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[2022] ZAFSHC 315
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MEC for Public Works, Roads and Transport, Free State Province v Van der Merwe and Others In re: Van der Merwe v MEC for Public Works, Roads and Transport, Free State Province and Others (4617/2010) [2022] ZAFSHC 315; [2023] 1 All SA 154 (FB) (31 October 2022)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
FREE
STATE
DIVISION
BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number: 4617/2010
In
the
matter
between:
MEC
FOR PUBLIC WORKS, ROADS &
TRANSPORT,
FREE
STATE
PROVINCE
Applicant
and
JJ
VAN DER MERWE
1st Respondent
COMPENSATION
COMMISSIONER
2nd
Respondent
MINISTER
OF
LABOUR
3
rd
Respondent
DIRECTOR-GENERAL
OF THE DEPARTMENT
OF
LABOUR
4
th
Respondent
IN
RE:
JJ
VAN DER
MERWE
Plaintiff
and
MEC
FOR PUBLIC WORKS, ROADS
&
TRANSPORT,
FREE
STATE
PROVINCE
1st
Defendant
COMPENSATION
COMMISSIONER
2
nd
Defendant
MINISTER
OF
LABOUR
3rd
Defendant
DIRECTOR-GENERAL
OF
THE
DEPARTMENT
OF
LABOUR
4th
Defendant
CORAM:
VANZYL,
J
HEARD
ON:
21
JULY 2022
DELIVERED
ON:
31 OCTOBER 2022
[1]
This is an application by the
applicant/first defendant
in
terms of Rule 33(4) that the second special plea raised in its
amended plea be separated and that it be adjudicated before any
other
issues in the trial on the quantum of the action.
Background
to
the
action
and
the
present
application:
[2]
The first respondent/plaintiff
instituted action against the applicant/first defendant for damages
she suffered as the result of
an accident which occurred on 27 July
2009 on the provincial road between Dealesville and Bloemfontein,
Free State Province, when
the first respondent/plaintiff lost control
over the Ford Bantam bakkie which she was driving at the time,
whereafter it left the
surface of the road and overturned ("the
accident").
[3]
At the time when the accident occurred,
the first respondent/plaintiff was driving the bakkie in the course
and scope of her employment
as a sales executive for Fidelity
Supercare Services Group (Pty) Ltd.
[4]
In terms of
the
particulars of
claim, the
first
respondent/plaintiff sustained the
following injuries as a
result
of the accident:
4.1
A fracture-dislocation of the cervical
spine resulting in partial quadriplegia such that the first
respondent/plaintiff has total
paralysis of her lower body and
partial paralysis of her upper body;
4.2
A head injury;
4.3
A neck injury;
4.4
An injury of the right shoulder; and
4.5
Various lacerations, abrasions and
bruises.
[5]
It is further pleaded in the particulars
of claim that as a result of the aforesaid injuries, the first
respondent/plaintiff:
5.1
Experienced pain, suffering and
discomfort and will do so in the future;
5.2
Experienced emotional shock and trauma,
and will experience further such trauma in
the future;
5.3
Required hospital and medical treatment
and will, in the future, incur further such expenditure with regard
thereto;
5.4
Has been permanently disfigured;
5.5
Has been disabled, and has consequently
suffered a loss of income and earning ability;
5.6
Has
suffered
a
loss
of
the
enjoyment
and
of
the amenities of life; and
5.7
Has been permanently disfigured.
[6]
In terms of the particulars of claim the
first respondent/plaintiff suffered damages in the amount of R27 500
000.00, which amount
is comprised as follows:
"1.
Fair compensation to the plaintiff's
family for their caregiving of her between the date of the accident
and the date of the final
awardherein ...R500 000.00
2.
Past hospital, medical and related
expenditure incurred by the plaintiff and on behalf of the plaintiff
...R500 000.00
3.
Estimated future hospital, medical and
related expenditure ...R18 000 000.00
4.
Estimated loss of income and of earning
capacity ...R6 000 000.00
5.
General damages.R2 500 000.00"
[7]
The action was contested by the
applicant/first defendant and after the parties agreed that the
adjudication of the merits and
quantum
be separated in terms of Rule 33(4),
the matter went on trial in relation to the merits thereof.
On 28 February 2019, Naidoo, J delivered
judgment in which she found,
inter
a/ia,
as follows in paragraph
47.1 of the said judgment.
''The
defendant is liable to the plaintiff for hundred percent of her
agreed or proven damages arising out of the injuries she suffered
in
a motor vehicle accident which occurred on 27 July 2009 on the road
between Dealesville and Bloemfontein."
[8]
The
quantum
of the first
respondent's/plaintiff's
claim
is still in dispute.
[9]
On or about 17 December 2021 the
applicant/first defendant filed an interlocutory application ("the
first application")
in terms whereof the following relief was
sought in the Notice of Motion:
"1.
That the Compensation Commissioner appointed under section 2(1)(a) of
the Compensation for Occupational Injuries
and Diseases Act, No. 130
of 1993 ('COIDA') be joined as a party to this action.
2.
That once the Compensation Commissioner
has been joined, any further pleadings in the main action shall
reflect the applicant as
the first defendant and the Compensation
Commissioner as the second defendant.
3.
That the applicant's second special plea
pertaining to COIDA and the benefits payable to the respondent in
terms of COIDA be separated
in terms of Uniform Rule 33(4) of the
Rules of Court, and that it be adjudicated before any other issues in
the action.
4.
That the court grants a declarator that:
4.1
The respondent is obliged to submit her
medical expenses to the Compensation Commissioner as a result of the
injuries which she
sustained in an accident that occurred during the
course and scope of her employment on 27 July 2009 ('the incident').
4.2
The applicant will not be liable to
compensate the respondent for any items paid by or payable by the
Compensation Commissioner
as a result of the incident; and
4.3
The applicant will only be liable to
compensate the respondent for such expenses for which the
Compensation Commissioner is not
liable.
5.
That the respondent be ordered to pay
the costs of this application in the event that she opposes it, such
costs to include the
costs attendant upon the employment of two
counsel."
[10]
On or about 19 January 2022 the applicant/first defendant filed a
further interlocutory application ("the second
application")
in terms whereof the following relief was sought in the Notice of
Motion:
"1.
That the Minister of Labour and the Director-General of the
Department of Labour who administers the Compensation
for
Occupational Injuries and Diseases Act, No. 130 of 1993 ('COIDA') be
joined as the third and fourth defendants, respectively,
to this
action.
2.
That once the Minister of Labour and the
Director-General of the Department of Labour have been joined, any
further pleadings. in
the main action shall reflect the applicant as
the first defendant, the Compensation Commissioner as the second
defendant, the
Minister of Labour as the third defendant and the
Director-General of the Department of Labour as the fourth defendant.
3.
That the respondent be ordered to pay
the costs of this application in the event that she opposes it, such
costs to include the
costs attendant upon the employment of two
counsel."
[11]
It
seems
that
both
interlocutory
applications
served
before court on
17 February
2022, whereupon, by
agreement between
the parties, the applications
were postponed to 1O March 2022, costs
to stand over.
[12]
On 10 March 2022 and by agreement
between the applicant/first defendant and the first
respondent/plaintiff the following order was
issued, seemingly as a
combined order pertaining to both applications:
"1.
The Compensation Commissioner appointed under section
(2)(a)
of
the Compensation for Occupational Injuries .and Diseases Act, 130 of
1993 ('COIDA') is joined as the second defendant to this
action.
2.
The Minister of Labour is joined as the
third defendant to this action.
3.
The Director-General of the Department
of Labour is joined as the fourth defendant to this action.
4.
Any further pleadings in the main action
shall reflect the applicant as the first defendant, the Compensation
Commissioner as the
second defendant, the Minister of Labour as the
third defendant and the Director-General of the Department of Labour
as the fourth
defendant.
5.
The applicant's application to have the
second special plea, pertaining to COIDA and the benefits payable to
the respondent in terms
of COIDA, adjudicated separately and before
any other issues in the action in terms of Uniform Rule 33(4) of the
Rules of Court,
is postponed to 21 July 2022.
6.
The applicant's
request for a declarator
in
the
terms
as
set out in paragraphs
4.1,
4.2 and 4.3 of the Notice of Motion dated 17 December 2021, is also
postponed to 21 July 2022.
7.
8.
All issues of costs are reserved for
later determination."
[13]
Paragraphs 5 and 6 of the last-mentioned
order resulted in the present matter serving before me on 21 July
2022. In terms of the
said paragraphs of the order, it is the
adjudication of prayers 3 (the Rule 33(4) application) and 4 (the
declaratory order) of
the Notice of Motion issued in the first
application which was to serve before me. Instead of continuing to
specify it to be the
first application, I will henceforth merely
refer to it as "the application". Similarly, when I refer
to the Notice of
Motion, affidavits and annexures, it is
mutatis
mutandis
to be understood
a
s
·
those filed in the first application, unless specified to the
contrary.
[14]
From a reading of the founding and
replying affidavits it is evident that the applicant/first defendant
wanted both the Rule 33(4)
application and the declarator to be
adjudicated during the present hearing of the matter; hence, should
the Rule 33(4) relief
be granted in terms of prayer 3 of the Notice
of Motion, the special plea is also to be determined and upheld in
the form of the
declarator in terms of prayer 4 of the Notice of
Motion. The heads of argument filed on behalf of the applicant/first
defendant
was also drafted on this basis. In fact, Ms
Williams,
who
appeared
on
behalf
of
the
applicant/first defendant, assisted by
Ms Mahomed, also
presented their oral arguments on this
supposition.
[15]
During the hearing of the oral arguments
of Ms Williams, I raised my concern about the correctness of this
supposition and my
prima facie
view
that the applicant/first defendant cannot request that the special
plea and hence the declarator be adjudicated at this stage
already,
even should the Rule 33(4) application be successful. Ms Williams
immediately and very readily conceded that the applicant/first
defendant could and should not have requested same and that the
determination of the declarator in terms of prayer 4 of the Notice
of
Motion should stand over to be determined during the adjudication of
the merits of the special plea.
[16]
In my view this concession was correctly
made. The outcome of the present Rule 33(4) application will
determine at what stage of
the trial on the quantum of the action the
merits of the second special plea will be adjudicated. Even should
the Rule 33(4) application
be granted, the merits of the second
special plea will only be determined at a later stage and not as part
of this application,
whether on the basis of arguments alone, or
after the presentation of possible oral evidence by one or both
parties in support
of or in opposition to the special plea. The
adjudication and outcome of the declarator will be directly connected
to and dependent
upon the determination and outcome of the merits of
the second special plea. The adjudication of the declaratory order is
consequently
to stand over to be adjudicated simultaneously with the
adjudication of the second special plea.
[17]
I am consequently only called upon to
decide the application in terms of Rule 33(4) pertaining to the
second special plea of the
applicant/first defendant.
Background
to and contents of the second special plea:
[18]
I will henceforth refer to the parties
as cited in the action with due consideration of the joinder of
parties as already referred
to above.
[19]
From the respective affidavits filed in
the application, it is evident that it is common cause between the
parties that at the time
of the accident which gave rise to the
plaintiff's claim, she was an employee as defined in COIDA and she
was injured in the course
and scope of her employment and as such
entitled to compensation in terms of COIDA. As a result of the
accident the plaintiff sustained
permanent disablement of 100%. The
plaintiff submitted claims to the second defendant ("the
Commissioner'') in terms of COIDA.
The Commissioner accepted
liability to compensate the plaintiff for her reasonable medical
expenses and her loss of earnings (although
according to the case of
the plaintiff the Commissioner has not been paying for all her
reasonable medical expenses).
[20]
It is also common cause between the
parties that the plaintiff has been receiving and is currently still
receiving compensation
from the Commissioner for her reasonable
medical expenses and for her loss of earnings (in the form of monthly
pension payments)
since 2009 and that the Commissioner has
undertaken, as he is compelled to do in terms of COIDA, to continue
paying the plaintiff
accordingly until her death
[21]
Against the aforesaid background, I will
now deal with the contents of the second special plea and that of the
subsequent replication
and rejoinder.
[22]
The second special plea raised by the
first defendant in his amended plea reads as follows:
"(i)
At the time of the incident giving rise to the plaintiff's claim she
was an employee as defined in the Compensation
for Occupational
Injuries and Diseases Act, No. 61 of 1997 ('COIDA'}, was injured on
duty and is entitled to compensation in terms
of COIDA.
(ii)
All of the damages claimed by the
plaintiff are liable to be recompensed in terms of COIDA.
(iii)
The plaintiff has submitted claims in
terms of COIDA and has received payments from_the Compensation
Commissioner.
(iv)
In terms of section 36(2) of COIDA when
awarding damages in an action referred to in section 36(1)(a}
thereof, the court shall have
regard to the compensation
paid in terms of this Act.
(v)
Consequently, all payments
made and to be made in the future to the
plaintiff in terms of COIDA shall be taken into account by this
court, thereby reducing
the damages commensurately."
[23]
The plaintiff filed a replication in
which she replicated to the first defendant's second special plea.
[24]
In paragraph 1 of the replication the
plaintiff pointed out that the first defendant's reference to Act 61
of 1997 is probably a
mistake and that the plaintiff proceeds on the
assumption that the first defendant intended to refer to Act 130 of
1993 (COIDA)
and in particular section 36 thereof.
[25]
The plaintiff replicated further as
follows:
"2.
The plaintiff takes no issue with the
defendant's contentions:
2.1
That the plaintiff was entitled to
compensation from the Compensation Commissioner in accordance with
COIDA and did claim and has
received such compensation;
2.2
That the plaintiff having claimed
compensation from the Compensation Commissioner in terms of the COIDA
Act does not preclude the
plaintiff from seeking compensation from
the defendant in respect of the common law damages suffered by the
plaintiff, in accordance
with Section 36(1) of the COIDA Act; and
2.3
That the above Honourable Court shall,
in awarding damages against the defendant, have regard to the
compensation paid to the plaintiff
in terms of the COIDA Act, in
accordance with Section 36(2) thereof.
3.
The plaintiff records the following with
regard to future hospital, medical and related expenditure and the
costs of another person
for constant help incurred from date of the
award herein onwards:
3.1
The plaintiff's claim for compensation
from the Compensation Commissioner in respect of medical aid in terms
of section 73(2) of
COIDA [hereafter
'further medical aid'] and the cost of
another person for
constant
help to perform the essential actions of life, in terms of section 28
of COIDA [hereafter 'essential help'], will terminate
with effect
from date of the award herein;
3.2
The plaintiff will seek no further
compensation from the Compensation Commissioner in respect of such
further medical aid and essential
help from date of such award
onwards; and
3.3
Consequently, the plaintiff will seek
compensation in respect of future hospital, medical and related
expenditure and essential
help incurred from date of the award herein
onwards from the defendant, and not from the Compensation
Commissioner, and the defendant
will likewise not be required to meet
any claim from the Compensation Commissioner in terms of section
36(1)(b) in respect of such
future. hospital, medical and related
expenditure and essential help to be incurred from date of the award
herein onwards.
4.
The plaintiff consequently also does not
take issue with the defendant's contention that all payments made to
the plaintiff in terms
of COIDA shall be taken into account by the
Court, thereby reducing the damages payable by the defendant to the
plaintiff accordingly.
WHEREFORE
the plaintiff persists
in the plaintiff's
claim against the defendant."
[26]
The
first
defendant filed a
rejoinder
to
the
plaintiff's replication.
[27]
In terms thereof the first defendant
admitted that the reference to Act 61 of 1997 in paragraph (i) of the
second special plea is
incorrect and should be a reference to Act 130
of the 1993 ("COIDA").
[28]
The first defendant furthermore pleaded
as follows in his rejoinder:
"2.
Ad paragraphs 3
-
3.1 thereof:
2.1
Section 28 of COIDA relates to an
employee requiring constant help and authorises the Director-General
to grant an allowance towards
the cost of such help if the said
section is complied with.
2.2
Section 28 relates only to the cost of
help of another person and does not relate to future hospital,
medical and related expenditure.
2.3
The benefits payable in terms of section
28 are not terminable at the will of the plaintiff, nor do they
terminate with effect from
the date that an award is made in this
action.
WHEREFORE
the defendants persist with their
defence of this matter and join issue with any allegations in the
plaintiffs pleadings which are
inconsistent therewith."
Rule
33(4): Applicable legal principles:
[29]
Rule 33(4) determines as follows:
"If,
in any pending action, it appears to the court
mero motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately from any
other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit and may order
that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application of any
party make such
order unless it appears that the questions cannot conveniently be
decided separately."
[30]
In
Berman
&
Fialkov
v Lumb
2003 (2) SA 674
(C)
at
para
[17]
the approach to an application in terms of Rule 33(4) was summarised
as follows:
"[17]
In terms of the provisions of Rule 33(4) in its present form, an
application for the separation of issues by any party
must be granted
unless it appears that such issues cannot conveniently be decided
separately (see
Edward
L
Bateman
Ltd
v
C
A
Brand
Projects
(Ply) Ltd
1995 (4)
SA
128
(T)
at 132D) and it is incumbent on the party who opposes
such an application to satisfy the Court that such an order should
not be
granted (see
Braaf
v
Fedgen
Insurance
Ltd
1995 (3)
SA
938
(C)
at 939G). The convenience to be considered is
primarily that of the Court and the litigants
(Braaf
v
Fedgen
Insurance
Ltd
(supra
at 939H)).
Convenience
in the context does
not only connote facility or ease or expedience but also
appropriateness in the sense that in all the circumstances
it is
fitting and fair to the
parties
concerned
(Braaf
v Fedgen
Insurance
Ltd
(supra
at 940C -
D)). The Court's function is to assess to the best of its ability
the
nature and extent of the advantages
and the
disadvantages
that would result should the order that
is being sought be granted (see
Minister of Agriculture
v
Tongaat
Group Ltd
1976 (2) SA 357
(D)
at
364D - E).Such an application will normally be granted if the
advantages that will flow therefrom outweigh the disadvantages
(see
Grindrod Gotts Stevedoring (Pty) Ltd and Another v Brock's
Stevedoring
Services
1979 (1) SA239 (D)
at241A)." (Own emphasis)
[31]
In
Copperzone
108 (Pty) Ltd
&
Another v
Gold Port Estates (Pty)
Ltd
&
Another
[2019)
JOL
41599
(WCC)
at
gara
(25)
the
court dealt with the principles which are to
be considered when considering an
application in terms of Rule
33(4):
"[25]
The guiding principles are as follows:
25.1
Whether the hearing on the separated
issues will
materially
shorten the proceedings:
if not, this militates against a separation. In
Braaf
(supra)
it was said that despite the
wording of the subrule, it remains
axiomatic that the interests of expedition and finality are better
served by disposal of the
whole matter in one hearing;
25.2
Whether the separation may result in a
significant delay in the
ultimate finalisation of the matter
:
such a delay is a strong indication that separation ought to be
refused. The
granting
of the application, although it may result in the saving of many days
of evidence in court, may nevertheless
cause considerable delay in reaching a
final decision in the case because of
the possibility of a lengthy interval
between the first hearing at which the special questions are
canvassed and the commencement
of the trial proper;
25.3
Whether there are
prospects
of an appeal on the separated
issues
,
particularly if the issues sought to be separated are controversial
and appear to be of importance: if
so,
an appeal will only exacerbate any delay and negate the rationale for
a separation;
25.4
Whether the
issues
in respect of which a separation is sought are
discrete,
or inextricably linked to the remaining issues
:
if after careful consideration of the pleadings, the relevant issues
are found to be linked, even though at first sight they might
appear
to be discrete, it would be undesirable to order a separation; and
25.5
Whether
the
evidence
required
to
prove
any
of
the
issues
in
respect
of
which
a
separation
is
sought
will
overlap
with
the
evidence required to prove any of the remaining issues: a court
will
not
grant
a
separation
where
it
is
apparent
that
such
an overlap will occur. Such a situation
will result in witnesses having to
be
recalled
to
cover
issues
which
they
had
already
testified about. Where there is such a
duplication of evidence,
a
court will not grant a separation because it will result in
the lengthening of the trial, the
wasting of costs, potential conflicting findings of fact and
credibility
of
witnesses,
and
it will also hinder
the
opposing party in cross-examination.ff
(Own emphasis)
[32]
The potential merits of the particular
issue to which a Rule 33(4) application pertains is a further
relevant factor which is to
be considered, without deciding the
merits. In
Minister of
Agriculture v
Tongaat Group Ltd
1976 (2) SA 357
(D) at 364 B -
D the court held as follows in this
regard:
"...
the Court hearing an application under the Rule must necessarily
give
consideration to the merits of the particular questions
which it is desired
to have answered before trial. despite the
fact that it is not required to
give any decision on the
merits
. The Court is not likely to grant an application which is
brought by a litigant who has raised a point which, if sound, would
eliminate
a certain claim and thus save much evidence at the trial,
if it appears to the Court that there is no or very little substance
in such point.
Obviously, if there is no substance in the point.
it would be
a sheer waste of time and costs to have a separate
hearing."
(Own emphasis)
The
aforesaid principle was followed and applied in
S
v
Malinde & Others
1990 (1) SA 57
(A) at 68D - E:
"When
deciding an application under the subrule, the Court is not called
upon to give a decision on the merits.
But it must consider
the
cogency
of the point concerned.
because unless it has substance a separate
hearing would be a
waste of time and costs."
(Own emphasis)
[33]
In addition to the aforesaid factors and
principles, it was pointed out in the
Copperzone-judgment,
supra, that the Supreme Court of Appeal has in recent times adopted a
strong view that piecemeal litigation is not to be encouraged,
that
the convenient and expeditious disposal of litigation is not always
achieved by separating the issues but often best served
by
ventilating all the issues at one hearing.
In
Privest
Employee
Solutions
(Pty) Ltd v Vital Distribution Solutions (Pty) Ltd
2005 (5) SA 276
(SCA) at paras [26]
- [27] the Supreme Court of Appeal held as follows:
"[26]
... It is correct that the objective of Rule 33(
4)
... is to
facilitate the convenient and expeditious disposal of litigation.
A court approached to sanction this course
has a duty to
satisfy itself that the separation will serve the desired purpose.
...
[27]
... I refer to this scenario simply to voice our disquiet at yet
another manifestation of a failure to ensure that a separation
of
issues in terms of Rule 33(4) has the potential to curtail litigation
expeditiously. Courts should not shirk their duty to ensure
that at
all times, when approached to separate issues, there is a realistic
prospect that the separation will result in the curtailment
and
expeditious disposal of litigation."
[34]
In
Consolidated
News
Agencies
(Pty) Ltd (In Liquidation)
v Mobile Telephone Networks
(Pty) Ltd & Another
201O
(3) SA
382
(SCA)
the
court
confirmed
and
applied
the
dictum
in
Denel
{Edms) Bpk vVorster
2004
(4) SA 481
(SCA) and held as follows at paras [89] - [90] of its
judgment:
"[89]
... Piecemeal litigation is not to be encouraged....
[90]
This court has warned that in many cases, once properly considered,
issues initially thought to be discrete are
found to be inextricably
linked. And even where the issues are discrete, the expeditious
disposal of the litigation is often best
served by ventilating all
the issues at one hearing. A trial court must be satisfied that it is
convenient and proper to try an
issue separately."
See
also
Firstrand Bank Ltd
v
Clear
Creek Trading
12 {Pty)
Ltd
2018 (5) SA 300
(SCA) at para [9].
[35]
With regard to the "onus" in a
Rule 33(4) application, the court in the
Copperzone-matter
considered the conflicting decisions within the Western Cape Division
on whether it is incumbent on the applicant for a separation
of
issues to satisfy the court that it should be granted. After it also
considered the explanation by the Supreme Court of Appeal
with regard
to the purpose of the rule and how it should be applied, the court
concluded as follows at para [24] of the
Copperzone
judgment:
"It
does seem clear that, irrespective of which party bears the 'burden
of persuasion' the court is nonetheless enjoined to
apply its mind
properly and judiciously to whether a separation should be granted.
Self evidently therefore, it is incumbent
on both parties to
place all relevant information before the court to enable it to
exercise its discretion. If an applicant fails
to do so ... it will
have to accept that the court may not be in a position to properly
weigh the advantages and/or disadvantages
of granting a separation."
Rule
33(4):
Consideration
of
the
applicable
principles and factors:
A:
Consideration of the potential
merits of the second special plea
:
[36]
As determined earlier, the potential
merits of the separate issue which forms the subject-matter of the
Rule· 33(4) application,
in this instance the second special
plea, is to be considered as one of the factors when adjudicating the
application, without
deciding and pronouncing the merits of the
special plea. Counsel consequently also addressed me fully on this
issue.
[37]
In terms of section 1 of COIDA
"compensation"
is
defined to mean
"compensation in
terms of this Act
and, where
applicable,
medical aid
or
payment of the cost of such
medical aid."
(Own emphasis)
[38]
Section
1
of
COIDA
defines
"pension"
to
mean
"a
pension referred to in section 49 or
54".
Section
54 is not applicable to the present matter. The said section 49 deals
with
"compensation for permanent
disablement".
In terms of
section 49(1)(a) compensation for permanent disablement shall be
calculated on the basis set out in items 2, 3, 4 and
5 of Schedule 4
subject to the minimum and maximum amounts.
Section 49(4) further determines as
follows:
"For
the purpose of this section
'monthly
pension'
means, where it appears in the relevant items in Schedule 4, a
pension payable monthly during the lifetime of the employee and which
expires at the end of the month in which the employee dies."
[39]
As
previously
indicated,
it is
common
cause
between
the
parties that the plaintiff sustained permanent disablement of 100%
as
a
result
of
the
incident.From
a
reading
of
the
abovementioned Schedule
4
to the
Act,
it
is
consequently evident that item 3 of
Schedule 4 is applicable to the plaintiff, with
the result that
she is entitled to a monthly pension as
compensation calculated at 75% of her monthly earnings at the time of
the accident, subject
to a maximum and minimum compensation as
determined by the Compensation Commissioner.
[40]
It is also common cause between the
parties that the plaintiff has been receiving and is currently still
receiving compensation
for her loss of earnings in the form of
monthly pension payments calculated as aforesaid and that the
Commissioner accepted liability
and undertook to continue paying same
for the lifetime of the plaintiff as prescribed in section 49(4) of
COIDA
[41]
With regard to the issue of medical aid
or payment of the costs of such medical aid as included in the
definition of "compensation",
"medical
aid"
is defined in section 1 of
COIDA to mean "medical, surgical or hospital treatment, skilled
nursing services, any remedial treatment
approved by the
Director-General, the supply
and
repair
of
any
prosthesis
or
any
device
necessitated
by disablement, and ambulance services
where, in the opinion of the Director-General, they were essential."
[42]
"Medical
expenses"
are regulated by section 73 of
COIDA:
"73.
Medical expenses
(1)
The Director-General or the employer
individually liable or mutual association concerned, as the case may
be, shall for a period
of not more than two years from the date of an
accident or the commencement
of
a disease referred to in section 65 (1) pay the reasonable cost
incurred by or on behalf of an employee in respect of medical
aid
necessitated by such accident or disease.
(2)
If, in the opinion of the
Director-General, further medical aid in addition to that referred to
in subsection (1) will reduce the
disablement from which the employee
is suffering, he may pay the cost incurred in respect of such further
aid or direct the employer
individually liable or the mutual
association concerned, as the case may be, to pay it."
[43]
Section 28 of COIDA makes provisio_n for
an employee requiring constant help and determines
as follows:
"28.
Employee requiring constant help
If
the injury in respect of which compensation is payable causes
disablement of such a nature that the employee is unable to perform
the essential actions of life without the constant help of another
person, the Director-General may in addition to any other benefits
in
terms of this Act, grant an allowance towards the costs of such
help."
[44]
I need to mention that in the answering
affidavit it was stated that as far as the deponent could ascertain,
the Commissioner has
not
paid
the
plaintiff
any
form
of
allowance
in
terms
of section 28. However, in an affidavit
filed by Mr SS Sibe, the Assistant Director, Compensation Fund and
Compensation Benefits
at the Department of Labour, filed on behalf of
the Commissioner,
he
stated
that
the
plaintiff
is
receiving R2 294.10 per month for a
caregiver. However, I presume that this aspect will be sorted out in
due course and that the
parties will probably eventually be
ad
idem
with regard to the correct
facts in this regard.
[45]
Section
36
of
COIDA
is
very
relevant
for
purposes
of
the second special plea.
It determines as follows:
"36.
Recovery of damages and compensation paid from third parties
(1)
If an occupational injury or disease in
respect of which compensation is payable, was caused in circumstances
resulting
in
some person other than the employer of the employee concerned (in
this section referred to as the 'third party') being liable
for
damages in respect of such injury or disease-
(a)
the employee may claim
compensation in terms of
this
Act and may also institute action for damages in a
court of law against the third
party;
and
(b)
the Director-General or the employer
by whom compensation is payable may institute action in a court of
law against the third party
for the recovery of compensation that he
is obliged to pay in terms of this Act.
(2)
In
awarding
damages
in
an
action
referred
to
in subsection (1)
(a)
the court shall have regard to
the compensation paid in
terms of this Act.
(3)
In
an
action
referred
to
in
subsection
(1)
(b)
the
amount recoverable shall not exceed the
amount of damages, if any, which
in
the
opinion
of
the
court
would
have
been
awarded
to
the employee but for this Act.
(4)
For the purposes of this section
compensation
includes
the cost of medical aid already incurred and any amount paid or
payable in terms of section 28, 54 (2) or 72 (2) and, in
the case of
a pension, the capitalized value as determined by the
Director-General of the pension, irrespective of whether a lump
sum
is at any time paid in lieu of the whole or a portion of such pension
in terms of section 52 or 60, and periodical payments
or allowances,
as the case may be." (Own emphasis)
[46]
From a reading of paragraphs 2.3 and 4
of the plaintiff's replication it is evident that the plaintiff
accepts, as contended by
the first defendant, that whatever
compensation the plaintiff has received and will receive from the
Compensation Commissioner
cannot also be claimed from the defendant
and falls to be deducted from the plaintiff's damages to be awarded
against the first
defendant.
This
is in compliance with the provisions of section 36(2).
[47]
The two opposing propositions between
the parties are, however, the following:
1.
It is the plaintiff's case that:
(a)
The plaintiff has a choice to either
continue claiming from the Commissioner or to claim the full extent
of her damages from the
defendant.
(b)
With regard to past medical expenses and
related costs (from date of accident to date of award or settlement),
the plaintiff will
only be entitled to seek payment from the first
defendant of any such expenditure as might not have been claimed
from, or otherwise
met or recompensed by, the Commissioner.
(c)
With regard to future such expenditure
(from date of award or settlement), the plaintiff undertakes not to
claim same from the Commissioner
in terms of section 28 and 73(2) of
COiDA, but to claim payment thereof from the first defendant. This
won't prejudice the first
defendant, because the Commissioner would
in any event have recovered any such payments form the defendant in
terms of section
36(1)(b) of COIDA. The fact that the Commissioner
has up to date not recovered any of the compensation
he has paid to the plaintiff, is not due
to any fault of the plaintiff and her rights cannot be restricted
because of the Commissioner's
failure to have done so.
(d)
With regard to loss of income, Mr
Mullins, who appeared on behalf of the plaintiff, assisted by Mr
Zietsman, set it out as follows
in paragraph 7.5.3 (c) of the
plaintiffs heads of argument:
"The
plaintiff has received a measure of compensation from the
Commissioner in terms of COIDA and will continue to receive
this into
the future.
The
value of such compensation received from the Compensation
Commissioner in terms of COIDA from date of the accident to date of
settlement or award, and the capitalized value of future such
compensation, will fall to be deducted from the totality of the
plaintiffs loss of income and of earning capacity, with the defendant
only being held liable for the balance."
This
will neither benefit nor prejudice the first defendant since he will
in any event be liable to the Commissioner for any claim
in terms of
section 36(1)(b) of COIDA.
2.
It is the first defendant's case that:
(a)
The plaintiff's claim for future
hospital, medical and related treatment, as well as loss of earnings
was and remains payable by
the second respondent in terms of sections
28 and 36(1) and (2) of COIDA, read with Schedules 2 and 4 thereof.
The first defendant will only be liable
to the plaintiff for those expenses for which the second defendant is
not liable to compensate
the plaintiff.
(b)
The plaintiff made an election to claim
compensation from the second defendant in terms of COIDA and has done
so since 2009.
No
plausible reason exists as
to
why
the
plaintiff
cannot
continue
to
do
so.
There is no provision in COIDA which permits an employee such as the
plaintiff to terminate compensation payable under COiDA
at her own
will in order to receive payment of damages to her from the first
defendant form the date of the awarding of such damages
against the
first defendant.
[48]
In support of the plaintiffs case, Mr
Mullins pointed out that sections 36(2) and (4) were amended by the
Compensation for Occupational
Injuries and Diseases Amendment Act, 61
of 1997, and that before its amendment section 36(2) read as follows:
"(2)
In awarding damages
in an action referred to in
ss (1)(a}
the court
shall have regard to
the amount to which the employee is
entitled
in
terms of this Act."
(Own emphasis)
Mr
Mullins submitted that the aforesaid wording of the section, before
the amendment, which directed a court to have regard to,
therefore
deduct, the amount to which the employee
is
entitled in
terms of
COIDA, included obligations already
discharged and future obligations. However, after the amendment of
the wording of section 36(2)
which now directs a court to have regard
to, therefore deduct,
the
compensation paid
in
terms of
COiDA, it only relates to obligations
already discharged.
[49]
Mr Mullins submitted that the aforesaid
amendment was a
deliberate
change
by the
Legislature
in order
to give an
employee the right as contended for by the plaintiff
.
Mr Mullins
furthermore submitted
that the wording of section 36(4) which determines that compensation
for the purposes of section 36 includes
"the cost of medical aid
already incurred", also confirms an interpretation that it does
not relate to future obligations,
especially not to the costs of
future medical aid.
[50]
Ms Williams, however, pointed out that
section 36(4) determines that compensation for the purposes of
section 36 also includes
"any
amount paid or payable
in
terms of section 28, 54(2) or 72(2) and, in the case of a pension,
the capitalized value as determined by the Director-General
of the
pension... ".
She
submitted that the words "paid or payable" contradict
and/or negate the contention on behalf of the plaintiff in that
the
said words are indicative of an interpretation to include future
obligations.
[51]
In my view the aforesaid submissions
advanced by both parties will constitute arguable contentions to the
court in support of their
respective interpretations of section 36
when the second special plea stands to be adjudicated.
[52]
I will now deal with the case law which
the parties dealt with during their arguments:
Peens
v Road Accident Fund
[53]
Both
parties
dealt
in
their
respective
arguments
with
the
judgment in
Peens v Road Accident
Fund
2002
(2) SA 636
(D). In that matter the applicant/plaintiff was injured in
a
motor
vehicle
accident
in
circumstances
which
entitled
her
to
compensation in terms of COIDA. She claimed compensation from the
Commissioner
in
terms of COIDA
and,
in
terms of
section
36(1)(a),
also
instituted
action
against
the
Road Accident Fund for damages.
A week before the trial was due to
commence,
the
respondents/defendants attorneys made an
offer
to
settle
it,
tendering,
inter
alia,
an
undertaking
in terms of article 43(a) of the
Schedule to the Multilateral Motor Vehicle Accidents Fund Act, 1989,
which offer was accepted.
The
rights
and
obligations
of the
Multilateral
Motor
Vehicle Accidents
Fund devolved upon the
respondent/defendant in terms of the
Road Accident Fund Act, 1996
.
[54]
Subsequent to the settlement the
applicant/plaintiff submitted accounts in terms of the undertaking,
whereupon the RAF responded
that because the Commissioner "is
involved in this abovementioned case", medical claims which
arise should first be claimed
from the Commissioner and if he
repudiates liability, such claims may be submitted to the RAF with
written proof from the Commissioner
that he declined to pay the said
claims and the reasons for disallowing same.
[55]
The applicant/plaintiff then brought an
application in which she sought an order against the
respondent/defendant to comply with
its undertaking.
In its answering affidavit the RAF
admitted not having reimbursed the applicant in terms of the article
43(a) undertaking, but alleged
that it was not obliged to do so.
The court dealt with the averments by
the RAF at 639E-
H
of the judgment:
"According
to
the
respondent,
at the time
the
applicant
was
involved
in the collision she was an
‘employee’ in terms of the provisions of
COIDA.
In
terms
of
s
36
of
COIDA,
the
Director-General
of
the
Department of Labour is given a right of recovery against the
respondent for
any
compensation
that
he
is
obliged
to
make
in
terms
thereof. Although
on
7
July
1999
a 'final
award'
was
made
of
disbursements which the Compensation
Commissioner
was obliged to make in terms of COIDA,
this does not mean that there might be no further awards. Here, both
s
48(2)
and
s
73(2)
of
COIDA
bestows
on
the
Compensation Commissioner
a discretion
to make such
further
awards.
When such awards
are
made,
the
respondent
is likewise
liable
to
reimburse
the Director-General. According to the
deponent to the opposing affidavit:
'It
has happened in the past that a party in whose favour an art
43(a)
undertaking had been given will claim from respondent and,
unbeknown to respondent, also claim in terms of the provisions of
COIDA.
Respondent is then faced with the situation that it is obliged
to compensate the Director-General, resulting in a double payment
with no reasonable prospects of recovery.'
It
is for this reason that the respondent requires proof that any claim
the applicant might have has been disallowed in terms of
COIDA,
before the respondent is willing to make payment in terms of the art
43(a)
undertaking."
[56]
The court found (at 641C) that the
accepted tender constituted a binding contract between the parties
and (at 6428) "the respondent
must carry out the terms of the
settlement and is not entitled at this stage to attach an additional
term to the certificate".
[57]
The court also made the following point
at 642G:
"The
possibility of a double payment apart, it is difficult to see how it
could be to the respondent’s advantage in requiring
the
applicant to claim payment direct from the Compensation Commissioner,
for once he had paid the Director-General would then
have a right of
recovery against the respondent, which would thus be obliged to make
payment in any event."
[58]
Ms Willilams contended that the said
judgment does not serve as support of the plaintiff's case that she
can elect to rather claim
from the first defendant than under COIDA,
since the order was merely granted on the basis of the terms of the
settlement agreement.
The
point as to whether a plaintiff is entitled to make such an election,
had not been raised.
Ms
Williams submitted that had it been raised, the outcome of the case
may have been different.
[59]
Mr Mullins contended that even though
the point had not been raised, the court would not have enforced the
agreement if the conclusion
of the agreement was not legally valid.
[60]
An aspect which was addressed in the
judgment, but which was not addressed in argument on behalf of the
respective parties, is the
fact that the court, with reference to the
matter of
Van
der
Westhuizen
v
Multilaterale
Motorvoertuigongelukkefonds
[1998] 3 B All SA 674 (T), remarked
at 642B that "it was open to the respondent to tender a
certificate excluding liability
to pay amounts claimable by the
applicant under COIDA" and then
held as
follows at 642E of
the
judgment:
"In
my view it was open to the respondent to have tendered to the
applicant a suitably worded certificate, in order to protect
itself
against the eventuality of having to make double disbursements."
[61]
It consequently seems to me, without
making such a finding, that although the court found that it would be
competent for a third
party to furnish an undertaking to compensate
a plaintiff for future medical costs
excluding liability for amounts claimable under COIDA, the court
apparently did not consider
the submission of a claim under COIDA and
the rejection thereof by the Commissioner
as a
sine
quo non
for submitting such a claim
against the third party.
Senator
Versekeringsmaatskappy Bpk v Bezuidenhout
[62]
Ms Williams relied on the judgment in
Senator
Versekeringsmaatskappy
Bpk
v
Bezuidenhout
1987 (2)
SA 361 (A) in support of the first
defendant's second special plea.
In
that matter it was common cause that the respondent was a workman as
intended in the Workmen's Compensation Act, 30 of 1941 and
that the
Workmen's Compensation Commissioner had already made awards to the
respondent pertaining to damages for temporary complete
disability,
the capitalised value of a monthly pension and an amount in respect
of medical and other expenses.
The
respondent's claim against the appellant was for future medical
expenses in the determined amount of R3 950.00 and it was agreed
that
his general damages amounted to R12 000.00.
All that was in dispute at the trial was
whether in terms of s 8(1) of the Workmen's Compensation Act the
award of the Workmen's
Compensation Commissioner was to be deducted
from the amount of R15 950.00.
1.
Ms Williams pointed out that the court
of appeal found that the court
a
quo
applied the principles in
Klaas
v
Union
and
South
West
Africa
Insurance
Co
Ltd
1981(4)
SA 562 (A) and decided that section 8(1)(a) of the Workman's
Compensation Act intended no more than that a workman would
not be
allowed to recover double compensation and since the Commissioner in
that case made no award in respect of future medical
expenses and,
apparently, no general damages, the respondent was entitled to
compensation in respect thereof.
2.
Mr Mullins, on the other hand, submitted
that the said judgment supports the plaintiffs contention.
He submitted that the said judgment and
specifically its application of the principles enunciated in the
Klaas
judgment is to the effect that a
wrongdoer, such as the first defendant in the present matter, has no
right to dictate to a victim,
such as the plaintiff in the present
matter, what should and what should not be recovered under COIDA.
As long as the plaintiff is not going to
be compensated twice for the same injuries, a claim may be instituted
against the third
party.
Road
Accident Fund v Maphiri
[63]
Ms Williams also referred to and relied
on the judgment in
Road Accident
Fund v Maphiri
2004
(2) SA 258
(SCA). She pointed out that the Supreme Court of Appeal
analysed section 36 of COiDA and held as follows at para [7]:
“
[7]
The first and axiomatic principle, therefore is that the object of
the Act is to provide ‘compensation’ for disablement
caused by occupational injuries or diseases sustained or contracted
by employees in the course of their employment. 'Compensation'
is not
the same as 'damages', a distinction drawn clearly by s 36. There may
be a complete overlap, as in the case of hospital
and medical
expenses (although for the general purposes of the Act medical costs
are not regarded as 'compensation'). There may
also be a partial
overlap, as in the case of loss of income (as a head of damages) and
compensation for disablement under the Act.
But then there may be no
congruent relief, such as in the case of general damages for pain and
suffering, which are claimable under
the
Jex Aquilia,
and for
which there is no corresponding head of compensation in the Act."
[64]
Ms Williams submitted that a proper
reading of section 36(1)(a) makes it plain that COIDA does not
provide the plaintiff with a
choice.
It
clearly states that an employee can claim compensation in terms of
COIDA
and
the employee may, at the same time, also institute an action for
damages in a court of law against a third party. She submitted
that
the legislature did not intend for the third party to be substituted
in place of COIDA where an employee has been injured
in the course
and scope of his/her employment.
Had
this been the intention, then section 36(1)(a) would have read that
the employee can claim compensation in terms of COiDA
or
the employee could institute action for damages against the third
party. Ms Williams submitted that section 36 presupposes that
compensation has been claimed from the Commissioner and simply
ensures that the employee is not left without as remedy in respect
of
those damages which are not compensated in terms
of
COiDA.
The
employee
cannot, however,
from the third party the damages payable
under COIDA.
[65]
Mr Mullins, on the other hand,
accentuated the point made in paragraph 8 of the judgment:
"[8]
The second point, which tends to be overlooked, is that the Act is
not for the benefit of third parties, such as the RAF,
who are liable
in delict; it is for the benefit of the employee and the employer,
and 'premiums' have to be paid for this 'insurance'.
This means that
the starting point of any litigation under s 36 is a determination of
the third party's liability.”
[66]
The remainder of the judgment deals with
the question as to how the deduction of compensation awarded by the
Commissioner from damages
awarded against a third party by the court
for purposes of compliance with section 36(2) should be applied.
However, since the judgment relates to
section 36(2) prior to its amendment already dealt with above, the
court's approach with
regard to that calculation is, in my view,
irrelevant for purposes of the present dispute.
I do, however, hasten to add that, in my
view, the following principles are still applicable:
"[9]
The converse point has often been made and that is that s 36 does not
increase the liability of the third party, Consequently,
the full
amount of its liability ... has to be divided between the employee
and the Commissioner. ..."
[67]
Harms, JA concluded his judgment with a
reference to the said amendment and a remark, albeit apparently
obiter dicta,
which
may eventually be considered to support the plaintiff's proposition:
"[21]
Last, it should be pointed out that s 36 in 1997 underwent some
amendments which may either be substantive or merely
cosmetic. In the
past the amount which the Commissioner would have been liable for had
to be deducted from the employee's claim;
now it is the amount
actually paid - at least that is what is said. The future
obligations, such as future pension payments cannot
be deducted
"
However,
Harms, JA continued and pointed the contradictory provisions out:
"[21]
... But then ss (4) conveys a contrary intention. The same applies to
ss (1)(b) which entitles the Director-General to
claim, not only for
monies actually paid but for those 'that he is obliged to pay'.
Something appears to have gone wrong."
[68]
It should be pointed out that in the
aforesaid matter the future medical costs were also settled between
the parties by means of
an undertaking in terms of article 43(a)
(Multilateral Motor Vehicle Accidents Fund Act, 93 of 1989).
Du
Pisanie N.O. (o.b.o. JG Rabe) v De Jongh
[69]
In further support of the plaintiffs
proposition Mr Mullins also relied
on
the
judgment
in
Du
Pisanie
N.O.
(o.b.o.
JG
Rabe)
v De Jongh
(2002) 5 QOD B4 -
109 (C), which matter dealt with the
common law claim of the passenger (Rabe) against
the driver (De Jongh) of a motor
vehicle.
With
regard to the claim for future medical costs, it was argued on behalf
of the defendant
that
since the said costs could be recovered from the Workmen's
Compensation Commissioner, the defendant cannot be held reliable
for
same. For purposes of the said argument the defendant relied on
section 8(1) of the Workmen's Compensation Act, 30 van 1941,
which
section, as already indicated earlier, was similar to section 36 of
COIDA.
Thring,
J rejected the argument and held as follows at B4-135 to 84-136:
"Myns
insiens moet hier nie uit die oog verloor word nie dat die eiser se
onderhawige eis teen die verweerder 'n eis onder
die gemene reg is,
en nie 'n eis ingevolge die Ongevallewet nie. Die effek van art 8 van
laasgenoemde Wet op hierdie saak is slegs
dat, by die toewysing van
skadevergoeding aan die eiser, hierdie Hof verplig word om rekening
te hou met die bedrag wat waarskynlik
deur die verweerder (wat vir
doeleindes van die artikel 'n sogenaamde "derde party" is)
aan die Ongevallekommissaris
betaal sal moet word: en volgens art.
8(1)(b) sal die verweerder aan die Ongevallekommissaris slegs daardie
bedrag verskuldig wees
wat laasgenoemde as "skadeloosstelling
wat by ingevolge hierdie Wet weens die ongeval verplig is om te
betaal". 'n Werksman
wat in 'n ongeval, soos in die Ongevallewet
omskryf, beseer word is geregtig om beide 'n statutere eis ingevolge
die Wet teen die
Ongevallekommissaris in te stel en, boonop, ook om
gemeenregtelike skadevergoeding van die derde party as gevolg van wie
se nalatige
optrede hy beseer is, te eis. Die doel van art 8(1) is om
te verhoed dat die werksman dubbel vergoed word, en dat die derde
party
dubbel betaal: sien Corbett, Buchanan & Gauntlett
The
Quantum
of
Damages in
Bodily
and
Fatal
Injury
Cases
Derde uitgawe, 23-25;
Wille
&
Another v
Yorkshire
Insurance Co Ltd
1962 (1) SA
183
(D)
; en
Bonheim v South British Insurance
Co
Ltd
1962 (3) SA 259
{A)
. Enige verhaalsreg wat die
Ongevallekommissaris teen die verweerder mag he word dus beperk tot
die bedrag wat hy onder die Wet
verplig word om aan Rabe as
skadeloosstelling te betaal.
Nou,
wat
hierdie
vier items
betref
het
die
eiser namens Rabe afstand qedoen van eniqe reg wat laasgenoemde
teen die Ongevallekommissaris vir skadeloosstelling ender die Wet
maq gehad
het:
ten opsiqte
daarvan sal
daar
geen afdwingbare
eis in die
toekoms
deur of namens Rabe teen die Onqevallekommissaris ingedien kan word
nie, en die Onqevallekommissaris sal gevolqlik
nooit
teenoor
Rabe daarvoor
aanspreeklik
wees
nie. Daaruit
volg
dit
dat
daar
geen
gevaar
bestaan
dat
die
Onqevallekommissaris
die
koste
van
hierdie
items ender art 8(1) van die verweerder ooit sal kan verhaal nie:
die eiser
verkies
eenvoudiglik,
en
soos
hy
qeregtig
is
om
te
doen,
om
hierdie
onkoste
van
die
verweerder
gemeenregtelik
te
verhaal.
In
die
omstandiqhede bestaan daar ook geen gevaar dat Rabe twee maal ten
opsiqte
van
hierdie
items
vergoed
sal
word
nie
.
Dit volg dat mnr
Le Roux
se betoog myns insiens nie kan slaag
nie, en dat hierdie vier items as gedeelte van die eiser se
skadevergoeding toegelaat moet
word." (Own emphasis)
[70]
Although the
Du
Pisanie-judgment
was reversed on
appeal in certain respects, the aforesaid point was not raised on
appeal.
[71]
Ms Williams, however, contended that the
present matter is distinguishable from the aforesaid judgment, since
the Commissioner has
already accepted responsibility for the payment
of the plaintiff's future medical costs.
Janse
van Rensburg v Road Accident Fund
[72]
Mr Mullins, lastly, relied on the
unreported judgment in
Janse
van Rensburg v Road Accident
Fund
(WLD,
case no. 06/2041, 19 September 2007).
In
this matter the plaintiff instituted action against the Road Accident
Fund for payment of damages for bodily injuries sustained
in a motor
vehicle accident.
He
was also entitled to and did in fact claim compensation
in terms of COiDA.
When the matter initially came before
court again, the parties had in the interim agreed on the
quantum
of the plaintiffs claim, which was
not the case when the matter served before court for the first time.
At the date of the hearing of the matter
the plaintiff had received compensation in the amount of R3 772.96
from the Commissioner,
but the claim had not yet been finalised and
no final award had been determined.
[73]
The agreement between the parties
relating to the
quantum
was
that the plaintiffs total common law damages
were to be taken to be as follows:
"(a)
Past medical and hospital
expenses: R3 772.95
(b)
Loss of earnings and
earningcapacity: R20 000.00
(c)
Future medical and related
expenses: RAF statutory
undertaking
in terms
of
s 17(4)(a)
Assumed
for illustrative purposes
to
be an amount of R26 227.05:
R26227.05
(d)
General damages:
R50
000.00
(e)
TOTAL
R100
000.00"
[74]
It was argued on behalf of the plaintiff
that on a proper construction of section 36 of COIDA, no inroad was
envisaged by the legislature
into the plaintiffs right to have his
claim adjudicated at that stage. The court subsequently held as
follows:
"25.
In my view the position in the present case is unambiguous. The clear
wording of section 36(2) enjoins a court to
'have
regard
to
the compensation paid'
in terms of COIDA
when considering,
inter alia,
a claim against the Road
Accident Fund.
26.
'Paid'
means paid at the time when the
court has to determine an award of damages against a person other
than the employer of the employee
concerned;
in
casu
the Road Accident Fund.
27.
Accordingly, in the present case, the
sum of R3 772.95 has to be deducted, leaving a balance of R70 000,00,
payable by the defendant,
together with costs."
[75]
The defendant was also ordered to
furnish the plaintiff with an undertaking in in terms of section
17(4)(a) in respect of future
medical and related expenses.
[76]
I have already dealt with certain
aspects contained in the affidavit of Mr Sibi. In addition, Mr Sibi
also made certain averments
which relate to the potential merits of
the second special plea. In this regard he stated as follows in
paragraphs 16 and 17 of
his affidavit:
16.
Ms
van der Merwe had made an election to claim from the Commissioner and
has done so since 2009. No plausible reason exists as to
why Ms van
der Merwe cannot continue to do so.
17.
There
exists no provision in COIDA which permits an employee such as Ms van
der Merwe to terminate benefits payable under COIDA
at her own will."
[77]
Ms Williams
contended
that since the plaintiff
did not
file an
affidavit
in response to the affidavit of Mr Sibi, the aforesaid averments
stand uncontradicted and therefore have to be accepted
as correct.
However, Mr Mullins submitted that Mr Sibi made no factual
allegations and only stated his interpretation of the law,
which did
not necessitate
any
reply.
[78]
I agree with Mr Mullins. Mr Sibi merely
expressed his opinion on the interpretation of COIDA and the absence
of a reply thereto
does not result in his opinion having to be
accepted as correct. It does however form part of the totality of the
information before
me which I will take into consideration for
considering the potential merits of the second special plea.
B.
Conclusion on the consideration of
the potential merits of the
second
special plea
:
[79]
With regard to the cogency of the second
special plea, I am satisfied that on the basis of the totality of the
aforesaid considerations,
namely the evidence contained in the
application papers, the legislation, the case law and the different
contentions advanced on
behalf of the respective parties, the second
special plea does have substance. In my view the potential merits of
the second special
plea constitute an arguable issue for purposes of
a separate hearing should the Rule 33(4) application be successful.
C.
Application of the other factors and principles applicable to a Rule
33(4) application on the facts of the
present matter:
Prospects
of an appeal
on the separated
issue.
[80]
In the answering affidavit it is stated
that should the second special plea be upheld at first instance
during a separate hearing
thereof, the plaintiff will appeal such
since it will have an unfounded devastating financial and practical
impact on her.
[81]
It was pointed out in the answering affidavit that when the plaintiff
was successful with her
application for condonation in terms of
section 3(4) of Act 40 of 2002, the first defendant sought leave to
appeal and when that
was refused by the presiding Judge, the first
defendant unsuccessfully petitioned the Supreme Court of Appeal. In
addition, it
is alleged in the answering affidavit that by the same
token that the plaintiff will appeal an order which upholds the
second special
plea,
it is
probable that the first defendant
would also appeal should the second special plea be dismissed. The
last-mentioned allegation was
not responded to in the replying
affidavit.
[82]
In my view it indeed appears to be very probable that, should the
merits of the second special
plea be adjudicated separately, the
unsuccessfur party would appeal the outcome. That would result in the
parties then having to
come back to court once the appeal has been
finalised in order for the remaining issues on quantum to be
adjudicated, which may
even be followed by a further appeal.
[83]
I consequently have to agree with Mr
Mullins that the prospects of a dual appeal process should a
separation of issues be granted,
will
inevitably
lead to a considerable
delay in
the
finalisation
of
the
trial,
which
militates
against
the
granting of a separation in terms of Rule 33(4). The mere fact that
there may have been delays in the proceedings up to date
is,
irrespective of which party may have caused same, does not detract
from the significant delay which will be caused by a dual
appeal
process.
Are
the issues raised by the second special plea discrete or
inextricably linked to the remaining
issues -
will
there be
overlapping
of evidence?
[84]
In paragraph 8.4.2 of the answering
affidavit the contents of prayer 4.3 of the Notice of Motion, hence,
part of the declarator
which the first defendant will seek should the
second special plea eventually be upheld, was pointed out, followed
by the following
averments:
"8.4.2
The defendant ... seeks the following in prayer 4.3:
'The
applicant
will
only
be
liable
to
compensate the
respondent for
such
expenses
for
which
the
Compensation
Commissioner
is not liable.'
"8.4.3
... The Commissioner places strict limits on what he is prepared to
pay for. Suppliers must be prepared to supply services
at the
Commissioner's relatively low tariffs. Sometimes the Commissioner
doesn't pay suppliers, or pays them late, resulting in
interruption
in the plaintiff's supply of much-needed medicines. When the
plaintiff submitted a quotation for the cost of conversion
of her
motor vehicle, the quotation was ignored. Doctor's (entirely
reasonable and justified) recommendations for
the
supply
of
physiotherapy
and an
electric
wheelchair
were rejected by the Commissioner. Add so forth.
8.4.4
Quite clearly, a resolution of the
special plea in favour of the defendant wouldn·t put an end to
the issues in this regard.
Prayer 4.3 says as much.
It
would then still be necessary for the parties to work out what
equipment and what services dealt with in the [expert] reports
and
joint minutes are encompassed within the Commissioner's medical aid
in terms of section 73(2) and which are not. See in this
regard
paragraph 8.6 below, for more detail.
8.4.5
So, even if one were to separate issues
as sought by the defendant, that wouldn't obviate the need for
evidence from experts and
from the Commissioner as to what the
Commissioner
does
and doesn't supply. For that reason, if the special plea is upheld,
then the issues to which it gives rise would still be inextricably
bound up with the quantum generally (not so, of course, if the
special plea is dismissed).
8.4.6
In the premises, I respectfully submit
that the special plea doesn·t involve issues
that are entirely discrete form the
quantum, and at least from the defendant's
point of view, it
is bound up with the quantum to a
considerable extent.
8.4.7
8.5
... If the special plea is dismissed ... then one will still have to
deal with the quantum and the evidence of all the experts.
But even
if the special plea is upheld, that wouldn·t obviate the
importance of that evidence. In the first place, and as
pointed out
in paragraph 8.4.6 above, one would still have to work out what items
of equipment and treatment recommended by the
experts are supplied by
the Commissioner and what items aren·t. In the second lace,
uestions of treatment and eguipment,
and the extent to which
treatment and equipment ameliorates the plaintiffs situation, still
will arise, because they are interwoven
with general damages.
So
one might have a situation in which the special plea is upheld (and
the appeal process in connection therewith is exhausted),
and all the
evidence is still required. That would hardly be convenient, not to
mention that the evidence might then in turn lead
to another appeal
process."
Reference
was then made in the answering affidavit to the judgment of
Sasol
Synthetic Fuels (Pty) Ltd & Others v
Lambert
& Others
2002 (2) SA 21
(SCA) at para [10], where
the court held as follows:
"...
in a case where a 'third party' is involved the workman may be
entitled, in the form of compensation plus damages, to
the amount of
his
full common-law damages
... [T]he 'third party' may
be liable to the workman and.the ... commissioner taken together for
the full amount of common-law
damages ... "
The
answering affidavit then continued as follows:
"8.6.6
The aforegoing being so,
if
the special plea is good {which I
respectfully suggest this very exercise illustrates it is not), ...
in determining what the plaintiff
is compelled to recover in terms of
medical aid, and what she is entitled to recover from the defendant,
one would have to conduct
a quantitative and qualitative exercise
with regard to the medical aid.
If
limiting the plaintiff to treatment by practitioners who are prepared
to work at the Commissioner's tariff falls short of the
common law
measure of damages, then the plaintiff would be
entitled to better
treatment at normal tariffs, for which the defendant
will have to
pay. If the Commissioner limits the plaintiff to a particular type of
manual wheelchair, and the common law afford
her a better range, then
again the defendant would have to pay. If the Commissioner refuses to
pay for physiotherapy but the common
law says that physiotherapy is
required, likewise. And so one could go on."
The
deponent then dealt with specific examples of costs which the
Commissioner refused to pay, despite the fact that the said costs
were for purposes of treatments and other necessities which were
recommended by experts.
[85]
In the replying affidavit it was pointed
out that the plaintiff failed to attach any supporting documentation
to confirm that the
Commissioner has in fact outright denied and or
refused any medication or equipment. In reply to the first
defendant's request
for further particulars and request for better
discovery in terms of rule 35(3), no such documents were provided
either.
[86]
Mr Mullins, in his oral argument,
pointed out that Mr Sibi did not deal with the first defendant's
allegations regarding treatment
and costs which had been declined by
the Commissioner. He submitted that one would expect that Mr Sibi
would have attempted to
show the contrary, which he failed to do.
[87]
In my view the fact of the matter is
that it is evident from the totality of the application papers that
the Commissioner, although
he
accepted
liability
and
undertook
to
pay
the
reasonable
future
medica
l
expenses of the plaintiff, that
undertaking is still restricted by
applicable limits. As correctly pointed out in the answering
affidavit, this fact is also evident
from prayer 4.3 of the Notice of
Motion.
[88]
In
the
answering affidavit it was stated that
the plaintiff, at date of the filing of
the affidavit, has employed 19 experts and filed a
total
of
42
expert
reports
at
a
cost
of
approximately R482 257.00.
These
allegations
were
noted
in
the
replying affidavit.
The
first
defendant
has
employed
6
experts.
The Further Amended Index: Plaintiffs
Expert Summaries (dated 30 September
2021)
and
the Amended
Index:
Defendant's Expert Summaries (dated 11
May 2021) were attached to the replying
affidavit. They reflect
that the expert
reports
of
the plaintiff, at the time, consisted of
533 pages and those of the first defendant 148 pages. In terms of the
founding affidavit
8 joint
minutes
have
been
filed
at
the
time
of
the
filing
of
the founding affidavit and further joint
minutes are expected to be filed.
[89]
Suffice it to say, that it is evident
that the nature and extent of the totality of the expert evidence,
especially should one or
more of the parties be uncooperative, will
be extensive.
[90]
In my view a separate hearing of the
second special plea will not shorten the proceedings. As correctly
pointed out in the answering
affidavit, should a separation of issues
be ordered and should the second special plea be adjudicated even
without evidence, which
is in any event completely improbable,
irrespective of whether the second special plea be upheld or
dismissed, all the evidence
pertaining to the quantum
will
still
have
to
be
presented.
However,
the prospects of a dual appeal and the
concomitant significant delay then comes into play again. Such a
delay will also result in
the necessity of obtaining updated reports
form at least some of the experts.
[91]
Should a separation be granted and the
expert evidence and that of the Commissioner be presented, a
resolution of the second special
plea in favour of the first
defendant, would not obviate the need for evidence from the very same
experts and the Commissioner
as to what medical aid, services and
equipment will be needed and which of those are not encompassed in
the Commissioner's medical
aid in terms of section 73(2). Should the
second special plea be dismissed, the evidence pertaining to quantum,
including the expert
evidence, will still have to be presented.
[92]
In my view it is evident that the issues
to be determined for purposes of the second special plea are
interwoven with and/or similar
and/or partly similar to the issues
pertaining to the quantum of the plaintiffs claim against the first
defendant. A separation
of the hearing of the second special plea
will undeniably lead to the overlapping and/or duplication of
evidence, including expert
evidence.
[93]
A separate hearing of the second special
plea will result in the undue lengthening of the trial and the
incurring and wasting of
costs, which will be unfair to both parties.
D.
Conclusion on the Rule
33(
4) application
[94]
In my view the disadvantages to all
parties concerned should a separation be granted, far outweigh the
advantages, if any, thereof.
A separate hearing of the second special
plea will not result in the curtailment and expeditious disposal of
this matter; to the
contrary.
[95]
I
am
consequently not
satisfied that it
is
convenient and
proper for the second special plea to be
heard separately.
[96]
The Rule 33(4) application consequently
stands to be dismissed.
Costs:
[97]
In,their respective oral arguments Ms Williams and Mr Mullins were
ad
idem
that the costs should follow the outcome, which costs should
include the costs of two counsel, where employed.
[98]
On two previous occasions when the two applications served before
court, namely on 17 February 2022 and 1O March 2022,
the costs were
reserved by agreement between the parties. I was not the presiding
Judge on those two occasions and have no knowledge
of the
circumstances which led to the parties to have agree to the
respective orders. I was also not addressed on those two costs
orders
during the hearing of the present application. In
my view those costs should consequently
remain reserved and are to excluded from the present order as to
costs.
Order:
[99]
I consequently make the following order:
1.
The applicant's/first defendant's
application in terms of Rule 33(4) that the second special plea
raised in its amended plea be
separated and that it be adjudicated
before any other issues in the trial on the quantum of the action, is
dismissed.
2.
It is declared that the abovementioned
special plea is to be adjudicated simultaneously with the trial on
the quantum of the action.
3.
The adjudication of the declaratory
order sought in terms of prayer 4 of the Notice of Motion dated 17
December 2021 stands over
to be adjudicated simultaneously with the
adjudication of the second special plea and the trial on the quantum
of the action.
4.
The applicant/first defendant is ordered
to pay the costs of the application (excluding the reserved costs of
17 February 2022 and
10 March 2022, which costs remain reserved),
which costs are to include the costs of two counsel where employed.
C
VAN ZYL, J
On
behalf of the applicant/first defendant:
Adv.
RT Williams SC
Assisted
by:
Adv. S Mahomed
Instructed
by:
State Attorney
BLOEMFONTEIN
On
behalf of the first respondent/plaintiff: Adv.
JF Mullins SC
Assisted
by
: Adv.
PJJ Zietsman SC
Instructed
by
: Honey
Attorneys
BLOEMFONTEIN