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2022
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[2022] ZANCHC 64
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Assmang (Pty) Ltd Black Rock Mine v Majeng In re Majeng v Assmang (Pty) Ltd Black Rock Mine and Another (398/2022) [2022] ZANCHC 64 (28 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 398/2022
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
In
the matter between:
ASSMANG
(PTY) LTD BLACK ROCK MINE Excipient/1
st
Defendant
and
PATRICK
THUPAYABOTLHE MAJENG Respondent/Plaintiff
In
re:
PATRICK
THUPAYABOTLHE MAJENG Plaintiff
and
ASSMANG
(PTY) LTD BLACK ROCK MINE First
Defendant
RAND
MUTUAL ASSURANCE COMPANY LTD Second
Defendant
Coram:
Lever J
JUDGMENT
Lever
J
1.
This is an exception that was argued
before me in open court on the 21 October 2022. At the hearing hereof
Ms Nxumalo, who appeared
for the respondent/plaintiff, indicated that
the respondent had already filed a Notice of Intention to Amend his
Particulars of
Claim. Such notice to amend was not on my file. Ms
Nxumalo handed a copy, stamped by the Registrar, to me together with
a stamped
copy of what purported to be the amended Particulars of
Claim.
2.
I pointed out that in terms of Rule 28
of the Uniform Rules of Court (the Rules) the excipient had 10 days
in which to object to
the proposed amendment. This was also correctly
reflected on the Notice of Intention to Amend. Ms Erasmus, who
appeared for the
excipient, indicated that the excipient was still
considering whether to object to the proposed amendment or not.
3.
Both the Notice of Intention to Amend
and the purported amended Particulars of Claim bore the Registrar’s
date stamp of the
18 October 2022. In other words, both the Notice of
Intention to Amend and the purported amended Particulars of Claim
were filed
on the same day. These documents were filed only two clear
court days before the hearing of this matter. Ms Nuxmalo acknowledged
that the excipient had 10 days after the Notice of Intention to Amend
was filed to object to the proposed amendment. In these circumstances
I handed the purported amended Particulars of Claim back to Ms
Nxumalo.
4.
At the time that this matter was heard,
the excipient had the right to either object to the amendment under
the provisions of Rule
28, or deal with it as an irregular step under
the provisions of Rule 30.
5.
The respondent had filed his Heads of
Argument late. Such Heads of Argument were only filed on the 21
October 2022. The respondent
sought condonation for filing his Heads
of Argument outside the time it was required to be done. In the
interests of handling the
matter as cost effectively and as
expeditiously as possible I granted such condonation and accepted the
proffered Heads of Argument.
6.
Turning now to the merits of the
exception itself. The exception filed by the excipient/first
defendant is that the Particulars
of Claim do not disclose a cause of
action.
7.
It
is well established, that for the purpose of deciding an exception,
the facts pleaded in the Particulars of Claim are accepted
as
correct.
[1]
The question is, in
the circumstances of this case, do such facts disclose a cause of
action or not.
8.
It appears from the relevant Particulars
of Claim that the respondent/plaintiff was an employee of the
excipient/first defendant
at the material time. It further appears
that an accident occurred at the excipient/first defendant’s
mine whilst the respondent/plaintiff
was on duty. The plaintiff was
injured in such accident.
9.
The excipient/first defendant excepted
to this claim as not disclosing a cause of action on the basis that:
Respondent/plaintiff
was an employee of the excipient/first
defendant; The provisions of section 35(1) of the Compensation for
Occupational Injuries
and Diseases Act 130 of 1993 (COIDA) applied in
the said circumstances; There was no obligation on the
excipient/first defendant
to compensate the respondent/plaintiff in
those circumstances; By virtue of the provisions of section 35(1) of
COIDA, the respondent/plaintiff’s
common law right to make such
claim has been extinguished; and respondent/plaintiff has not pleaded
any circumstances which would
place its claim outside the purview of
section 35(1) of COIDA.
10.
Section 35(1) of COIDA reads as follows:
“
35(1)
No action shall lie by an employee or any dependant of an employee
for the recovery of damages in respect of any occupational injury or
disease resulting in the disablement or death of such employee
against such employee’s employer, and no liability for
compensation on the part of such employer shall arise save under the
provisions of this Act in respect of such disablement or death.”
11.
In
the Notice of Intention to Amend the respondent/plaintiff seeks to
couch his claim under the provisions of the Occupational Diseases
in
Mines and Works Act
[2]
(ODIMWA).
Ms Nxumalo also tried to invoke the provisions of the Occupational
Health and Safety Act as well as the Mining Safety
Act. Neither Act
is dealt with in the Notice of Intention to Amend. Nor does Ms
Nxumalo refer to any section of such Act specifically
or explain why
I should have regard to such Acts.
12.
However, the respondent/plaintiff in its
Notice of Intention to Amend does not set out facts and/or
circumstances that would exclude
his claim from the operation of
s35(1) of COIDA. The Notice of Intention to Amend is itself a tacit
acknowledgement that the exception
is a good one. This is reinforced
by the fact that the said Notice of Intention to Amend doesn’t
deal with s35(1) of COIDA
at all. In addressing argument to this
court in the respondent/plaintiff’s Heads of Argument and in
her Oral address Ms Nxumalo
does not deal with s35(1) at all nor does
she submit that ODIMWA ousts s35(1) of COIDA in the particular
circumstances of the respondent/plaintiff’s
case.
13.
Ms Nxumalo’s argument on behalf of
the respondent/plaintiff as I understood it was that I must judge the
exception on the
current state of the pleadings. The difficulty I
have with her submission is that she includes the amendment in the
current state
of the pleadings. On the facts as set out above the
amendment has not yet been effected.
14.
In support of her argument Ms Nxumalo
referred to an unreported judgment of Mr Justice Koen in the matter
of THE MEC FOR HEALTH,
FOR THE KWAZULU-NATAL PROVINCE & 2 OTHERS
v MEDICAL INFORMATION TECHNOLOGY SA (PTY) LTD handed down in the
Kwazulu-Natal Division,
Pietmaritzburg on the 8 June 2022.
15.
The difference between the facts of the
matter decided by Koen J in the above matter and the present matter
is that in the MEC Health
KZN matter the amendment had been effected
after the 10-day period contemplated in Rule 28 without their being
any objection to
such amendment, which was subsequently effected. In
the present matter the excipient/first defendant at the date of the
hearing
of this matter had been afforded no such opportunity.
Accordingly, the present matter will have to be decided on the basis
that
the proposed amendment has not as yet been effected and cannot
be considered part of the pleadings.
16.
Ms
Nxumalo also referred me to the judgment of Justice Malindi in the
matter of MADIRO v MADIBENG LOCAL MUNICIPALITY and 1 OTHER
[3]
.
My reading of the judgment of Malindi J supports my reasoning as set
out above and not the submission made on behalf of the
respondent/plaintiff
herein.
17.
Accordingly, I find that the exception
is still apposite and is a good exception and the
respondent/plaintiff has not raised facts
that respond directly to
such exception. Consequently, I must uphold the exception.
18.
As an aside I note that the definition
section of ODIMWA does not on the face of it allow for the
respondent’s claim as it
is couched in the proposed amendment.
However, it is not for me to decide the proposed amendment. That will
be done at the appropriate
time. As indicated above the exception was
decided on the papers as they stood when the exception was argued.
19.
Ms Erasmus conceded that it would not be
appropriate to strike out the respondent/plaintiff’s claim at
this point. The respondent/plaintiff
will be given a chance to pursue
his contemplated amendment in accordance with the Rules.
20.
The only outstanding issue is the issue
of costs. The Notice of Set Down for the exception was served and
filed on the 28 June 2022.
The Notice of Intention to Amend was
served and filed on the 18 October 2022. This afforded only two clear
court days before the
hearing on the 21 October 2022. At this point
the excipient/first defendant was already committed to the costs of
an opposed exception.
In these circumstances, it would be
unreasonable to deprive the excipient/first defendant of its costs.
In
the circumstances, the following order is made:
1)
The exception is upheld.
2)
The respondent/plaintiff is afforded the
opportunity to pursue its proposed amendment in accordance with the
Rules.
3)
Should the respondent/plaintiff fail to
pursue such amendment or in the event of such amendment being refused
after it has been
considered by this court, then, subject to any
further order the court considering such amendment might make, the
excipient/first
defendant is granted leave to make an application on
these papers, duly supplemented, if required, to have the plaintiff’s
claim struck out.
4)
The respondent/plaintiff will pay the
costs of the exception on the ordinary party-and-party scale.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
APPEARANCES:
Excipient/1
st
Defendant:
ADV S
ERASMUS oio HAARHOFFS
INC.
Respondent/Plaintiff:
ADV
R
NXUMALO oio LULAMA LOBI INC.
Date
of Hearing:
21
October 2022
Date
of Judgment:
28
October 2022
[1]
STEWART & ANOTHER v BOTHA & ANOTHER
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at
313F.
[2]
Act 78 of 1973.
[3]
SAFLII (16592/2018) [2021] ZAGPPHC 667 (12 September 2021)