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[2022] ZAMPMBHC 48
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Prinsloo v MEC of the Department of Education, Mpumalanga Province (2694/2020) [2022] ZAMPMBHC 48; (2022) 43 ILJ 2118 (MM) (28 June 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO:2694 / 2020
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
28
June 2022
In
the matter between:
RICHARD
ROETZ
PRINSLOO
APPLICANT
and
MEMBER
OF THE
COUNCIL
RESPONDENT
DEPARTMENT
OF EDUCATION
MPUMALANGA
PROVINCE
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
is
deemed to be 14H00 on 28 June 2022.
Civil
law and Procedure
-
Notice to be served on State organ in
terms of
sec 3
of the
Institution
of Legal Proceedings Against Certain Organs of State Act, No. 40 of
2002
within six months from the date the debt became due.
Condonation
for non-compliance. Good cause and prospects of success. Whether the
claim is barred by
sec 35(1)
of Compensation for Occupational
Injuries and Diseases Act, no. 130 of 1993 (COIDA). Definition of
accident in terms of COIDA.
The
Applicant, a school teacher at the time of the incident, was
physically assaulted by a learner in a classroom in the presence
of
other learners. After the incident, he was subjected to a
disciplinary hearing, and later resigned as a teacher. He now claims
for damages and loss of earning against the MEC for Education,
Mpumalanga for not providing adequate protection. Over two years
had
lapsed by the time summons was issued. The application is confined to
condonation for non-compliance with sec 3 of Act 40 of
2002. The
Respondent opposes the application in that there is no good cause
shown, entailing reasonable prospects of success, as
the claim is
precluded by sec 35(1) of COIDA for being an accident that is covered
under sec 25.
Considered
,
if the accident arose in the course of employment and out of
employment in line with the definition of accident in COIDA.
Held
,
that the accident happened in the course of employment but not out of
employment and therefore not excluded by sec 35(1) of COIDA.
Held
further that a good
cause was shown and that there were reasonable prospects of success.
Condonation in terms of Act 40 of 2002
was therefore granted.
JUDGMENT
RATSHIBVUMO
J:
[1]
In this application,
the Applicant seeks condonation for its late delivery of a statutory
notice to the Respondent, as stipulated
in section 3(1) of the
Institution of Legal Proceedings Against Certain Organs of State Act,
No. 40 of 2002 (the Act). The application
is sought in terms of
section 3(4)(a) of the Act. The application is opposed, mainly
for reason that no good cause was shown
as the claim lacks prospects
of success.
[2]
The 5
th
of March 2018 may
have been an ordinary day for the learners and the teachers at
Bergvlam High School in Mbombela, a public school
at which the
Applicant was employed as a teacher. However, the events in one Grade
10 classroom where the Applicant was, changed
the course of events
into idiosyncrasy. Among the learners in the classroom was Liewellyn
van der Linde, a learner who had recently
witnessed the death of his
mother in a motor collision. The Applicant was aware of this. He made
some remarks about this, which
triggered this learner to react by
physically assaulting him. The assault continued until the learner
was restrained by the other
learners.
[3]
Over
the next few months there was a disciplinary hearing against the
Applicant which culminated in October 2018. The outcome of
the
hearing had as one of the recommendations that the Applicant should
attend a behaviour management counselling and report back
at the
school in January 2019. The Applicant resigned as a teacher in
December 2019. On 08 August 2019, the Applicant’s erstwhile
attorney had a letter of demand served on the Respondent in an
attempt to comply with section 3(1) of the Act. On 20 October 2020,
he issued summons against the Respondent suing for damages suffered
from the incident and for loss of income, totalling in excess
of R8
million.
[1]
In
essence, he pleads that the Respondent failed to protect him and/or
to give him the necessary support following the attack.
[4]
It is apposite at
this stage to deal with the condonation by the Respondent for the
acceptance of the supplementary answering affidavit
filed on record.
The gist of the application is to cure the loopholes that were
exposed by the Applicant that exists in the answering
affidavit such
as hearsay evidence. Although an undertaking was made in the replying
affidavit by the Applicant, that he will bring
an application to have
certain averments struck out of the answering affidavit, the
condonation is not opposed, except that the
heads of argument
highlight that there is no formal application before the court.
[5]
I suppose the
approach by the Applicant must have been informed by the fact that
there is no real prejudice he would suffer if the
condonation is
allowed. The condonation is to allow the confirmatory affidavits by
the persons who were not available at the time
of filing of the
answering affidavits due to festive and/or school holidays. The
acceptance of the supplementary answering affidavit
gives a complete
picture to the puzzle poised by the application and the opposition
thereof and would be in the interests of justice
so to do. After all,
as alluded to already, the acceptance does not prejudice the
Applicant’s case. The condonation is therefore
allowed.
[6]
It
is common cause that a letter of demand was not served on the person
stipulated in the Act who in this case would be the Head
of the
Department of Education, and not the Member of the Executive
Committee (the MEC). In advancing this argument, counsel for
the
Respondent relied on
Mfundisi
Gcam-Gcam v Minister of Safety and Security
[2]
where
Mbenenge ADJP (as he then was) said,
“
Nothing
from a reading of the section points to any form of ambiguity or
difficulty of interpretation. It makes it imperative
(and not
merely directory) for a claimant to serve the notice on the head
of a department. In the case of the SAPS such
head is the
National Commissioner. The reason for the requirement that
notice to institute proceedings against a department
be served on the
department’s head at that early stage is not far to seek.
In terms of section
36 of the Public
Finance Management Act 1 of 1999 (the PFMA) the head of a
department must be the accounting officer for the department. The
responsibilities of accounting officers are set out in section
38 of the PFMA. Section
38 (1) (d) renders
accounting officers responsible for the
management of the liabilities of the department. It is also
significant that the National
Commissioner exercises control over and
manages the SAPS in accordance with section 207 (2) of the
Constitution of the Republic
of South Africa, 1996 and is obliged to
perform any legal act or to act in any legal capacity on behalf of
the SAPS.”
[7]
The
Applicant concedes to the fact that the notice should have been
served on the Head of the Department of Education and not the
MEC. In
the replying affidavit, the Applicant said, “I intended
requesting the Court’s condonation for non-compliance
with
section 3(1) of the Act, which included late delivery and any other
defect with the notice. This is clear from the correspondence
exchanged between the parties, for instance, annexure “RR3”
to the founding affidavit, that what is in issue is non-compliance
with the Act in respect of statutory notice, and it is in fact
opportunistic cynical of the Respondent now to take this technical
point that the application for condonation does not go far enough to
cure or to address the whole issue of non-compliance…”
[3]
[8]
His counsel went as
far as to ask that court to invoke the “further or alternative
relief” sought as per notice of motion
to grant the condonation
sought. For this reason, two draft orders were prepared, one
reflecting the relief as per notice of motion
as it stands, and
another, encompassing the failure to direct the notice to the
appropriate person identified in the Act. This
reasoning in opposing
the condonation is on narrow technicalities as the issues in dispute
are common to both parties, to wit,
non-compliance with the
provisions of section 3(1) of the Act. Whether this non-compliance is
on late service of the notice or
no notice at all, it’s
immaterial.
[9]
Although it is
desirable that the relief sought should be as framed in the notice of
motion and that where it becomes necessary,
the notice of motion be
amended, I equally do not see any harm or prejudice in invoking the
relief as requested, provided all the
requirements for condonation
are satisfactorily met. Allowing the relief would after all be in the
interests of justice.
[10]
The relevant parts of
section 3 of the Act read,
“
3
(1) No legal proceedings for the recovery of
a debt may be instituted against an organ of state unless-
(a)
the creditor has given the organ of state in question notice in
writing of his or her or its intention to institute the legal
proceedings in question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal proceedings-
…
(2)
A notice must-
(a)
within six months from the date on which the debt became due, be
served on the organ of state in accordance with section 4(1);
and
…
(4)
(a) If an organ of state relies on a creditor’s
failure to serve a notice in terms of subsection (2)(a),
the creditor
may apply to a court having jurisdiction for condonation of such
failure.
(b)
The court may grant an application referred to in paragraph (a) if it
is satisfied that-
(i)
the debt has not been
extinguished by prescription;
(ii)
good cause exists for the
failure by the creditor; and
(iii)
the organ of state was not
unreasonably prejudiced by the failure.
[11]
The Applicant
gave details on why the notice was not sent on time including that he
was not aware of this legal provision. He also
alleged that all he
was interested in was to deal with the disciplinary hearing and at
the time he had no intention to sue the
Respondent. He also had to
raise funds to instruct the attorneys to lodge this claim which at
the time he did not have. It would
appear that the erstwhile
attorneys did not have a contingency fee agreement and as such, legal
fees had to be paid up front, something
that caused him to terminate
their mandate.
[12]
The current legal
representative has what appears to be a contingency fee agreement
with the Applicant as he has not charged him
an upfront payment fee.
His erstwhile attorneys contributed in the delay and/or sending the
notice to the wrong persons. The delay
by the Respondent in serving
the notice to defend the matter until when there was a default
judgment application did not salvage
the situation. I find the
explanation regarding non-compliance to be satisfactory.
[13]
The
Applicant’s submission to the effect that the debt has not been
extinguished by prescription and that the Respondent was
not
unreasonably prejudiced by its failure to comply with section 3(1) of
the Act is not in contention. It is the good cause requirement
that
is the subject of this application. The Respondent placed emphasis on
the judgment of
Grootboom
v National Prosecuting Authority and Another
[4]
,
where the Constitutional Court said,
“
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation. The interests of justice must be
determined with reference to all relevant factors. However,
some of
the factors may justifiably be left out of consideration in certain
circumstances. For example, where the delay is unacceptably
excessive
and there is no explanation for the delay, there may be no need to
consider the prospects of success. If the period of
delay is short
and there is an unsatisfactory explanation but there are reasonable
prospects of success, condonation should be
granted. However, despite
the presence of reasonable prospects of success, condonation may
be refused where the delay is excessive,
the explanation is
non-existent and granting condonation would prejudice the other
party. As a general proposition the various
factors are not
individually decisive but should all be taken into account to arrive
at a conclusion as to what is in the interests
of justice.
”
[14]
Counsel
for the Respondent made further reference to the judgment of the
Supreme Court of Appeal (the SCA) in
Madinda
v Minister of Safety and Security
[5]
where
it held,
“
The
second requirement is a variant of one well known in cases
of procedural non-compliance. See
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996
(1) SA 215 (W)
at
227I - 228F and the cases there cited. 'Good cause' looks at all
those factors which bear on the fairness of granting the relief
as
between the parties and as affecting the proper administration of
justice. In any given factual complex it may be that only
some of
many such possible factors become relevant. These may include
prospects of success in the proposed action, the reasons
for the
delay, the sufficiency of the explanation offered, the bona fides of
the applicant, and any contribution by other persons
or parties to
the delay and the applicant's responsibility therefor.”
[15]
The Respondent argues
that the claim against it lacks prospects of success. To the extent
that there could be a claim, the Applicant
was compelled to claim
under the Compensation for Occupational Injuries and Diseases Act,
no. 130 of 1993 (COIDA). The Respondent
further submitted that to the
extent that the injuries exist, they arose out of and in the scope of
the Applicant’s employment.
Where an employee is entitled to
compensation under COIDA any right of action against the employer is
excluded by section 35(1)
which provides,
“
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.”
[16]
In
advancing this argument, the Respondent relied on the SCA judgment of
Churchill
v Premier of Mpumalanga and Another.
[6]
Interestingly,
the Applicant also relies on the same judgment in arguing that the
Respondent is misinterpreting COIDA. Section 25
of COIDA provides,
“
If
an employee meets with an accident resulting in his disablement or
death such employee or the dependants of such employee shall,
subject
to the provisions of this Act, be entitled to the benefits provided
for and prescribed in this Act.”
Accident
is defined under COIDA as meaning 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. [My emphasis].
Interpretation
of COIDA through
Churchill
judgment
.
[17]
Ms. Churchill had
instituted an action against her employer for damages linked to the
assault on her person by a group of protesting
fellow employees. A
plea raised by her employer to the effect that her claim was covered
under COIDA was upheld by the trial court
leading to the appeal
before the SCA. In the course of a protest by members of a trade
union at the offices of the Premier of Mpumalanga where
Ms. Churchill worked, she returned to her office, which she
found to be locked. This annoyed her and in frustration she
uttered
an expletive which was overheard by nearby protestors, who
misconstrued it to be directed at them. They then assaulted
and
humiliated her in front of other employees causing her physical and
psychiatric injuries.
[18]
It was agreed between
the parties that the incident had arisen “in the course of”
her employment but the dispute was
whether it had arisen “out
of” her employment. The fact that the assault took place at her
workplace, made it easy
to conclude that it arose in the course of
her employment. In answering the question in dispute, the SCA
analysed the history of
COIDA and a number of judgments including
foreign authorities.
[19]
The
SCA made reference to its earlier decision of
MEC
for Health, Free State v DN
[7]
where
a doctor on night duty, walking along a passage between two wards,
was assaulted by an intruder, who hit her with a brick
and raped her.
Her claim for damages against the MEC, on the basis that, through
negligence, inadequate security precautions had
been taken, was met
with a plea based on s 35(1) of COIDA. The plea was dismissed by the
SCA per Harms ADP who held,
“…
the
question that might rightly be asked is whether the act causing the
injury was a risk incidental to the employment…
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.”
[8]
[My
emphasis].
[20]
In
Churchill
,
the SCA held therefore that the right approach was to examine closely
the facts of each case in order to decide whether the person's
injuries arose out of their employment. The closer the link between
the injury sustained and the performance of the ordinary duties
of
the employee, the more likely it will be that they were sustained out
of their employment. The further removed from those duties,
and the
less the likelihood that those duties will bring the employee into a
situation where such injuries might be sustained,
the less likely
that they arose out of their employment.
[9]
The
SCA concluded therefore as follows,
“
It
is not apparent to me why the possibility of protests or industrial
action turning violent and resulting in assaults on non-participating
employees, means that the assaults are risks incidental to the
employment of those assaulted. The wider implications of this were
explored with counsel. They appear to be far-reaching. Take the case
of a non-striking employee who crossed a picket line to work
and was
condemned as a scab by the strikers. Would an aggravated assault
aimed at persuading them to desist arise from their employment?
Would
it make a difference if the assault was an act of revenge after the
strike ended? Neither situation seems to me to be closely
connected
to the performance of their duties as an employee. To adopt the
language used in
Khoza
[10]
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.
[11]
[My
emphasis].
[21]
The SCA concluded
that the assault on Ms. Churchill did not arise out of her
employment. The appeal was as such upheld and the plea
was dismissed.
The SCA did acknowledge though that there are instances where the
assault can arise in the course of employment
such as jobs the nature
of which gives rise to a risk of assault by co-workers, outsiders or
criminals arising from the performance
of the worker's ordinary
duties. Security personnel come to mind in that regard. It said,
“
Assaults
sometimes occur in the context of employment and may arise from it,
as in the case of the trammer in
McQueen
[12]
assaulted
by a miner after he tried to pull him to work at a different point in
the mine. But assault on a co-worker is treated
in many, if not most,
workplaces as a serious disciplinary offence that may lead to
dismissal. It is not something that ordinarily
arises from a person's
employment. Where the assault occurs in the workplace, but as a
result of something external to the workplace
and the duties of the
person assaulted, it is difficult to see on what basis it can be said
to arise out of their employment.”
[22]
The
reference to
McQueen
by
the SCA above opened the doors for the Respondent to rely and refer
this court to
Kelly
v Board of Management Trim Dist. School
[13]
a
1913 judgment by a court of appeal of Ireland. This is because
reference was made to it in
McQueen
judgment.
Counsel for the Respondent in an attempt to draw similarities
submitted that
Kelly
involved
the killing of a teacher at the hands of his pupils, which the court
found to have arisen out of his employment. Reference
to this
authority is misleading for reason that no disclosure was made that
this was not an ordinary school but an industrial school
the boys of
which were known to be rough and unruly. This feature alone is enough
to distinguish
Kelly
from
the facts of this case. Over and above that, it remains doubtful if
the Ireland court of appeal would still approach facts
as in
Kelly
,
from the same angle they did over a century ago, if they were to be
presented before it today.
[23]
Turning
to the facts of this case, it is equally obvious that the assault on
the Applicant arose in the course of his employment.
The question is
whether it was out of his employment. It should therefore be asked as
it was in
Khoza
[14]
,
“what connection is there in the assault with the working
duties of the teacher?” This unless the Applicant was a
boxing
coach, of which he was not. Just as it was concluded in
Churchill
,
the closer the link between the injury sustained and the performance
of the ordinary duties of the teacher, the more likely it
will be
that they were sustained out of their employment. The further removed
from those duties, and the less the likelihood that
those duties will
bring the Applicant into a situation where such injuries might be
sustained, the less likely that they arose
out of his employment.
[24]
The
motive of the learner in attacking the Applicant is irrelevant.
Questioning the motive for the attack falls into the very error
identified in
MEC
for Health, Free State v DN
[15]
of
using the motive of the perpetrator to establish the requisite
connection between the incident and the duties of the injured
party.
It is rather apposite to ask 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 Applicant’s employment.
[25]
I am unable to see
how assault on a teacher on duty at school arises out of his
employment. I cannot conceive of the risk of assault
being incidental
to teaching. The argument that the claim is barred by section 35(1)
of COIDA is therefore with no merit as evidence
presented does not
show that the assault arose out of the Applicant’s employment.
[26]
Over
and above the reasons given above, I am of the view that the defence
on COIDA would mark a departure from the established approach
such as
the one adopted in
Jacobs
v The Chairman of the Governing Body of Rhodes High School and
Others.
[16]
In
that case the court awarded the damages in excess of R1.1 million to
a teacher who was bludgeoned by a hammer in the hands of
a learner in
full view of the other learners in classroom. When counsel to the
Respondent was alerted to this matter, he submitted
that
Jacobs
could
be distinguished in that COIDA was not pleaded. I am of the view that
this submission is not good enough. If the Applicant
is to forfeit
the rights that claimants in his situation always enjoyed in the
past, this should at least take place after he had
exercised his
right to present evidence to prove his claim in a trial.
[27]
Further
submission was made by the Respondent to the effect that since the
Applicant was subjected to a disciplinary hearing the
outcome of
which was not appealed against, the outcome was rendered final thus,
res
judicata.
This
argument is without merit as the outcome of a disciplinary hearing is
not a court judgment.
Res
judicata
can
only be pleaded when the settlement of the matter was through a court
judgment, between the same parties and over the similar
issues.
[17]
I
am therefore of a view that a good cause was shown regarding the
Applicant’s failure to comply with section 3(1) of the
Act.
[28]
The Applicant was
successful in this application and I see no reason why costs should
not follow the order. This is one of those
cases where the Respondent
did not have tangible reason to oppose the application.
[29]
For these reasons set
out above, I make the following order.
[29.1]
Condonation in terms of
section 3(4)(a)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act, No. 40 of 2002
,
occasioned by the Applicant’s failure to serve a notice as
prescribed, is hereby granted.
[29.2]
The Respondent is ordered to pay the costs of this application
including the costs of Senior Counsel.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE
APPLICANT:
ADV D MILLS SC
INSTRUCTED
BY
PRINSLOO
WHITEHEAD
MADALANE
ATTORNEYS
PRETORIA
C/O
LUNEBURG JANSE VAN
VUUREN
ATTORNEYS
MBOMBELA
FOR
THE RESPONDENT
ADV. DH WIJNBEEK
INSTRUCTED
BY
ADENDORF THERON INC
MBOMBELA
DATE
HEARD
24 MAY 2022
JUDGMENT
DELIVERED
28 JUNE 2022
[1]
See amended particulars of claim on p. 49 of the paginated bundle.
[2]
(187/11)
[2017] ZAECMHC 31 (12 September 2017) at para 18.
[3]
See para 7.3 of the replying affidavit on p. 233 of the paginated
bundle.
[4]
(CCT
08/13)
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC),
(21 October 2013) at para 50-51
[5]
[2008]
ZASCA 34
;
2008 (4) SA 312
(SCA) at para 8.
[6]
(889/2019)
[2021] ZASCA 16
;
[2021] 2 All SA 323
(SCA);
2021 (4) SA 422
(SCA) (4
March 2021).
[7]
2015
(1) SA 182
(SCA)
[8]
MEC
for Health, Free State v DN (supra)
at
para 31-32.
[9]
See
Churchill
(supra)
at para 20.
[10]
See
Minister
of Justice v Khoza
1966 (1) SA 410 (A).
[11]
See
Churchill
(supra)
at para 28
[12]
McQueen
v Village Deep GM Co Ltd
1914
TPD 344.
[13]
(6 B.W.C.C. 921)
[14]
Supra
,
see footnote 10 above.
[15]
Supra
at
para 31.
[16]
(7953/2004)
[2010] ZAWCHC 213; 2011 (1) SA 160 (WCC) (4 November 2010)
.
[17]
See
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A).