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[2023] ZAFSHC 108
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Sasol South Africa (Pty) Ltd and Others v Cramer (3338/2019) [2023] ZAFSHC 108 (11 April 2023)
FLYNOTES:
SEPARATION OF ISSUES
CIVIL
PROCEDURE – Separation of issues – Special plea –
Claim against former employers – Defendants
seeking
separation for special plea that claim excluded by COIDA –
Plaintiff basing claim on protected disclosures
and PDA –
Special plea cannot conveniently be decided separately –
Protected Disclosures Act 26 of 2000
– Compensation for
Occupational Injuries and Diseases Act 130 of 1993, s 35 –
Uniform Rule 33.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
3338/2019
In
the matter between:
SASOL
SOUTH AFRICA (PTY) LTD
1
st
Applicant
SASOL
TECHNOLOGY (PTY) LTD
2
nd
Applicant
SASOL
LTD
3
rd
Applicant
and
HILMAR
CRAMER
Respondent
In
Re
:
HILMAR
CRAMER
Plaintiff
and
SASOL
SOUTH AFRICA (PTY) LTD
1
st
Defendant
SASOL
TECHNOLOGY (PTY) LTD
2
nd
Defendant
SASOL
LTD
3
rd
Defendant
JUDGMENT
BY:
JP DAFFUE J
HEARD
ON:
23 MARCH 2023
DELIVERED
ON:
11 APRIL 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 09h00 on 11 April 2023.
ORDER
1.
The application is dismissed with costs, excluding the wasted costs
occasioned
by the postponement on 28 July 2022, such costs to include the costs
of senior counsel.
2.
The respondent shall pay the wasted costs occasioned by the
postponement on 28 July 2022, including the fees of two counsel
where
so employed.
JUDGMENT
INTRODUCTION
[1]
It is generally accepted that rule 33 of the Uniform Rules of Court
is aimed at facilitating
the expeditious disposal of litigation, but
experience has taught us that the application of the rule often
produces the opposite
result. Subrule 33(1) provides that the parties
to the dispute may agree upon a written statement of facts in the
form of a special
case for adjudication. In such a case the court is
obliged to adjudicate the special case presented to it. Contrary to
this subrule,
the court must be satisfied in a pending action that it
will be convenient to decide a question of fact or law separately
before
a separation order is granted in terms of subrule 33(4). In
casu the defendants in a pending action require the court to grant an
order in terms of subrule 33(4) which application is opposed by the
plaintiff.
THE
PARTIES
[2]
Mr Hilmar Cramer is the plaintiff in the main action. He instituted
action against three
Sasol companies, to wit Sasol South Africa (Pty)
Ltd, Sasol Technology (Pty) Ltd and Sasol Ltd as first, second and
third defendants
respectively. He is the respondent in the
interlocutory application in terms of subrule 33(4). Adv C Ploos van
Amstel SC appeared
for Mr Cramer in the application.
[3]
The three Sasol companies are the applicants in the interlocutory
application. In order
to prevent confusion, the applicants will be
referred to in the singular as Sasol. Advv P Ellis SC and PG Leeuwner
appeared for
Sasol.
THE
RELIEF SOUGHT
[4]
On 6
December 2021 Sasol issued this interlocutory application. They seek
a separation of issues on the basis that the third special
plea
‘founded upon the Compensation for Occupational Injuries and
Diseases Act 130 of 1993 (COIDA) be separated from the
merits of the
Plaintiff’s claim’.
[1]
[5]
The application was initially set down for hearing on 28 July 2022.
On that day it could
not proceed as Mr Cramer belatedly gave notice
of intention to amend his particulars of claim. The matter was
removed from the
roll by agreement, the wasted costs having been
reserved for later adjudication, if required. Mr Cramer did not
proceed with the
application to amend the particulars of claim and
consequently, the matter was set down for hearing on 23 March 2023.
RELEVANT
BACKGROUND
[6]
On 26 July
2019 Mr Cramer instituted action against his former employer(s),
alleging that he had suffered damages in the amount
of R7 008 963.29.
It is his case that he was subjected to occupational detriment by
several employees of his former employer(s)
during the course and
scope of their employment with the employer(s) over an extended
period of time as a result of which the pressure
and work-induced
stress caused him ‘mental anguish which culminated in a mental
disorder and psychiatric injury.’
[2]
His cause of action is squarely founded upon the Protected
Disclosures Act 26 of 2000 (PDA). Compensation and damages are sought
in accordance with s 4(1B) of the PDA.
[7]
Mr Cramer alleged that he had been employed by the first defendant,
but stated that the
third defendant’s particulars appeared on
his salary advices. The defendants pleaded that the second and third
defendants
did not have a direct and substantial interest in the
dispute and should not have been joined. Notwithstanding their plea,
all
three defendants are cited as applicants in the present
application. Save for this observation, this issue is irrelevant to
the
adjudication of the application.
[8]
Sasol filed
three special pleas, one pertaining to jurisdiction, the second
pertaining to prescription and the third founded upon
the provisions
of subsec 35(1) of COIDA. It also pleaded over on the merits of the
claim.
[3]
The pleadings have
been closed nearly two years ago. On 26 April 2021 the legal
representatives held their pre-trial conference
in accordance with
rule 37(A).
[4]
The same two
senior counsel who appeared before me in the present application
represented the parties at the pre-trial conference.
They agreed to a
separation of issues on the basis that the first special plea (the
jurisdiction issue) and the third special plea
(founded upon COIDA)
be separated for prior determination and all other issues to stand
over if required.
[5]
They agreed
further that the separated issues could be dealt with by means of
submissions on a stated case to be prepared and that
one day would be
sufficient for the hearing. A draft statement of facts was prepared
on behalf of Sasol, but the parties could
not reach an agreement as
to the terms thereof. Clearly, the parties had an agreed statement of
facts in mind at that stage. The
failure to agree on a statement of
facts triggered this application.
EVALUATION
OF THE PLEADINGS AND LEGAL SUBMISSIONS MADE BY THE PARTIES’
LEGAL REPRESENTATIVES
[9]
Insofar as Sasol’s third special plea is founded on subsec
35(1) of COIDA and Mr Ellis has submitted
forcefully that Mr Cramer’s
claim against Sasol is excluded by this subsection, it is necessary
to provide some background.
The preamble of COIDA reads as follows:
‘
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.’
[10]
The
following summary obtained from the judgment of the Supreme Court of
Appeal in
The
Compensation Commissioner & Others v Compensation Solutions (Pty)
Ltd (Case no 997/2021) and Compensation Solutions
(Pty) Ltd
v The Compensation Commissioner & Others (Case no
1175/2021
[6]
is apposite. A Compensation Commissioner is appointed by the Minister
of Labour to assist the Director General in the performance
of the
functions set out in s 4 of COIDA. The Commissioner’s functions
are set out in s 6A. A Compensation Fund has been
established in
terms of s 15, consisting inter alia of assessments paid by
employers. Section 16 stipulates that the Fund shall
be under the
control of the DG and its moneys shall be applied inter alia for ‘(a)
the payment of compensation, the cost
of medical aid or other
pecuniary benefits to or on behalf of or in respect of employees in
terms of this Act where no other person
is liable for such payment’.
Section 22 deals with the right of an employee to compensation in the
event of an accident resulting
in the employee’s disablement
and in the event of the employee’s death, their dependents
shall, subject to the provisions
of the Act, be entitled to the
benefits provided for and described in the Act.
[11]
Insofar as the third special plea is based on subsec 35(1), it needs
attention. The right to compensation,
having been established in s
22, s 35 contains an exclusionary provision which is headed
‘Substitution of compensation for
other legal remedies’.
Subsection 35(1) stipulates the following:
‘
(1) 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.’
[12]
Provision for compensation to employees and their dependents provided
for in COIDA is not a recent phenomenon.
They have received statutory
protection for at least the last nine decades. COIDA repealed the
Workmen’s Compensation Act
30 of 1941 which earlier repealed
the Workmen’s Compensation Act 59 of 1934. The purpose of this
statutory compensation scheme
is to grant employers immunity from
claims by their employees or their dependents, but to provide
compensation for workplace injuries
and illnesses in situations where
a co-employee, the employee or his/her employer is at fault.
Therefore, although the employee’s
common-law right to claim
damages from his/her employer based on negligence has been abolished,
COIDA provides relief to an employee
if the legislative requirements
are met.
[13]
The PDA ‘s preamble reads as follows:
‘
To make provision
for procedures in terms of which employees and workers in both the
private and the public sector may disclose
information regarding
unlawful or irregular conduct
by their employers or other
employees or workers in the employ of their employers;
to provide
for the protection of employees
or workers
who make a
disclosure
which is protected in terms of this Act; and to
provide for matters connected therewith.’ (Emphasis added)
Section 4 of the PDA
provides for remedies to an employee subjected to an occupational
detriment in breach of s 3 of the PDA. The
employee may approach any
court having jurisdiction for appropriate relief. Subsection 4(1B),
on which Mr Cramer relies, has been
inserted with effect from 2
August 2017. Having referred to relevant provisions of COIDA and the
PDA, I emphasise that it is not
this court’s function to
adjudicate at this stage whether Mr Cramer is entitled to relief in
terms of the PDA. Therefore,
the question is left open for the trial
court to deal with the issue. It is reiterated that Mr Cramer has
expressly elected to
found his cause of action on the PDA and not
COIDA.
[14]
Mr Ellis
referred to two judgments in support of his argument that this court
may grant separation, even in the absence of a stated
case. The
authorities relied upon are
Imprefed
(Pty) Ltd v National Transport Commission (Imprefed)
[7]
and
Kriel
v Hochstetter House (Edms) Bpk (Kriel).
[8]
These judgments are distinguishable from the facts in casu and is no
authority for the approach adopted by Sasol. In
Kriel
the
defendant took a point in limine before any evidence was led at the
trial. No prior notice was given. The defendant raised the
point that
the contract relied upon by the plaintiff was null and void. The
plaintiff conceded that certain clauses thereof were
vague and
invalid, but submitted that those provisions were severable from the
rest of the contract. The court a quo accepted the
plaintiff’s
version and granted judgment only in respect of the arrear basic
rental. The full bench upheld an appeal and
dismissed the
respondent’s claim (the plaintiff in the court a quo). Stegmann
J, who agreed with the majority, commented
on the procedure. He was
of the view that the point in limine was in essence an exception and
should never have been taken as a
point in limine at the trial. The
learned judge emphasised that the plaintiff elected not to lead
evidence at the trial (and obviously
consented to the procedure
adopted by the defendant) and he had to blame himself for the
predicament created.
[9]
[15]
In
Imprefed
the defendant brought an application in terms of
subrule 33(4) at the outset of the trial. The plaintiff had no
objection against
the court disposing of the plea of prescription in
respect of one of its claims, but resisted the application in respect
of the
exceptions. The following dictum gives context to the court’s
viewpoint:
‘
With regard to
whether the exceptions should be entertained at all in terms of Rule
33(4) I am mindful of what was said in
Kriel
v Hochstetter House (Edms) Bpk
1988
(1) SA 220
(T)
at 230 and 231. In my view, however, the
considerations mentioned in that case do not obtain here. Defendant's
objections
against the particulars of claim were set out in the plea
and at the last pre-trial conference notice, albeit short notice, of
the exceptions was given. As a matter of convenience it seems that
claim A, B and C will proceed anyway. If the exceptions succeed
it will have the effect of curtailing the duration of the trial.
I am
therefore prepared to approach the exceptions on the basis that they
may properly be considered in terms of Rule 33(4).’
(Emphasis added)
[16]
It is apposite to emphasise the case that Mr Cramer pleaded in his
particulars of claim. Having had a legal
duty as employee in terms of
both the PDA and the Occupational Health and Safety Act 85 of 1993
(the OHS) to report and disclose
unlawful and irregular conduct by
employers and fellow employees in the workplace and to report any
situation which was unsafe
or unhealthy to the employer, or to the
health and safety representative for his workplace, he acted
accordingly. Once he had reported
unlawful and irregular conduct, he
as whistle-blower was subjected to bullying tactics and abuse by
several co-employees. It is
his case that he has been adversely
affected on the basis as set out in detail in the particulars of
claim on account of having
made the disclosures in terms of the PDA.
The occupational detriment to which he was subjected, was contrary to
s 3 of the PDA
and hence unlawful. His cause of action is squarely
based on the PDA. Nowhere in the particulars of claim does one find
any reference
at all to COIDA.
[17]
It is submitted on behalf of Sasol that the issue raised in the third
special plea may finally dispose of
Mr Cramer’s action and thus
curtail unnecessary litigation. Even if the third special plea is not
upheld, a separation would
not lead to a duplication of evidence. Mr
Ellis submitted that no evidence would be required in order to
adjudicate this special
plea, the reason being that Sasol is prepared
to assume only for purposes of adjudication of the plea that the
facts pleaded in
the particulars of claim are correct. However, if
the special plea is dismissed, Mr Cramer would still have to testify
in order
to prove his case on the merits.
[18]
Mr Ploos van Amstel made several submissions in order to show that
separation as sought would not serve any
purpose at all and that the
issues could not conveniently be decided separately. He submitted
that the case cannot be resolved
on the papers and that Sasol’s
‘correct remedy was a stated case on agreed facts; not an
academic exercise based on
incomplete and speculative ‘assumptions.’’
[19]
In
considering separation of issues I am mindful of the problems that
have surfaced in the past and the criticism of the Supreme
Court of
Appeal pertaining to separation orders made in various matters by
judges of the High Court. The following dictum in
Denel
(Edms) Bpk v Vorster
[10]
must be considered by any court considering a separation of issues:
‘
[3] Before turning
to the substance of the appeal, it is appropriate to make a few
remarks about separating issues. Rule 33(4) of
the Uniform Rules -
which entitles a Court to try issues separately in appropriate
circumstances - is aimed at facilitating
the convenient and
expeditious disposal of litigation. It should not be assumed that
that result is always achieved by separating
the issues. In many
cases, once properly considered, the issues will be found to be
inextricably linked, even though, at first
sight, they might appear
to be discrete. And even where the issues are discrete, the
expeditious disposal of the litigation is
often best served by
ventilating all the issues at one hearing, particularly where there
is more than one issue that might
be readily dispositive of the
matter. It is only after careful thought has been given to the
anticipated course of the litigation
as a whole that it will be
possible properly to determine whether it is convenient to try an
issue separately. But, where the trial
Court is satisfied that it is
proper to make such an order - and, in all cases, it must be so
satisfied before it does so
- it is the duty of that Court to ensure
that the issues to be tried are clearly circumscribed in its order so
as to avoid confusion.
The ambit of terms like the 'merits' and the
'
quantum
' is often thought by all the parties to be
self-evident at the outset of a trial, but, in my experience, it
is only in the
simplest of cases that the
initial
consensus
survives.
Both when making
rulings in terms of Rule 33(4) and when issuing its orders, a trial
Court should ensure that the issues are circumscribed
with clarity
and precision
. It is a matter to which I shall return later in
this judgment.’ (Emphasis added)
[20]
In
Transalloys
the Supreme Court of Appeal was especially critical of the manner in
which separation was ordered by the High Court. It concluded
that the
‘indeterminate nature’ of the order ‘led to much
confusion’.
[11]
In yet
another judgment the Supreme Court of Appeal criticised an order for
separation of issues in the absence of clarity. Gorven
JA commented
as follows in
Firstrand
Bank v Clear Creek Trading:
[12]
‘
[13] In my view,
the procedure adopted in the court below was not competent under rule
33(4). The failure to make any order and
the failure to specify an
issue with clarity combined to render the approach incompetent. I do
not say that in every case procedural
shortcomings will have this
result. At a certain point, however, procedural shortcomings cross
the line and result in a procedure
not being competent under the
rule. It is not possible to specify in general terms where that line
will be crossed. Each case must
be judged on its own merits.
[14] This may be
considered to be an unduly formalistic approach to adopt. In this
case, however, the failure to address the matter
properly under rule
33(4) led to an even more substantial difficulty. This impacted on
the ability of the court to arrive at a
proper conclusion on the
issue.
[15]
I refer in this
regard to the manner in which the issue was ventilated in the court
below. In doing so, the parties failed to place
agreed facts before
the court by way of rule 33(1) or to lead any evidence
. This was
clearly felt keenly by
the court below
which, in its judgment,
set out supposed common cause
facts. Some of these were
challenged by FNB in its heads of argument on appeal. There is no
indication in the record that any facts
were accepted as being common
cause. The facts set out by the court below appear to have been
gleaned from parts of the pleadings
and, principally, from the plea.
The failure to present the court with agreed facts or with
evidence means that no facts were placed before the court which bore
on the issue
. FNB submitted before us that this was not necessary
because the issue involved the interpretation of an agreement and
that accordingly
no evidence was necessary.
[18] In
addition to the serious procedural shortcomings, therefore, it is my
opinion that the issue could not have been properly
decided on the
basis on which it was dealt with in the court below. In the
circumstances, the court below should have declined
to grant any
order on the issue placed before it and made the costs relating to
the ventilation of that issue costs in the cause.
All of this means
that the appeal should succeed.’ (Emphasis added.)
[21]
Mr Cramer
relies on a psychiatric injury caused to him as a result of the
conduct of his former co-employees. In order to bolster
his argument,
Mr Ellis submitted, relying on the recent judgment of the Supreme
Court of Appeal in
Komape
& Others v Minister of Basic Education & Others,
[13]
that such an injury has been equated with a bodily injury for
purposes of delictual liability.
[22]
Mr Ellis submitted that the court having to adjudicate the special
plea, once a separation has been ordered
as sought, will have to
consider a legal argument, ie whether Mr Cramer could rely on the PDA
for relief, or whether he is bound
to claim from the Compensation
Commissioner in terms of COIDA to the exclusion of any other remedies
provided in the PDA. As mentioned,
he relied on subs 35(1) of COIDA.
[23]
Mr Ellis conceded that although a psychiatric injury is not mentioned
in the first column of schedule 3 of
COIDA and is therefore not an
occupational disease as intended by subsec 65(1)(a), subsec 65(1)(b)
makes provision for occupational
diseases other than those mentioned
in schedule 3. Subsection 65(1)(b) reads as follows:
‘
that an employee
has contracted a disease other than an occupational disease and such
disease has arisen out of and in the course
of his employment.’
It is obvious from the
proviso in subsec 65(1)(b) that the disease has to arise out of and
in the course of the employee’s
employment.
[24]
Insofar as
it has to be determined whether the psychiatric injury/illness of Mr
Cramer was sustained as a result of an accident
and/or whether it
arose out of and in the course of his employment, Mr Ellis relied on
the following dicta of the Supreme Court
of Appeal in
Churchill
v Premier, Mpumalanga (Churchill)
[14]
:
‘
This benevolent
approach to the meaning of an accident and personal injury led courts
in England to extend the concept of an accident
to include illness
derived from an accident. In addition they held that while an
accident is frequently something external to the
employee —
such as an explosion or a fall from a ladder — it included
internal injuries occasioned by performing the
work of the employee,
for example, a slipped disc when lifting something at work……
[14] The resulting
position is that almost anything which unexpectedly causes an injury
to, or illness or death of, an employee
falls within the concept of
an accident. The result is that the focus of the cases is less on the
first element of an accident,
because almost anything unexpected can
be an accident, but on whether the accident arose out of and in the
course of the employee's
employment. The two expressions are not
coterminous, so that an accident may arise in the course of, but not
out of, the employee's
employment. It is not necessary to consider
whether the reverse is also true. Two judgments of this court set out
the broad approach
to be adopted to these expressions.’
[25]
It is
accepted that there is a distinction between an occupational injury
and an occupational disease. Occupational injury requires
a prior
accident, but an occupational disease does not. Mr Ellis submitted
that Mr Cramer had suffered an occupational disease
in terms of the
provisions of COIDA even if a court may find that the unlawful
conduct of the co-employees as alleged by Mr Cramer
did not
constitute an accident. He referred to the situation where an
employee suffers from lung cancer after having gone up and
down
mineshafts for years whilst the employer failed to comply with safety
and health regulations. Such employee is entitled to
claim
compensation in terms of COIDA, but may not claim damages from the
employer. That may indeed be so, but a totally dissimilar
situation
presents itself in casu.
Churchill
is of no assistance to Sasol. In that case the employee was injured
at her workplace during strike action. The court accepted that
‘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.’ It found that the assault on
the employee did not
arise out of her employment.
[15]
I do not intend to deal with this issue any further as it should be
left for adjudication by the trial court.
[26]
Initially and upon reading the papers in order to prepare for the
hearing, my prima facie view was that separation
should be granted. I
accepted that the dispute was one of law, ie which of the two Acts,
COIDA, or the PDA, applied in casu. Sasol’s
reliance on an
assumption of the correctness of certain pleaded facts does not
impress me. The dispute is one of law, but that
cannot be determined
in the absence of agreed or proven facts. My final conclusion would
be different if there was a precise agreement
in respect of the facts
and these were properly recorded, either as provided for in subrule
33(6) or in the form of a stated case
in accordance with subrule
33(1). I reiterate that the issues, including the facts agreed upon,
should be circumscribed with clarity
and precision.
[27]
It is also
important to consider Mr Cramer’s opposition to the application
for separation. He stated in his answering affidavit
that he would
have to lead evidence and could not merely rely on the pleadings and
the discovered documentation.
[16]
Although the relevant facts in the particulars of claim are denied in
Sasol’s plea, Mr Ellis indicated in the heads of argument
and
during oral argument that Sasol was prepared to assume the
correctness of all facts alleged in the particulars of claim. In
fact, he went so far to say at the onset of his oral argument that
Sasol was prepared to assume as correct the particulars of claim
from
paragraph one to the last paragraph. He emphasised that this
assumption would not apply to all the discovered documentation
and
expert reports. Therefore, according to him, Mr Cramer would not be
required to prove any of the facts relied upon by him for
the
adjudication of the third special plea. In my view Mr Ellis did not
consider his submission carefully. The allegations in the
particulars
of claim cannot be interpreted to mean anything else than that the
cause of action is founded on the PDA. If these
are assumed to be
correct, Sasol would be precluded from arguing the opposite if a
separation is ordered on such basis. If it is
Sasol’s view that
I misunderstood their counsel, then this is yet another reason why
the application is doomed to fail. If
Sasol is only prepared to
assume that certain paragraphs relating to the treatment received by
Mr Cramer from co-employees and
the consequences thereof are correct,
it should have said so. An order is sought in paragraph 1 of the
notice of motion that the
third special plea be separated from the
merits of Mr Cramer’s claim. What does merits mean in this
context? This is vague
in the extreme and could only lead to
confusion if I was to grant relief in such terms. Mr Ploos van Amstel
also submitted correctly
in my view that the court should not act on
assumptions. Sasol must either admit all relevant facts
unconditionally in order for
a separation to be considered, or
proceed on trial in respect of the case as a whole.
[28]
Mr Ellis submitted that a separation will save Mr Cramer from a
stressful appearance in court in order to
testify and be subjected to
cross-examination. According to Mr Ploos van Amstel, his client wants
his day in court. He does not
want a court to adjudicate the matter
on the mere allegations in the particulars of claim, but having
regard to his evidence in
order for the court to be provided with a
full and detailed picture. I agree that Mr Cramer is entitled to
present evidence in
support of his case. This may eventually favour
him, or show that his cause of action does not fall within the ambit
of the PDA,
but so be it then.
[29]
Mr Ellis submitted that the PDA did not create a new cause of action,
but merely provided the courts with
the power to create a remedy
within the framework of the law. According to him, the legislature is
presumed to know the law and
COIDA would have been in its mind when
the PDA was enacted. Therefore, the PDA does not stipulate that COIDA
shall not apply. PDA
merely extends and/or broadens the existing
remedy, so he submitted. In my view Mr Ellis shot himself in the foot
in making such
a submission. Clearly, his argument entails that the
PDA provides an extension and/or broadening of an employee’s
remedy
in particular circumstances. Again, this is an issue for
another court to decide, but I wish to make the following
observation.
Never in the history of this country was it deemed
necessary to protect whistle-blowers, not even to speak of affording
them remedies,
inter alia in the form of compensation. The PDA is
recent legislation. It is concerned with unlawful and irregular
conduct by employers
and co-employees. This is a far cry from the
fault of a co-employee or employer that causes harm for which COIDA
caters. Mr Ellis
is concerned that the PDA will ruin poor and small
employers who will not be able to settle claims instituted against
them, but
so be it. Unlawful conduct must be rooted out.
[30]
Mr Ellis
correctly submitted that the Supreme Court of Appeal approved a
ruling by the court a quo that a plea based on subsec 35(1)
be
adjudicated separately. In that case the plaintiff pleaded in her
particulars of claim the incident which caused her harm. It
was not
necessary to hear evidence in this regard as the incident as pleaded
clearly fell within the definition of an ‘accident’
as
defined in COIDA.
[17]
That
case is distinguishable from the matter at hand.
[31]
After having given careful thought to the matter as directed in
Denel
and the other authorities quoted
,
I am satisfied that the
third special plea cannot conveniently be decided separately. The
application should be dismissed.
COSTS
[32]
The papers in this matter, ie the pleadings bundle, the application
bundle, as well as the heads of argument,
are voluminous. The issue
in dispute is to an extent novel. Sasol employed a senior and junior
counsel. As directed by the Supreme
Court of Appeal, all applications
of this nature should be carefully considered as the consequences may
turn out to be totally
different from those intended, causing in the
process time wasting as well as unnecessary legal costs. I am
satisfied that Mr Cramer
as the successful litigant is entitled to
his costs of opposition, including the costs of senior counsel.
[33]
The costs of 28 July 2022 were reserved for later adjudication. The
application was properly and timeously
set down for hearing, but at
the last moment Mr Cramer decided to file a notice of intention to
amend his particulars of claim.
This necessitated a postponement of
the application by agreement. There is no reason why Sasol should be
out of pocket in this
regard. The wasted costs occasioned by the
postponement should be paid by Mr Cramer, such costs to include the
costs of two counsel
where so employed. The parties failed to address
the issue of the wasted costs during their argument. I corresponded
with them
per email the day before handing down the judgment and
obtained written confirmation from Mr Ploos van Amstel for Mr Cramer
and
the defendant’s attorney, Mr Du Plessis, that such wasted
costs should be paid by Mr Cramer.
ORDER
[34]
The following order is issued:
1.
The application is dismissed with costs, excluding the wasted costs
occasioned
by the postponement on 28 July 2022, such costs to include
the costs of senior counsel.
2.
The respondent shall pay the wasted costs occasioned by the
postponement on 28
July 2022, including the fees of two counsel where
so employed.
J.P.
DAFFUE J
Applicants
in this application: Advv
P Ellis SC & PG Leeuwner
Symington & De Kok
BLOEMFONTEIN
Respondent
in this application: Adv
C Ploos van
Amstel SC
Phatshoane Henney Inc
BLOEMFONTEIN
[1]
Paragraph 1 of the notice of motion.
[2]
Pleadings
bundle, particulars of claim pp 6 - 48 & paras 12, 13 & 15
in particular pp 31 – 44.
[3]
Pleadings
bundle pp 63 – 86 and particularly p 67 pertaining to the
third special plea.
[4]
The
minute dated 11 May 2021 appears from pp 124 – 131 of the
pleadings bundle.
[5]
Application bundle
pp
126, 127 & 129 paras 5.1, 5.4 & 10.1 of the minutes.
[6]
[2022]
ZASCA 165
(29 November 2022).
[7]
1990
(3) SA 324 (TPD).
[8]
1988
(1) SA 220 (TPD).
[9]
Kriel
loc cit p 242H.
[10]
2004
(4) SA 481
(SCA) para 3; and see also
Transalloys
v Mineral-Loy
(781/2016)
[2017] ZASCA 95
(15 June 2017) (
Transalloys
)
para 6.
[11]
Transalloys
loc
cit
para 7.
[12]
(1054/2013)
[2015] ZASCA 6
(9 March 2015) paras 13 – 15 &
18.
[13]
[2019] ZASCA 16
;
2020
(2) SA 347
(SCA) paras 25 - 27, relying on the well-known judgment
of
Bester
v Commercial Union Versekeringsmaatskappy van SA Bpk
1973 (1) SA 769
(A) and more recent authority.
[14]
(889/2019)
[2021] ZASCA 16
;
2021
(4) SA 422
(SCA) paras 13 &14.
[15]
Ibid
par 36.
[16]
Answering
affidavit para 10.2, pp 92 - 96.
[17]
MEC for
Education, Western Cape Province v Strauss
2008 (2) SA 366
(SCA) par 14.