costs of the application,
such costs to include the costs of two counsel where employed,
the
costs reserved on 20 August 2013, 5 September 2013, 12 and 18
February 2014 and the costs of attending a meeting in Johannesburg
on
7 August 2014.’
JUDGMENT
Maya
AP
(Cachalia, Pillay, Petse and Dambuza JJA
concurring):
[1]
This is an appeal against portion of the judgment
of the Gauteng Division of the High Court, Pretoria (Hughes J) which
declared
the Compensation Commissioner,
Mr
Shadrack
Shivumba-Homu
Mkhonto
and the first respondent herein (the
commissioner), not to be in contempt of paragraphs 1, 2, 5 and 6 of
its order dated 31 July
2009 in case number 35047/2009. The appeal is
with the leave of the court a quo.
Background
[2]
Section 22 of the Compensation for Occupational Injuries and Diseases
Act 130 of 1993 (COIDA)
[1]
entitles
employees who are injured on duty (COID patients)
[2]
to
claim compensation, which includes reasonable costs incurred by them
or on their behalf in respect of medical aid
[3]
necessitated
by an accident
[4]
or
an occupational disease,
[5]
not
from their employers,
[6]
but
from the Compensation Fund established under s 15 of the COIDA.
[7]
These
employees consult a wide range of medical practitioners who are
entitled to recover their consultation fees, payable in accordance
with a tariff of fees
[8]
determined
from time to time by the second respondent, the Director-General of
the Department of Labour,
[9]
from
the commissioner to whom the Director-General has delegated this
function.
[3]
In terms of s 6A of the COIDA, the commissioner’s office
administers the processing and payment of all claims arising
from the
provision of compensation and medical services to affected employees
and their dependants, and any refunds to employers
where
applicable.
[10]
The
claims must be lodged in the manner and form stipulated by the COIDA
and the regulations promulgated thereunder.
[11]
According
to the parties, this is often a time-consuming and onerous task for
the medical practitioners. The result is that claims
often do not
conform to the relevant requirements. This hampers the ability of the
commissioner to consider and adjudicate the
claims and render due
payment.
[4]
It is in this context that the appellant, Compensation Solutions
(Pty) Ltd, which trades under the name and style of CompSol,
renders
services to, inter alia, medical practitioners
[12]
who
provide medical services to COID patients, in respect of the
administration of medical aid accounts for services and consumables
they dispense to the patients for submission to the commissioner. It
does this by concluding contractual arrangements with the
medical
practitioners in terms of which it purchases the right, title and
interest in medical aid account claims against the commissioner
in
respect of the services they have rendered to COID patients, at a
discount. The appellant thus acquires the right to submit
claims to
the commissioner and receive payment thereof for its own account.
[5]
The system worked well initially. But inordinate delays taken with
the processing, validation and payment of these claims gradually
set
in resulting in severe backlogs. After various unsuccessful efforts
to rectify the situation, the appellant ultimately resorted
to
litigation, in June 2009. It sought certain declaratory orders and a
mandamus against the commissioner to address the inefficiencies
of
his office. Pursuant thereto, the parties concluded a settlement
agreement which the commissioner personally signed on his own
behalf
and in respect of his co-respondents. On 31 July 2009 this was made
an order of court (the settlement order) in terms of
which the
parties agreed, inter alia, that:
‘
1.
The [commissioner] shall process medical accounts submitted to him in
relation to medical aid provided to employees by medical
practitioners, as envisaged in the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 (“the Act”)
within
a reasonable time from the submission of such accounts.
2.
In respect of the submission of a medical account relating to a claim
which has been accepted (ie the [commissioner] has accepted
liability
for the claim), and in respect of a medical account submitted after
such acceptance, a reasonable time for the [commissioner]
to process,
validate and effect payment of such validated medical accounts is
within 75 days of the acceptance of a claim, or where
this occurs
after acceptance of the claim, the date of submission of such
accounts. For avoidance of doubt, it is recorded that
in respect of
medical accounts submitted before acceptance of a claim, the 75 days
will be calculated from the date of acceptance
of the claim.
3.
The [commissioner] shall process the backlog of medical accounts . .
. by 30 October 2009.
4.
The [commissioner] shall pay the [appellant] interest at the current
legal rate of interest (being 15.5 per cent per annum) on
all
currently outstanding medical accounts to which the letter of demand
dated 25 March 2009 relates, from such date of demand
to the date of
payment of each such respective account.
5.
The [appellant] will submit a compact disc to the [commissioner] on a
fortnightly basis containing a list of claims, and the
[commissioner]
shall thereupon provide the status of each claim, and where the claim
has been accepted, the date of such acceptance,
to the [appellant]
within 7 (seven) days of receipt of the compact disc.
6.
The parties record their mutual commitment to a functional process in
relation to claims and medical accounts submitted by the
[appellant],
and a good working relationship in that regard. Accordingly to
resolve any queries, dispute or discrepancies in relation
to medical
accounts submitted for payment, the [appellant] and the
[commissioner] (or his designated representatives) shall meet
weekly
at the latter’s Port Elizabeth offices.
7.
This agreement shall apply equally to the [Director-General] as the
party principally responsible for compliance with the obligations
and
performance of the functions set out in the Act.
8.
The Respondents shall pay the party and party costs of this
application, as taxed or agreed, including the costs of two counsel.
9.
The Respondents consent to this agreement being made an order of
court.
10.
The parties accept the above undertakings in settlement of the above
application.’
[6]
A mere two months after the settlement order, the commissioner had
failed to comply with his obligations in terms of its provisions.
The
appellant’s demand for a meeting in terms of paragraph 6 of the
order also went unanswered. As a result the appellant
launched three
action proceedings against him for three separate claims in the court
a quo which were all defended. The appellant
applied for summary
judgment in respect of each of the actions and, in the absence of
bona fide defences, judgments were granted
against him. However, the
commissioner’s office still failed to process and pay validated
claims within the 75 day period
decreed by the settlement order and
incorrectly rejected proper medical accounts. This prompted the
appellant to launch two successive
contempt proceedings against the
commissioner, in November 2009 and in February 2010, seeking a
declaratory order that he was in
wilful contempt of the settlement
order. Both proceedings were duly settled upon the commissioner’s
undertaking to pay the
amounts due and the costs thereof. Yet,
despite all these proceedings in which the commissioner had
ultimately admitted liability
and settled the amounts in issue,
submitted claims were still not processed in accordance with the
settlement order. As at 15 July
2013 an amount of R95 639 044.85
was outstanding for longer than 75 days.
Proceedings
in the court a quo
[7]
The commissioner’s failure to pay this amount prompted the
current proceedings which were launched in July 2013. The appellant
sought an order (a) declaring the commissioner to be in contempt of
paragraphs 1, 2, 5 and 6 of the settlement order; (b) imposing
such
punishment upon the commissioner for such contempt as the court may
deem meet, payment of the sum of R93 903 293.08
and
ancillary relief. The commissioner opposed the application. But even
though he was sued in his personal capacity, he did not
depose to the
answering affidavit. Instead it was deposed to by Mr SM Masalesa, a
Senior Practitioner in the Medical Payments section
of the
Compensation Fund. An unsworn statement apparently meant to stand as
the commissioner’s opposing affidavit, after
he was
specifically given an opportunity by the court to file a
supplementary affidavit deposed to by him personally, was rightly
struck out of the record.
[8]
According to Mr Masalesa, the commissioner was not in contempt of the
settlement order as he had tried his best to adhere to
its terms. His
commitment to abiding the settlement order and fulfil his statutory
obligations, so it was contended, was evidenced,
for example, by the
very fact that he had agreed to the settlement order, the engagement
of entities such as Siemens Business Systems
and then EOH Holdings
Limited and its subsidiary, Medical Services Organisation South
Africa (Pty) Ltd t/a MSO (MSO) to assist
with the processing of the
medical accounts and to implement the automation of the management of
the medical account system in
a bid to eliminate the backlogs. Any
non-compliance with the settlement order was therefore neither wilful
nor mala fide but was
caused by unavoidable challenges. These
challenges included disputes regarding what was owed; the Advance
Payment Agreement scheme
concluded by the parties meant to facilitate
advance payment of unverified medical accounts to relieve the
appellant’s cash
flow pressures, whose lawfulness had been
questioned by the Auditor-General; inadequate human resources and an
ageing information
technology system which was ultimately replaced
and decentralised to all the provinces to improve the turnaround time
in processing
claims.
[9]
After the filing of the replying affidavit the parties concluded yet
another detailed agreement on the future conduct of their
dealings,
which was also made an order of court, in terms of which they agreed
as follows:
‘
1.
The [appellant] and the [commissioner] shall nominate at least two
representatives each who shall meet as from Monday the 24
th
of February 2014 during office hours for the purpose of effecting an
accounting reconciliation of all the MSO lists submitted by
the
[appellant] to the [commissioner] up until LIST MSO91 or Batch 122;
2.
The parties are directed to use their best endeavours in a spirit of
cooperation to reach agreement on such accounting exercise,
and to
resolve any dispute line items if possible;
3.
The parties shall prepare a joint report in relation to the line
items upon which agreement has been reached, and such line items
upon
which no agreement can be reached. This process shall be completed by
16h00 on 24 March 2014. The parties shall file this
report by no
later than 16h00 on 31 March 2014.
4.
At the conclusion of each MSO list referred to in paragraph 1 above,
a list of line items upon which agreement has been reached
shall be
processed by the [commissioner] for immediate payment in the full and
precise amount of that list to the applicable CompSol
nominated SP
bank accounts;
5.
In such instances where a given account that is paid in accordance
with the aforegoing, is also included in the 5 advance payment
agreement lists applicable to the advance payments made, the
[appellant] shall repay such accounts by no later than the 10
th
business day of a calendar month following the payment of the medical
account to the [commissioner];
6.
Thereafter the parties shall meet for the same purpose and in the
same manner on a bi-weekly basis;
7.
The matter is postponed sine die;
8.
Costs of the hearing on 18 February 2014 are reserved.’
[10]
There was no compliance with this order either. No joint report was
prepared or filed as ordered until the appellant unilaterally
filed
an interim report in the form of an affidavit. With the intervention
of the court the parties thereafter, on 17 September
2014, concluded
a joint report in which they agreed, inter alia that ‘the total
sum of the accounts included in lists MSO
1-91 … then still
unpaid, amounted to R93 903 293.08 … due and payable
[which] had not been paid because
of logistical problems in the
systems of the financial divisions of the [commissioner] to
physically effect payment’. The
commissioner now admitted
liability for the amount claimed despite his previous denial of
indebtedness.
[11]
Relying on the judgments in
Tasima
(Pty) Ltd v Department of Transport & others
,
[13]
Johannesburg
Taxi
Association v Bara-City Taxi Association & others
[14]
and
Federation
of Governing Bodies of South African Schools (Gauteng) & another
v MEC for Education, Gauteng
,
[15]
the
court a quo noted that the commissioner was fully aware of the
settlement order as he was a signatory thereto and made the following
findings. It held however that there was no basis for the contempt
proceedings because the settlement order did not impose obligations
towards the court. This was so because in making the parties’
agreement an order of court it had merely noted a ‘contract
between the parties in respect of the terms thereof’ which did
‘not in any way place the court in the position of instructing
or commanding the parties’. In the court’s view, even if
it was wrong in this conclusion, the commissioner’s
non-compliance was neither wilful nor mala fide because ‘the
disobedience must be contemptuous of the court and not as between
the
parties’, as here. There could therefore ‘be no contempt
towards the court as no obligation exists between the
non-complier
and the court’.
Proceedings
on appeal
[12]
The issues on appeal were those determined in the court a quo and we
were asked to determine the status of the settlement order
and
whether the commissioner acted wilfully and mala fide in failing to
comply with its provisions. The gist of the commissioner’s
argument was that the settlement order was one
ad
pecuniam solvendam
(for the payment of
money) and that the consequence of non-compliance therewith was
therefore execution, not committal for contempt
of court. Moreover,
the settlement order lacked the characteristics of ‘a true
court order or a court order
stricto
sensu
’ because all its terms were
dictated by the parties and were not imposed by the court on its own
motion. It was a mere recordal
of such terms and did not ‘constitute
a direction by the court for a litigant to do, or refrain from doing
something’.
Thus its breach could not found contempt
proceedings. And, in any event, there was no evidence showing beyond
reasonable doubt
that the commissioner’s non-compliance was
wilful and mala fide.
[13]
Regarding the nature of the settlement order, it is indeed so that an
order for the payment of money in accordance with an
order of court
cannot found an order for committal for contempt of court unless such
order was made in relation to a
matrimonial
[16]
or
a maintenance
[17]
suit.
And contempt proceedings are limited to the case where the court has
ordered the respondent to do a certain thing and has
indicated the
manner in which it should be done.
[18]
But
these principles bear no relevance here because the terms of the
settlement order plainly went beyond requiring payment of money.
Paragraph 1 thereof ordered that the commissioner ‘shall
process medical accounts submitted to him … within a
reasonable
period of time from the submission of such accounts’.
Paragraph 2 stipulated that a reasonable time for the respondent to
process, validate and effect payment of such accounts would be within
75 days from the various dates described therein. These orders
are
couched in specific and imperative terms and are clearly
ad
factum praestandum
(for
the performance of or abstinence from performing specific acts).
[14]
Equally wrong is the court a quo’s view, supported by the
respondents, that the settlement order merely served to rubberstamp
the parties’ agreement. The Constitutional Court described the
status of a settlement order as follows in
Eke
v Parsons
(paras
29 and 31):
[19]
‘
Once
a settlement agreement has been made an order of court, it is an
order like any other. It will be interpreted like all court
orders. …
[Its]
effect is to change the status of the rights and obligations between
the parties. Save for litigation that may be consequent
upon the
nature of the particular order, the order brings finality to the
lis
between the parties; the
lis
becomes
res judicata
(literally, “a matter judged”). It changes the terms
of a settlement agreement to an enforceable court order. The type
of
enforcement may be execution or contempt proceedings. Or it may take
any other form permitted by the nature of the order.’
(Footnotes omitted)
The
settlement order therefore had the full force of a court order and
nothing precluded the appellant from seeking to enforce it
through
contempt proceedings as it has done. Its breach was not merely ‘as
between the parties” and the commissioner
was bound to obey it
as long as it had not been set aside by a court of competent
jurisdiction.
[20]
[15]
The question which then arises is whether the appellant proved that
the commissioner’s failure to comply with the settlement
order
amounted to civil contempt of court, beyond a reasonable doubt to
secure his committal to prison.
[21]
An
applicant for this type of relief must prove (a) the existence of a
court order; (b) service or notice thereof; (c) non-compliance
with
the terms of the order; and (d) wilfulness and mala fides beyond
reasonable doubt. But the respondent bears an evidentiary
burden in
relation to (d) to adduce evidence to rebut the inference that his
non-compliance was not wilful and mala fide.
[22]
[16]
Here, requisites (a) to (c) were always common cause. The only
question was whether the commissioner rebutted the evidentiary
burden
resting on him. As indicated above, the court a quo gave the
commissioner an opportunity to file a supplementary affidavit
which
would have enabled him to deal with the joint report which
demonstrably established his breaches of the settlement order
and all
the issues raised by the appellant in the various affidavits. But he
opted not to avail himself of the opportunity to personally
place
facts before the Court as to why his non-compliance with the
settlement order should not be construed as contempt of court.
His
only attempt to explain his conduct was to serve and file an unsigned
‘confirmatory affidavit’ without the court’s
leave.
[17]
Interestingly, in an affidavit dated 11 May 2011 filed by the
commissioner in one of the proceedings between the parties, he
said:
‘
146.
It must never be forgotten that apart from the “COMPSOL”
claims the Fund receives on a daily basis claims from
medical
practitioners as well.
147.
The flood of COMPSOL’s claims and because priority has to be
given to them, the claims submitted by other medical practitioners
suffer. I have suggested earlier that what COMPSOL seeks to impose,
is unconstitutional. COMPSOL seeks preferential treatment and
that
breaches the equality clause in the Bill of Rights.
148.
When the Minister of Labour, the DG and I committed ourselves to the
[settlement order] it was not revealed to us just how
many claims
will be submitted at a time nor did we anticipate that the flood of
claims would be a hindrance to the obligations
assumed in the court
order.’
[18]
The appellant’s contentions in its founding affidavit that
these comments reflected the attitude of the commissioner
and his
co-respondents towards its claims and that the commissioner therefore
failed, intentionally, to pay them despite the settlement
order
because they were seen as a hindrance, were not denied in Mr
Masalesa’s answering affidavit in these proceedings. They
were
merely noted. The reason for this is not hard to find. The meaning of
the comments, which I find startling in view of the
fact that the
appellant processes claims, for which the commissioner is liable
under the law, and accordingly submits them to the
commissioner for
payment, is quite plain. The respondents clearly viewed the
appellant’s claims as a nuisance and the settlement
order
itself one which they could ignore because the obligations it imposed
upon them regarding the manner in which the appellant’s
claims
were to be paid were unlawful. But then court orders must still be
obeyed even if they are considered to be wrong.
[23]
[19]
The respondents advanced an unsubstantiated and unmeritorious
allegation, on an application of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
[24]
that
there were disputes of fact which could not be resolved on the
papers. They also brought a counter-application challenging
the
lawfulness of the Advance Payment Agreement and claiming the
repayment of the amounts paid to the appellant. Not surprisingly,
they withdrew this application and were, yet again, mulcted with the
wasted costs.
[20]
This narrative starkly shows the commissioner’s persistent and
unexplained breaches of the settlement order and the flouting
of the
court a quo’s directives in the various proceedings. It shows
the utter disdain of the commissioner, a senior state
official
entrusted with a vitally important social welfare responsibility and
vast public funds (unnecessarily wasted by his persistently
contemptuous conduct), for the court, its procedures and its orders.
The worst affront to the court is that he could not even be
bothered
to explain himself why he repeatedly failed to comply with its order.
Thus, he placed no facts before the court a quo
establishing
reasonable doubt that his non-compliance with the settlement order
was not wilful and mala fide. I can only agree
with the appellant
that the commissioner’s conduct was scandalous and deserving of
the strictest censure possible. It proved
its case warranting his
committal to prison beyond reasonable doubt.
[21]
Accordingly, the following order is made:
(a)
The appeal is upheld with costs including the costs of two counsel.
(b)
Paragraph 1 of the order of the court a quo is set aside and replaced
with the following:
‘
1
The first respondent, Mr Shadrack
Shivumba-Homu
Mkhonto, is declared to be in contempt of
paragraphs 1, 2, 5 and 6 of the court order of 31 July 2009 under
case number 35047/2009.
2
The first respondent is accordingly sentenced to undergo three months
imprisonment suspended for a period of five years on condition
that
he is not convicted of contempt of court committed within this
period.
3
The first respondent is ordered to pay the costs of the application,
such costs to include the costs of two counsel where employed,
the
costs reserved on 20 August 2013, 5 September 2013, 12 and 18
February 2014 and the costs of attending a meeting in Johannesburg
on
7 August 2014.’
MML
Maya
Acting
President
APPEARANCES
Appellant:
PG Robinson SC (with GW Amm)
Instructed
by:
Quiryn
Spruyt Attorneys, Port Elizabeth
Honey
Attorneys, Bloemfontein
Respondents:
SK Hassim SC (with MA Dewrance)
Instructed
by:
State Attorney, Pretoria
State
Attorney, Bloemfontein
[1]
The
section makes provision for the right of employees to compensation
as follows:
‘
(1)
If an employee meets with an accident resulting in his disablement
or death such employee or the dependants of such employee
shall,
subject to the provisions of this Act, be entitled to the benefits
provided for and prescribed in this Act.
(2)
No periodical payments shall be made in respect of temporary total
disablement or temporary partial disablement which lasts
for three
days or less.
(3)
(
a)
If an accident is attributable to the serious and wilful
misconduct of the employee, no compensation shall be payable in
terms
of this Act, unless –
(i)
the accident results in serious disablement; or
(ii)
the employee dies in consequence thereof leaving a dependant wholly
financially dependent upon him.
(
b
)
Notwithstanding paragraph
(a)
the Director-General may, and the employer individually liable or
mutual association concerned, as the case may be, shall, if
ordered
thereto by the Director-General, pay the cost of medical aid or such
portion thereof as the Director-General may determine.
(4)
For the purposes of this Act an accident shall be deemed to have
arisen out of and in the course of the employment of an employee
notwithstanding that the employee was at the time of the accident
acting contrary to any law applicable to his employment or
to any
order by or on behalf of his employer, or that he was acting without
any order of his employer, if the employee was, in
the opinion of
the Director-General, so acting for the purposes of or in the
interests of or in connection with the business
of his employer.
(5)
For the purposes of this Act the conveyance of an employee free of
charge to or from his place of employment for the purposes
of his
employment by means of a vehicle driven by the employer himself or
one of his employees and specially provided by his
employer for the
purpose of such conveyance, shall be deemed to take place in the
course of such employee’s employment.’
[2]
The
COIDA defines an ‘employee’ in s 1(xix) as
‘
a
person who has entered into or works under a contract of service or
of apprenticeship or learnership, with an employer, whether
the
contract is express or implied, oral or in writing, and whether the
remuneration is calculated by time or by work done, or
is in cash or
in kind, and includes –
(
a
)
a casual employee employed for the purpose of the employer’s
business;
(
b
)
a director or member of a body corporate who has entered into a
contract of service or of apprenticeship or learnership with
the
body corporate, in so far as he acts within the scope of his
employment in terms of such contract;
(
c
)
a person provided by a labour broker against payment to a client for
the rendering of a service or the performance of work,
and for which
service or work such person is paid by the labour broker;
(
d
)
in the case of a deceased employee, his dependants, and in the case
of an employee who is a person under disability, a curator
acting on
behalf of that employee;
but
does not include –
(i)
a person, including a person in the employ of the State, performing
military service or undergoing training referred to in
the Defence
Act, 1957 (Act 44 of 1957), and who is not a member of the Permanent
Force of the South African Defence Force;
(ii)
a member of the Permanent Force of the South African Defence Force
while on ‘service in defence of the Republic’
as defined
in section 1 of the Defence Act, 1957;
(iii)
a member of the South African Police Force while employed in terms
of section 7 of the Police Act, 1958 (Act 7 of 1958),
on “service
in defence of the Republic” as defined in section 1 of the
Defence Act, 1957;
(iv)
a person who contracts for the carrying out of work and himself
engages other persons to perform such work;
(v)
a domestic employee employed as such in a private household’.
[3]
Defined
in s 1(xxiv) of the COIDA as
meaning
‘medical, surgical or hospital treatment, skilled nursing
services, any remedial treatment approved by the Director-General,
the supply and repair of any prosthesis or any device necessitated
by disablement, and ambulance services where, in the opinion
of the
Director-General, they were essential’.
[4]
The
term ‘accident’ is defined for purposes of COIDA in s
1(i) thereof as meaning ‘an accident arising out of
an
employee’s employment and resulting in a personal injury,
illness or the death of the employee’.
[5]
Defined
in s 1(xxix) of the COIDA as
‘
any
disease contemplated in section 65 (1) (
a
)
or (
b
)’
thereof.
[6]
The
employers are, however, required to register with the commissioner
in terms of Chapter IX of COIDA to whom they are liable
to pay a
levy, which becomes part of the assets of the Compensation Fund for
the purpose of enabling payment of compensation
to or on behalf of
employees who have been injured or killed or contracted a disease in
the course of their employment, and who
become entitled to
compensation in terms of COIDA.
[7]
The
section provides the following:
‘
Compensation
Fund
15(1)
There is hereby established a fund to be known as the compensation
fund.
(2)
The compensation fund shall consist of
(
a
)
any moneys vested in the compensation fund in terms of subsection
(3);
(
b
)
the assessment paid by employers in terms of this Act;
(
c
)
any amounts paid by employers to the Director-General in terms of
this Act;
(
d
)
any penalties and fines imposed in terms of this Act other than by a
court of law;
(
e
)
any interest on investments of the compensation fund and the reserve
fund;
(
f
)
any amounts transferred from the reserve fund;
(
g)
the payments made to the Director-General in terms of section 88;
(
h
)
any other amounts to which the compensation fund may become
entitled.
(3)
(a)
The accident fund established by section 64 of the Workmen’s
Compensation Act shall, as from the commencement of
this Act, cease
to exist, and all amounts credited to the accident fund immediately
before such commencement, shall as from such
commencement vest in
the compensation fund.
(b)
All liabilities and rights, existing as well as
accruing, of the accident fund shall devolve upon the compensation
fund as from
the commencement of this Act.’
[8]
In
terms of s 76(1) of the COIDA and the amounts published annually in
the
Government
Gazette
by the Minister of Labour.
[9]
The
Director-General is responsible for the implementation and
administration of the COIDA and may delegate the day-to-day
performance
of her or his duties to the commissioner who is
appointed by the Minister in terms of s 2(1)
(a)
of the COIDA.
[10]
Under
s 6A of the COIDA in terms of which:
‘
the
commissioner shall –
(a)
receive notices of accidents and occupational diseases, claims for
compensation, medical reports and accounts, objections,
applications, returns of earnings and payments due to the
compensation fund;
(b)
by notice in the
Gazette
prescribe the rules referred to in
section 56 (3) (c), as well as the forms to be used and the
particulars to be furnished in
connection with notice of
occupational injuries and diseases, claims for compensation or any
other form or matter which he or
she may deem necessary for the
administration of this Act.’
[11]
In
terms of s 43 of the COIDA which provides:
‘
(1)
(a)
A
claim for compensation in terms of this Act shall be lodged by or on
behalf of the claimant in the prescribed manner with the
commissioner or the employer or the mutual association concerned, as
the case may be, within 12 months after the date of the
accident or,
in the case of death, within 12 months after the date of death.
(
b
)
If a claim for compensation is not lodged as prescribed in paragraph
(a)
, such claim for compensation shall not be considered in
terms of this Act, except where the accident concerned has been
reported
in terms of section 39.’
[12]
A
‘medical practitioner’ is defined in s 1(xxv) of the
COIDA as ‘a person registered as a medical practitioner
in
terms of the Medical, Dental and Supplementary Health Service
Profession Act, 1974 (Act 56 of 1974)’.
[13]
Tasima
(Pty) Ltd v Department of Transport & others
2013
(4) SA 134
(GNP) paras 51, 71, 147 and 151.
14
Johannesburg Taxi Association v
Bara-City Taxi Association & others
1989
(4) SA 808
(W) para 8.
[15]
Federation
of Governing Bodies of South African Schools (Gauteng & another
v MEC for Education, Gauteng
2002
(1) SA 660 (T).
[16]
Slade
v Slade
(1884) 4 EDC 243
;
Hawkins
v Hawkins
(1908) 25 SC 784
;
Swanepoel
v Bovey
1926 TPD 457
at 458
;
Gillies v Gillies
1944 CPD 157
;
Cf
Naidu v Naidoo
1993 (4) SA 542
(D) at 545G-I where the court held that a committal
order would not be granted to compel a litigant to pay costs on an
attorney-and-client
scale. See also the remarks of Sachs J in
Coetzee
v Government of the RSA
;
Matiso
v Commanding Officer, Port Elizabeth Prison
[1995] ZACC 7
;
1995 (4) SA 631
(CC) paras 61-62. Also see Andries
Charl Cilliers, Cheryl Loots & Hendrik Christoffel Nel
Herbstein
and Van Winsen
:
Civil
Practice of the High Courts and the Supreme Court of Appeal of South
Africa
5
ed (2009) at 1106-1109.
[17]
Mulligan
v Whitehorn
1922 EDL 81
;
Bold
v Bold
1934 NPD 278
;
Hughes
v Hughes
1936 WLD 98
;
Williams
v Carrick
1938 TPD 147
(in which many of the older cases are collected and
referred to);
Manley
v Manley
1941 CPD 95
;
Ferreira
v Bezuidenhout
1970 (1) SA 551
(O). See also
Bannatyne
v Bannatyne
(Commission
for Gender Equality as Amicus Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) which dealt with contempt
proceedings for the enforcement of children’s maintenance, a
fundamental right contained
in s 28 of the Constitution.
[18]
Hankin
v Hankin
1932 WLD 190
at 192.
[19]
Eke
v Parsons
[2015]
ZACC 30
;
2015 (11) BCLR 1319
(CC) paras 29, 31 and 53; See also
Brookstein
v Brookstein
(20808/14)
[2016] ZASCA 40
(24 March 2016);
Simon
NO & others v Mitsui & Co Limited & others
1997
(2) SA 475
(W);
York
Timbers Limited v Minister of Water Affairs & Forestry &
another
2003 (4) SA 477 (T).
[20]
Clipsal
Australia (Pty) Ltd & others v GAP Distributors (Pty) Ltd &
others
2010
(2) SA 289
(SCA) para 22;
Tasima
(Pty) Ltd v Department of Transport
(792/2015)
[2015] ZASCA 200
(2 December 2015) paras 16 and 17.
[21]
Fakie
NO v CCII Systems (Pty) Ltd
2006
(4) SA (SCA) para 30.
[22]
Ibid
para 42;
Tasima
(Pty) Ltd
para
18.
22
Tasima (Pty) Ltd
,
(note 20, above) para 17;
Minister of
Home Affairs v Somali Association of South Africa
(note
20 above) para 20.
[24]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A).