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[2014] ZASCA 109
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Thomas v Minister of Defence and Military Veterans (506/2013) [2014] ZASCA 109; 2015 (1) SA 253 (SCA) (11 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
no: 506/2013
In
the matter between:
LIESL-LENORE
THOMAS
.............................................................................................
APPELLANT
and
THE
MINISTER OF DEFENCE AND
MILITARY
VETERANS
...............................................................................................
RESPONDENT
Neutral
citation:
Thomas v Minister of
Defence
(506/2013)
[
2014]
ZASCA 109
(11 September 2014)
Coram:
Mpati P, Lewis, Cachalia and Mbha JJA and
Gorven AJA
Heard
:
22 August 2014
Delivered
:
11 September 2014
Summary:
An employee of the Western Cape
Provincial Department of Health is not precluded by s 35(1) of the
Compensation for Occupational
Injuries and Diseases Act 130 of 1993
from claiming damages sustained by her as a result of slipping and
falling on stairs under
the control of the Minister of Defence and
Military Veterans. Different entities of the State are to be
recognized as such
under the Act.
ORDER
On
appeal from:
Western Cape High Court,
Cape Town (Saldanha J sitting as court of first instance):
1
The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel where two counsel were
employed.
2
The order of the trial court is set aside and replaced by the
following order:
‘
The
special plea is dismissed with costs.’
JUDGMENT
Gorven
AJA (Mpati P, Lewis, Cachalia and Mbha JJA concurring)
[1]
The crisp issue in this appeal is whether,
for the purposes of s 35(1) of the Compensation for Occupational
Injuries and Diseases
Act 130 of 1993 (the COIDA), the words
‘including the State’ so qualify the word ‘employer’
that all persons
employed by any component of the State are regarded
as having a single employer or whether those words simply indicate
that persons
employed within the component parts of the State are
brought under the umbrella of the COIDA. The first of these is the
contention
of the Minister of Defence and Military Veterans (the
Minister) in resisting a claim for damages by Dr Thomas.
[2]
The
factual matrix on which this appeal was argued is a simple one. Dr
Thomas, who is the appellant, says she suffered damages arising
from
a bodily injury. This was caused by her falling down some stairs at 2
Military Hospital. At the time, she was employed as
a medical
registrar. Her employment arose from an offer in a letter typed on
the letterhead of the Western Cape Department of Health
signed by the
Chief Executive Officer of that department. A written contract of
employment followed this offer. In that contract
the employer is
reflected as being the ‘Western Cape Provincial Government:
Department of Health’. At the time of her
fall she had been
seconded to work at 2 Military Hospital. These premises were under
the control of the Minister. After her fall,
Dr Thomas lodged a claim
with the Western Cape Provincial Department of Health under the
COIDA.
[1]
[3]
In addition to lodging that claim, Dr
Thomas claimed damages from the Minister and one other in the high
court. A special plea was
entered by the Minister. In it, the
Minister contends that Dr Thomas is not entitled to claim such
damages because of the provisions
of s 35(1) of the COIDA. This
section provides as follows:
‘
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.’
[4]
The argument of the Minister is that, for
the purposes of the COIDA, the State must be regarded as a single
employer. It is submitted
that the component parts of the State are
not themselves regarded by the COIDA as employers. Therefore, in the
action in question,
Dr Thomas is suing her employer and s 35(1)
precludes such an action. The case of Dr Thomas is that the Western
Cape Provincial
Department of Health is itself an employer for the
purposes of the COIDA.
[5]
The special plea was adjudicated as a
separate and initial issue in the action. The high court upheld the
special plea, finding
that the State is a single employer for the
purposes of s 35(1), and dismissed the claim of Dr Thomas with
costs, including
the costs of two counsel. It is this order against
which Dr Thomas appeals, with the leave of that court.
[6]
In
Jooste
v Score Supermarket and Trading (Pty) Ltd (Minister of Labour
intervening)
,
[2]
the
Constitutional
Court held that s 35(1)
passed
constitutional muster, dealing with it
as
follows:
‘
The
Legislature clearly considered that it was appropriate to grant
to employees certain benefits not available at common law.
The scheme
is financed through contributions from employers. No doubt for these
reasons the employee's common-law right against
an employer is
excluded. Section 35(1) of the Compensation Act is therefore
logically and rationally connected to the legitimate
purpose of the
Compensation Act, namely a comprehensive regulation of compensation
for disablement caused by occupational injuries
or diseases sustained
or contracted by employees in the course of their employment.’
[3]
[7]
In arriving at this conclusion, the
Constitutional Court dealt with the purpose of the COIDA saying the
following:
‘
The
purpose of the Compensation Act, as appears from its long title, is
to provide compensation for disability caused by occupational
injuries or diseases sustained or contracted by employees in the
course of their employment. The Compensation Act provides for
a
system of compensation which differs substantially from the
rights of an employee to claim damages at common law.’
[4]
Having
stated this to be the purpose, the position under the common law was
contrasted with that under the COIDA. Part of the rationale
was that
the COIDA does not only limit the rights of employees, it accords
them other rights. An example of this is that under
the COIDA, if the
employee qualifies for compensation, no negligence need be proved
unlike under the common law action for damages
for injury. Where
negligence is a factor, however, increased compensation can be
applied for.
[5]
Further, in
addition to compensation under the COIDA, an employee retains the
right to sue third parties which can include a co-employee.
[6]
All that s 35(1)
seeks
to achieve is to limit the liability of an employer to amounts
claimable under the COIDA for all matters which fall within
its
ambit.
[8]
As
mentioned, s 35(1) precludes an action by an employee against an
employer. It is thus necessary to determine what is meant by
the word
‘employer’ in that section. Majiedt AJ, in the majority
judgment in
Cool
Ideas 1186 CC v Hubbard & another
,
[7]
succinctly set out the approach to interpretation as follows:
‘
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions
ought to
be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to
the purposive
approach referred to in (a).’
[8]
In
addition, this court has said that the process of interpretation is
objective and ‘[t]he
“
inevitable
point of departure is the language of the provision itself”
read in context and having regard to the purpose of
the provision and
the background to the preparation and production of the document.’
[9]
[9]
Section 1 of the COIDA defines employer as
meaning ‘any person, including the State, who employs an
employee…’.
It is the words ‘including the State’
on which the Minister bases the special plea. The COIDA does not
define what
is meant by ‘the State’. The definitions
therefore do not themselves assist in resolving whether the State or
a component
of the State, such as a provincial department or
provincial government as a whole, is regarded as an employer under
s 35(1)
of the COIDA.
[10]
In
Holeni
v Land and Agricultural Development Bank of South Africa
[10]
this court considered whether
‘
the
Land Bank [can] be considered to be 'the State' as referred to in
s
11
(b)
of the
Prescription Act 68 of 1969
’.
[11]
Navsa JA
held
that ‘[t]he State as a concept does not have a universal
meaning. Its precise meaning always depends on the context within
which it is used.’
[12]
What is clear from this is that the term ‘the State’ may
have different meanings in different contexts and in different
legislation. This is borne out by various cases which need not be
dealt with here.
[11]
It is therefore appropriate to deal with
the context within which this provision, and the definition of
employer, is located. The
provisions
of the COIDA provide the immediate context and must now be considered
against the backdrop of its purpose.
[12]
As
already indicated, the COIDA provides for ‘
a
comprehensive regulation of compensation for disablement caused
by occupational injuries or diseases sustained or contracted
by
employees in the course of their employment’.
[13]
To
this end, it requires employers to pay assessments into a fund. There
is a category of employer which is exempt from doing so.
The COIDA
refers to this category as an employer individually liable. This is
dealt with in
s 84.
If an employee of such an employer becomes
entitled to compensation, the employer individually liable must pay
the compensation.
[14]
Section 84(1)
reads as follows:
‘
No
assessment in favour of the compensation fund shall be payable in
respect of employees—
(
a
)
in the employ of—
(i)
the national and provincial spheres of government, including
Parliament and provincial legislatures;
(ii)
a local authority which has obtained a certificate of exemption in
terms of
section 70
(1)(
a
)(ii) of the Workmen’s
Compensation Act and has notified the Director-General in writing
within 30 days after the commencement
of this Act that it desires to
continue with the arrangements according to the said certificate of
exemption; and
(iii)
a municipality contemplated in section 10B of the Local
Government Transition Act, 1993 (Act No. 209 of 1993), to which
exemption has been granted in terms of subsection (2);
(
b
)
whose employer has with the approval of the Director-General obtained
from a mutual association a policy of insurance for the
full extent
of his potential liability in terms of this Act to all employees
employed by him, for so long as he maintains such
policy in
force.’
[15]
[13]
It
goes without saying that employers individually liable are, first and
foremost, employers as defined in the COIDA. They constitute
a subset
of employers singled out for specific treatment. Subsection
84(1)(
a
)(i)
makes it clear that certain employees are ‘in the employ of the
national and provincial spheres of government, including
Parliament
and provincial legislatures’. Subsections 84(1)(
a
)(ii)
and (iii) make it clear that there are persons who are ‘in the
employ of’ certain local authorities or municipalities.
[16]
The latter are therefore regarded as employers by these subsections.
[14]
A
number of consequences flow from this conclusion. At the very
least, the former local authorities which are exempted are
seen to be
different employers to the municipalities which are exempted. By
parity of reasoning, the local authorities and municipalities
which
are not exempted, and are therefore not employers individually
liable, are also employers under the COIDA. They are liable
to make
contributions to the compensation fund and their employees are
compensated from the fund. They are also entitled to apply
for
exemption from making contributions in terms of s 84(2).
[17]
This leads to the ineluctable conclusion that each local authority
and each municipality is considered to be an individual employer
under the COIDA. In addition, each of these is a different employer
to ‘the national and provincial spheres of government,
including Parliament and provincial legislatures’.
[15]
It
can therefore hardly be contended that all the entities referred to
in s 84(1)(
a
)
must be regarded as a single employer in the form of the State. To
add grist to the mill, s 88(1) requires ‘the
employers
individually liable’
[18]
to make payments towards the administration of the COIDA. This
suggests a number of employers individually liable rather than the
State as a single entity. This is also true of s 31(1) which
allows the Director-General to order ‘an employer’
individually liable to provide security. If the State is regarded by
the COIDA as a single employer, none of these entities could
be
regarded as ‘an employer’ for this purpose; the reference
would be to ‘the employer’. It is also hardly
conceivable
that the State, as a whole, could be ordered to provide security.
[16]
I
did not understand counsel for the Minister to submit that entities
within the sphere of local government are not part of ‘the
State’. In fact, the heads of argument filed on behalf of the
Minister make the submission that ‘the State as an employer
in
terms of [the COIDA] includes all spheres of government’. The
Minister further accepts that, under the Constitution, ‘government
is constituted as national, provincial and local spheres of
government’.
[19]
Apart
from government, the Constitution provides for Legislative
authorities at national and provincial levels.
[20]
These are also specifically referred to in s 84(1)(
a
)(i).
It is clear from the Constitution that local government, which is
given legislative and executive powers,
[21]
is considered to be part of the State. The Constitution thus provides
that the legislative and executive authorities in each of
the spheres
of government form part of the State.
[17]
If local government is part of the State,
because each municipality and local authority is regarded as a
separate employer, this
can only mean that ‘the State’ is
not regarded by the COIDA as the employer of the employees working in
all of its
component parts. This, to my mind, is in itself
dispositive of the point at hand.
[18]
It is fair to say, however, that the thrust
of the submissions made on behalf of the Minister was directed at the
proposition that
persons employed at national and provincial levels
must be regarded as being employed by a single employer referred to
as the State.
During the hearing, the inconsistency of excluding
local government from the State was not pertinently raised. In the
light of
this, it is appropriate to consider whether the phrase in
s 84(1)(
a
)(i)
‘the national and provincial spheres of government, including
Parliament and provincial legislatures’ refers to
a single
employer or more than one employer.
[19]
At the level of grammar, it is possible to
construe s 84(1)(
a
)(i)
as referring to a single employer when it is considered in isolation.
However, other provisions in the COIDA militate against
such a
construction. The key provision in this regard is s 39(2) which
reads as follows:
‘
For
the purposes of
subsection
(1)
an
employer referred to in
section
84 (1) (
a
) (i)
means,
in the case of—
(a)
the
national and provincial spheres of government, the respective heads
of departments referred to in
section
7(3)
of
the Public Service Act, 1994 (
Proclamation
No. 103 of 1994
);
(b)
Parliament, the Secretary to Parliament;
(c)
a provincial legislature, the Secretary of the
provincial legislature in question.’
The
word ‘respective’ is of crucial importance here. It means
that the heads of departments within the executive are
not lumped
together as a single employer. If ‘an employer’ is a head
of department, employees working in one department
are not employed
by another department, whether at national or provincial level, or by
the State as a whole. In addition, subsections
(
b
) and (
c
)
provide that Secretaries to Parliament and the provincial
legislatures, which are included in s 84(1)(
a
)(i) as part
of ‘the national and provincial spheres of government’,
are different employers to the executive
authorities at the national
and provincial levels.
[20]
This interpretation is buttressed by the
reference, in s 39(2) of the COIDA, to s 7(3) of the Public
Service Act (the
PSA). Section 7(3) of the PSA provides that
each department shall have a head with the designation in the
relevant schedules
to the PSA. The schedules list each department and
their heads at national and provincial levels. At national level, the
heads
of these departments are in most cases designated as
Directors-General. At provincial level, the heads are all designated
as ‘Head’
followed by the name of the provincial
department. In the case of the Western Cape Province, that for the
department of health
is designated ‘Head: Health’.
[21]
It is thus clear that each head of each
department in ‘the national and provincial spheres of
government’ in s 84(1)(
a
)(i)
is ‘an employer’ for the purposes of the COIDA. In
addition, an employer who is a head of department in the national
and
provincial spheres of government differs from an employer in the case
of Parliament which is, in turn, different to an employer
in the case
of the nine provincial legislatures.
The
COIDA thus envisages multiple employers in each of the various
spheres of government as opposed to treating the State as a single
employer.
[22]
As I have said above, f
or
Dr Thomas to succeed in this
appeal, it is
only necessary to find that the phrase ‘the national and
provincial spheres of government’ does not refer
to a single
employer under the COIDA. It would ordinarily not be necessary to
find that, within each of these spheres, there are
multiple employers
in the form of the heads of departments. However, in arriving at the
conclusion that the phrase does not refer
to a single employer, it
has been necessary to make the finding as to multiple employers on
each of the national and provincial
levels.
[23]
In summary, therefore, t
he
significance of s 84(1) read with s 39(2) is as follows. A
clear distinction is drawn between the heads of the listed
departments who are the employers in the national and provincial
spheres of government. These are distinguished from the employers
in
the legislative bodies in these spheres. These are in turn
distinguished from the employers in the sphere of local government.
If, for the purposes of the COIDA, all of these entities were
regarded as a single employer, s 84(1) would read very
differently.
All that it would need to say is that the State,
regardless of whether it is the national, provincial or local sphere
and regardless
of whether it is the executive or legislative entity,
would not be assessed for the purposes of the COIDA in respect of its
employees.
It does not say this.
[24]
A
submission made on behalf of the Minister was that, because s 197(4)
of the Constitution requires provincial employees to
belong to a
single public service, the State as a single entity is their
employer. It is so that they are required to belong to
a single
public service. This does not mean, however, that all members of the
public service are employed by a single employer.
Section 197(4) of
the Constitution accords to provinces power to carry out all the
actions usually associated with employers, including
‘recruitment,
appointment, promotion, transfer and dismissal’. In
Premier,
Western Cape v President of the Republic of South Africa
,
[22]
the Constitutional Court dealt with a challenge to national
legislation which sought to restructure the public service as a
single
entity, including the provincial spheres. The court held that
s 41 of the Constitution
[23]
was not infringed saying the following:
‘
Functionaries
in the provincial administration of the public service are appointed
by the provincial government, are answerable
to it and can be
promoted, transferred or discharged by it. The right of the Premier
and Executive Council to co-ordinate the functions
of the provincial
administration and its departments has been preserved.’
[24]
[25]
Although
Premier,
Western Cape
stops short of
specifically saying that a provincial government, or head of
department in a provincial government, is the employer
of public
servants within its administration, various sections of the PSA make
this clear. These include sections 14, 14A, 15(3),
16A(2)(
a
),
16B(4) and 17(2) which provide that different departments, whether at
national or provincial level, are employers of members
of the public
service. These sections variously refer to ‘an employee of the
department’ or ‘the employee of
the department’.
The PSA is thus consistent with my interpretation of what is meant by
an employer under the COIDA and destructive
of the submission to the
contrary made on behalf of the Minister.
[26]
All of this means that, for the purposes of
the COIDA, and in particular s 35(1), the employer of Dr Thomas
was not the State
as a single, overarching entity, but the Head:
Western Cape Department of Health. It further means that s 35(1)
does not find
application in the action and Dr Thomas is entitled to
pursue her claim against the Minister. It follows that the special
plea
was incorrectly upheld and her claim incorrectly dismissed.
[27]
For these reasons, the conclusion arrived
at by the high court is incorrect. In the result, the appeal must
succeed.
The
following order issues:
1
The appeal is upheld with costs, such costs
to include those consequent upon the employment of two counsel where
two counsel were
employed.
2
The order of the trial court is set aside
and replaced by the following order:
‘
The
special plea is dismissed with costs.’
T
R Gorven
Acting
Judge of Appeal
Appearances
For
Appellant: M H van Heerden SC
Instructed
by:
Sohn
& Wood Attorneys, Cape Town
Honey
Attorneys, Bloemfontein
For
Respondent: M A Albertus SC, with him R Jaga
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
[1]
The
COIDA repealed and replaced the Workmen’s Compensation Act 30
of 1941 (as amended).
[2]
1999
(2) SA 1 (CC).
[3]
Paragraph
17.
[4]
Paragraph
13.
[5]
Section
56(1).
[6]
Section
36(1).
[7]
2014
(4) SA 474
(CC) para28.
[8]
References
omitted.
[9]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18 (references omitted).
[10]
2009
(4) SA 437 (SCA).
[11]
Paragraph
10.
[12]
P
aragraph
11.
[13]
Jooste
loc cit.
[14]
Section
29. Otherwise, it is paid from the compensation fund.
[15]
Section
84(1)(
b
)
deals with a second group of employers individually liable. This
subsection provides for employees:
‘
whose
employer has with the approval of the Director-General obtained from
a mutual association a policy of insurance for the
full extent of
his potential liability in terms of this Act to all employees
employed by him, for so long as he maintains such
policy in force.’
Their
presence in subsection (1)(
b
) does not have any direct
bearing on the interpretation arising in this appeal and nothing
more will be said about them.
[16]
It
must be borne in mind that the COIDA was promulgated during the
transition to democracy. This is why local authorities from
the
pre-democratic era which had been exempted under the Workmen’s
Compensation Act are referred to as well as municipalities
brought
into being under the
Local Government Transition Act 209 of 1993
.
[17]
This
reads as follows:
‘
The
Director-General may upon application exempt any local authority
referred to in subsection (1)
(a)
(ii) or any municipality referred to in subsection (1)
(a)
(iii) from the obligations of an employer in terms of this Act on
such conditions as he or she may think fit.’
[18]
My
emphasis.
[19]
Section
40(1) of the Constitution.
[20]
Chapter
4 deals with Parliament, Chapter 5 with the President and National
Executive and Chapter 6 with provincial legislatures
and executives.
[21]
Section
151(2).
[22]
1999
(3) SA 657 (CC).
[23]
Particularly
s 41(1)(
e
)
which requires all spheres of government to ‘respect the
constitutional status, institutions, powers and functions of
government in another sphere’.
[24]
Paragraph
91.