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[2021] ZAGPJHC 43
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Clementz v Millbo Paper CC and Others (27096/2019) [2021] ZAGPJHC 43; [2021] 2 All SA 774 (GJ); [2021] 7 BLLR 728 (GJ); 2021 (4) SA 186 (GJ) ; (2021) 42 ILJ 1796 (GJ) (19 March 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
(1)
REPORTABLE:
Yes
/
No
(2)
OF INTEREST TO OTHER JUDGES: Yes /
No
Case No.:
27096/2019
In
the matter between:
SIMON CLEMENTZ
Plaintiff
and
MILLBO PAPER CC
First Defendant
GREENBAT (PTY)
LIMITED
Second Defendant
RONALD PRINSLOO
Third Defendant
SHANE ROBIN ERIC
ISAACS
Fourth Defendant
DAVID MELVILLE
GRIFFITHS
Fifth Defendant
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email.
Per Gilbert AJ:
1.
The
plaintiff pleads in these action proceedings that he suffered severe
injuries at work while performing his duties on machinery
when hot
molten adhesive blew up onto his face, hands and abdomen. The
plaintiff further pleads that the incident was caused by
the sole
negligence of three of his (now former) employer’s senior
management while they were under the influence of alcohol.
[1]
2.
What I am required to decide is nothing new. What
I am to decide is the narrow issue of whether the incident pursuant
to which the
plaintiff suffered personal injuries at his workplace
arose out of his employment
,
within the meaning of “accident” in section 1 of the
Compensation for Occupational Injuries and Diseases Act,
1993 [“the
Act”]. If it did, then the plaintiff would
not
be able to pursue his common law claim for damages against his
erstwhile employer and the senior management because of the
exclusionary
provisions of section 35 of the Act, which substitutes
that common law civil claim with a statutory administrative claim for
compensation.
3.
The courts regularly have to decide this issue,
both in South Africa and in foreign jurisdictions in relation to
similarly
worded statutes providing for statutory compensation to
employees for workplace injuries. The reported cases show that often
it
may be a difficult task to decide whether on a particular set of
facts the accident arose out of the employee’s employment.
4.
In this instance, I am asked to decide the issue
on exception, and without having had the benefit of evidence at a
trial.
5.
Navsa
ADP in
Member
of the Executive Council for the Department of Health, Free State
Province v EJN
[2015] 1 All
SA 20 (SCA)
[2]
, after referring
to one of the appeal court’s earlier decisions nearly fifty
years previously, had this to say:
“
In
Minister of Justice v Khoza
1966 (1) SA 410
(A), this Court had to
wrestle with the vexed question of whether an accident arose out of
an employee’s employment. That
question is at the heart of the
present case
.”
6.
Navsa
ADP continued
[3]
that “
South
African courts have not been a model of consistency in their approach
to the determination of whether an accident arose out
of an
individual’s employment
”,
pointing out that a similar situation prevails internationally.
[4]
7.
After
considering the oft-cited
Minister
of Justice v Khoza
,
[5]
which required that there be in the broad sense a causal connection
between the employment and the accident, Navsa ADP in paragraph
31 of
his judgment refined the test to asking “
the
question whether the wrong causing the injury bears a connection to
the employee’s employment. Put differently, the question
that
might rightly be asked is whether the act causing the injury was a
risk incidental to the employment”
.
[6]
8.
Nonetheless Navsa ADP continued in that same
paragraph that:
“
There is
of course, as pointed out in numerous authorities, no bright-line
test. Each case must be dealt with on its own facts.
”
9.
Navsa
ADP also
[7]
referred to Addleson
J’s consideration of
Khoza
in
Ex
parte Workmen’s Compensation Commissioner: in re Manthe
1979
(4) SA 812
(E) that
Khoza
did not intend to “
lay
down
”
any principle of invariable application to all possible combinations
of circumstances and that the facts must rule the decision
in each
case.
10.
In last year’s South African Law Reports,
for 2020, there are two reported cases wrestling with the same
question and which
both unsurprisingly refer to
MEC v EJN
.
11.
In
De
Gee v Transnet SOC Limited
2020
(2) SA 488
(GJ) this Division repeated what Navsa ADP had stated
that there was no bright-line test and each case must be dealt with
on its own facts.
[8]
In that
matter, on the facts, the court found that the accident did not arise
out of the employee’s employment and therefore
his common law
damages claim was not excluded.
12.
In
Churchill
v Premier, Mpumalanga and another
2020
(2) SA 309
(MN) the court too referred to
MEC
v EJN
[9]
and
reiterated
[10]
that whether an
injury suffered by a workman is an ‘
occupational
injury
’
for purposes of the Act is ‘
a
perplexing question
’
and that over a century ago, in
McQueen
v Village Deep GM Co Limited
1914
TPD 344
the court then already stated at 347 that ‘
the
most difficult question which arises in the present case is whether
the facts as stated by the magistrate can be said to constitute
an
‘accident’ within the meaning of the law.’
13.
The court in
Churchill
found that the employee plaintiff who was injured during an
employment related protest by protesting employees had suffered
injury
from an accident arising out of her employment and therefore
her common law damages claim was excluded.
14.
During
the course of preparation of my judgment, the Supreme Court of Appeal
overturned the decision of the court
a
quo
in
Churchill
.
[11]
Again, this time per Wallis JA, the court found that formulating a
single test to determine whether an injury arose out of the
injured
party’s employment is neither feasible nor desirable.
[12]
15.
After referring to the appeal court’s
previous decision in
MEC v EJN
,
Wallis JA held that:
“
[t]he only
safe approach is to examine closely the facts of each case in order
to decide whether the person’s injuries arose
out of their
employment. The closer the link between the injury sustained and the
performance of the ordinary duties of the employee,
the more likely
it will be that they were sustained out of their employment. The
further removed from their duties, and the less
likelihood that those
duties will bring the employee into a situation where such injuries
might be sustained, the less likely that
they arose out of their
employment.”
[13]
16.
To
emphasise the point, Wallis JA later in the judgment
[14]
stated that:
“
It
is
necessary
to
repeat
what
has
oft
been
said
before
in
these
cases,
namely
that
there
is
no
bright
line
test
and
the
enquiry
is
always whether
the statutory requirement that the accident arose out of the person's
employment,
as
well
as
in
the
course
of
that
employment,
is satisfied.
The
court
must
analyse
the
facts
closely
to
determine
whether on
balance the accident arose out of the person's employment. And in the
last resort an employer seeking to rely on s35
to avoid liability
bears the onus
of
satisfying
the
court
that
the
accident
arose
out
of
the
claimant's
employment.”
17.
Ordinarily, the vexing issue whether the accident
arose out of the employee’s employment is to be decided by a
trial court
after having had the benefit of evidence. But in this
particular instance the first, fourth and fifth defendants seek of
the court
to decide this vexing question by way of exception. The
second and third defendants have not excepted, and have pleaded.
18.
The
excipients acknowledge that the facts pleaded by the plaintiff must
be accepted as correct for purposes of deciding the exception
but
submit that even on a benevolent interpretation of those accepted
facts,
[15]
the plaintiff will
not be able to establish at trial, after evidence is led within the
parameters of what is pleaded,
[16]
that the accident arose out of his employment and that therefore
their exception that the particulars of claim lack averments which
are necessary to sustain an action should be upheld.
19.
Once
the contours of deciding the issue include that there is no bright
line test and each case must be decided on a close consideration
of
its own facts, the limitations of answering the question by way of
exception become apparent. This is not to say that
the issue is
incapable of determination by exception.
[17]
No doubt there are the ‘run-of-the-mill’ cases, which do
not usually make the law reports, where the facts may
not present any
difficulty and the question can be decided on exception. Is this one
of those cases? The excipients contend so.
20.
Having set out this introduction, the rest of
this judgment is structured as follows:
20.1.
a brief overview of the relevant provisions of
the Act;
20.2.
the relevant pleaded facts that must be accepted
as correct for purposes of determining the exception;
20.3.
whether on exception I am able to find that on
the pleaded facts the plaintiff will not be able at trial, after
leading evidence,
to prove that the accident arose out of his
employment.
A BRIEF OVERVIEW OF
THE RELEVANT PROVISIONS OF THE ACT
21.
As the long title of the Act expressly provides,
its purpose is to provide for compensation for disablement caused by
occupational
injuries or diseases sustained or contracted by
employees in the course of their employment, or for death resulting
from such injuries
or diseases, and to provide for matters connected
therewith.
22.
The
Constitutional Court in
Jooste
v Score Supermarket Trading (Pty) Limited (Minister of Labour
intervening)
1999
(2) SA 1
(CC) described the Act as ‘
important
social legislation which has a significant impact on the sensitive
and intricate relationship amongst employers, employees
and society
at large
’.
[18]
23.
Section 22, which is the central operative
provision and which is headed ‘
Rights of
employee to compensation
’, provides:
“
22(1)
If an employee meets with an accident resulting in his disablement or
death such employee or the dependents
of such employee shall, subject
to the provisions of this Act, be entitled to the benefits provided
for and prescribed in this
Act.
”
24.
Section 22(3)(a) limits this right of an employee
to compensation,:
“
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.
”
25.
‘
Serious and wilful misconduct’ is
defined in section 1 to include “
being
under the influence of intoxicating liquor or a drug having a
narcotic effect”.
26.
Navsa
ADJ in
MEC
v EJN
described the Act as follows:
[19]
“
In a
nutshell, the Act provides a ready source of compensation for
employees who suffer employment related injuries and provides
for
compensation without the necessity of having to prove negligence,
although negligence may result in greater compensation. It
should,
however, be borne in mind, that the object of the Act is to benefit
employees and that their common law remedies were restricted
to
enable easy access to compensation. It does not necessarily mean that
compensation for every kind of harm they suffer whilst
at their place
of employment has to be pursued through that statutory channel.
However, if the injury was caused by an accident
that arose out of an
employee’s employment, then the latter is restricted to a claim
under the Act. This is referred to as
the exclusivity doctrine.
”
27.
Negligence features in the present instance. The
plaintiff pleads that the defendants’ sole negligence caused
the accident.
Section 56 of the Act provides that an employee who
meets with an accident which is due to the negligence of his employer
or various
other specified persons may apply for increased
compensation in addition to the compensation normally payable in
terms of the Act.
Although negligence need not be proven for an
employee to claim statutory compensation, negligence does entitle the
employee to
apply for increased statutory compensation.
28.
Whether the employee claims compensation under
section 22(1) or applies for increased compensation under
section 56 where negligence
is present, the employee needs to ‘
meet
with an accident
’.
29.
An ‘accident’ is defined in section 1
as meaning ‘
an accident arising out of
and in the course of an employee’s employment and resulting in
a personal injury, illness or the
death of the employee
’.
30.
Given
the social utility of the Act, and its predecessors, the courts have
often pointed out that the Act must be interpreted generously
in
favour of the employees. So, for example, in
Davis
v Workmen’s Compensation Commissioner
1995
(3) SA 689
(C) at 694F:
[20]
“
The policy
of the Act is to assist workmen as far as possible. See Williams v
Workmen’s Compensation Commissioner
1952 (3) SA 105
(C) at
109C. The Act should therefore not be interpreted restrictively so as
to prejudice a workman if it is capable of being interpreted
in a
manner more favour to him.
”
31.
But a generous interpretation of what constitutes
‘an accident’ is a double-edged sword.
32.
Section 35 of the Act, which is headed
‘
Substitution of compensation for other
legal remedies
’ provides that:
“
(1)
No action shall lie by an employee or any dependent 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 disablement
or death.
”
33.
The scope of the exclusion of the common law
damages claim under section 35 is extended by way of a deeming
provision as to
who is an employer for purposes of its exclusionary
provisions. Section 35(2) provides that:
“
35(2)
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.
”
34.
Sections 56(1)(b), (c), (d) and (e) refer to the
following persons:
“
(b)
… an employee charged by the employer with the management or
control of the business or
of any branch or department thereof;
(c)
… an employee who has a right to engage or discharge employees
on behalf of the employer;
(d)
… an engineer appointed to be in general charge of machinery,
or a person appointed
to assist such engineer in terms of any
regulation made under the Minerals Act, 1991 (Act 50 of 1991); or
(e)
… a person appointed to be in charge of machinery in terms of
any regulation made
under the Occupational Health and Safety Act 1993
(Act 85 of 1993).
”
35.
As will appear below, this deeming provision is
directly relevant.
36.
The
Constitutional Court in
Jooste
examined the difference between compensation in terms of the Act and
at common law, and which demonstrates the swings and roundabouts
created by the Act, both for the employee and the employer.
[21]
37.
An employee is provided with the right to claim
compensation by way of an administrative process, without having to
prove negligence
and without the costs and risks attendant upon civil
litigation. The employee is paid compensation from the statutory fund
and
does not have to run the risk of an empty judgment against the
employer. The trade-off by an employee for his right to statutory
compensation is that he then is excluded in terms of section 35 from
instituting action against his employer, for what may have
been
significantly larger damages.
38.
Similarly for the employer. The employer has to
contribute to the statutory fund by way of obligatory payments, on
pain of criminal
sanction. In return the employer is protected from
being sued by his employee as the employee is to claim compensation
under Act
and foregoes his common law damages claim against the
employer.
39.
A
generous interpretation for employees of what falls within the ambit
of an ‘accident’ for purposes of facilitating
claims for
statutory compensation under section 22 (and for increased
compensation under section 56 if the employer is negligent),
has the
corresponding disadvantage for the employees that as the same
definition of an ‘accident’ is used for purposes
of
section 35, the wider the exclusion of the employees’
claims for common law damages. Although section 35 does not
directly
refer to an ‘accident’, it does refer to any
‘occupational injury’, which means ‘
a
personal injury sustained as a result of an accident’
.
[22]
40.
Where a generous definition of an ‘accident’
cuts its double-sided swath is where the employee fails to claim
compensation
under the Act. Section 43 of the Act provides that
a claim for compensation must be lodged by or on behalf of the
claimant
employee in the prescribed manner within twelve months after
the date of the accident or, in the case of death, within twelve
months
after the date of death, failing which the claim for
compensation will not be considered, save in certain limited
circumstances.
Should an employee fail to lodge his or her claim for
statutory compensation timeously, he or she would not only be unable
to claim
statutory compensation but will also forfeit his or her
common law claim to damages.
41.
The excipients’ counsel urged upon me that
in adopting a generous interpretation of an accident for purposes of
section 22,
it cuts both ways, and that the same generous
interpretation should also apply when it comes to the exclusionary
provisions of
section 35. There is, as appears above, appeal in
this submission.
42.
Nonetheless,
as appears below, this double-edged effect of adopting a generous
interpretation of an ‘accident’ has bothered
the courts.
Rather than wrestling directly with the legislation (such as
attempting to reason how ‘accident’ could
perhaps mean
something different depending upon which section is under
consideration and notwithstanding the presumption of statutory
interpretation that the same words in a statute bear the same meaning
throughout
[23]
), the courts
instead find scope in their application of the definition of
‘accident’ to the particular facts before
them in order
to decide whether a claim is to be excluded or not under section 35.
THE PLEADED RELEVANT
FACTS THAT MUST BE ACCEPTED AS CORRECT FOR PURPOSES OF DETERMINING
THE EXCEPTION
43.
The plaintiff is an ‘employee’ for
purposes of the Act.
44.
The first defendant, a close corporation, is an
‘employer’ for purposes of the Act.
45.
The fourth defendant is employed by the first
defendant as the factory and maintenance manager and is a member of
the first defendant.
46.
The fifth defendant is employed as the head
of sales of the first defendant and is also a member of the first
defendant.
47.
There is no real dispute, for present purposes,
that the fourth and fifth defendants fall within the extended deeming
definition
of an ‘employer’, as provided for in
section 56(1)(b) and (c) as read with section 35(2) of the Act.
48.
The plaintiff suffered an ‘occupational
injury’ and is seeking to recover damages as a result thereof.
49.
The accident arose
in the
course of
the plaintiff’s employment,
as the accident did occur while the plaintiff was working.
50.
The
only outstanding issue that needs to be decided before the
plaintiff’s claim would be excluded under section 35 of
the Act, and so whether the exceptions should succeed, is whether the
accident, in addition to arising in the course of the employment,
also
arose
out of that employment
.
It is trite that the requirement that the accident arose
out
of the employment
is distinct from the accident arising
in
the course of the employment
,
and that both requirements must be satisfied for there to be an
‘accident’ as defined.
[24]
51.
The incident leading to the plaintiff’s
personal injuries is described as follows in the particulars of
claim:
“
On or
about 8 August 2016, whilst performing his duties during the night
shift and on the premises of the second defendant, the
plaintiff was
seriously injured on duty when hot molten adhesive blew up onto the
plaintiff’s face, hands and abdomen (“the
incident”).
At the time
immediately preceding the incident, the plaintiff was cleaning a
filter, and had turned the valve to the ‘shut’
position
and switched off the gear pump in accordance with the safety
procedures.
”
52.
The plaintiff describes in the particulars of
claim his duties as employee to include the overseeing of the
manufacturing of hot
molten and water-based adhesives and to measure
the specification of hot molten and water-based adhesives.
53.
If the pleaded facts ended there, there would
have been little difficulty finding that the accident not only arose
during the course
of the plaintiff’s employment as he was
working at the time of the incident, but that the incident also arose
out of his
employment as he was working on the very equipment that he
was employed to work on.
54.
But the particulars of claim do not end there.
55.
As the plaintiff is advancing a common law
delictual claim for damages, he goes on to plead, which must be
accepted as correct for
purposes of the exception, that the sole
cause of the incident was the negligence of the defendants. In
particular, he pleads that
the employee defendants (i.e. the third,
fourth and fifth defendants):
55.1.
failed to adhere to the safety procedures by
entering the factory premises during the nightshift
under
the influence of alcohol
;
55.2.
abused their positions as director and members
of the first and second defendants and by virtue of the roles as
senior management
by entering the factory
premises when it was unsafe to do so;
55.3.
failed to adhere to the safety procedures
by
continuing to consume alcohol in the factory premises
;
55.4.
acted recklessly, alternatively negligently by
opening the valve to the tank containing hot molten adhesive;
55.5.
acted recklessly, alternatively negligently by
switching on the gear pump causing the line to come under pressure
resulting in a
blow up;
55.6.
failed to take reasonable care for the health and
safety of persons who may be affected by their acts or omissions;
55.7.
owed the plaintiff a common law duty of care to
take reasonable measures to ensure the safety of persons employed in
the workplace,
which included a duty of ensuring that the provisions
of the Occupational Health and Safety Act, 1993 (‘OHSA’)
and
regulations were complied with;
55.8.
failed to take reasonable measures to ensure the
safety of persons entering upon the premises of the first and second
defendants
which premises and operating procedures are inherently
dangerous and further created a source of danger; and
55.9.
failed to exercise reasonable care and precaution
reasonably expected of directors and members of the first and second
defendants.
56.
In respect of the employer defendants (i.e. the
first and second defendants) the plaintiff pleads that they:
56.1.
failed to provide a safe, secure and healthy
working environment;
56.2.
failed to develop, implement and enforce
appropriate, adequate and effective control measures;
56.3.
failed to take any or reasonable measures
to
prevent persons under the influence of alcohol or other substances
from entering the factory premises
and to
prevent harm to employees;
56.4.
failed to take reasonable measures to ensure the
safety of persons entering upon the premises and operating procedures
which are
inherently dangers; and
56.5.
owed the plaintiff a common law duty of care to
take reasonable measures to ensure the safety of persons employed in
the workplace,
which included the duty to ensure that the provisions
of the OHSA and regulations were complied with.
57.
On these pleaded facts, which must be accepted as
correct for purposes of the exception, the senior management who
caused the accident
were under the influence of alcohol, and were
abusing their position of authority.
58.
Would this potentially take the incident outside
that which arises out of the plaintiff’s employment, and so
enable the plaintiff
to avoid the exclusionary ambit of section 35 of
the Act?
WHETHER ON EXCEPTION
I AM ABLE TO FIND THAT ON THE PLEADED FACTS THE PLAINTIFF WILL NOT BE
ABLE AT TRIAL, AFTER LEADING EVIDENCE,
TO PROVE THAT THE ACCIDENT
AROSE OUT OF HIS EMPLOYMENT
59.
It is the additional pleaded element of the
incident having been caused by the senior management while
intoxicated that complicates
what might otherwise have been a
straightforward determination that the incident constituted an
‘accident’ within the
meaning of the Act.
60.
The excipients’ counsel submitted that a
generous interpretation of what constitutes an ‘accident’
is called for
so that employees in the position of the plaintiff, who
are injured through the negligence of intoxicated co-employees, would
be
able to claim statutory compensation under sections 22 and 56
of the Act. And, the submission continues, that it must then
follow
that the same generous interpretation is to be applied to the
exclusion in section 35 of the plaintiff’s common
law
damages claim.
61.
But the cases show that this tension of the
double-edgedness of a generous interpretation of what constitutes an
‘accident’
is not easily resolved.
62.
I do not propose traversing the range of cases
referred to by counsel in their helpful submissions because it must
be accepted,
as recently reiterated by the Supreme Court of Appeal in
MEC v EJN
and then
Churchill
that
there is no bright line test and that each case must be considered on
its own facts.
63.
I will nonetheless refer to those cases upon
which the plaintiff’s counsel placed specific reliance given
that in her submissions
the cases most favourably disposed towards
the plaintiff would be emphasised.
64.
In
Langeberg Foods Limited
and another v Tokwe
[1997] 3 All SA 43
(E) an
employee was injured at work when a security guard employed by his
employer apprehended him when he attempted to flee after
having been
caught smoking dagga during a scheduled tea break. The matter was
approached on the basis that the security guard had
assaulted the
employee during the course of the employee fleeing. It was also
accepted that the employee had committed a criminal
act as he was in
possession of dagga.
65.
The
Full Bench
[25]
referred with
approval to the dictum of Williamson JA in
Minister
of Justice v Khoza
:
[26]
“
On every
set of facts the question to be answered is the same; but it is
seldom that facts are identical. The decision is in essence
in each
case one of fact related only to the particular facts in issue. The
enquiry on a particular issue is whether it was the
actual fact that
he was in the course of his employment that brought the
workman within the range or zone of the hazard giving
rise to
the accident causing injury. If it was, the accident arose ‘out
of employment …’.
”
66.
The
Full Bench
[27]
also referred
with approval to the test adopted in
McQueen
:
[28]
“
The test
we have to apply, therefore, is whether there was a special risk to
which the employee would not have been subjected but
for the fact
that he was engaged in that employment.
”
67.
Applying those tests, the Full Bench found that
the employee smoking dagga had nothing whatsoever to do with his
employment and
that it was the employee’s smoking of dagga and
not that he was in the course of his employment that brought him
within the
range or zone of a possible assault upon him by the
security guard. The court therefore concluded that the incident did
not arise
out of his employment and therefore that the employee’s
common law claim for damages was not excluded.
68.
Self-evidently the present facts are
distinguishable. In
Langeberg Foods
the employee was in the wrong and there was a deliberate assault on
the employee. In the present instance the plaintiff employee
was
neither in the wrong nor was there a deliberate assault upon him. The
plaintiff in the present instance has pleaded only that
the
intoxicated management were negligent. Intuitively, it is more
difficult to find that a deliberate assault was something
that arose
out of employment, than a negligent incident.
69.
Applying the test extracted from
Khoza
to the present pleaded facts, the actual fact that the plaintiff was
in the course of his employment when cleaning the equipment
brought
him within the range or zone of a hazard arising out of an injury
caused by that equipment. But the question arises whether
such range
or zone of hazard includes intoxicated senior management causing the
incident.
70.
Applying the test extracted from
McQueen
,
namely whether there was a special risk to which the employee would
not have been subjected but for the fact that he was engaged
in his
employment, but for the fact that the plaintiff was employed to
operate and clean the machinery, he would not have been
exposed to a
special risk of injury by that machinery. But again the
question arises whether that special risk includes an
incident caused
by intoxicated senior management.
71.
Framed
differently, can it be said that an employee takes upon him– or
herself the special risk that senior management whilst
intoxicated
may negligently injure him or her? Or to use the recent phraseology
of Wallis JA in
Churchill
,
[29]
does being negligently injured by intoxicated senior management ‘go
with the job’?
72.
In
Khoza
the plaintiff employee was injured as a result of a fellow policeman
discharging his firearm while playfully waving it around at
a time
they were transporting arrested persons in the back of a police van.
The then Appellate Division found that such conduct
did arise out of
the employee’s employment, and that therefore his common law
claim for damages was excluded.
73.
Noteworthy is that section 36 of the Act provides
that where the occupational injury was caused in circumstances
resulting in some
person other than the employer of the employee
concerned (i.e. a third party) being liable for damages in
respect of such
injury, the employee may claim statutory compensation
in terms of the Act and may also institute action for damages in a
court
against that third party. In the factual circumstances
described in
Khoza
,
the plaintiff employee would have been entitled to statutory
compensation but would have retained his common law claim against
the
fellow police officer who had negligently shot him as that fellow
police officer would not fall within the expanded deemed
definition
of an employer for purposes of the exclusionary protection in section
35. The plaintiff employee in that instance would
at least have had
the solace that if he had missed the opportunity to claim statutory
compensation and was also excluded from recovering
against his
employer, as he was, he could still institute proceedings against his
fellow police officer who had shot him.
74.
In the present matter, as the defendant employees
fall within the expanded deemed definition of employer for the
purposes of section 35(1),
the plaintiff would not be able to
institute a civil claim against the employees who had negligently
harmed him. The incongruity
is apparent – if his fellow
co-employees on the factory floor had injured him, he would have
retained his common law claim
against them in terms of section 36,
but he foregoes his claim against senior employees who should have
been exercising care and
control, and who may be more likely to be
financially able to compensate him. This creates a further tension
within the Act insofar
as the Act is intended to advance the
interests of employees.
75.
In both
Langeberg Foods
and
Khoza
the person causing the injury was a co-employee. In
Langeberg
it was a security guard. In
Khoza
it was a fellow policeman. The position is considerably complicated
when the person causing the injury is an outsider that has
nothing to
do with the employer. The courts have nonetheless found that an
employee injured by an outsider, and in effect an intruder,
and
intentionally so, nonetheless do constitute ‘accidents’
and therefore confer upon the employee a statutory claim
but at the
cost of the loss of the employee’s common law claim for damages
against the employer.
76.
In
Van de Venter
v MEC of Education: Free State Province
[30]
the employee was assaulted during a robbery at the school where she
was a school administrative clerk. The court, in deciding whether
there was good cause to condone the employee’s failure to
comply with the statutory requirement to have given the respondent
employer as an organ of state the requisite statutory notice before
instituting legal proceedings,
[31]
held that the employee’s claim did not have good prospects of
success in that the employee’s claim was excluded in
terms of
section 35.
77.
The
court found
[32]
that the
definition of ‘accident’ had to be construed in
favour of employees and that ‘
whether
doing so is good or bad remains at debate for another day
’.
The court found that a criminal act arising out of and during the
course of an employee’s employment amounts to an
‘accident’,
and so section 35 precluded the employee’s common law damages
claim.
78.
In
Ex parte Workmen’s
Compensation Commissioner: In re Manthe
1979
(4) SA 812
(E) an employee was also assaulted during a robbery at his
workplace. The court, applying the test from
Khoza
,
held that ‘
it was the actual fact
’
that the employee ‘
was in the course of
his employment that brought him within the range or zone of the
hazard, namely the hazard of robbery
’.
Accordingly, the court found that he was entitled to statutory
compensation from the Commissioner.
79.
These two cases constitute authority that even
where the incident is caused by an intruder whilst the employee is at
work that it
may qualify as an ‘accident’ falling within
the definition of the relevant Act. This would favour employees
seeking
to claim statutory compensation, as was the case in
Ex
parte Workmen’s
Compensation.
Conversely, as the same definition of ‘accident’
features, this would not be in their favour when it came
to exclusion
of their common law damages claim, as in
Van de Venter
.
80.
Perhaps what could be taken from these two cases
is that the incidents of robbery are so prevalent in our society that
it constitutes
a special risk to which an employee is subjected by
way of his or her employment. I return to this aspect later. And
perhaps where
the persons who cause the harm are not outside
intruders but are employees, and more so senior employees, then
a
fortiori
should an incident caused by those
senior employees also constitute an accident arising out of the
employee’s employment.
81.
But the decision of the Supreme Court of Appeal
in
MEC v EJN
which
wrestles with the tension described above in a particularly egregious
set of facts demonstrates that there is more at play.
82.
In that matter the plaintiff paediatrician was
raped by an intruder who had gained access to the hospital premises.
The plaintiff
was working the night shift in the public hospital and
whilst moving between different parts of the hospital was attacked by
being
struck with a brick, rendered unconscious and raped. This took
place in a part of the hospital building where the lights were not
working and whilst certain construction work was being carried out at
the hospital.
83.
Navsa
ADP looked at several of the cases which sought to extract the test
to be applied in determining whether an accident arose
out of
employment for purposes of the Act, acknowledging, as already set out
earlier in this judgment, the vexed nature of the
issue. After
referring to both South African and foreign decisions, Navsa ADP
stated the test as ‘
whether
the act causing the injury was a risk incidental to the employment
’
but again that there was no bright line test and that each case must
be decided on its own facts.
[33]
84.
Navsa ADP found that he could not see how a rape
perpetrated by an outsider on a doctor on duty at a hospital arises
out of the
doctor’s employment, continuing as follows:
“
I cannot
conceive of the risk of rape being incidental to such employment.
There is no more egregious invasion of a woman’s
physical
integrity and indeed of her mental well-being than rape. As a matter
of policy alone an action based on rape should not,
except in
circumstances in which the risk is inherent, and I have difficulty
conceiving of such circumstances, be excluded and
compensation then
be restricted to a claim for compensation in terms of COIDA.
”
85.
Entirely justifiably, in
EJN
rape was not seen as incidental to the employment. In contrast the
courts in
Workmen’s Compensation
and
Van de Venter
found that robbery was sufficiently related to employment for
purposes of finding the incident arose out of employment (bearing
in
mind that in
Van de Venter
the employee was an administrative clerk at a school and in
Workmen’s
Compensation
the employee was an overseer of
labourers).
86.
There must at the very least be a sense of unease
in endorsing an approach that finds that serious criminal activities,
such as
robbery, are so prevalent in our society that they must be
taken to be a special risk assumed by an employee when engaging in
employment,
or to put it differently, ‘go with the job’.
Apart from being an indictment of our society, to adopt such a
position
perpetuates an unhealthy sense of helplessness in having to
accept such criminal activity as an inevitable part of our daily
working
life.
87.
Navsa
ADP in
MEC
v EJN
,
casting doubt as to what had been decided in
Van
de Venter
as it did not refer to
Khoza
,
[34]
continued
[35]
follows:
“
I can
understand that courts have strained to come to the rescue of
particularly impecunious individuals and have held them entitled
to
claim compensation from a fund established for that purpose. I also
understand that courts have done this by adopting a position
in line
with the policy behind the workmen’s compensation legislature,
namely, that workers should as far as possible be
assisted to claim
compensation that is their due under the Act and which flow from
incidents connected to their employment and
which can rightly be said
to be a risk attendant upon or inherent to the employment. Dealing
with a vulnerable class within our
society and contemplating that
rape is a scourge of South African society, I have difficulty
contemplating that employees
would be assisted if the common law
rights were to be restricted as proposed on behalf of the MEC. If
anything, it might rightly
be said to be adverse to the interests of
the employees injured by rape to restrict them to COIDA. It would
therefore be sending
an unacceptable message to employees, especially
women, namely, that you are precluded from suing your employer for
what you assert
is a failure to provide reasonable protective
measures against rape because rape directed against women is a risk
inherent in employment
in South Africa. This cannot be what our
constitution will countenance.
”
88.
Wallis JA in the recent
Churchill
decision similarly expressed himself:
“
As held in
[MEC v EJN] it is difficult to see on what basis, as a general
proposition, attacks on a person's dignity and bodily
integrity are
incidental to their employment. In simple language they are not
things that 'go with the job'.
[36]
89.
Clearly policy considerations come into play and
in certain circumstances it may be that certain incidents that might
otherwise
fall within the definition of an accident should be
excluded for policy reasons. It is also evident that the prevalence
of a particular
crime or set of circumstances should not invariably
result in an incident being classified as an accident as to do so may
send
an unacceptable or unhealthy message to employees and to society
at large.
90.
In the
present matter even on a most benevolent reading of the pleadings
there is no indication that the defendant employees intentionally
sought to cause the plaintiff any harm. I appreciate that in the
present instance I am not concerned with deliberate criminal activity
in the form of rape or armed robbery. But what I am also cognisant of
is that the plaintiff has pleaded that his injuries were
caused by
his intoxicated senior managers. A finding on exception that an
employee takes upon him- or herself the special risk
that he would be
caused injury by intoxicated senior management may be sending the
wrong message to employees and employers. Questions
arise as to the
prevalence of intoxication at the workplace. Questions arise as to
what policy considerations should come into
play in finding whether
incidents caused by intoxicated senior management would fall within
the ambit of an accident under the
Act and therefore result in the
exclusion of an employee’s common law damages claim.
Consideration needs to be given to the
incongruity identified earlier
in this judgment that the senior management, who in this instance
were intoxicated, are protected
from a claim in terms of the extended
definition of employer in section 35(2) of the Act whereas if the
incident had been caused
by an employee that was not senior
management then that other employee would not enjoy such protection.
Consideration would have
to be given to the excipients’
counsels’ submission that the Act does take into account
intoxication in at least certain
respects, such as in defining what
would constitute ‘serious and wilful misconduct’
[37]
of an employee (not an employer) for purposes of excluding an
employee’s claim for statutory compensation in certain
instances
[38]
and which
submission continues that the legislature, being cognisant of
intoxication at the workplace, would have expressly provided
for it
to be deserving of special attention in ascertaining what constitutes
an ‘accident’ should it so have intended.
91.
These
are all questions that in my view should be answered by a trial court
after considering such evidence as the parties may lead.
As held by
the Supreme Court of Appeal in
Children’s
Resource Centre Trust and others v Pioneer Foods (Pty) Limited and
others
2013
(2) SA 213 (SCA)
[39]
the need
for a court to be fully informed in regard to the policy elements of
an enquiry militates against that decision being
taken without
evidence. Although the SCA has also held that some public policy
considerations can be decided without a detailed
factual matrix,
[40]
in my view this is not one of those instances.
92.
In
Vermeulen
v Goose Valley Investments (Pty) Limited
2001
(3) SA 986
(SCA)
[41]
the
court held that ‘
it
is trite that an exception that a cause of action is not disclosed by
a pleading cannot succeed unless it be shown that ex facie
the
allegations made by a plaintiff and any document upon which his or
her cause of action may be based, the claim
is
(not may be) bad in law.
’
93.
Wallis JA in
Pioneer Food
had the following to say about what would constitute a hopeless case:
“
Whether a
case is hopeless has two aspects. It is hopeless if it is advanced on
a basis that is legally untenable. It is also hopeless
if it is
advanced in the absence of any credible evidence to support it. These
are categories that have long been recognised in
our law and
practice. A case is legally hopeless if it could be the subject of a
successful exception. It is factually hopeless
if the evidence
available and potentially available after discovery, and other steps
directed at procuring evidence will not sustain
the cause of action
on which the claim is based. In other words, if there is no prima
facie case then it is factually hopeless.
”
[42]
94.
In
Barclays
Bank International v African Diamond Exporters (Pty) Limited (2)
1976
(1) SA 100
(W) the court stated that in considering an exception the
court’s main concern always is to ensure that no injustice is
done
between the parties.
[43]
95.
In the present instance, I am unable to find that
on the pleaded facts, which I must accept as correct and which must
be benevolently
interpreted in favour of the plaintiff, that the
plaintiff’s claim
is
(not may be) bad in law, that the claim is legally hopeless or that
no injustice will be done in upholding the exception that the
pleadings lack averments which are necessary to sustain an action.
96.
On the question of costs, in my view, the costs
should be reserved, although the exceptions are dismissed.
97.
As was stated in
McKelvey
v Cowan N.O.
1980 (4) SA 525
(Z):
“
It does
seem to me that this was a matter in which the defendant was
justified in raising the matter by way of exception. This has
been an
extremely arguable matter, and the defendant might have succeeded on
his exception, which would have greatly reduced the
costs of the
action. It is trite law that, if a defendant does not raise a matter
by way of exception, and the case goes to trial
and the defendant
succeeds at the trial, but it is pointed out that the trial was a
wasted expense as he would have succeeded had
he raised the matter by
way of exception and not gone to trial, in these circumstances the
successful defendant was often deprived
of his costs of the trial and
his costs were limited simply to those of an exception. This is an
encouragement to parties to raise
matters by exception where there is
good chance of the exception succeeding.
The law does not
discourage parties from taking exceptions where the exceptions may
have the result of reducing costs and shortening
the proceedings, and
this is one of those cases where I considered the defendant was
justified in raising the matter by way of
exception, even though in
the result he has proved to be unsuccessful.
”
98.
This is precisely the situation in the present
matter.
99.
The following order is made:
99.1.
The first, fourth and fifth defendants’
exceptions are dismissed.
99.2.
The costs of the exceptions are reserved for
determination by the trial court.
Gilbert AJ
Date of
hearing:
26 January 2021
Date of judgment:
19 March 2021
Counsel
for the First and Fourth
Defendants
/ Excipients:
F Sangoni
Instructed
by:
Mason Inc, Pietermaritzburg
c/o Molefe, Knight
Attorneys, Sandton
Counsel
for the Fifth
Defendant
/ Excipient:
D S Hodge
Instructed
by:
Shapiro - Aarons Inc, Johannesburg
Counsel
for the Plaintiff:
C van Reenen
Instructed
by:
Lester Hall, Fletcher Inc, Durban
c/o Thomson Wilks
Attorneys, Sandton
[1]
Although
the plaintiff pleads that both the first and second defendants were
his employees, for ease of reference I refer to employer
in the
singular, particularly as the second defendant has not excepted.
[2]
[2015] 1 All SA 20
(SCA). Also reported as
MEC
for Health, Free State v DN
2015 (1) SA 182 (SCA).
[3]
At para 23 to 29.
[4]
At para 31.
[5]
Above,
at para 17.
[6]
At
para 31.
[7]
At
para 20.
[8]
At
para 11.
[9]
At
para 11.
[10]
At
para 10.
[11]
Churchill
v Premier, Mpumalanga
(889/2019)
[2021] ZASCA 16
(4 March 2021).
[12]
Para
18.
[13]
Para
20.
[14]
Para
36.
[15]
First
National Bank of Southern Africa Ltd v Perry NO and Others
2001
(3) S A 960
(SCA) at 972J-973A;
Nel
and Others NNO v McArthur and Others
2003 (4) S A 142 (T) at 149F.
[16]
If
evidence can be led which can disclose a cause of action, that
particular pleading is not excipiable. A pleading is only excipiable
on the basis that no possible evidence led on the pleading can
disclose a cause of action.
McKelvey
v Cowan NO
1980 (4) SA 525
(Z) at 526.
[17]
This
Division in
Sanan
v Eskom Holdings Ltd
2010 (6) SA 639
(GSJ) expressly held that an exception could be
taken and that a defendant was not obliged to raise the exclusion
under section
35 by way of a special plea. An apprentice electrician
as the plaintiff alleged that he had contracted cancer as a result
of
exposure to asbestos whilst acting within the course and scope of
his employment. The defendant employer successfully excepted.
Mankayi
v Anglogold Ashanti Ltd
2011 (3) SA
237
(CC) had its origins in an exception. In that matter, the
plaintiff underground mineworker alleged that he contracted a
disease
known as miner’s phthisis from being exposed to
harmful dusts and gases whilst working underground. The exception
ultimately
failed in the Constitutional Court.
[18]
At para 9.
[19]
At para 8.
[20]
As cited with approval in
MEC
v EJN
in para 7.
[21]
Para
13 to 15.
[22]
Section
1 of the Act.
[23]
Although
the presumption is not an inflexible rule and cannot apply where the
word is used in different contexts (see
Singer
NO v The Master and another
1996 (2) SA 133
(A) at 139F), it would be difficult to justify a
differential treatment in the present instance given the legislative
choice
of substituting the common law damages claim with a
statutory compensation claim, as enunciated upon by the
Constitutional
Court in
Jooste,
above.
[24]
Most
recently, the SCA decision In
Churchill
above,
para 14.
[25]
At p
50.
[26]
Above at 419 H.
[27]
At p
50.
[28]
Above, at 352.
[29]
Para
34.
[30]
[2012] ZAFSHC185 (4 October 2012).
[31]
Institution
of Legal Proceedings against Certain Organs of State Act, 2002.
[32]
Para 40.
[33]
At para 31.
[34]
At para 18.
[35]
Para
33.
[36]
Para
34.
[37]
As
defined in section 1 of the Act.
[38]
Section
22(3)(a) of the Act.
[39]
At para 37.
[40]
Telematrix (Pty)
Limited t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1)
SA 461 (SCA) at para 2.
[41]
At para 7.
[42]
Although the court was dealing with hopelessness in relation to
whether to certify a class action, what was stated was
with direct
reference to what would suffice for purposes of an exception.
[43]
At 107 D.