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[2023] ZAKZPHC 156
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Liebenberg v Pillay (AR272/2021P) [2023] ZAKZPHC 156 (19 December 2023)
FLYNOTES:
PERSONAL
INJURY – Unlawful arrest –
COIDA
exclusion
–
Policeman
arrested by colleague at police station – Unlawful arrest
not inherent risk incidental to employment of police
officer –
Not false complaint which caused injury but rather unlawful arrest
– Where accident occurs, it must
be due to an unintended and
unexpected occurrence for COIDA to be engaged – Judgement of
court a quo was sound and
section 35 of COIDA was correctly held
not to be engaged – Appeal dismissed – Compensation
for Occupational Injuries
and Diseases Act 130 of 1993, s 35.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NAT
AL DIVISION, PIETERMARITZBURG
Appeal
Case No: AR272/2021P
Case
No: KZN/DBNRC: 5705/13
In the matter
between:
ANDRE WILHELM
LIEBENBERG
APPELLANT
and
CRAIG ASHLEY
KARNAGARAN PILLAY
RESPONDENT
ORDER
On
appeal from:
Civil Regional Court, Durban, sitting as the court
of first instance magistrate Mr BS Gumede presiding:
The
appeal is dismissed with costs.
JUDGMENT
Henriques
J (Jikela AJ concurring)
Introduction
[1]
The civil action presented to the Durban Regional Court revolved
around the question
as to whether the plaintiffs common law claim
against the Minister of Safety and Security as a result of his
alleged wrongful arrest
and detention was precluded by section 35 of
the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (COIDA).
[2]
To this end, the parties filed a joint statement of factual
assumptions for the purpose
of determining the question of law in
terms of the rule 29(4) of the Magistrates' Court Rules.
[3]
The regional magistrate found in favour of the respondent for the
reasons that appear
in a judgement dated 27 May 2021, and as
amplified by a statement, in terms of rule 51(8) of the Magistrates'
Court Rules, dated
2 August 2021. The appeal which serves before us
is against the entire judgement of the regional magistrate.
The
pleadings in the action
[4]
The respondent, a policeman, employed as an Inspector at Chatsworth
Police Station
(South African Police Service (SAPS), Chatsworth)
instituted action against the appellant, an attorney, for
professional negligence
arising from a contract of mandate concluded
in February 2009, in which the respondent instructed the appellant to
institute a
claim for unlawful arrest and detention against his
employer, the Minister of Safety and Security.
[5]
In breach of the contract of mandate the respondent alleges that the
appellant failed
to investigate his claim, to process his claim, to
exercise the requisite skill, knowledge and diligence expected of a
practising
attorney, to institute an action in the prescribed period
and to advise him of the legal risks and consequences in respect of
the
intended litigation. As a consequence, his claim against his
employer prescribed on 12 September 2011.
[6]
The appellant defended the action and filed a special plea in which
he denied the
arrest and detention was unlawful and indicated the
respondent's arrest arose from a complaint from a prisoner who was
held in
the holding cells where the respondent worked. Such complaint
emanated from the respondent's alleged breach of police regulations
and protocols. The appellant indicated that the respondent's claim
was precluded by the provisions of section 35(1) of COIDA as
the
breach of the regulations, subsequent complaint and arrest, fell
within the ambit of an accident giving rise to risk incidental
to his
employment and further that the injury arose out of his employment.
[7]
In the court a quo the parties agreed to a set of factual assumptions
and requested
the presiding regional magistrate to determine a
question of law in terms of rule 29(4) of the Magistrates' Court
Rules.
Issue
in the court
a quo
[8]
The question for determination in the court a quo was whether the
respondent's common law claim against his employer,
the Minister of
Safety and Security, for the damages he sustained as a result of his
unlawful arrest and detention were precluded
bys 35 of COIDA.
[9]
The agreed factual assumptions to determine the question of law were
the following,
namely:
(a)
On 21 September 2007, between 7h00 and 19h00 the respondent acting in
the course of his
employment as a policeman was performing duties as
a cell commander in charge of the police cells at the Chatsworth
Police Station
where certain accused were detained;
(b)
Among his duties as cell commander, the respondent was required to
inspect the cells. On
completion of his shift, the respondent handed
the keys to the cells to Superintendent Reddy;
(c)
Approximately a week later the respondent was informed by
Detective Inspector
Khumalo, stationed at the Chatsworth Detective
Branch of the SAPS, that an African female complainant had alleged
that between
19h00 on 21 September 2007 and 7h00 on 22 September
2007, she had been indecently assaulted by a policeman who wore
glasses in
the police cells at the Chatsworth Police Station;
(d)
Inspector Khumalo requested the respondent to attend an
identification parade, which did
not materialise;
(e)
Whilst the respondent was on duty at Chatsworth Police Station on 11
September 2008, Inspector
Khumalo approached him accompanied by an
African female. At the time Inspector Khumalo pointed to the
respondent and questioned
the African female as to whether the
respondent was the person who had indecently assaulted her and she
responded in the affirmative;
(f)
As a consequence Inspector Khumalo then arrested the respondent on a
charge
of indecently assaulting the female complainant whilst in
police custody between 19h00 on 21 and 7h00 on 22 September 2007;
(g)
At the time of the respondent's arrest, Inspector Khumalo was acting
in the course and scope
of his employment as a member of the SAPS;
(h)
The arrest of the respondent was without a warrant and as a
consequence of his arrest the
respondent was detained in the police
cells at the Chatsworth Police Station. Whilst being detained he
complained of chest pains
and was conveyed to the Chatsmed Garden
Hospital where he remained under armed guard overnight;
(i)
On 12 September 2008, the respondent whilst under arrest, was
conveyed to the
Chatsworth Magistrates' Court, where he was further
detained in the court cells. On that day the charges against the
respondent
were withdrawn at the Chatsworth Magistrates' Court and he
was released from custody;
(j)
The respondent's arrest and detention was unlawful in that there
existed no
reasonable suspicion at the time of his arrest by
Inspector Khumalo, that he had committed an offence. In consequence,
the respondent
suffered damages in the nature of contumelia, shock
and discomfort and/or mental stress and emotional trauma.
[1]
The
findings of the court
a quo
[10]
After considering various decisions on whether or not such a claim
was precluded by s 35 of COIDA
specifically
Minister
of Justice v Khoza
,
[2]
MEC for the
Department
of Health, Free State Province v DN
[3]
and
Churchill
v Premier of Mpumalanga
[4]
and after hearing
argument based on the agreed factual assumptions, the court
a
quo
,
dismissed the appellant's special plea and found that the
respondent's claim did not fall within the statutory exclusion
contemplated
in s 35 of COIDA.
[11]
In doing so the court
a quo
distinguished between an injury
intentionally inflicted and one that arose out of the negligence of
an employer. It concluded that
negligence on the part of an employer
was not a bar to a claim under s 35 of COIDA. In addition, an
intentional act would not be
defined as 'an accident' that arose in
the course of a person's employment.
[12]
It held further that widening the ambit of COIDA to include cases of
arrest of police officers
by colleagues would lead to an absurdity
and that the infliction of the injury by an arresting police officer
was not only done
intentionally but also in terms of the law. The
court
a quo
found that to allow such a claim would require the
compensation fund to compensate policer officers whose injuries were
justifiable
in law and those who should have been punished and not
compensated following their arrest.
[13]
It further opined that it was 'unthinkable' that the legislature
intended to include claims which arose from deliberate injury
causing
infractions and distinguish between a police arrestee who is
accidentally injured during his arrest, and an injury caused
by the
arrest itself which was as a result of a deliberate act by an
employer. In the last-mentioned instance, the claim could
not be
compensated for under COIDA.
[14]
In the additional concise reasons filed on 2 August 2021, subsequent
to the appellant's grounds of appeal being filed, the
court
a quo
reasoned that the complaint of sexual assault did not cause the
respondent 'injury' as the arresting officer, Inspector Khumalo,
could have used other means to bring the respondent to court and
public policy required only an unlawful arrest to be compensated.
[15]
The court
a
quo
took
the view that it could not have been the intention of the legislature
when enacting s 35 of COIDA that police officers could
claim
compensation as some of them would have been arrested lawfully and
therefore damages arising from an unlawful arrest and
detention
should be claimed for under the common law.
[16]
In its view, the court
a quo
reasoned that the exclusion of an
unlawful arrest from the definition of an 'accident' was consistent
with the fact that an arrest
would always follow a conscious decision
by the arrestor to arrest the person when there were alt rnate ways
of dealing with them
and it would be absurd if police officers, who
were arrested at work on suspicion of having committed crimes, were
allowed to 'claim
under COIDA before being convicted and sentenced
for those offences.
The
submissions of the respective parties on appeal
[17]
The appellant submits that the court a quo did not analyse the facts
of the matter sufficiently closely when concluding
that s 35 of COIDA
did not apply and consequently committed a misdirection. The court
a
quo
approached the matter generally in respect of any arrest of a
police officer that might occur. The question which the appellant
submits the court
a quo
was required to consider, was whether
the respondent's injury arose out of his employment and whether the
risk of injury was incidental
to his employment.
[18]
In addition, the appellant submits the closer the link between the
injury sustained and the performance of the ordinary duties
of the
respondent, the more likely it will be that it was sustained out of
his employment. The appellant submits that the respondent
was
employed as a cell commander at the Chatsworth Police Station and was
on duty at the time of the alleged indecent assault.
The complainant
was in his custody in the police cells at the Chatsworth Police
Station and the incident is alleged to have occurred
at his place of
employment specifically in the context of where the respondent
performed his duties as a cell commander. The re
pondent's injury
occurred at work and the court
a quo
failed to properly
analyse the nature of the respondent's employment to determine
whether it gave rise to the risk that eventuated.
[19]
The respondent in turn submits that on a proper interpretation of s
35 of COIDA the provisions
of this section would not have been a bar
to his claim against his employer. The members of the SAPS arrested
him on 11 September
2008 and . the act of arresting and detaining him
and ensuring his attendance at court was intentional and unlawful.
They rely
on the decision in
Minister
of Justice v Sekhoto
[5]
which held that an arrest may be unlawful in circumstances were there
are alternate ways to secure the attendance of an accused
at court.
The injury which resulted was as a result of an intentional unlawful
act on the part of members of the SAPS and did not
amount to an
'accident' as defined in s 35 of COIDA.
[20]
An intentional act that results in an injury does not engage s 35
even if it occurred during
the course and scope of employment. The
respondent submits that the incident was not a risk inherent to the
respondent's vocation
as a policeman and the incident cannot be
defined as an 'accident' nor did it give rise to an occupational
injury.
Issue
on appeal
[21]
The issue on appeal is whether the provisions of s 35(1) of
COIDA precluded the respondent,
a policeman, from instituting an
action for damages against his employer arising from an intentional
unlawful arrest and detention
during the course and scope of his
employment and in finding that such a claim was not precluded,
whether the court
a quo
committed a misdirection.
Compensation
for Occupational Injuries and Diseases Act
[22]
COIDA was enacted to provide protection for employers from claims for
compensation by their employees
for injuries and illnesses sustained
at their workplace. The requirements that the accident occurs in the
course of and arises
out of the injured party's employment
circumscribes the liability of the compensation fund established in
terms of s 15 of COIDA.
[23]
The Constitutional Court in
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
lntervening)
[6]
has described COIDA as 'important social legislation which has a
significant impact on the sensitive and intricate relationship
amongst employers, employees and society at large.' In
Jooste
the purpose of COIDA was
described as 'to provide compensation for disability
caused by occupational injuries or diseases
sustained or contracted
by employees in the course of their employment.’
[7]
[24]
Churchill
states that
[8]
'While
long-standing authority dictates that social legislation of this type
is given a generous construction, it is not directed
at providing
compensation and exempting employers from liability for injuries and
diseases that are only tenuously and tangentially
connected to
the·duties of the employee. Had that been the purpose the
legislation could simply provide for compensation
for all and any
injuries or illnesses sustained when at work, or when working.'
The
statutory framework
[25]
Before dealing with the issue on appeal it is necessary to perhaps
remind ourselves of the statutory
framework within which the issue
must be decided.
[26]
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.'
[27]
Section 1 of COIDA defines an 'occupational injury' as 'a personal
injury sustained as a result
of an accident'. An 'accident' is
further defined in section 1 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.'
[28]
Consequently, for the appellant to succeed it must demonstrate that
the respondent suffered an
occupational injury, which was sustained
as a result of an accident that arose out of and in the course of his
employment.
[29]
In order to interprets 35(1) of COIDA one must determine the plain
meaning of the words in the
relevant statutory provision to be
construed. In
Wary
Holdings (Ply) Ltd v Stalwo (Ply) Ltd and another
[9]
,
the Constitutional Court held the following: 'A cardinal rule in the
construction of any legislation is that the intention of
the
legislature must be sought in the words employed in the legislation.
The first step in this exercise is a etermination of the
plain
meaning to be ascribed to the words. Two competing arguments on this
score were presented:
(a)
The first respondent supported the approach of the Supreme Court of
Appeal to the effect
that the plain meaning of the wording of the
proviso was that the proviso was meant to operate only as long as the
land affected
remained situated within the jurisdiction of a
transitional council.
(b)
The counter-argument supported the approach of the High Court that
the proviso identified "a point in time" with reference
to
which it was to be determined whether land qualified as "agricultural
land", and, if so, it retained that status notwithstanding
any
subsequent changes in local government structures and their
boundaries.' (footnotes omitted)
[30]
A fundamental tenet of statutory interpretation is that the words
used in a statute must be given
their ordinary grammatical meaning,
unless to do so would result in an absurdity. This was confirmed by
the Constitutional Court
in
SATAWU
and another v Garvas and others
[10]
where the court held the
following:
'This
court has previously held that an interpretation of a statutory
provision that gives rise to an absurdity or irrationality
should be
avoided where there is another reasonable construction which may be
given to that provision. In other words, where a
legislative
provision is reasonably capable of a meaning that keeps it within
constitutional bounds, a court must, through the
use of legitimate
interpretive aids, seek to preserve that provision's constitutional
validity. Thus, to the extent that it is
possible, s 11(2) must be
interpreted in a manner that yields a rational meaning and preserves
its validity, so that the purpose
it was enacted to serve is
realised.' (footnotes omitted)
[31]
In
Cool
Ideas 1186 CC v Hubbard and another
[11]
the Constitutional Court
held that
‘
There
are three important interrelated riders to this general principle,
namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where
reasonably possible, legislative provisions ought to
be interpreted to preserve their constitutional validity.' (footnotes
omitted)
[32]
The purpose of the statute plays an important role in establishing
the context that clarifies
the scope and intended effect of the law.
Unduly strained interpretations must be avoided.
[12]
How
have our courts interpreted s 35 of COIDA
[33]
In
MEC v
DN
,
Navsa ADP, as he then was, highlighted the difficulty which courts in
the country have grappled with in 'determining ... whether
an
incident constitutes an accident and arose out of and in the course
of employment of an employee.'
[13]
The court also had regard to
McQueen
v Village Deep GM Co Ltd
[14]
and held 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.'
[34]
Navsa ADP acknowledged that our courts have not been consistent in
their approach in determining
whether an accident arose out of an
individual's employment.
[35]
These sentiments were echoed in
Churchill
when
after considering the authorities the court held the following:
[15]
'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 s 35 to avoid
liability bears the onus of satisfying
the court that the accident
arose out of the claimant's employment.'
[36]
Wallis JA in
Churchill
indicated
that it was neither feasible nor desirable to formulate a single test
to determine whether an injury arose out of an injured
party's
employment.
[16]
[37]
In establishing or determining whether an event constitutes an
occupational injury, it is important
to define the word 'accident'.
Our courts have interpreted 'accident' within the ambit of COIDA to
mean an incident which is confined
only to negligent conduct.
[38]
In
MEC v
DN
[17]
the Supreme Court of Appeal citing
McQueen
held
the following:
'Courts
in this country and elsewhere have over decades grappled with the
enduring difficulty of determining, for the purposes of
similar
preceding and present legislation, whether an incident constitutes an
accident and arose out of and in the course of employment
of an
employee. They also discussed the policy behind employee
compensation legislation and the approach to be adopted in
interpreting the legislation. In
McQueen v Village Deep GM Co Ltd
1914 TPD 344
De Villiers JP at 347, in relation to the prevailing
employee-compensation scheme, said the following at the commencement
of the
judgment:
"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."
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."
[39]
It would seem that the definition of 'accident' is therefore only
confined to negligent conduct
and once an intention is found to
exist, s 35(1) finds no application, in the dispute between the
parties.
'[40]
This was reiterated by the Eastern Cape High Court in
Twalo
v Minister of Safety and Security and another
[18]
as follows:
'On
the basis of the pleadings and the agreed facts it was not in dispute
that the second defendant intentionally shot the deceased
and pleaded
guilty to a charge of murder. There was no question, therefore, that
the deceased's death was due to any negligence
on the part of the
second defendant. In any event, the first defendant had specifically
denied any such negligence. On these facts
the shooting was patently
not an accident as defined in COIDA.'
[41]
Consequently, in order to determine whether an event which gave rise
to an injury that constitutes
an 'accident', the incident must have
occurred due to an un1nten·ded and unexpected occurrence which
produces hurt or loss.
In
Nicosia
v Workmen’s Compensation Commissioner
[19]
in which the court
considered the similar section to COIDA's predecessor, the Workmen's
Compensation Act 30 of 1941 this approach
was confirmed.
[42]
The authorities are clear where an accident occurs, it must be due to
an unintended and unexpected
occurrence for COIDA to be engaged. In
circumstances where an injury is caused by an
intentional
[20]
unlawful act on the part of the employer, s 35 is not engaged.
[21]
[43]
I agree with the finding of the court
a quo
that in assessing
liability one must draw a distinction between an injury caused by an
intentional act and one that arises from
the negligence of an
employer.
[44]..
In
Churchill
Wallis
JA held that the word 'accident' has a broader meaning than 'an
unexpected or usual event or happening that is external to
the
[employee]'
[22]
The court
after considering the development in English Law and considering the
decision in Nicosia had regard to two further judgements,
namely
Khoza
and
MEC
v DN
,
which set out the broad approach to be adopted to the meaning, namely
the first element of the test is whether the accident arose
in the
course of an employee's, duties, and secondly, which is the far more
problematic element is whether it arose out of his
or her employment.
[45]
The court whilst considering the two decisions of
Khoza
and
MECv
DN
answered
the second question as follows: Referring to
Khoza
,
the court, in Churchill, held that the mere presence of the employee
at the workplace would not be, sufficient. The court held
the
following:
[23]
'The majority judgment in
Khoza
made it clear that mere
presence at the workplace would not suffice, although in general the
fact that the accident occurred at
the injured person's, place of
employment pointed to it having arisen out of their employment. Nor
is foreseeability of the risk
definitive. Even an entirely unforeseen
and unforeseeable event may arise out of employment.
[24]
Williamson JA made this point in his concurring judgment saying that:
[25]
'
"The decision is in
essence in each case one of fact related only to the particular facts
in issue. The enquiry on the 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
action causing injury. If it was, the action arose 'out of the
employment' ... "
The
fact that the course of employment brought the worker into the zone
of the hazard may be a necessary condition of the injury
arising out
of the employment but, as the subsequent decision of this court
demonstrated, it is not a sufficient condition.'
[26]
[46]
The court then considered the decision in
MEC v DN
to
determine whether the injuries arose out of her employment. In other
words, whether the injuries were sufficie_ntly closely
connected to
the employment to have arisen from it? The fact that it occurred at
her workplace when the employee was going about
her duties is
undoubtedly a factor that connected it to her employment. In that
sense her employment brought her within the zone
of risk, but that is
merely where the enquiry commences. Was the risk so incidental to her
employment?
[47]
In
Churchill
Wallis
JA held the following:
[27]
.'To
adopt the language used in Khoza in describing an instance where the
assault would not arise out of the employee's employment,
such an
assault has no connection with the working duties of the employee. It
is connected to their employment, but not to their
duties in that
employment.'
[48]
Churchill
went on to hold that the claimant was not assaulted
because of the;-position she held or anything she had done in
carrying out
her duties or for any reason related to the protest
action that occurred on the day. Rather she was assaulted because an
individual
mistakenly thought she had sworn at him and he together
with others responded by assaulting and humiliating her. The court
found
consequently that the injuries did not arise out of her
employment.
[49]
Churchill
also held that for the purpose of s 35 of COIDA
there must be a causal connection between the accident and the
employee's service
in general. In circumstances where the accident is
of such a nature that the employee would have suffered the injury
even though
he was at a place other than where his work demanded, the
existing connection between his service and accident is severed.
[50]
This the Supreme Court of Appeal confirmed in
Churchill
where it held as
follows:
[28]
'The
judgment was careful to point out that it was no more than a
generalisation to say that a causal connection would ordinarily
be
established if the accident occurred at the employee's place of work.
Whilst it was unnecessary to attempt to identify the exceptions,
nonetheless the following was said:
"It is in any event
clear that this causal connection for the purposes of the Act would
among other things disappear if the
accident was of such a nature
that the workman would have suffered the injuries even though he was
at a place other than the one
his work demanded, or if the workman by
his own act severed the existing connection between his service and
the accident,
or where the workman was deliberately injured by
another person and the motive for the assault had no connection with
the working
duties of the workman."'
(Wallis JA's
translation. Emphasis in
Churchill
. Footnote omitted.)
[51]
Consequently, the question that has to be addressed in respect of the
facts of this matter is
'whether the act causing the injury was a
risk incidental to the employment'.
[29]
[52]
This approach was confirmed by the Supreme Court of Appeal in
MEC
v DN
where
it held the following:
[30]
'[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. There is of course,
as pointed
out in numerous authorities, no bright-line test. Each
case must be dealt with on its own facts.
[32]
I am unable to see how a rape perpetrated by an outsider on a doctor
- a paediatrician in training - on duty at a hospital
arises
out of the doctor's employment. 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
wellbeing 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..'
[53]
Navsa ADP approved the test and conclusion enunciated by Rumpff JA in
Khoza
that the causal connection would be extinguished if the
accident was 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. He considered the
causal connection to be severed where the employee was intentionally
injured and the motive bore no connection to the injured person's
employment.
[54]
Following on the decision in Khoza Navsa ADP was of the view that the
question to be asked is
'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.'
[31]
[55]
In
Twalo
[32]
the defendant submitted that the test was
'not
whether or the "wrongdoer" was acting within the course and
scope of his employment but rather whether the "victim"
was
acting within the course and scope of his employment at the time when
he sustained or contracted the occupational injury.'
According
to counsel for the defendant the definition of accident included both
a negligent and an intentional act. The court did
not agree with
these submissions in
Twalo
and
followed the test enunciated in
Khoza
at
419H-420H, being:
[33]
'The
enquiry on the 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 the
employment'"
[56]
Ebrahim J, in
Twalo
,
[34]
was of the view that a reading of the judgement in
Khoza
as well
as in
Jooste
did not find
substantiation for the contention that the definition of an accident
ought to be broadened to include both negligent
and intentional acts
and was of the view that the correct test was enunciated in
Khoza
.
The court went on to find that the shooting of the deceased in
Twalo
on the facts was not 'an
unintended occurrence' and therefore was of the view that the
provisions of s 35 of COIDA Were not applicable.
[57]
Each case must however be considered on its own set of unique facts
and circumstances.
[35]
It must
also be borne in mind that the appellant bears the onus to establish
that the event constitutes 'an accident' that arose
out of the
respondent's employment.
[36]
[58]
That then brings me to the facts of this matter and the respective
submissions of the parties.The
problem with the appellant's
submissions is that it considers the injury as being a continuous
act, the laying of the false charge
of indecent assault and the
arrest, whereas the respondent considers the injury as being the
unlawful arrest. One cannot in my
view consider the injury as a
continuous act. This is where the parties part ways in the
application of the relevant law. The intentional
act, which the
respondent relies on, is the unlawful arrest as constituting the
injury, not the laying of the complaint of indecent
assault by the
complainant.
[59]
There are a plethora of cases dealing with the definition of COIDA
and its purpose and there
have been different applications and
interpretations of the section. It is undisputed that our
courts have grappled with
the difficulty of determining whether
an incident constitutes an 'accident' and 'arose out of and in the
course of employment
of an employee.
[37]
[60]
Navsa ADP indicated that the policy behind the act was to provide
[38]
'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 were 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.'
[61]
·Given the long line of cases which have interpreted section
35 of COIDA, I propose to
only focus on the leading decisions of
Churchill
and
MEC v DN
. It would seem that our courts
draw a distinction between an accident occurring 'in the course of
but not 'arising' out of the
employment. Most of the cases, however,
in their interpretation are fact specific. I align myself with the
sentiments expressed
by Wallis JA that
'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.'
[39]
[62]
The appellant submits that the question to be asked is whether the
risk of harm at the hands
of a suspect whilst on duty is a risk
incidental to the employment of policeman. They rely on the decision
in
Churchill
and submit that the situation is no different in
law to a position where a policeman is assaulted or attacked whilst
at work. The
appellant acknowledges that Wallis JA in
Churchill
draws a distinction between incidents which 'arise' out of and in the
'course of employment'.
[63]
The appellant submits that the incident occurred at a SAPS police
station whilst in the course
of the respondent's employment. This
incident is no different if the policeman was inspecting the cells
and the complainant reached
across the bars causing harm - that would
qualify as an incident in terms of s 35 of COIDA. The appellant
submits that the harm
in this instance was caused not by the physical
attack but rather by a verbal one, and the court a quo focused on the
arrest and
not on the set of continuous facts.
[64]
Mr
Shapiro
submitted that one must
regard the laying of the complaint of indecent assault and the arrest
as one continuous act. He submitted
that the question to be asked on
the facts of this matter is whether the risk is incidental to the
employment that an accused person
would cause harm to a policeman. He
·distinguished the decisions in
Twalo
and Minnies v Ayshlie
and
another
[40]
but submitted that the situation in the present instance was
analogous to that of
Khoza
.
[65]
He continued and submitted that the court committed a misdirection in
determining the kind of
unlawful conduct. Here the incident arose as
a consequence of an accused person acting unlawfully and the verbal
complaint of indecent
assault is what caused the harm to the
respondent not the arrest itself. If the arresting officer had a
personal agenda against
the respondent then the situation in this
matter would be analogous to that in
Twalo
.
[66]
Mr
Shapiro
submitted that the case was a corollary to
Churchill
as a policeman in the course of the performance of
his duties was harmed by an accused person. The nature of his job as
a policeman
resulted in the risk being incidental to the job he
performs, specifically that of the laying of a false charge which was
incidental
to and related to his employment. He submitted that the
requirements envisaged in
Churchill
were satisfied as the
conduct was unintended, the respondent was arrested at work in the
course of his employment and that the arrest
was not a factor to be
considered in isolation, even if he was arrested at home.
[67]
Regrettably, I cannot agree with the submissions of the appellant and
his interpretation of the
facts in line with the authorities. I agree
with the submissions of Mr
Veerasamy,
who appeared for the
respondent, that to focus beyond the arrest is to bring into play
extraneous factors which the employer relies
on for invoking the
provisions of s 35. The submission of the appellant misconstrues what
caused the [njury. It was the arrest
and not the laying of the false
complaint.
[68]
Relying on the decision in
Diljan
v Minister of Police
[41]
an arrest without a warrant at the discretion of an arresting officer
is the harm- the incident complained of. It is not the complainant
that caused the injury, it is the unlawful arrest and detention. The
respondent is not saying that the employer must protect him
from the
complaint, but rather he submits the injury arose out of the unlawful
arrest and detention as the arresting officer did
not properly
exercise the discretion vested in him.
[69]
If one accepts, as the appellant wants this court to do, that the
laying of the false complaint
is the 'injury' it ignores the fact
that the investigating officer took a, decision independent of the
complainant to arrest the
respondent. It was not the complaint but it
was the decision of the investigating officer which constitutes the
injury. As a consequence,
the employer wrongfully arrested him.
[70]
On the particular facts in the matter, at the time of his arrest the
respondent, was employed
by the Minister of Police as a police
officer. After 21 September 2007, ie after his shift, the respondent
was informed that a
female prisoner had laid a complaint of indecent
assault against him. The indecent assault was alleged to have
occurred whilst
the complainant had been detained in the police cells
between 19h00 on 21 September 2007 and 7h00 on 22 September 2007, and
whilst
the respondent was on duty. A year later on 11 September 2008,
the respondent was arrested by Inspector Khumalo at the police
station
in the company of the complainant. The arrest and detention
of the respondent was an intentional act.
[71]
The reason why it constituted an intentional act was that the
investigating officer, Inspector
Kumalo, made the effort to locate
the respondent a year after the complaint had been laid, conducted an
identification of the respondent
with the complainant. in order to
ascertain whether the respondent 'was a person that had assaulted
her'. and arrested and charged
him with indecent assault. Inspector
Khumalo's conduct was deliberate and intentional.
[72]
It has not been disputed, and in fact, it was conceded that the
charges were subsequently withdrawn
against the respondent and that
the arrest was unlawful. The investigating officer, Inspector
Khumalo, could have utilised other
means to secure the attendance of
the respondent at court apart from arresting him and detaining him.
In addition, the liability
of the minister arises from Inspector
Khumalo's failure to properly exercise his discretion and to arrest
the respondent.
[73]
The authorities are clear. Both
Churchill
and
MEC v DN
indicate that a distinction must be drawn between an injury which is
inflicted intentionally and one which arises out of the negligence
of
an employer. I can find no fault in the court
a quo
applying
the principles set out in
Khoza
(which was endorsed in both
MEC v DN
and
Churchill
that s 35 of COIDA is not
engaged where an injury is caused intentionally. This approach would
be consistent with the distinction
that is drawn in determining
whether an incident arises in the course of but not out of one's
employment. As was held in
Khoza
the injury was deliberate and
intentional and was thus excluded from the operation of s 35 of
COIDA.
[74]
Churchill
indicates that almost
anything which unexpectedly causes an injury to, or illness, or death
of an employee falls within the concept
of an accident. But whether
the accident arose out of and in the course of the employee's
employment is the question to be asked.
Churchill
stated that it has been
'held that the two expressions are not coterminous so that an
accident may arise in the course of, but not
out of, the employee's
employment.'
[42]
This, with
respect, is what the appellant wants the court to consider: that the
incident arose during the course of but not out
of his employment.
This is what distinguishes
Khoza
from the current matter.
[75]
In
Khoza
the policemen were on duty and responsible for
arresting and holding in safe custody suspects in a van. A 19-year
old police constable,
who was playing with his service revolver at
the back of the van in the presence of another constable, fired a
shot which hit his
colleague. The court found that the provisions of
s 35 of COIDA had been engaged, that the first element was satisfied
as both
policemen were on duty and responsible for arresting and
holding in safe custody other people in the van.
[76]
The problematic element identified by Rumpff JA was whether Constable
Khoza's injuries arose
out of his employment. This is where the test
for a causal connection between an employee's service and the
accident was identified.
In
Churchill
following on the
decision in
Khoza
the court confirmed that what is required is
a causal connection between the employee's service and the accident.
Rumpff JA found
a causal connection between an accident and service
in general is set aside when the accident occurs at the place where
an employee
is executing his duties.
[77]
Although the nature and extent of the causal connection is not
defined in the statute, Rumpff
JA held that given the statutory
purpose there would in general be a causal connection between the
accident and the person's employment
if the accident occurred at the
place where the employee was performing their duties. On that basis
the court took the view that
Constable Khoza was shot in an accident
arising out of his employment and consequently dismissed his claim.
In
Khoza
[43]
the
court was careful to point out that it was no more than a
generalisation to say a causal connection would ordinarily be
established
if the accident occurred at the employee's place of work.
[78]
Following the majority judgement in
Khoza
,
Churchill
confirmed that the causal connection is lost where the injury is
intentional or constitutes a deliberate act and if the accident
could
have occurred somewhere else. The mere presence at the workplace
would not suffice.
[79]
I consequently agree with the submission of Mr
Veerasamy
that
the question to be asked was whether the investigating officer,
Inspector Khumalo, was compelled to arrest the respondent at
his
place of employment or was it merely convenient or circumstantial
that it happened there. The arrest could have taken place
anywhere
and on the stated facts of the matter the respondent just happened to
be present at work, a year after Inspector Khumalo
decided to arrest
him.
[80]
In
MEC v DN
where Navsa ADP held that one does not consider
that rape is something we are going to encounter at work, similarly,
in this particular
matter, in my view'. the court a quo was correct
in finding that the respondent did not think he would go to work and
be arrested
unlawfully and wrongfully by his employer. I agree with
the submission that it is 'an inherent risk' that he may get
assaulted
or hurt by a prisoner whilst executing his duties in
arresting a suspect.
[81]
However, I agree that it is not an inherent risk arising out of his
employment that an employer
may unlawfully arrest and detain someone
in the position of the respondent. The unlawful arrest is not an
inherent risk incidental
to the employment of a police officer. Once
again, I find solace for this view in the fact that the courts draw a
distinction between
intentional and deliberate conduct. In
Langeberg
Foods Ltd and another v Tokwe
,
[44]
which was decided on its own set of facts, the court found that
although the injury occurred at the workplace it did not 'arise
out
of the employment'. Although both parties were on duty at the time,
it was the smoking of the dagga at his place of employment
which
caused the one employee to be assaulted by another fellow employee.
[82]
As was stated hereinbefore and to emphasize Rumpff JA in
Khoza
stated that in determining whether the injury arose out of one's
employment what was required in the broad sense was a causal
connection between the employment and the accident. The causal
connection for purposes of the act may be severed where the accident
occurred even at a place other than where one was executing one's
duties. The causal connection is also severed where the injury
was
intentionally inflicted.
[83]
In my view the court
a
quo
was
correct in finding that the arrest of the respondent fell outside the
ambit of COIDA as when Inspector Khumalo arrested the
respondent it
was a deliberate act which did not arise out of the respondent's
employment. Although the court in
Twalo
[45]
found no substantiation for the contention to broaden the definition
of accident to include both negligent and intentional conduct
and
rejected it, in
Kau
[46]
the court took the view that if the injury or incident was unlawful
and wrongful on the part of the employer it fell outside the
ambit of
COIDA.
[84]
It follows that I agree with the submission of Mr
Veerasamy
that it was not the false
complaint which caused the injury but rather the unlawful arrest. The
SCA held in
Diljan
[47]
that the discretion to act on the complaint is solely that of the
police officer's and one must divorce the complaint from the
arrest.
In order to find that the arrest and the complaint comprise a
singular event, one would have to find that a police officer,
without
a warrant, is forced to act on that complaint.
[85]
If the police officer has a discretion, which we know he does from
Diljan
and
Sekhoto
(as he can secure his attendance by
means other than arrest), and the arresting officer takes a decision
to arrest on his own he
applies his own discretion outside of the
complaint. What resulted in the 'accident' is the deliberate and
intentional act by Inspector
Khumalo to exercise his own discretion
to arrest the respondent. What is unlawful about Inspector Khumalo's
conduct, which caused
the injury and the arrest, is the discretion
which he exercised in arresting the respondent.
[86]
Navsa ADP in
MEC
v DN
held
that the '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.'
[48]
In
MEC v
DN
the
complainant was raped whilst on duty and the minister raised a
defence of a special plea invoking s 35 of COIDA. Navsa ADP came
to
the conclusion that in keeping with the purpose of the act in
[49]
'Dealing
with a vulnerable class within our society and contemplating that
rape is a scourge upon South African society I have difficulty
contemplating that employees would be assisted if their common-law
rights were to be restricted as proposed on behalf of the MEC.'
He
found that given the nature of the incident, that of a rape, it ought
not to be restricted to COIDA as this would be adverse
to the
interests of employees and would be sending an unacceptable message
to employees that they are precluded from suing their
employers for
what they assert is a failure to provide reasonable protective
measures against rape. He was of the view that the
Constitution would
not·countenance this.
[87]
As already stated in
Churchill
,
'the 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.'
[50]
The
question which the court asked in
Churchill
was whether the incident
arose out of the employment. On the facts of
Churchill
,
Wallis JA found that although the assault occurred at the workplace,
it resulted from something external to the·workplace
and
external to the duties of the person assaulted, the incident could
not be said to 'arise out of Ms Churchill's employment.'
[51]
The court was also of the view that one cannot 'use the motive of the
perpetrator to establish the requisite connection between
the
incident and the duties of the injured party'.
[52]
[88]
Minnies
concerned two policemen, one of whom was a cleaner,
who was shot by a fellow policeman whilst on duty. The minister
similarly raised
a special plea of s 35 of COIDA. The court in
Minnies
, after reiterating that each matter must be decided on
its own set of facts, held the following:
'The
court is required to make a judgment call on the facts. The proper
determination of this type of question must be grounded
on a real
world appreciation, not an ivory tower assessment.'
[53]
[89]
Therefore, following on the reasoning in
MEC v DN, Churchill,
Khoza, Kau
as well as in
Minnies
the fact that the
respondent's employment brought him within the same space as
Inspector Khumalo did not make the possibility of
him being
unlawfully arrested by one of them a risk that was incidental to his
employment. It did not arise out of the nature of
his work as a
policeman and therefore did not arise out of his employment. The fact
that he was arrested at the police station
did not mean it arose out
of his employment as Inspector Khumalo could have elected to arrest
him anywhere else.
[90]
For all the aforementioned reasons I am of the view that the
judgement of the court
a quo
was sound in its reasoning and on
the facts of this particular matter s 35 of COIDA was correctly held
not to be engaged.
Costs
[91]
There is no reason to depart from the usual order in relation to
costs and the parties did not
suggest otherwise.
Conclusion
[92]
In the result the following order will issue: The appeal is dismissed
with costs.
HENRIQUES
J
I
agree,
JIKELA
AJ
CASE
INFORMATION
Date of Hearing:
20 July 2022
Date of Judgment:
19 December 2023
For the Appellant:
WN Shapiro SC
shapiro@ubunyechambers.co.za
Instructed by:
Woodhead Bigby Inc.
92 Armstrong Avenue
La Lucia
Ref: MAT 4525
C/O Stowell &
Co Incorporated
295 Pietermaritz
Street
Pietermaritzburg
Tel: 033 845 0800
Email:
sarahw@stowell.co.za
For the Respondent:
I Veeramsamy
iveerasamy9@gmail.com
Instructed by:
Shireen Soobrathi
and Associates
168 Florence
Nightingale Drive
Westcliff,
Chatsworth
Re: LP/SG/FN1749
Tel: 031 403 9266
Email:
chantal.chetty@telkomsa.net
C/O E R Browne Inc
Suite 8,
3-On-Crescent, Cascades
Crescent Montrose
Pietermaritzburg
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and released to SAFLII. The
date
and time for hand down is deemed to be 14h30 on 19 December 2023.
[1]
These are taken verbatim from the record of proceedings.
[2]
Minister
of Justice v Khoza
1966
(1) SA 410
(A) (
Khoza
).
[3]
MEC for
the Department of Health, Free State Province v DN
[2014] ZASCA 167
;
2015
(1) SA 182
(SCA) (
MEC
v DN
).
[4]
Churchill
v Premier, Mpumalanga and another
[2021]
ZASCA 16
;
2021 (4) SA 422
(SCA);
[2021] 2 All SA 323
(SCA)
(
Churchill
)
[5]
Minister
of Safety and Security v Sekhoto
[2010]
ZASCA 141
;
2011 (1) SACR 315
(SCA);
[2011] 2 All SA 157
(SCA)
(
Sekhoto
).
[6]
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
[1998]
ZACC 18
;
1999 (2) SA 1
(CC);
1999 (2) BCLR 139
(CC) para 9
(Jooste)
.
[7]
Jooste
para 13.
[8]
Churchill
para 30.
[9]
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and another
[2008] ZACC 12
;
2009 (1)
SA 337
(CC);
2008 (11) BCLR 1123
(CC) para 58.
[10]
South
African Transport and Allied Workers Union and another v Garvas and
others
[2012]
ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) para 37
(
SATAWU
).
[11]
Cool
Ideas 1186 CC v Hubbard and another
[2014]
ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) para 28.
[12]
Bertie
Van Zyl (Pty) Ltd and another v Minister for Safety and Security and
others
[2009]
ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) para 21;
Democratic
Alliance v African National Congress and another
[2015] ZACC 1
;
2015 (2)
SA 232
(CC);
2015 (3) BCLR 298
(CC) para 41.
[13]
MECv DN
para 11.
[14]
McQueen
v Village Deep GM Co Ltd
1914
TPD 344
at 347 (
McQueen
).
[15]
Churchill
para 36.
[16]
Churchill
para
18.
[17]
MEC v
DN
para
11.
[18]
Twalo v
Minister of Safety and Security and another
[2009]
2 All SA 491
(E) para 17 (Twalo).
[19]
Nicosia
v Workmen's Compensation Commissioner
1954
(3) SA 897
(T) at 901G (Nicosa).
[20]
My emphasis.
[21]
Kau v
Fourie
1971
(3) SA 623
(T) (Kau).
[22]
Churchill
para 12.
[23]
Churchill
para 18.
[24]
Wallis JA in
Churchill
stated
in the original footnote
'Instances
drawn from the English cases are the wall of an adjacent building
collapsing on to the building in which the claimant
was working and
causing her injuries (
Thom (or Simpson
) v
Sinclair
[1917] AC 127)
and the fireman standing at the entrance to his
engine who was struck by a pellet fired not at him, but at the
engine (
Powell v Great Western Railway Co
[1940] 1 All ER 87
(CA)).
[25]
Khoza
at 419H-I.
[26]
Wallis JA in
Churchill
stated in the original
footnote:
'The
problem in treating it as such is illustrated by the decision in
Ex
parte Workmen's Compensation Commissioner: In re Manthe
1979 (4)
SA 812
(E) at 817E-818F.'
[27]
Churchill
para
28.
[28]
Churchill
paras
17-18.
[29]
MEC v
DN
para
31.
[30]
MEC v
DN
paras
31-32.
[31]
MEC v
DN
para
31
[32]
Twalo para 13.
[33]
Twalo
para 15, fn 12.
[34]
Twalo
para
16.
[35]
Churchill
para 18.
[36]
Churchill
para 36.
[37]
MEC v
DN
para
11.
[38]
MEC v
DN
para
8.
[39]
Churchill
para
36.
[40]
Minnies
v Ayshlie and another
[2021]
ZAWCHC 24
(
Minnies
).
[41]
Diljan
v Minister of Police
(2022)
ZASCA 103.
[42]
Churchill
para 14.
[43]
Khoza
417 F-1
[44]
Langeberg
Foods Ltd and another v Tokwe
[1997]
3 All SA 43
(E).
[45]
Twalo para 19.
[46]
Kau
at
417.
[47]
Diljan
v Minister of Police
(746/2021)(2022)
ZASCA 103 (24 June 2022)
[48]
MEC v
DN
para
23.
[49]
MEC v
DN
para
33.
[50]
Churchill
para
20
[51]
Churchill
para 26 onwards.
[52]
Churchill
para
35.
[53]
Minnies
para 27.