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[2011] ZAGPPHC 89
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Compensation Solutions (Pty) Limited v Compensation Commissioner and Another (6759/2010) [2011] ZAGPPHC 89 (13 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO. 6759/2010
DATE:13/05/2011
in
the matter between:-
COMPENSATION
SOLUTIONS (PTY)
LIMITED
............................................................
Plaintiff
and
COMPENSATION
COMMISSIONER
..................................................................
First
Defendant
DIRECTOR
GENERAL OF THE DEPARTMENT
OF
.....................................
Second
Defendant
LABOUR
OF THE NATIONAL GOVERNMENT OF
THE
REPUBLIC OF SOUTH AFRICA
JUDGMENT
Kemack
AJ
1.
This is an application for summary judgment in terms of Uniform Rule
32(1 )(b), for a liquidated amount in money.
2.
As stated by Griesel J in Tredoux v Kellerman
2010 (1) SA 160
(CPD),
at paragraph 18: "a liquidated amount of money is an amount
which is either agreed upon or which is capable of 'speedy
and prompt
ascertainment' or, put differently, where ascertainment of the amount
in issue is 'a mere matter of calculation".
See also the cases
cited in Erasmus, Superior Court Practice, B1-210, footnote 4
3.
In its particulars of claim, the plaintiff claims R29,871,595, the
total of individual sub-claims exceeding 21,000 in number,
set out in
a 464 page schedule attached to the particulars of claim. The debts
go back at least as far as 21 October 2006, the
date of the first
entry, and the schedule includes entries as recent as October 2010.
The vast number of individual sub-claims
makes these individual
sub-claims incapable of speedy and prompt ascertainment for purposes
of summary judgment.
4.
The plaintiffs cause of action against the defendants is pleaded as
an obligation arising from an agreement, made an order of
court in
earlier proceedings under case number 35047/2009, which is annexure
"POC2" to the particulars of claim.
5.
The plaintiff pleads that in terms of this order, the defendants were
obliged to process, validate and effect payment of validated
medical
accounts within 75 days of the acceptance by the first defendant of
claims for compensation under the Compensation Act,
by employees
resulting from injury while on duty, and that the schedule to the
particulars of claim refers to claims submitted
by the plaintiff and
processed and validated by the defendants without making payment
after 75 days in breach of the order.
6.
In paragraph 11 of the particulars of claim, the plaintiff expressly
pleads that: "as is apparent from annexure 'POC3',
the First and
Second Defendants are indebted to the Plaintiff in terms of the
provisions of the aforesaid Court Order as at 31
January 2011 in the
sum of R29,871,595.00 which amount is currently due, owing and
payable by the first and second defendants to
the plaintiff together
with interest thereon as set out below". This is the plaintiff's
cause of action.
7.
The plaintiff seeks interest on each individual sub-claim from the
76th day after validation, until payment.
8.
In the summary judgment application, the plaintiff seeks payment of a
balance of R22,173,427, plus interest, on the basis that
R7,698,168
was paid after the issue of summons.
9.
The agreement, annexure "POC2" to the particulars of claim,
was made an order of court on 31 July 2009. Inter alia
it states:
9.1.
"The First Respondent shall process medical accounts submitted
to him in relation to medical aid provided by employees
by medical
practitioners, as envisaged in the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 ('the Act') within
a reasonable
time from the submission of such accounts" (paragraph 1
thereof);
9.2.
"In respect of the submission of a medical account relating to a
claim which has been accepted (i.e. the First Respondent
has accepted
liability for the claim), and in respect of a medical account
submitted after such acceptance, a reasonable time for
the First
Respondent to process, validate and effect payment of such validated
medical accounts is within 75 days of the acceptance
of a claim, or
where this occurs after acceptance of the claim, the date of
submission of such accounts. For avoidance of doubt,
it is recorded
that in respect of medical accounts submitted before acceptance of a
claim, the 75 days will be calculated from
the date of acceptance of
the claim" (paragraph 2 thereof);
9.3.
"The First Respondent shall process the backlog of medical
accounts referred to in annexure JL12, at page 88 of the Record,
in
this application, by 30 October 2009" (paragraph 3 thereof);
9.4.
"The First Respondent shall pay the Applicant interest at the
current legal rate of interest (being 15.5 percent per annum)
on all
currently outstanding medical accounts to which the letter of demand
dated 25 March 2009 (Record, pages 88/9) relates, from
such date of
demand to the date of payment of each such respective account'
(paragraph 4 thereof);
9.5.
"This agreement shall apply equally to the Second Respondent as
the party principally responsible for compliance with
the obligations
and performance of the functions set out in the Act' (paragraph 7
thereof).
10.
Annexure "JL12" to which the agreement refers, is not part
of the papers before the court in this action. It is accordingly
not
possible to ascertain the backlog of medical accounts to which it
refers, for purposes of this summary judgment application.
11.
Similarly, the letter of demand dated 25 March 2009 to which
reference is made in paragraph 4 of the order, is not before the
court in this application, and it is not possible to identify the
"currently outstanding medical accounts" to which reference
is made in paragraph 4 of the order, for purposes of this summary
judgment application.
12.
The opposing affidavits filed on behalf of the defendants, include
affidavits by three deponents. Only one of the three directly
sets
out details of the defences raised by the defendants. It is signed by
Mr. Jan Ralabakeng Madiega, the Deputy Director of the
Medical
Directorate in the office of the Compensation Fund.
13.
The defences raised by Mr. Madiega may be summarised as follows:
13.1.
The amount of R29.871,595 is disputed;
13.2.
The R22,173,427 claimed in the summary judgment affidavit is
disputed;
13.3.
There have been substantial payments to the plaintiff since 15 March
2011 when the summary judgment affidavit was signed;
13.4.
Claims detailed in schedules annexed to the summary judgment opposing
affidavit marked "JRM1.1" and "JRM1.2"
totaling
R20,987,633.59, have been paid by electronic fund transfers to
individual service providers ("the paid claims");
13.5.
R1,162,443.02 is conceded, but was not paid because the Fund had
taken the view that it had already paid in excess of what
was owing,
had blocked the payment system, and had inadvertently not removed the
block (referred by the defendants as "the
provisional payments",
and set out in annexures "JRM2.1" and "2.2" to
the summary judgment affidavit);
13.6.
An admitted indebtedness of R21,234.99 ("the cheque payments")
is due to service providers who had not provided
their banking
details when the Commissioner decided to replace cheque payments with
electronic fund transfers to avoid fraud;
13.7.
Claims totaling R1,726.98 were to be paid on 28 April 2011 ("claims
to be paid 28/04/2011"). There was no proof
of payment of these
amounts when the application came before the court on 3 May 2011.
14.
Regarding the "cheque payments", the defendants give no
details of
any
obligation on the plaintiff to provide individual service providers'
banking details for electronic payments, or of any attempts
by the
defendants to obtain these details. As a result the defendants have
not raised a valid and bona fide defence in respect
of the admitted
category of "cheque claims".
15.
The difficulty in speedily and promptly ascertaining and calculating
the plaintiffs sub-claims, is partly ameliorated by the
defendants'
affidavit acknowledging the provisional payments, the cheque
payments, and the claims to be paid 28/04/2011. In this
regard,
Griesel J stated in Tredoux v Kellerman at paragraph 19:
"furthermore, it has been held that the court is entitled
to
have regard to the defence raised by a defendant in opposition to a
claim for summary judgment, in deciding whether or not the
claim is
liqudated'.
16.
To the extent that the amounts of certain portions of the plaintiffs
overall claim have been categorised and conceded by the
defendants,
for purposes of summary judgment these conceded amounts are capable
of speedy and prompt ascertainment.
17.
The total of the conceded amounts is R1,185,404.99.
18.
On behalf of the plaintiff, Mr. Rorke submitted that the defendants
have erred by basing their defence on a deduction of their
paid
claims, provisional payments, cheque payments and claims to be paid
28/04/2011, from the balance of R22,173,427 claimed in
the summary
judgment application, rather than from the initial claim of
R29,871,595 in the particulars of claim. Mr. Rorke submitted
that
even taking into account the amounts raised under these categories in
the defendants' opposing affidavit, a balance of R3,409,921
remained
of the R29,871,595 originally claimed, for which balance summary
judgment should be granted.
19.
This approach does not solve the problem of speedily and promptly
ascertaining liability on each of the thousands of individual
sub-claims, and the mora date on each sub-claim for purposes of
interest. It is simply not possible to deal with each of the
plaintiff's
thousands of individual sub-claims and the interest
claimed on them, for purposes of a summary judgment application based
on claims
for liquidated amounts in money.
20.
This difficulty is compounded by a lack of clarity from both the
plaintiffs and defendants' papers, regarding whether the totals
of
the defendants' four categories include or exclude the R7,698,168
payment alleged in the plaintiff's summary judgement application,
which does not indicate to which sub-claims this amount should be
allocated
21.
In the court's view, however, the plaintiff is entitled to summary
judgment for the amounts totaling R1,185,404.99 conceded
by the
defendants, and in respect of which no evidence of payments has been
placed before the court.
22.
Although this conceded capital amount is ascertainable, the
individual sub-claims and due dates making up this amount are not
ascertainable from the documents before the court, as a result of
which interest claims on the sum of R1,185,404.99 are not suitable
for the granting of summary judgment.
23.
In terms of Uniform Rule 32(6), if on the hearing of a summary
judgment application it appears that the defendant is entitled
to
defend as to part of the claim, the court shall give leave to defend
to the defendant as to part of the claim and enter judgment
against
him as to the balance of the claim.
24.
The amounts involved and the complexity of the issues justified the
appearance of senior counsel, Mr. Rorke SC for the plaintiff
and Mr.
Mtshaulana SC (with Ms Hassim) for the defendants.
25.
Summary judgment is granted against the defendants jointly and
severally for payment of R1,185,404.99, and costs including the
cost
of senior counsel.
26.
The defendants are granted leave to defend the balance of the
plaintiffs claims, including the claims for interest on the sum
of
R1,185,404.99 which interest claims stand over for determination by
the trial court.
Kemack
AJ
13
May 2011