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[2010] ZAGPJHC 90
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Sanan v Eskom Holdings Limited (2010/16004) [2010] ZAGPJHC 90; 2010 (6) SA 638 (GSJ) (7 October 2010)
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REPORTABLE
IN THE SOUTH GAUTENG
HIGH COURT (JOHANNESBURG)
Case Number:
2010/16004
DATE: 7
October 2010
In the matter between:
ANDRE JOHN
SANAN
.........................................................................
Plaintiff
And
ESKOM
HOLDINGS
LIMITED
......................................................
Defendant
_______________________________________________________________
JUDGMENT
_______________________________________________________________
C. J.
CLAASSEN J
:
This is an exception taken by
the defendant to the plaintiff’s particulars of claim. In it
the plaintiff claims an amount
of R16 060 000.00 (sixteen million
and sixty thousand rand) as damages in respect of past hospital
expenses, past medical expenses,
estimated future medical expenses,
past loss of income, estimated future loss of income, general
damages for pain and suffering,
disability and loss of amenities of
life.
The
plaintiff alleges that he was employed by the defendant as an
apprentice electrician during the period 1966 to 1971. During
the
course of this employment the plaintiff was exposed to asbestos
and/or asbestos fibres and/or asbestos dust particles. During
or
about May 2009 the plaintiff was diagnosed with malignant epitheloid
mesothelioma. This disease is a rare form of cancer which
develops
in the protective lining that covers many of the body’s
internal organs. This cancer is usually caused by exposure
to
asbestos.
The
plaintiff’s claim for damages is framed in delict. He alleges
that he suffered the damages due to the negligence of
the
defendant’s employees and servants while acting within the
course and scope of their employment with the defendant,
in that
they failed to advise the plaintiff about the dangers of working
with asbestos and failed to provide a safe working environment
for
the plaintiff. Due to the defendant’s negligent breach of the
aforesaid duty of care, the plaintiff alleged that he
contracted the
disease and suffered the damages referred to above.
EXCEPTION
The defendant alleges that the
plaintiff’s particulars of claim discloses no cause of action
in view of the statutory embargo
to such claims contained in section
35 of the Compensation for Occupational Injuries and Diseases Act No
130 of 1993 (“COIDA”).
Section 35 of the aforesaid Act
reads as follows:
“
35. Substitution
of compensation for other legal remedies.
-
No action shall lie by an
employee or any dependant of an employee for the recovery of
damages in respect of any occupational
injury or disease resulting
in the disablement or death of such employee against such
employee’s employer, and no liability
for compensation on the
part of such employer shall arise save under the provisions of this
Act in respect of such disablement
or death.
For the
purposes of subsection (1) a person referred to in section 56(1)
(
b
),
(
c
),
(
d
)
and (
e
)
shall be deemed to be an employer.”
Section 56
of the Act provides for increased compensation payable to an
employee by the employer in case of the latter’s
negligence
which caused the employee’s accident or occupational disease.
Section 56(1) recognises the employer’s
responsibility in
regard to various individuals including other employees and/or
engineers whose negligence may have caused the
employee’s
accident and/or occupational disease. In such event subsection (3)
permits an employee to apply for increased
compensation from the
Commissioner.
The defendant contends that
section 35 is a complete bar to the plaintiff’s claim as
alleged in the particulars of claim
and thus discloses no cause of
action.
EVALUATION
The
predecessor to Act 130 of 1993 was the Workman’s Compensation
Act No 30 of 1941. Section 7 of this Act contained a similar
provision as is contained in section 35 of the 1993 Act. It has been
held that section 7 of the 1941 Act totally precludes any
damages
action by an employee against an employer resulting from injuries
suffered or occupational diseases contracted in the
exercise of the
employee’s employment.
1
It has also been held that section 7 precludes any claim by the
employee for the difference between the compensation paid under
that
Act and the common law damages suffered by the employee.
2
It is now
settled law that the bar contained in section 7 of the 1941 Act and
section 35 of the 1993 Act is not unconstitutional.
The bar against
civil claims contemplated therein is rationally connected to the
purposes of the Act of providing financial compensation
to employees
from a compensation fund to which employers are required to
contribute.
3
In my view,
the matter has now been settled, authoritatively, by the Supreme
Court of Appeal in the decision of
Mankayi
v AngloGold Ashanti Ltd
2010 (5) SA 137
(SCA). That matter commenced before Joffe J in the
South Gauteng High Court. Joffe J upheld an exception against the
appellant’s
particulars of claim. The appellant was employed
as a mine worker by the respondent and he sought payment from the
respondent
of some R2 600 000.00 (two million six hundred thousand
rand) with interest and costs based on the latter’s alleged
breach
of duty or care owed to him. The claim was, therefore, also
framed in delict. It was alleged that the appellant’s claim
against the respondent arose both under the common law and statute,
to provide a safe and healthy environment in which the plaintiff
could work. The plaintiff contracted a disease known as miner’s
phthisis. Exception was taken before Joffe J relying on
section
35(1) of the 1993 Act. Joffe J upheld this exception and with leave
of that court, the appellant appealed to the Supreme
Court of
Appeal.
In the
Mankayi
case Malan JA traversed the history of workman’s compensation
legislation in South Africa. He noted that the 1993 Act came
into
operation on 1 March 1994 and repealed the entire Workman’s
Compensation Act No 30 of 1941. At page 151 paragraph
[21], Malan JA
said the following:
“
[21] Section
35(1) of COIDA abolished an employee’s common-law right to
claim damages from the employer. Section 36 regulates
and preserves
an employee’s rights against a third party
who may incur liability to the employee. Of significance is s 56(1),
which provides that, if a person has met with an accident
or
contracted an occupational disease owing to his or her employer’s
negligence, the employee may apply to the commissioner
to receive
‘increased compensation in addition to the compensation
normally payable in terms of this Act’. The amount
of
additional compensation is determined by the Director-General in an
amount deemed equitable, but which may not exceed the amount
of
pecuniary loss the claimant has or will suffer (s 56(4)). Where
increased compensation is payable in terms of s 56, the negligent
employer may be assessed at a higher tariff than the tariff for the
assessment of employers in a like business (ss 56(7) and 85(2)).”
Where an
employee meets with an accident resulting in his/her disablement or
death or contracts an occupational disease he/she
is entitled to the
benefits provided for by the 1993 Act. Section 65 of this Act deals
with the compensation payable for occupational
diseases and states
the following:
“
65. Compensation
for occupational diseases
.-
Subject to the provisions of
this Chapter, an employee shall be entitled to the compensation
provided for an prescribed in this
Act if it is proved to the
satisfaction of the Director-General –
that the
employee has contracted a disease mentioned in the first column of
Schedule 3 and that such disease has arisen out
of and in the
course of his or her employment; or
that the
employee has contracted a disease other than a disease
contemplated in paragraph (a) and that such disease has arisen
out
of and in the course of his or her employment.”
An
occupational disease is defined as any disease contemplated in
section 65(1)(a) or (b). In Schedule 3 paragraph 3.1.1 cancer
caused
by asbestos is declared to be an occupational disease. It is clear
from the wording of section 65 that the Legislature
intended to cast
the ambit of an employee’s entitlement to compensation for
occupational diseases as widely as possible.
4
Malan JA in
the
Mankayi
case further held that although section 35(1) of the 1993 Act
followed the pattern of section 7 of the 1941 Act, the 1993 Act
has
a wider ambit of application than the repealed 1941 Act. With
reference to
Pettersen
v Irvin and Johnson Ltd
1963 (3) SA 255
(C), Malan JA further held at 156F – 157A as
follows:
“
This means that an
employee’s common-law claim for general damages was excluded by
s 7, even though the 1941 Workman’s
Compensation Act did not
provide for compensation for such damages.
[29] The same
reasoning applies to s 35(1) of COIDA. The employee’s action
for the ‘recovery of damages in respect of
an occupational
injury or disease resulting in the disablement or death’ of the
employee is extinguished. The subsection
does not require that the
employee must be entitled to receive compensation under COIDA. It
refers to an action for the recovery
of damages that is abrogated.
This right is qualified with reference to ‘an occupational
injury or disease’ and to
‘disablement’ and
‘death’. Section 35(1) uses the words and expressions
occurring in COIDA. However, it
does not follow that it is implied
that the employee must also be entitled to compensation under COIDA.
Nor does the word ‘substitution’,
used in the heading of
the section, lead to the conclusion that the employee must be
entitled to compensation under COIDA: where
the words in the text of
the provision are clear, they cannot be overridden by the words in
the heading.”
I am therefore of the view that
the exception was well taken and should be upheld.
EXCEPTION OR SPECIAL PLEA?
However, Mr
Reilly contended that the exception should be dismissed
on
the ground that the defendant should have raised the statutory bar
to the plaintiff’s claim by way of a special plea
and not by
exception. He submitted that it is clear in cases where prescription
is raised as a defence, that it should be pleaded
as a special plea
in order for the plaintiff to be able to replicate thereto under the
provisions of the Prescription Act.
In my view
there is no substance in this argument. First of all, it is highly
relevant that the section 35(1) objection to particulars
of claim in
the
Mankayi
matter was raised by exception before the court
a
quo
.
In the judgment of Malan JA as well as that of Harms DP and Cloete
JA, the procedure adopted of raising the defect by way of
an
exception, was not criticised or disapproved of.
Secondly it
seems to me that confusion has reigned supreme in regard to the
determination whether a special plea or an exception
is the
appropriate procedure to raise a defence. In the seminal work of
Voet “AD PANDECTAES” 46.1, exceptions are
discussed in
great detail. It appears, however, that Voet termed as exceptions,
both “exceptions” in the way we understand
it as well as
“special defences” or “special pleas”. In
several places he refers to exceptions in the
wider sense of the
word as if it did not matter whether it is an “exception”
in the true sense of the word or a “special
plea”. In
Voet 46.1.2 an exception is defined as the “shutting out of an
action which is available in strict law.”
In Voet 46.1.4
exceptions are divided into those of fact or law, dilatory or
temporary and peremptory or permanent. Voet then
states the
following:
“
There are various
divisions of exceptions. In the first place according to the
commentators some are called exceptions of law, and
others exceptions
of facts. They term those exceptions of fact by which it is denied
that there is an action, such as the exceptions
of payment, set off,
destruction of the thing and so forth. They are exceptions of law
when they presuppose an action which is
available in strict law, but
is unfair and is thus to be smashed by an exception based on
fairness. Such exceptions are properly
included under the definition
of exceptions.”
As to dilatory, temporary,
peremptory or permanent exceptions Voet expresses himself as
follows:
“
But
especially are they on the one hand dilatory or temporary, when they
put off the action to another time, and thus when once
raised do not
always stand in the way, but have only a temporary effect. Or on the
other hand they are peremptory or permanent,
when they put an end to
the judicial proceeding, and after being once raised are forever an
obstruction to those who sue. Very
many examples of both kinds are
strewn throughout the entirety of our law, and have already been
dealt with in great part in the
early portions of this
Commentary
,
though some will still have to be discussed in the course of what
follows.”
Voet then
proceeds to give examples resorting under this heading as being
“exceptions” to: (a) the jurisdiction of
the court; (b)
the recusal of a judge; (c) the time or limit given being too
narrow; (d) the day being a holiday; (e) contumacy;
(f) that leave
to sue has not been obtained; (g) a lawful impediment exists; (h)
the requisite of a preliminary proceeding; (i)
the claim being
excessive; (j) that a temporary agreement was concluded between the
parties; (k) the sovereign having ordered
a stay of payments; (l) a
pending suit exists; (m) the claim being vague and embarrassing; (n)
cession of actions; (o) surprise
and deception; (p) spoliation; (q)
multiplicity of actions; (r) and suretyships and guarantees. It goes
without saying that some
of the aforesaid defences are often raised
by way of exception and some by way of special plea. It, therefore,
seems to me of
little moment whether a particular defence is raised
by way of exception or by way of special plea, provided that it is
properly
and timeously raised in an intelligible form. Sometimes an
exception needs to be raised by a preceding application on motion
for example an application to stay further proceedings pending the
payment by the plaintiff of taxed costs awarded to the defendant
in
another action between the parties.
5
Would it matter if an exception in the true sense of the word is
raised by way of a special plea? Surely not. Why then would
the
converse be fatal? Does it, therefore, really matter in what form
the defect is raised? I think not.
A further
complication exacerbating the confusion, is the fact that in certain
cases terminology from English law was borrowed
to describe the
nature of a particular defence. Thus, terms like “plea in
bar”, “plea in abatement”,
“special pleas”
were borrowed from the English law and introduced into our law. In
certain instances
6
it would seem that a special plea in abatement was referred to as an
exception.
7
This lead to an admonition to practitioners by Claassen J
8
to desist from heading the defences with specific nomenclature such
as “plea in bar” or “plea in abatement”.
The
learned judge advised that it would be wiser to describe such a
pleading as a special plea and to set out in the body of
the plea
the grounds to be relied on.
In regard to
the question of a defence being either an exception or a
special
plea Herbstein and Van Winsen, Fifth Edition
supra
at 599 and 600 has the following to say:
“
The
essential difference between a special plea and an exception is that
in the case of the latter the excipient is confined to
the four
corners of the pleading. The defence raised on exception must appear
from the pleading itself; the excipient must accept
as correct the
factual allegations contained in it and may not introduce any fresh
matters. Special pleas, on the other hand, do
not appear
ex
facie
the pleadings. If they did, then the exception procedure would have
to be followed. Special pleas have to be established by the
introduction of fresh facts from outside the circumference of the
pleading, and those facts have to be established by evidence
in the
usual way. Thus, as a general rule, the exception procedure is
appropriate when the defect appears
ex
facie
the pleading, whereas the special plea is appropriate when it is
necessary to place facts before the court to show that there is
a
defect. The defence of prescription appears to be an exception to
this rule for it has been held that that defence should be
raised by
way of special plea even when it appears
ex
facie
the plaintiff’s particulars of claim that the claim has
prescribed, apparently because the plaintiff may wish to replicate
a
defence to the claim of prescription, for example an interruption.”
9
With respect
to the learned authors, it seems to me incongruous that a party is
obliged to raise a defence in a particular way in
order to
accommodate or assist his opponent in raising a counter argument to
such defence. Notionally, if prescription were to
be raised by way
of an exception, the obvious argument against it succeeding is that
evidence will reveal it to be unsound. Alternatively,
if the
prescription defence is sound, it will be incumbent on the other
party to allege in its pleading the necessary averments
to counter
any possible defence of prescription. If such party cannot do so, it
simply means that there is no triable issue and
such party should not
litigate.
It would
seem to me that the nature of a defence raised by special plea or
exception is more important than the procedure adopted.
It is the
nature of such defence which would determine whether or not evidence
is required and whether or not the defence should
have been raised
in
initio litis
or whether it can be raised on appeal. How the defence is raised is
of lesser importance than the grounds for the defence and
the point
in time that it is raised. It is trite law that an exception which
can be cured by evidence at the trial, will not
succeed. It is also
trite that an exception will only succeed if it holds good on any
interpretation of the pleading. Thus, whether
the defence is raised
as a special plea or by way of exception will matter little if
evidence will cure the defect or if a proper
interpretation of the
pleading will cure the defect. In my view this conclusion is
fortified by the fact that practicalities
determine the method by
which a defence is raised. One may rhetorically ask why is the
defence of prescription an exception to
the rule that an exception
must appear
ex
facie
the four corners of the pleading? If a defence of prescription is to
be specially pleaded in order for a plaintiff to file a
replication
thereto, then notionally a defence of misjoinder or non-joinder
should also be specially pleaded in order for the
plaintiff to
replicate where plaintiff’s evidence will show why a
non-joinder or a misjoinder in the circumstances of the
case is
apposite. Yet, misjoinder and non-joinder defences are frequently
raised by way of exceptions and not in special pleas.
CONCLUSION
For the
reasons set out above I am of the view that the exception was well
taken and should be upheld. I therefore make the following
order:
1. The exception is upheld with
costs.
2. The plaintiff is given leave
to amend his particulars of claim within 20 days from the date of
this order.
DATED THE _________ DAY OF
OCTOBER 2010 AT JOHANNESBURG
___________________________
C. J. CLAASSEN
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff: Adv
N. Reilly
Counsel for the Defendant: Adv
A. P. S. Nxumalo
Attorney for the Plaintiff:
Koikanyang Incorporated
Attorney for the Defendant:
Snaid & Edworthy Attorneys
Argument was heard on 21
September 2010.
Judgment
Date: 07
th
October 2010.
1
See
Mphosi v Central
Board for Co-operative Insurance Ltd
1974 (4) SA 633
(A) where Botha JA at 644A – B held:
“The conclusion to which I come, therefore, is that sec. 7 (a)
precludes a workman’s common law action for all damages,
including damages for pain and suffering and loss of amenities, in
respect of an injury which is compensable under the Act.”
2
See
Vogel v South
African Railways
1968 (4) SA 452
(ECD).
3
See
Jooste v Score
Supermarket Trading (Pty) Ltd (Minister of Labour Intervening)
1999 (2) SA 1
(CC) at 11 paragraph [15].
4
See
Mankayi
supra
at
152F.
5
See Chapter 10 p 304
et
seq
in Herbstein and Van Winsen “The
Practice of the High Courts in South Africa” Fifth Edition as
read with p 600 thereof.
6
See
Le Roux v Le
Roux and Joel
(1897) 4 OR 74
and
Herbstein and Dumont “A Handbook of Superior Court Practice”
Second Edition p 92-3.
7
See also
Schuddingh
v Uitenhage Municipality
1937 CPD 113
;
Stanhope v Combined Holdings and
Industries Ltd
1950 (3) SA 52
(E);
Glennie, Egan and Sikkel v Du Toit’s
Kloof Co Ltd
1953 (2) SA 85
(C); and
Van der Westhuizen v Smit NO
1954 (3) SA 427
(SWA).
8
The late father of the present writer.
9
See further
Union
and SWA Insurance Co Ltd v Hoosein
1982 (2) SA 481
(W) at 482G – H; and
Rand
Staple-Machine Leasing (Pty) Ltd v ICI
(SA) Ltd
1977 (3) SA 199
(W).