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[2019] ZAGPJHC 392
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J L v Rand Mutual Assurance (113062/19) [2019] ZAGPJHC 392 (15 October 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
GLD
CASE NO:113062/19
RMA
CASE: NO: J/1260099/1/066A/09/EMP
Not
reportable
Not
of interest to other judges
Revised
15.10.2019
In
the matter between:
L,
J
Appellant
And
Rand
Mutual
Assurance
Respondent
JUDGMENT
Van
der Linde, J:
Introduction
and the, Appellant's case
[1]
This is an appeal which is brought in terms of section 91(5)(a)(i)
and (ill) of the Compensation for Occupational Injuries and
Diseases
Act 130 of 1993
(“COIDA"
or
"the Act",
as
appropriate). Those paragraphs respectively allow an appeal against a
decision of the statutory tribunal there envisaged regarding
"the
Interpretation of this Act or any other law";
and
"'the question whether the amount of any
compensation awarded is so excessive or so inadequate that the award
thereof could
not reasonably have been made.”
[2]
The Act is concerned with the awarding of compensation to workmen who
suffer an injury in the course of their employment. Its
general
scheme to establish degrees of disablement with reference to the
nature of the injury sustained, and to fix amounts of
compensation
with reference
to
those
degrees. So for example the loss of a particular body part will
generally result Jn a fixed amount of compensation; and the
loss of
two body parts will generally result in a greater amount of
compensation. The maximum compensation payable under the Act
is a
life annuity of 75% of the workman's wages at the time the injury was
suffered. This would apply when the workman is regarded
as being 100%
permanently disabled.
[3]
The Act provides for the determination of the degree of disablement
and for an objection to that determination. The objection
is heard by
a tribunal established in terms of the Act, and an appeal lies
against the determination of the tribunal to the High
Court, as if
the tribunal were a Magistrates' Court. The appeal is limited, as I
have indicated, and the effect of this limitation
Is that there is no
appeal against a finding of fact by the tribunal.
[4]
In this case the appellant argues that the tribunal erred in not
finding that he was permanently disabled for having suffered
from
PTSD, the argument being that in arriving at that finding, the
tribunal reasoned that the appellant was required to have undergone
medical treatment for a period of not less than 24 months before he
could be determined as permanently disabled. Allied to this
argument,
the appellant submits that the tribunal erred when it held that the
PTSD had not stabilised, this despite the medical
evidence by Dr
Ramjee and Dr Van der Merwe, two experts that were called for the
appellant.
[5]
The appellant stresses that the respondent, although initially
disputed by it, accepted only on 24 March 2017 that he suffers
from
occupational PTSD arising from the work accident, a date which is
substantially after the date of the accident 01116 April
2009. The
appellant points out that in 2016 this court in case number
C3004/2016 held that there was insufficient medical evidence
to show
that the appellant then suffered from PTSD; but that court left the
door open for the appellant to do so at a later stage.
That has now
occurred because the respondent has now finally accepted that the
appellants suffers from accident-related PTSD.
[6]
Additionally, in 2017 the appellant suffered from a heart attack
which he contends was diagnosed as being a function of the
persistent
presence of PTSD. The appellant commenced receiving treatment. It was
upon receipt of this new evidence that the respondent
accepted
liability for PTSD arising from the work accident but declined to
provide additional compensation. It denied too that
the appellant's
heart condition was related to the PTSD.
[7]
In terms of the definition of
"permanent
disablement"
in section 1 of COIDA, an
employee is permanently disabled when he is permanently unable to
perform any work as a result of an accident
or occupational disease.
The appellant argues that PTSD is an occupational disease in terms of
section 65(1)(b) of COIDA because
although not specifically listed In
the first column of schedule 3, It has been recognised as a disease
which can arise out of
the course and scope of employment; see
Odayar
v CC
2006 (6) SA 202
(N)
at [17].
[8]
There a full court, Incidentally accepting that there Is no appeal on
facts and relying on
Mouton v The State
(unreported judgment of Traverso DJP, dated
30
August 2002, case
No A38/2002, CPD}, held that the tribunal had misinterpreted the law
by ignoring the provisions of the Act when
purporting to apply the
circular relative to PTSD.
[9]
The appellant points out that the commencement date of a disease ln
terms of COIDA is regarded in terms of section 65(5) as
the date on
which the medical practitioner diagnoses the disease. The appellant
argues that in this case the first diagnosis of
PTSO was done already
on 20 September 2009 by Dr DJ van der Berg.
[10]
So far as concerns the determination of compensation, the appellant
relies on section 49(2) which in turn refers to schedule
2 which
contains specific percentages for permanent disablement. This
schedule, referred to colloquially as a
"'meat chart':
lists
various percentages with reference to identified permanent
disablement. However where an injury does not fall squarely within
schedule 2, or where dealing with an occupational disease in terms of
schedule 3, the Director General acquires a discretion under
section
49(2)(b} which Is to be exercised in a manner consistent with the
schedule 2 guidelines.
[11]
The appellant argues that some guidance may be found In the Items
that are listed as
''any other injury causing permanent total
disablement”,
which puts an employee at 100% disability.
The appellant points out that once the percentage of disablement is
fixed, one proceeds
to schedule 4 of COIDA to determine the
percentage compensation payable. The appellant says that the process
in terms of schedule
4 is mechanical. Item 4 there provides that If
there is permanent disablement of 100% then the employee is entitled
to a monthly
pension of 75% of his monthly earnings at the time of
the accident subject to maximum and minimum compensation there
identified.
[12]
ln developing this argument the appellant submits that the tribunal
failed properly to consider the evidence before It and
incorrectly
considered itself bound by circular 172 relating to PTSD. The first
question which arises is whether this is a matter
of law or whether
It is an appeal against a factual finding dressed up as a matter of
law. The appellant points out that the tribunal
ruled that in terms
of clause 4.2 of circular instruction 172, permanent disability shall
only be determined after 24 months of
optimal treatment; and it ruled
that this provision was peremptory. The appellant submits that this
is Incorrect because circular
172 is not a binding regulation but Is
a mere guideline issued by the Director-General under section
49(2}(b).
[13]
The appellant argues that the application of this guideline must
depend on the facts of the case. If a person is for example
a
paraplegic, then it would be nonsensical to wait for two years
treatment before it is determined that the person is permanently
disabled, because the two years treatment will make no difference at
all. The appellant relied on the respondent's own assessor
(Dr Van
der Merwe, called by the appellant as a witness in the hearing) who
said that the appellant has PTSD and it was not getting
better. She
said that the appellant should be awarded permanent disablement
because to drag It out for another year Just to be
technical is just
not reasonable.
[14]
This evidence was rejected by the tribunal on the basis that it did
not align with circular 172. The appellant relies on
Odayar
and
also
Healy v Workmen (CA145/07)[2008]ZAECHC 167
for
the proposition that guidelines and circulars cannot overrule the Act
itself and its schedules. He submits that in his case
one is dealing
with a PTSD claim arising from a disease which arose in 2009; and he
submits that this has ultimately become common
cause.
[15]
ln oral argument before us, Mr Laws for the appellant stressed that
as regards the appellant's heart condition, the tribunal
plainly
erred in relying on an academic article, which had not been put to
the appellant and his witnesses during the hearing,
for its
conclusion that the appellant had not succeeded in discharging the
onus of showing that he was suffering from the particular
condition,
known as Takotsubo Cardiomyopathy
(“
TCM")
or - colloquially -
"broken
heart syndrome”.
[16]
It was submitted that the evidence of Dr Kok clearly established that
the appellant was suffering from TCM, and that this was
a result of
the PTSD. It was made clear that this finding was essential for the
appellant because, if successful, it would entitle
the appellant to
recover compensation for the medical treatment to be received for his
heart condition.
[17]
It was submitted that this court was free to conclude that the
appellant was suffering from TCM, and thus to correct the finding
of
the tribunal
a quo,
because
the fact that the tribunal relied on the academic article without
first putting it to the appellant, constituted an incorrect
Interpretation of the Law of Evidence. That being so, on the
argument, this court had jurisdiction under section 91(5)(a)(i) of
the Act.
[18]
The appellant argued, as regards the PTSD, that the tribunal had
erred in slavishly following the prescripts of the circular
- in
particular its requirement for 24 months treatment before permanent
disability could be assessed - in concluding that the
appellant had
not shown that he was suffering from PTSD as a permanent condition.
[19]
It was argued that the evidence of Dr Van der Merwe should have been
accepted, namely that the appellant was suffering from
PTSD, that his
condition had become stabilised, and was permanent. This was also the
evidence of the appellant's expert witness
Dr Ramjee, on whom the
appellant also relied. This meant - so went the argument that the
tribunal should have but did not assess
the appropriate compensation
due to the appellant.
[20]
Concerning the amount of compensation payable, it was submitted that
the court had jurisdiction under section 91(5){a)(iii)
to assess the
compensation payable, because the tribunal had failed to make any
award of compensation at all; and no award is “
so Inadequate
that the award thereof could not reasonably have been made",
for
the purposes of that paragraph. The appellant relied on the evidence
of Dr Ramjee for the submission that the tribunal should
have
assessed the degree of permanent disability as a result of the PTSD
at 70% which, together with the 31% already assessed in
respect of
the ankle Injury, would mean that the appellant was entitled to be
regarded as 100% permanently disabled. On this score,
the appellant
eschewed the evidence of his own witness, Dr Van der Merwe, who would
have assessed the degree of permanent disability
at a substantially
lower percentage.
The
respondent's case
[21]
The respondent, for its part, Identifies three issues on appeal. The
first is whether the process set out in the circular is
consistent
with the Act; the second is the appropriate rate at which to
compensate permanent disability due to PTSD; and the third
is whether
there Is a causative link between the appellant's heart condition and
PTSD.
[22]
As to the first issue, the respondent accepts that It is liable to
compensate the appellant in respect of the PTSD. It accepts
too that
appellant suffered the PTSD as a result of the accident back in 2009.
However, it contends that the appellant's position
had not become
stabilised
"in a manner contemplated by the circular as he
had not undergone 24 months of optimal treatment."
[23]
The respondent argues that the circular is consistent with the Act,
since the Act does not require “
immediate
assessment of permanent disability",
and
further, the Act
"does not contemplate a
scenario where an injured workman could undergo treatment to minimise
the extent of that permanent
disability."
The
respondent argues that the Act contemplates compensation for both
temporary disablement and permanent disablement. Permanent
disablement is defined in section 1 of the Act as,
"in
relation to an employee and subject to section 49 means the permanent
Inability of such employee to perform any work as
a result of an
accident or occupational disease for which compensation is payable”.
[24]
The respondent points out that compensation for permanent disablement
Is regulated by section 49 of COIDA. That section deems
as
permanently disabled, to the degree set out in the second column of
schedule 2, an employee who has sustained an Injury as set
out in
schedule 2. Schedule 2 lists Identified injuries, all of which are of
a physical nature. As pointed out by the respondent's
counsel, that
schedule then allocates a degree of permanent disablement, by
percentage, as a result of these injuries.
[25]
But schedule 2 also provides for “
any other injury causing
permanent total disablement.
" 'This is then deemed to be
assessed at 100% permanent disablement. Counsel submits that the
degree of permanent disablement
ultimately allocated for the
non-listed injuries must not jar with the guidelines in schedule 2 of
the act.
[26]
But the respondent submits that it is a valid conclusion to be drawn
that the Act does not require an Immediate assessment
of permanent
disability. The respondent also accepts that the circular is no more
than an internal memorandum or a guideline. The
respondent concludes
on this part of the argument that the respondent's position was
simply that It would treat the appellant's
condition as temporary
until he had been optimally treated (24 months) for PTSD. This would
enable the appellant by law to receive
a pension for temporary
disablement until his position would have become stabilised. In the
meantime, he would undergo psychotherapy
which would reduce the
disablement from which he was suffering. The respondent accepts that
the fact that the appellant has suffered
from the PTSD since 2009
does not lead to the conclusion that the PTSD Is permanent, and it
submits that further treatment “
could
have reduced"
the degree of his
disablement.
[27]
As to the second issue, that is the degree of disablement resulting
from the PTSD, the respondent submits that the tribunal
did not make
a finding on this score. It submits that the tribunal did not assess
the degree of impairment and so It could not
have assessed the
compensation payable. If any order is to be made in regard to
permanent disablement, then this court ought to
refer the matter back
to the respondent for its decision regarding the extent of the
permanent disablement.
[28]
As to the broken heart syndrome, the respondent points out that it is
common cause that the appellant suffers from a heart
condition.
However, the respondent challenges the diagnosis of TCM, saying that
It rested solely on the evidence of Dr Kok. It
submits that the
problems with her evidence were legion and that In particular, as a
specialist physician, she was not appropriately
qualified to diagnose
TCM.
[29]
At the hearing Mr Sibanda for the respondent argued that the
reference by the tribunal to the academic article was only
en
passant;
the tribunal concluded that the
diagnosis of Dr Kok was only tentative and it was also not satisfied
with the expertise of Dr Kok.
It viewed critically the fact that she
had not referred these diagnoses to the two cardiologists whose
angiograms did not confirm
TCM.
[30]
As to the PTSD, Mr Sibanda submitted that in this particular case the
tribunal was justified In Insisting that the circular's
24 months
treatment first occur before a final assessment as to the permanency
of the disability was made, precisely because PTSO
Is not a tangible
and easily empirically determinable condition; and also because the
appellant had not undergone any period of
continuous medical
treatment for this condition during the period between 2009 and 2017.
[31]
Further, Mr Slbanda submitted that by virtue of section 73 (2} of
COIOA, the respondent was entitled to explore means that
could
legitimately lead to a commercially more palatable solution to the
appellant's condition. If the treatment could potentially
ameliorate
the appellant's PTSD, then the respondent had the right to explore
the effects of such treatment before assessing finally
whether the
appellant's condition was permanent.
[32]
Mr Sibanda also stressed that he was not conceding that this court
had the jurisdiction to overturn the tribunal on the TCM
finding,
because it was a factual finding in respect of which there was no
appeal. He submitted that, even If the court had jurisdiction
to
entertain the appeal concerning the PTSD, then all it could to was –
assuming it concluded that the condition was permanent
– to
refer the matter back to the respondent to assess the extent of the
compensation payable to the appellant.
[33]
There was no appeal available In this regard, because section
91(5){a)(III) did not avail; It would be a stretch of language
and
logic, so he in effect submitted, to hold that because the tribunal
made no assessment at all, and no award at all, of compensation
In
respect of the PTSD, therefore the award (nil) was so unreasonable
that a court had jurisdiction under that paragraph to Interfere.
Discussion
[34]
As I see It, and I elaborate on this below, this appeal must be
decided along the following lines. First, as regards the TCM,
it
should be examined whether the court has jurisdiction at all to set
aside the finding of the tribunal. After all, the jurisdiction
Is
limited to setting aside an incorrect
Interpretation
of the Act or any law. To argue that the
tribunal erred because It arrived at a factual finding which offended
the application of
the Law of Evidence seems to me to be Inconsistent
with the intention of the legislature. If it were so that
jurisdiction was established
every time such a tribunal incorrectly
applied the requirements of the Law of Evidence, then the notion that
the tribunal ought
to be the final arbiter of fact can be brushed
aside.
Indeed, in this
case the tribunal did not actually
interpret
the Law of Evidence. It simply referred to in
article which it did not place before the parties.
[35]
No interpretation was involved. It simply (potentially} applied the
rules of evidence incorrectly, just as it would have done
had it
incorrectly assessed the probabilities and had it come to a
conclusion different to that which a civil court, assessing
the
probabilities correctly, might have come. As I see it therefore there
is no scope for this court to interfere in the finding
of the
tribunal concerning the TCM.
[36]
Regarding the PTSD, the first issue is whether in this case the 24
month period of prior treatment before final assessment
should have
been Insisted upon. It is so, as we were informed from the Bar, that
by the time this appeal was heard, that period
had already lapsed and
the appellant had already been invited for final assessment of his
PTSD condition. But when the tribunal
heard the matter, the period
had not yet elapsed. We have to decide the matter as It was before
the tribunal.
[37]
I am inclined to the view that given the passage of time between 2009
when the injury occurred and when the matter came before
the
tribunal, strict adherence to the 24 month period was not indicated.
It is so that the appellant might not have received consistent
treatment for the PTSD during that period. However the tribunal did
have the evidence - which It could not legitimately criticise
on this
score - that by this time the appellant's PTSD was unlikely to
change. As will appear more fully below, the reason the
tribunal held
against the appellant on this
score
was
not factual; it was because It concluded that the circular was
immutably binding on it and on the appellant.
[38]
The probabilities support that evidence; the appellant will have had
many years to come to terms with the accident and the
physical Injury
to his leg sustained in it, and yet the PTSD persisted. In those
circumstances to insist yet again on a delay in
finalising the extent
of the appellants permanent disability seems to me to be too rigid
and application of a policy document would
otherwise serves a good
purpose.
[39]
My inclination would therefore be to hold that this court has
jurisdiction to conclude, on the basis of section 49 of the Act
properly
Interpreted,
that the appellant was permanently
disabled as a result of the PTSD; and that the tribunal Incorrectly
interpreted COlDA, specifically
section 49, In not so concluding
Itself.
[40]
This would imply that the question of the assessment of the
appropriate compensation will not have been made yet by the
respondent.
The appellant argued that this court should Itself make
that assessment under section 91(5)(a)(iii) of COIDA. But I agree
with
Mr Sibanda that since neither the respondent nor the tribunal
purported to assess the amount of compensation payable to the
appellant
in respect of the PTSD, this court has no jurisdiction to
make that assessment. I would therefor leave aside the question
whether
in any event sufficient evidence was placed before this court
to make such an assessment.
Jurisdiction
[41]
Having indicated the pathway of the reasoning of this judgement, I
now elaborate. This appeal can only be brought on two bases
in the
present context: if the tribunal incorrectly Interpreted COIDA (or
any other law) (section 91(5}(a)(i)); or if the amount
of any
compensation awarded is
so
excessive
or so inadequate that the award thereof could not reasonably have
been made (section 91(5)(a)(iii)).
[42]
What is the Impact of these jurisdictional constraints on this
appeal? Here, although not Initially so, it was common cause
by the
time of the appeal that the appellant was suffering from PTSD caused
by the accident. What is not common cause ls whether
an award could
be made In respect of the PTSD given that the tribunal considered
that - as envisaged in the circular- it could
not be said that the
condition had been stabilised for a period of 24 months.
[43]
What must be considered is whether the fact that the tribunal appears
Inexorably to have applied the circular, without considering
whether
the evidence before it already established a permanent disability,
qualifies as a matter of interpretation of COIOA
"or
any other law".
The circular seems to
have had In mind to ensure that the PTSD condition would not Improve
and that ls why it drew the line In the
sand at 24 months' treatment.
[44]
But it would also seem that the medical evidence, particularly that
of Dr Kok and Dr van der Merwe, was that the appellant's
PTSD was
here to stay. Any instability that persisted was related not to
whether the PTSO was there to stay; the instability was
another way
of describing the effects that the PTSD had on the appellant: It
fluctuated - at times It would be better, and at times
It would be
worse, given the appellant's self-death attempts.
[45]
What that raises is whether this assessment by the tribunal was a
factual finding, or whether It could be said that ft was
a finding
concerning the interpretation of CO!DA
"or
any other law".
I do not believe that it
can be said that the circular is
"'any
other low".
The Director-General issued
the circular and published it In the Government Gazette. He/she did
not purport to do so under any powers
granted to him under COIDA.
[46]
Indeed, as was held in
Odayar:
“
[16]
The Act does not confer upon the Director-General of the Department
of Labour the power to Issue regulations. Despite being
published In
the Government Gazette, the circular is no more than an internal
memorandum setting out guidelines on the manner in
which compensation
claims relating to post-traumatic stress disorder ought to be dealt
with.”
[47]
In the context of departmental policy, Harms, JA (then) said in
Akoni
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd,
2001 (4) SA
501
(SCA)
at [7]:
"I
prefer to begin by stating the obvious, namely that laws, regulations
and rules are legislative instruments, whereas policy
determinations
are not. As a matter of sound government, in order to bind the
public, policy should normally be reflected in such
instruments.
Policy determinations cannot override, amend or be in conflict with
lows (including subordinate legislation). Otherwise
the separation
between Legislature and Executive will disappear. Compare Executive
Council, Western Cape Legislature, and Others
v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC} (1995 {10)
BCLR 1289) in para [62]”
[48]
The circular does not purport to be issued in terms of any provision
of the Act. It purports simply to be an attitude which
the Department
should consider assuming in dealing with PTSD cases. If the
Director-General did not have express statutory power
to issue this
circular, then it was barely a policy document which did not bind
anyone but was a mere pointer to the preferred
exercise of a
discretion. The consequence, as I see it, is that the circular did
not constitute subsidiary legislation and therefore,
for purposes of
the definition of “
law”
in
section 1 of the Interpretation Act 33 of 1957,
it
did not qualify as “
Any
law; proclamation, ordinance, Act of Parliament or other enactment
having the force of law".
[49]
In its award, the tribunal certainly gave no Indication that it
regarded the 24 month period as a mere indicator, nor that
It did
anything other than unquestioningly to apply the prescription of the
circular. It did not itself examine, independently,
whether the PTSD
had more probably than not become stabilised, given that the
appellant had been suffering from it for so many
years. It will be
recalled that the respondent submitted that the mere fact that the
appellant had been suffering from PTSD for
so Jong did not mean that
his condition had become permanent, and that his degree of
disablement could not have been reduced. I
believe the answer to this
submission is that there was no credible evidence to support this
proposition. Against it is the fact
of the passage of so many years,
coupled with the medical evidence on the appellant's behalf that his
condition was likely remain
unchanged.
[50]
lf the circular Is a mere policy document, as l believe it is, then
the tribunal potentially erred because it, In effect, Interpreted
COIDA itself, especially section 49(2)(b), as being subordinate to
the 24 month period specified in the circular of what is no
more than
a policy document, and then this was an error In the interpretation
of COIDA, as envisaged In section 91(5}{a)(i}. This
court would then
have the power to interfere in that finding.
[51]
lf this analysis is correct., then the tribunal erred and the correct
approach ought to have been for the tribunal to have
concluded that
on the facts of this case the appellant's condition had become
stabilised; and that his condition was permanent
PTSD, leaving only
the question of the proper assessment of the extent of the permanent
disablement.
[52]
It is in this context that the respondent's submission, that the
tribunal never actually assessed the extent of the disablement,
is
pertinent. On the respondent's submission, the matter ought to be
referred back to the respondent for this reason. The appellant
argued
that there was little value in referring the matter back to the
tribunal. It had the opportunity to make an award which
fixed the
extent of
the
appellant's
permanent disablement. The appellant has been before the tribunal
twice already, and a further protracted delay does
not serve the
interests of justice.
[53]
There may be merit in these submissions. But as l see it, the
appellant's argument conflated principles of Administrative Law
with
Issues of jurisdiction for purposes of COIDA, and - at a conceptual
level - of separation of powers. This court is not sitting
in review
of administrative action; it is sitting in a statutory appeal, and
its powers
are
confined
to those that are conferred upon it by the Act.
[54]
The respondent has not yet assessed the extent of the permanent
disability of which the appellant is suffering. Only once it
has done
so, and if the appellant objects to that assessment, does an appeal
lie to the tribunal; and thence to this court. This
preordained
pathway has not been followed, regrettable as the implied delay may
be.
[55]
This conclusion also forecloses the appellant's argument that no
award is so inadequate an award that it could not reasonably
have
been made, and that section 91(5}(a)(iii) Is engaged for that reason.
If this submission were correct, then an appeal would
lie
even
where the tribunal held that on the facts the workman was not
Injured at all. Section 91(5)(a)(iii) rather envisages that the
tribunal
in fact finds an Injury, and then engages upon the question
as to the appropriate compensation In respect of the injury. That has
not occurred here.
[56]
The debate in the evidence and before us about whether the appellant
was suffering from
"broken heart
syndrome0
and If he does, whether
this condition Is a function of the accident, Is pertinent In the
present context. The tribunal found that
the appellant had not
discharged the onus of showing either. In doing so, It referred to an
academic article which was not put
to the appellant's witness when
she testified.
[57]
As indicated, the appellant's argument was that this failure offends
the Law of Evidence, and so was Justiciable by this court
under
section 91(S)(a)(I) of COIDA. No specific rule of the Law
of
Evidence was relied upon, but it may be accepted for present purposes
that as a general proposition it Is fundamental to our
adjectival law
that a party be given the evidence Intended to be relied upon against
it.
[58]
But does that consideration apply here? In my view not, for the
following reasons. First, one ls not concerned here with the
question
whether some rule of the Law of Evidence was breached; one Is
concerned with a far narrower question, which is whether
the conduct
of the tribunal In referring to an extraneous academic article In
support of Its conclusion - assuming it to be offensive
- involves a
question of interpretation of COIOA or any other law. As I have
Indicated, In my view It does not.
[59]
Second, if any breach of any rule of the Law of Evidence were
appealable, It would emasculate completely the notion that no
factual
appeal
per se
Iles, because a mere incorrect assessment of
probabilities would qualify. Third, the tribunal did not, in fact,
find against the
appellant on the basis of some piece of evidence
that was not put to the appellant's expert. It referred, in its
reasoning, to
what was contained in an academic article. Being a
specialist tribunal, it was entitled to take its own knowledge into
account.
It follows that 1 believe that no appeal to this court lies
against the tribunals' findings In regard to the broken heart
syndrome.
[60]
That leaves the question of costs of the experts that testified
before the tribunal. The argument here was that the fact that
they
acted
pro bono
·did
not disqualify them from being awarded their fees. On the facts of
this case, that appears to be correct, given the
terms of the
appellant's employment of its lawyers. These appear from paragraph 2
of the Special Power of Attorney and Mandate,
but this arrangement
may be limited to the appeal only.
[61]
However, the appellant relied also on an unreported judgment of
Steenkamp, J (whose untimely death Is mourned) in the Labour
Court
(Cape Town) in
Zeman v Quickelberqe and Another, case no
C45/2010
.
At paragraph 71 to 103, after a thorough
analysis, the learned judge concluded that there was no objection In
our law to a favourable
costs order being made to a litigant who is
represented on a
pro bono
basis; and that, to the contrary,
the authority is in favour of the proposition. With respect to the
learned judge, I would support
his analysis.
[62]
As to costs, I believe the appellant was substantially successful. I
take into account the length of time before the respondent
conceded
the causative PTSD, and the conclusions reached concerning the
permanency of that condition. I do not believe that a special
costs
order Is justified.
[63]
In the result I would suggest an order as follows:
(a)
The appeal is upheld to the extent set
out below.
(b)
The finding and orders of the tribunal
are set aside, and there are substituted for them the following.
(c)
It is declared that the appellant Is
permanently disabled by the condition of Post Traumatic Stress
Disorder, and that this condition
is a consequence of the injury he
sustained in the accident he suffered in April 2009.
(d)
The question as to the extent of the
appellant's permanent disablement is referred back for assessment In
terms of the Act.
(e)
It ls declared that this court has no
jurisdiction to entertain an appeal against the findings and order of
the tribunal relating
to the appellant's asserted TCM condition, also
known as
"broken heart
syndrome”,
and those findings
in paragraph 44 of the tribunal’s judgment remain unaffected by
this order.
(f)
It is declared that the appellant's
experts are entitled to recover their experts' qualifying fees for
the hearing, and the hearing
fees.
(g)
The respondent Is directed to pay the
appellant's legal costs before the tribunal, as well as his costs of
appeal.
Date
hearing: 15 October 2019
Date
Judgment: 25 October 2019
_________________
WHG
van der Linde
Judge,
High Court
Johannesburg
I
agree
________________
P
Phahlane
Acting
Judge, High C0urt
Johannesburg
For
the appellant:
Adv
Michael Laws
Instructed
by:
Richard
Spoor Incorporated
Appellant’s
Attorneys
7
Morroccan. Building
Bagdad
Centre
White
River
C/o
Richard Spoor Inc.
S
Sherbone Street
Parktown
Johannesburg
Tel:
(011) 482 6081
Fax:
086 558 5624
Email:
Alex@rslnc.co.za
Ref:
Mr A Spoor
For
the respondent:
Adv
Mabasa Sibanda
Instructed
by:
Tshisevhe
Gwina Ratshimbilani Inc.
Respondent's
Attorneys
6th
Floor, Vdara Building
41
Rivonia Road, Sandhurst
Sandton
Johannesburg
Tel:
(011) 243 5027
Email:
pmuda@tgrattorneys.co.za
Ref:
Matod1I Ratshombilani/Precious Mudau/MAT 2776