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[2023] ZAFSHC 172
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Pamana and Others v Minister of Justice and Correctional Services (437/2020) [2023] ZAFSHC 172 (15 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 437/2020
In
the matter of:
BULELWA
PAMANA
FIRST PLAINTIFF
NYANISILE
ANTON STUURMAN
SECOND PLAINTIFF
ESTATE
LATE NOMSA JOYCE STUURMAM THIRD
PARTY
And
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
DEFENDANT
CORAM:
NAIDOO, J
HEARD
ON:
18 & 19
OCTOBER and 28 NOVEMBER 2022
DELIVERED
ON: 15
MAY 2023
JUDGMENT
[1]
This matter arises from a summons issued, for the recovery of damages
by the first and second
plaintiffs against the defendant, as a result
of an incident that occurred at the Goedemoed Correctional Centre
(Goedemoed), in
the Free State Province, on 29 March 2019. The first
plaintiff and Nomsa Joyce Stuurman (the deceased), were correctional
officers
employed by the defendant at Goedemoed at the time and were
on duty on the day in question. They were attacked by a sentenced
inmate,
who was assigned to clean their offices. The inmate murdered
the deceased and raped the first plaintiff. The second plaintiff is
the husband of the deceased and the father of their minor child. He
claims in his personal capacity as well as his representative
capacity on behalf of the minor child. The plaintiffs were
represented by Adv MA Dewrance SC and the defendant was represented
by Adv BS Mene SC, who appeared with Adv (Ms) RB Mofokeng
[2]
The defendant raised a special plea, alleging that the first
plaintiff and deceased were
Correctional Officials and that the
injury suffered by the first plaintiff and the death of the deceased
arose in the course and
scope of their employment with the defendant.
The incident on 29 March 2019 was an accident contemplated in section
35(1) of the
Compensation for Occupational Injuries and Diseases Act
130 of 1993 (COIDA). By virtue of the provisions of section 35(1) of
COIDA,
the first and second plaintiffs are precluded from recovering
their damages from the defendant, their employer. The plaintiffs deny
that the incident is an accident contemplated in section 35 of COIDA,
asserting that rape, murder and being taken hostage fall
within the
ambit of the
Criminal Procedure Act 51 of 1977
. They also deny that
the incident arose in the course and scope of the first plaintiff’s
and the deceased’s employment,
and assert that the first and
second plaintiffs are exercising their common law and constitutional
rights. They are, therefore,
not precluded from instituting a claim
against their employer. The defendant sought the dismissal of the
first and second plaintiffs’
claims with costs, while the
latter sought the dismissal of the defendant’s special plea
with costs.
[3]
The parties agreed that the special plea be adjudicated separately
from the merits. To this
end, the defendant indicated that he would
be calling at least three witnesses, largely to testify about the
duties of the first
plaintiff and the deceased, as the plaintiffs
allege that the incident fell outside the scope of the duties of the
first plaintiff
and the deceased. The defendant led the evidence of
Mr Boetie Danke Chabane (Chabane), who is the Head of Goedemoed
Correctional
Centre Medium B. He gave a detailed exposition of the
training that a correctional official is required to undergo before
he/she
can be recruited to a correctional centre. The training
comprises two parts – theory and physical training.
[4]
In the theoretical part of the training, officials are trained on
various functions that
a correctional officer is required to perform.
These include duties at the access control gate, duties at the gate
leading to the
prison, and section duties. The latter includes what
happens when inmates are served meals, require medication and are
moved between
units or cells. The procedures relating to the movement
of inmates to outside squares and sports fields are also part of the
curriculum,
as are details of night shift duties, personnel
administration, supply chain management and finance. Handling
requests from and
complaints by inmates is also part of this training
component.
[5]
The practical or physical component
entails training on the use of security equipment, how to
handle a
hostage situation and the use of force. This is necessary because the
prison environment is risky, as inmates can attack,
assault or take
people, especially officials, hostage. In the prison environment, the
correctional officials render security services
internally and
externally, that is, inside the prison and outside the prison. As
part of their normal day, officials gather at
a central point, which
gathering has been referred to as a parade. The parade is used as an
information sharing session where officials
are given their duties
for the day and advised of proceedings for the day. Thereafter all
officials, irrespective of whether they
were working inside or
outside, were required to sign for (and presumably receive) their
security equipment. If they were working
externally, they would sign
for firearms, teargas and two-way radios. These were to control
unruly inmates or those that may attempt
to escape. Those officials
who were working inside the prison would sign for teargas, two-way
radios and a baton, which the witnesses
referred to as a tonfa. These
were used for the same purposes as the equipment issued to those
working outside.
[6]
Each morning, at the parade, officials are sensitised and reminded
that the environment
they work in a risky environment, and that they
need to be alert and vigilant at all times. There was also a system
in place called
the “Buddy-Buddy” system, which required
officials never to be alone, and that they must always be accompanied
by another
official, especially when they open the cells. This
witness also indicated that as part of the training that correctional
officials
receive, they are made aware that they are working in an
abnormal environment, with criminals. They are sensitised to the fact
that criminals are not their friends and that the officials should
not trust them, as they are capable of doing anything.
[7]
The first plaintiff and the deceased would have received the same
kind of training that he explained
and were subject to the protocols
he mentioned. Chabane then listed a range of other sections at which
officials performed duties,
such as the case management component,
which deals with the admission, classification and release of
offenders, kitchen duties
where inmates prepare food for other
inmates as well as religious or pastoral care.
He was
shown a salary advice document belonging to the first
plaintiff, and asked about an allowance reflected thereon as “Std
Danger
Allowance”. He indicated that this is an allowance paid
to every official who works in a prison because it is a dangerous
and
risky environment.
[8]
Upon questions from the court, this witness outlined the duties that
would have been performed by the
first plaintiff and the deceased,
from which it was apparent their work entailed their frequent
interaction with the inmates in
performing various duties, for
example, conducting a head count of inmates when cells are unlocked,
to ensure that the lock-up
count of the previous day tallies with the
unlock count, they also test the windows, doors, window frames and
bars on the cells
to ensure that they are sound. The case manager of
inmates allocates work to inmates, such as cooking, cleaning services
etc. The
correctional officials, including the first plaintiff and
deceased, would be responsible for these inmates and to ensure that
safety
measures are in place when they are around these inmates. In
addition, Chabane informed the court that all officials, including
the first plaintiff and deceased, were required to carry the security
equipment he mentioned on their person at all times, and
that their
uniforms were designed to carry those items.
[9]
The next witness, Vuyani Watson Marks (Marks), is a Human Resource
(HR) practitioner (employed by the
Department of Correctional
Services), who provides in-house training to correctional officials
in the Goedemoed Management area
from Monday to Friday. During
weekends, he performs the same type of security services in the
prison as did the first plaintiff
and the deceased. The training of
correctional officers is guided by a Work Skills Plan (WSP) from the
national office of the Department
of Correctional Services, which
highlights priority learning areas for the year. In the main, it will
be training on corrections,
security, departmental legal
mandates and all the laws relevant to their mandate, as well as self-
defence. Under Corrections,
officials are trained on what
rehabilitation programmes can be offered to inmates and how to deal
with admission and release of
inmates. Security training entails
procedures relevant to locking and unlocking cells, searching and
maintenance of order. Officials
are also trained on escorting inmates
and on gang culture and their operations. Self-defence entails
training on the proper use
of security equipment such as firearms,
pepper spray and tonfas. They are also trained on how to deal with a
hostage situation.
[10]
Marks indicated that there is an emphasis on self-defence because the
prison environment is a dangerous one, where
the people they guard
(the inmates) are dangerous people. The other dynamic is the gangs in
prison, whose culture it is to fight
the laws of Correctional
Services. In order to move up in the ranks of the gang, a gang member
is required to stab a correctional
officer. The more times a gang
member stabs a correctional officer, the higher he rises in the ranks
of the gang. Marks testified
that he knows the first plaintiff and
the deceased. Although he had no independent recollection of whether
they attended the training
he offered, he asserted that he has
trained almost all the correctional officials, as these were
refresher courses to supplement
what they were taught in their
initial training. He would have to refer to the HR records to
ascertain this.
[11]
I pause to mention that all the documents referred to by this witness
were accepted by the plaintiff, making it
unnecessary to call the
third witness that the defendant intended to call. Marks confirmed
the evidence of Chabane with regard
to security requirements for
correctional officials, as well as the “Buddy-Buddy”
system. He further indicated that
with regard to pepper spray and
two-way radios, there were not enough for each official to get one,
so the supervisor allocates
it to the officials, depending on what
their duties for the day are. The officials may also request same
from the supervisor.
[12]
Both Counsel submitted written Heads of Argument and also presented
oral arguments in court. Mr Mene
persisted with his submission that
section 35
of COIDA finds application in this matter, precluding the
plaintiffs from claiming damages from the defendant. Mr Dewrance
also
maintained his position that the incident did not arise from the
duties of the first plaintiff and the deceased, so that they
were not precluded from claiming damages from their employer, the
defendant. In support of the latter submission, Mr Dewrance appears
to advance the argument that this matter should be decided on the
basis of the Constitution of South Africa. He alleged that this
matter brought into sharp focus section 12(c) of the Constitution and
proceeded to give an exposition of the matter of
Mankayi v Anglo
Gold Ashanti Limited
[2011] 6 BLLR 527
(CC) paras [13] to [17]
and the cases referred to therein. He relied heavily on that case for
the proposition that the right to freedom and security of
person as
enshrined in section 12 dictated that the plaintiffs were not barred
from claiming damages from the defendant.
[13]
Mr Dewrance, in oral argument sought declaratory relief in terms of
section 172 of the Constitution
and referred the court to paragraph
42 of his Heads of Argument. I shall return to these aspects later.
[14]
Section 35(1) of COIDA provides as follows:
No
action shall lie by an employee or any dependant of an employee for
the recovery of damages in respect of any occupational injury
or
disease resulting in the disablement or death of such employee
against such employee's employer, and no liability for compensation
on the part of such employer shall arise save under the provisions of
this Act in respect of such disablement or death.
“
Occupational
injury” is defined in the Act as a personal injury
sustained as a result of an accident; and
“accident”
is defined as 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;
[15]
Section 35(1) and the related definitions that I mentioned above have
occupied much judicial attention. Our courts
have grappled with the
issue of whether an accident as envisaged in section 35(1) of COIDA
arose in the course of an employee’s
employment and was
incidental thereto, and have attempted to give guidance in this
regard, in order to determine whether a common
law claim is precluded
by COIDA.
[16]
In the present matter it is common cause or not in dispute between
the parties that:
16.1
the first plaintiff and the deceased were employed by the defendant
as correctional officials, stationed at Goedemeoed
Correctional
Centre;
16.2
they were at their place of employment, performing duties they were
employed to do, when the incident occurred on 29
March 2019;
16.3
they underwent the necessary training to enable them to perform their
duties;
16.4
They were attacked by a sentenced prisoner who was serving life
sentences for rape, attempted murder and assault. He
was rendering
cleaning services in the section in which they were performing their
duties.
16.5
As a result of the attack, the first plaintiff was raped and Mrs
Stuurman (the deceased) was murdered.
[17]
The issues for this court to adjudicate are whether:
17.1
the incident which occurred on 29 March 2019 at Goedemoed
Correctional Centre arose in the course and scope
of the employment
of the first plaintiff and the deceased and/or was incidental to such
employment;
17.3
the incident is an accident contemplated in section 35(1) of COIDA;
17.4
section 35(1) of COIDA precludes the plaintiffs from instituting a
common law claim against the employer.
[18]
Both counsel referred to the matter
of MEC for Health, Free State
v DN 2015(1) SA 182 (SCA)
(the DN case) and quoted extensively
from this case. Although the facts are different from this case, the
court in that matter (the
SCA) undertook a comprehensive analysis of
the domestic as well as international case law on the issue of an
accident/incident
arising in the course of an employee’s
employment, and the impact on the employee’s ability to pursue
a common law
claim for damages against the employer. The court
expressed some useful views and guidelines, even though it remarked,
as did courts
in many other cases, that there is no “
bright-line
test”
and that “
Each case must be dealt with on
its own facts”
. The
DN
case emanates from this
Division, where the High Court dismissed a similar special plea
raised by the MEC for Health, as has been
raised in this matter, that
section 35(1) of COIDA is applicable and therefore precludes a claim
against the employer. The facts
of
DN
are briefly that the
plaintiff was a trainee doctor training for specialisation as a
paediatrician, who was on duty at the hospital
where she worked.
During her ward rounds in the early hours of the morning, she was
attacked and raped by an intruder, who was
not a patient or employee
at the hospital. He had no authority or permission to be in the
confines of the hospital. He was ultimately
convicted of rape and
sentenced to 15 years’ imprisonment.
[19]
At para 11, the court said
“Courts in
this country and elsewhere have over decades grappled with the
enduring difficulty of determining…. whether
an incident
constitutes an accident and arose out of and in the course of
employment of an employee”
. The court referred to the
matter of
McQueen v Village Deep GM Co
Ltd
1914
TPD 344
,
the facts of which it
summarised thus:
“
The
employee in question was a trammer in a mine in charge of a gang of
employees who were doing shovelling work in one of the stopes
underground. He grabbed one of them by the wrist in an attempt to
take him to a particular spot where he thought work should be
done.
In retaliation, the labourer concerned struck him on the head with a
stone. In a patronising tone and language typical of
the times, the
court concluded as follows:
'It
seems to me that it can fairly be said that this is a special risk
which is incidental to the employment of a man in charge
of a gang of
uncivilised natives underground in a mine’.
Thus,
the court held that the said injuries were caused by an accident
which arose out of and in the course of the plaintiff's employment”.
[20]
The court continued to discuss the dicta in
McQueen
:
“
De
Villiers JP took the view that it was perfectly plain that an
'accident' in the legislative context was not an accident in the
ordinary acceptance of the word, which, in general terms, is 'an
effect which was not intended'. He had regard to developments
in
English law in which an 'accident' for the purposes of the
legislation there in force had been given an extended meaning beyond
an 'unlooked for mishap' and 'an untoward event which is not expected
or designed'. He recorded in his judgment that our then
Workmen's Compensation Act derived directly from the English Act and,
as discussed above, considered that it ought to be interpreted
beneficially for an employee. De Villiers JP went on to the next
critical question: whether it could be said that the injury arose
out
of the employee's work? With reference to
Mitchinson v Day
Brothers
[1913] KB 603
(CA), he reasoned that what fell to
be decided is whether the event is a risk which can be
reasonably held to be incidental
to the employment. On that aspect he
concluded as follows at 349:
'If
it be such a risk, and if the injury flows from that risk, it must be
held to be an injury arising out of the employment.'
[21]
The case of
Minister
of Justice v Khoza
1966
(1) SA 410 (A)
was considered by both the High Court and the SCA in the
DN
case. The court in
Khoza
,
like the SCA in
DN
,
and which this court must now do, had to deal with the question of
whether the accident arose out the employee’s employment.
The
SCA repeated at para 16 of its judgment, the entire passage at 417
D-H of
Khoza
and
followed in para 17 with a translation thereof. This was useful as
the relevant principles on the issue were expounded by Rumpff
JA in
that passage in
Khoza.
[22]
Para 17 of the
DN
case reads as follows:
“
In
order for a common-law claim against an employer to be precluded,
the accident must have occurred
during the course of an employee's employment and it must also arise
out of that employment (my
emphasis).
In
Khoza
this
court considered the sole difficulty in that case to be whether the
accident arose out of the respondent's employment.
That is also the
sole problem present in this case. In
Khoza
the
respondent was injured as a result of a fellow policeman
discharging his firearm whilst playfully waving it about
at a time
when they were transporting arrested persons in the back of a police
van. In the passage set out in the preceding paragraph
this court
noted that the prevailing employee-compensation legislation did not
circumscribe the expression 'arising out of an employee's
employment'. Rumpff JA stated that
what
was required in the broad sense was a causal connection between
employment and the accident (my emphasis)
.
He went on to state that, in general, the causal connection between
the accident and employment is met when the accident
occurs at the
place where the employee works. The learned judge of appeal took into
account that an employee, in the execution
of his duties, may be at
various locations but that an accident could notionally be said
to
arise out of anemployee's employment
if
it occurred and the workman was injured whilst he was busy
executing his duties. As examples he considered the position
of a
labourer at a factory who is injured when a gust of wind dislodges a
sheet of roof iron which strikes him, whilst he is walking
in the
street or riding in a motor vehicle going about his duties as an
employee. Rumpff JA went on to consider instances in which
the causal
connection for the purposes of the Act could be said to have been
severed. He held that it was clear that the causal
connection would
be extinguished if the accident were of such a kind that the employee
would have sustained the injuries even if
he had been at a place
other than where he was executing his duties as an employee or when,
through his own act, he caused the
causal connection to be
extinguished. More significantly, for the purposes of the
present case, he considered the causal connection
to be severed when
the employee, was intentionally injured by a stranger and the motive
for the assault bore no connection to the
injured person's
employment. I shall, in due course, return to this important aspect.”
[23]
The court dealt with “this important aspect” in paras 30
and 31 of the
DN
case, and in order to preserve the principles
enunciated therein and the context thereof, it is perhaps prudent to
repeat both
extracts in their entirety:
“
[30]
By employing terms such as 'necessary risk of employment' or 'risk
incidental to employment', courts have attempted to
determine
whether the cause of injuries sustained by employees was
related to the employee's employment. The latter
part of the quote
from
Khoza
set out in para [16] and summarised in
English in para [17], in similar fashion, sought to provide
some guidance
in determining whether an accident 'arose out of
employment'.
[31]
Counsel on behalf of the MEC did not go so far as to suggest that the
dictum in
Khoza
referred
to in the preceding paragraph was clearly wrong and
that we should depart from it, but pointed
out that relating the
causal connection, as Rumpff JA did, to the motive of the perpetrator
of the wrong that caused the injury
was problematic and would lead to
uncertainty. I agree. However, it appears to me that the
problem can be resolved by
a slight adjustment,
namely to ask 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 (my emphasis).
There is
of course, as pointed out in numerous authorities, no bright-line
test. Each case must be dealt with on its own facts.”
[24]
Having applied the test as set out above, the SCA confirmed the
findings of the High Court and dismissed the appeal.
In asking the
question whether the act causing the injury was a risk incidental to
the plaintiff’s employment, the held that
a rape perpetrated by
an outsider upon a doctor, who was a paediatrician in training and
who was on duty at the hospital, did not
arise from her employment.
It cannot be conceived that rape is incidental to such employment.
The learned judge held further
that
“
As a matter of policy alone an
action based on rape should not,
except
in circumstances in which the risk is inherent
…
be excluded and compensation then be restricted to a claim for
compensation in terms of COIDA”. (
My
emphasis).
[25]
More recently, the SCA had occasion to consider a similar appeal from
the judgment of the High Court in the matter
of
Churchill
v Premier, Mpumalanga and Another
2021 (4) SA 422
(SCA).
The
facts briefly are that the plaintiff (Ms Churchill) worked at the
Office of the Premier, Mpumalanga where she was employed as
the Chief
Director: Policy and Research. During a labour-related protest by
members of a trade union, she was, due to a misunderstanding,
assaulted, mistreated by the protestors and evicted from the
building. She instituted an action for damages against the
Premier, claiming that he had negligently failed to ensure her
safety. The Premier raised a special plea that she had suffered an
occupational injury and was, therefore, barred from instituting
action against her employer, in terms of section 35(1) of COIDA.
The
special plea was upheld by the High Court, and Ms Churchill appealed
against that order to the SCA.
[26]
The SCA referred to the
Khoza
decision and applied the principles set out in the
DN
matter in its deliberations.
The
parties agreed that the incident had arisen “in the course of”
Ms Churchill's employment but there was a disputed
that it had arisen
“out of” her employment. The court then interrogated
whether the incident was sufficiently closely
connected to the
employee's employment to be regarded as arising from it and concluded
that it was not, on the basis that the only
link between the incident
and Ms Churchill's job was that she was at work at the time; and that
the incident had no relation to
her duties, her position or the
reason for the protest, but was due to a misunderstanding.
[27]
As I indicated, Mr Dewrance placed much reliance on the
Mankayi
case. I shall cite the relevant
parts of the background as summarised by the editor in that case. The
plaintiff in that matter was
a mineworker who contracted a type of
tuberculosis as a result of being exposed to dust and gases during
his employment as a mineworker,
which was defined as an occupational
disease in terms of the
Occupational
Diseases in Mines and Works Act
78 of 1973
("ODIMWA")
.
The plaintiff instituted action his
employer (Ashanti Gold) under the common law for damages as a result
of the employer’s
failure to provide him with a safe and
healthy work environment. Ashanti Gold filed an exception on the
basis that section 35 of
COIDA excluded such a claim.
[28]
Applicant contended that because he had contracted an "occupational
disease" as defined in ODIMWA and
had received compensation
under ODIMWA, he was not entitled to compensation under COIDA, and
that therefore he was not an
"employee" as contemplated in
COIDA.
Section 100(2)
of
ODIMWA provides that notwithstanding anything in any other law
contained, no person who has a claim to benefits under this Act
in
respect of a compensatable disease as defined in this Act, on the
ground that such person is or was employed at a mine, shall
be
entitled, in respect of such disease, to benefits under [COIDA]".
The High Court upheld the exception. Applicant then appealed
unsuccessfully to the Supreme Court of Appeal.
Applicant
approached the Constitutional Court seeking leave to appeal against
the judgment of the Supreme Court of Appeal, which
was granted and
the appeal was upheld.
[29]
In a unanimous judgment (per Khampepe J) the
Constitutional Court set out its reasons for concluding that the word
"employee"
in
section 35(1)
of
COIDA includes employees covered by ODIMWA, notwithstanding that
those employees are barred from claiming benefits under COIDA.
Section 35(1)
had to be read in the
context of the other provisions of COIDA. The "employee"
referred to in
section 35(1)
whose
common law claim was expunged was limited to an "employee"
who had a claim for compensation under COIDA in respect
of
occupational diseases mentioned in COIDA. It was that "employee"
that
section 35(1)
of COIDA excluded
from instituting a claim for the recovery of damages against the
employer for occupational diseases resulting
in disablement or death.
The expungement did not extend to an "employee" who
was
not entitled
to claim compensation
in respect of "occupational diseases" under COIDA. (my
emphasis)
Section 35(1)
did not cover an
"employee" who qualified for compensation in respect of
"compensatable diseases" under ODIMWA.
The exclusion of
liability in
section 35(1)
was therefore
limited to "employees" who were entitled to compensation in
respect of "occupational diseases"
under COIDA.
[30]
It was against that background that the Constitutional Court held
that the provisions of the Constitution, such
as section 12(1)(c),
would be implicated if the applicant were denied the right to claim
against his employer at common law. It
is clear that the first
plaintiff and the deceased are not barred from claiming compensation
under COIDA, and are not in the same
position as Mr Mankayi was in. I
also note that in their Replication to the defendant’s special
plea, the plaintiffs allege
that the incident is not an accident as
defined in section 1, read with sections 35 and 36 of COIDA as
“
Hostage, Rape and Murder do fall within the meaning of the
Criminal Procedure Act 51 of 1977
as amended” ,
the
incident is not incidental to the first plaintiff and deceased’s
scope of work and that they are not prohibited from instituting
the
claim as they are exercising their common law and constitutional
rights. The plaintiffs did not mention in argument and did
not appear
to pursue the allegation that
section 36
of COIDA applies to this
case, and I will not deal further with this aspect.
[31]
There is no mention of exactly which rights they are exercising and
why, other than alleging in their summons that
the negligence of the
defendant and his breach of the duty of care that he owed them has
resulted in their suffering damages mentioned
in the summons. It was
for the first time in the Heads of Argument that Mr Dewrance raised
the constitutional issues in the form
that I have mentioned.
The plaintiffs seek in their summons an order declaring that the
defendant’s negligence violated
their constitutional rights. I
pause to return to the point I made earlier that Mr Dewrance in oral
argument sought declaratory
relief in terms of section 172 of the
Constitution, and referred to paragraph 42 of his Heads of Argument
in support thereof. Section
172 of the Constitution provides as
follows:
172
Powers of courts in constitutional matters
(1)
When deciding a constitutional matter within its power, a court-
(a) must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of
its inconsistency; and
(b) may
make any order that is just and equitable, including-
(i)
an order limiting the retrospective
effect of the declaration of invalidity;
and
(ii)
an order suspending the declaration of
invalidity for any period and on
any
conditions, to allow the competent authority to correct the defect.
(2) (a) The
Supreme Court of Appeal, the High Court of South Africa or a court of
similar status may make an order concerning
the constitutional
validity of an Act of Parliament, a provincial Act or any conduct of
the President, but an order of constitutional
invalidity has no force
unless it is confirmed by the Constitutional Court.
(b) A
court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to
a party, or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
(c) National
legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d) Any
person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm
or vary an
order of constitutional invalidity by a court in terms of this
subsection.
[32]
Para 42 of Mr Dewrance’s Heads of Argument reads as follows:
“
As
a result of the defendant’s aforesaid constitutional and
statutory breaches, the plaintiffs seek a declaratory order that
the
defendant violated the first constitutional and statutory rights as
pleaded in the particular of claim. The Defendant should
be declared
having breached the same”
It
will be noted that a declaratory order is sought to declare that the
defendant has breached the plaintiff’ and minor child’s
constitutional and statutory rights, and that section 172 of the
Constitution requires a declaration of invalidity to the extent
that
law or conduct complained of is inconsistent with the Constitution.
Mr Dewrance did not pursue this point further and has
not indicated
if it is a law or conduct that is inconsistent with the Constitution
and how, nor has he sought a declaration of
invalidity in the
pleadings. Other than a cursory reference to section 172 of the
Constitution, nothing has been placed before
this court to adjudicate
upon the matter. The defendants were also not forewarned that the
plaintiffs would be seeking an order
in terms of section 172, to
enable the defendant to respond appropriately.
[33]
Furthermore, no issue was taken with the special plea or its effect
in the Replication thereto, whereas in his
Heads of Argument Mr
Dewrance sets out a detailed exposition of the law relating to
special pleas. He thereafter concluded that
the defendant’s
special plea is a plea in abatement and the facts as pleaded in the
particulars of claim are the only relevant
factors that the court
should take into consideration in determining the special plea.
[34]
He asserts that the evidence led by the defendant is of no value and
is irrelevant. This is not the case the defendant
had to meet, and in
my view, is a point not well taken by the plaintiffs. No mention was
made of the plaintiff’s stance even
when the defendant
indicated at the commencement of the hearing that it would lead the
evidence of three witnesses. It seems that
the plaintiffs were
relying on
Mankayi
in relation to their point on the special
plea. It is noted that in
Mankayi
, Ashanti Gold raised and
exception and not a special plea, and that court was not called on to
decide a special plea. I deem it
unnecessary to deal any further with
that point, as it does not advance the plaintiffs’ case in any
way.
[35]
In the present matter, there is no dispute that the first plaintiff
and the deceased were at their place of work,
executing the duties
they were employed to do. Their duties entailed, inter alia,
providing security services, in that they were
required to guard
inmates at Goedemoed and ensure that in executing their duties, they
were responsible for maintaining order amongst
inmates, for
containing unruly behaviour and they were required to be vigilant and
prepared to deal with any dangerous situation
that may occur
[36]
They were trained in security and self-defence measures and,
importantly, were reminded on a daily basis that they
work in a
dangerous environment where they were constantly at risk of being
attacked and even held hostage by inmates. The “Buddy-Buddy”
system was designed to protect employees in the prison environment,
and they were reminded never to be alone when interacting with
inmates. In this case, it seems that the first plaintiff and the
deceased were, indeed alone, while at least one inmate was in
their
presence or in their immediate vicinity. There were four officials
working together at the time, including the first plaintiff
and the
deceased. One was called away to attend to an incident at another
location, and it is not clear why the fourth official
was not present
with the first plaintiff and the deceased at the time the incident
unfolded. It is also unclear whether the first
plaintiff or the
deceased took the prescribed steps to ensure that they minimised any
risk to themselves.
[37]
It is not disputed that the incident occurred in the course of the
first plaintiff’s and the deceased’s
employment. In
determining if it arose out of that employment, the question to be
asked is whether there is a causal connection
between the incident
and the employment, as expressed in
Khoza
and
DN
. In
other words, whether the act causing the injury was a risk incidental
to the employment. In my view, the incident was a risk
inherent in
the employment of the first plaintiff and the deceased, and was
incidental to such employment. The fact of them being
exposed on a
daily basis to dangerous criminals was inherent in their employment
and brought them within the range of the hazard
which caused them to
be injured. The position of the first plaintiff and deceased was
different to that of the doctor in
DN
and appellant in
Churchill,
where the application of the same test to the facts
indicated that the acts giving rise to their injuries were not
incidental to
their respective employment.
[38]
I pause to mention that the first plaintiff was aware that
COIDA applied in her matter. From the documents
that were
discovered by the defendant and accepted by the plaintiffs, it is
evident that she applied for leave of absence from
work, stating
under “Type of Leave” that it was “Leave for
Occupational Injuries and Diseases”. She also
claimed
compensation for injury on duty. Vouchers were issued by the
Department of Correctional Services for payment of the costs
of the
doctors treating her. The authorisation form for payment of medical
services specifies that the authorisation applies,
inter alia
,
to all officials who are examined/treated in accordance with COIDA.
It appears that the second plaintiff also lodged a claim in
terms of
COIDA and an award for compensation was made by the Compensation
Commissioner. The plaintiffs did not reveal this at all.
It came to
light only in the defendant’s Heads of Argument. The plaintiffs
did not even deal with this aspect, either in
their Heads of Argument
or in the oral argument in court.
[39]
In my view, the defendants have established, on a balance of
probabilities, a causal connection between the act
causing the injury
and the employment of the first plaintiff and the deceased. In the
evidence that they led regarding the nature
of the work environment,
and the duties of the first plaintiff and the deceased, it is
apparent that the incident was a risk inherent
in their employment.
[40]
In the circumstances I make the following order:
40.1
The special plea is upheld with costs, such costs to include the
costs consequent upon the appointment of
two counsel.
_____________________
S
NAIDOO J
On
Behalf of the Plaintiffs:
Adv
MA Dewrance SC
Instructed
by:
AA
Solwandle Attorneys
c/o
Symington & De Kok
169B
Nelson Mandela Drive
Westdene
Bloemfontein
(Ref:R
Brink/nvdm/FMM3069)
On
Behalf of the Defendant:
Adv
BS Mene SC with
Adv
(Ms) RB Mofokeng
Instructed
by:
JMA
Engelbrecht
State
Attorney
11
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:
618/202000079/P15P)