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2021
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[2021] ZANCHC 46
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Itumeleng v Fidelity Security Group (Pty) Ltd and Others (2924/2018) [2021] ZANCHC 46 (10 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2924/2018
Heard
on: 15/06/2021
Delivered
on: 10/09/2021
Reportable:
YES/ NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES/ NO
Circulate
to Regional Magistrates YES/ NO
In
the matter between:
ITUMELENG
GODFREY MELATO
Plaintiff
and
FIDELITY
SECURITY GROUP (PTY) LTD
First Defendant
FIDELITY
SECURITY SERVICES (PTY) LTD
Second Defendant
SHADRACK
VINGER
Third Defendant
JUDGMENT:
APPLICATION IN TERMS OF RULE 33(4)
MAMOSEBOJ
[1]
The plaintiff, Mr Itumeleng Godfrey Melato, instituted action against
Fidelity Security Group (Pty) Ltd, Fidelity Security Services (Pty)
Ltd and Mr Shadrack Vinger, the defendants, claiming R1,324,000.00
under the following heads of damages :
1.1
General damages for pain and suffering, emotional shock and
loss of amenities R500,000.00;
1.2
Future medical expenses in the estimated amount ofR200,000.00;
1.3
Past loss of earnings in the amount of R24,000.00;
1.4
Future loss of income and/or earning capacity in the estimated
amount of R600,000.00 based on whether the plaintiff will be required
to retire earlier or not.
The
first and second defendants are cited in the action as the employers
of the third defendant and the claim against them is based
upon the
principle of vicarious liability for the actions of the third
defendant. All the defendants are defending the action.
[2]
The defendants brought an application in terms of Rule 33(4) seeking
the following relief:
2.1.
Separation of issues to determine the questions of law and
fact before the determination of merits and quantum of the plaintiffs
claim. What follows are those questions of law and fact first:
2.1.1
Whether the plaintiffs claim for damages against the
defendants arising from bodily injuries allegedly sustained in an
incident
which occurred on 31 December 2016 at the Diamond [Pavilion]
Mall was settled, extinguished or otherwise compromised on or before
27 February 2018;
2.1.2
In the event of it being found that the plaintiffs claim was
not settled, extinguished or otherwise compromised, whether his claim
or any residue thereof falls to be reduced in terms of section 36 of
the Compensation for Occupational Injuries and Diseases Act,
130 of
1993 (COIDA).
[3]
The defendants further sought that the action proceedings be stayed
until the above questions have been disposed of. Further ancillary
relief as to costs is also sought.
[4]
The facts
are largely common cause. The plaintiff is a security guard employed
by Thompson Security. On 31 December 2016 and at
Diamond Pavilion
Mall, Kimberley, the third defendant, Mr Shadrack Vinger, an employee
of the second defendant, Fidelity Security
Services (Pty) Ltd, shot
the plaintiff with a firearm while the plaintiff was on duty. The
plaintiff reported the accident
[1]
to the Compensation Commissioner at the Department of Labour for
purposes of the Compensation for Occupational Injuries and Diseases
Act, 130 of 1993 (COIDA). The date on which he
submitted
the claim is unspecified. He received compensation
[2]
in the amount of R4,399.53 for permanent disablement, assessed by the
commissioner at 2% and in terms of COIDA.
[5]
Mr Vinger was criminally charged and appeared in the Regional Court
in Kimberley. On or about 27 August 2019 the State, on behalf of the
plaintiff, and Mr Vinger, entered into a written agreement
in terms
of section 105A of the Criminal Procedure Act, 51 of 1977 (CPA).
Consequent to this agreement, Mr Vinger pleaded guilty
and was
sentenced as follows:
"5(Five)
years imprisonment, totally suspended for a period of 5 (five) years
on condition that the accused is not found guilty
of the offence of
murder or attempt thereto or assault with the intent to cause
grievous bodily harm or contravention of the
Firearms Control Act,
No.60 of 2000
, during the period of suspension and further subject to
the condition that
the
accused
makes
payment of an amount of R50,000.00 as compensation to the complainant
by means of monthly instalments of R5,000.00. The first
payment is to
be made on/or before 07 March 2018 and thereafter on/or before the
7
th
day of each and every consecutive month by direct deposit into the
complainant's banking account with the following details
...
[3]
.
[6]
The parties are not in agreement that the identified questions of
law
be separated. The application for separation is opposed primarily on
three grounds. The first ground was that it is not convenient
to
separate the issues because the separation results in a piecemeal
approach discouraged by the courts. The second ground was
that there
may be oral evidence to be led which extends beyond the question of
law. Thirdly, that in
s 105A
there is no reference to
s 300
of the
CPA and it cannot be said that the magistrate had considered all the
relevant factors.
[7]
Rule 33
, in as far as it is relevant, reads as follows:
"33
Special Cases and Adjudication upon Points of Law
(1)
The parties to any dispute may, after institution of
proceedings, agree upon a written statement of facts in the form of a
special
case for the adjudication
of the court.
(2)(a)
Such statement
shall set forth
the facts
agreed
upon, the questions
of
law
in
dispute between the
parties and
their contentions thereon. Such statement shall be divided into
consecutively numbered paragraphs and there shall be
annexed thereto
copies of documents necessary to enable the court to decide upon such
questions. It shall be signed by an advocate
and an attorney on
behalf of each party or, where a party sues or defends personally, by
such party.
(b)
Such special case shall be set down for hearing in the manner
provided for trials or opposed applications, whichever may be
more
convenient.
(c)
…
(3)
At the hearing thereof the court and the parties may
refer to the whole of the contents of such documents and the court
may draw
any inference of fact or of law from the facts and documents
as if proved
at a trial.
(4)
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.
(5)
When giving its decision upon any question in terms of
this rule the court may give such judgment as may upon such decision
be appropriate
and may give any direction with regard to the hearing
of any other issues in the proceeding which may be necessary
for the final disposal
thereof
(6)
If the question in dispute is one of law and the
parties are agreed upon the facts, the facts may be admitted and
recorded at the
trial and
the court may give judgment
without
hearing any evidence.
"
[8]
The pleadings are closed and the matter was enrolled for trial for
15
June 2021. It is significant to note that the parties had attended a
pre-trial conference on 2 September 2020. Paragraph 6 of
the minute
of the pre-trial, in particular clause 6.2 thereof, is material for
present purposes. It reads:
"
...
Defendants'
counsel indicated
that
there is a question of law, which, in their view,
may
conveniently be adjudicated
before evidence is led, or
separately from any other question. Plaintiff's counsel
requested that the
defendants' legal representatives
prepare a stated case on such issue(s) for consideration by
plaintiff's legal representatives."
(my emphasis)
[9]
The plaintiff and or his legal representatives participated in the
pre-trial conference and received the minutes thereof. Despite
the
plaintiff also having been aware of the defendants' plea, which
included the aforementioned questions of law, nothing came
out of it,
hence this application was launched to separate the issues.
[10]
After careful thought, it does seem to me that the present case is
indeed a matter where the
two issues concerning points of law can
conveniently be
decided
separately from any other issues in dispute and that such a procedure
is clearly expedient having taken cue from the remarks
by Navsa ADP
and Mothle AJA in
Tshwane
City
[4]
where
the Court said:
"[2]
Careful thought should be given to a separation of issues and the
issues to be tried separately have to be clearly circumscribed
in
order to avoid confusion.
A decision
on a
separate
issue
should be dispositive of a
portion of the relief claimed and essentially should
serve
expedition
rather than cause
delay in the
resolution of the principal issue.
"
It
therefore follows that the application to separate the issues in
terms of
Rule 33(4)
and hear paras 1.1 and 1.2 first stands to
succeed because it will be expedient and dispositive of the relief
claimed.
[11]
As stated
earlier, the plaintiff was injured on duty and had launched a claim
against the three defendants jointly and severally.
There is a
dispute between the parties in respect of the categorisation of the
compensation awarded by the Regional Court Magistrate
following a
plea-bargaining agreement. While Mr Mooij, counsel for the
defendants, submitted that the order of compensation by
the Regional
Court constitutes an award as envisaged in
s 300(3)(a)(ii)
of the CPA
which stipulates that an award made under this section shall have the
effect of a civil judgment, Ms Erasmus, counsel
for the plaintiff,
relying on the commentary in Hiemstra,
[5]
argued that the sentence was imposed in terms of
s 297
of the CPA and
the payment of
R50,000.00
was
merely a condition of the suspension and not an order of compensation
as contemplated in
s 300
of
the CPA.
[12]
It is also common cause that injury on duty falls squarely within the
purview of COIDA.
Section 105A(a)(ii)(dd)
specifically permits an
award of compensation as contemplated ins 300. The following clauses
in the pre-sentence agreement entered
into between the parties on 27
February 2018 are noteworthy:
"4.
7
He
is
willing
to
compensate the
complainant
for
the
injury
that
was
suffered.
4.10
He is willing to
compensate
the
complainant
for
pain
and
suffering. The complainant
is willing
to
enter into negotiations for a civil settlement. The complainant and
Investigating Officer were consulted and accepts this agreement.
The
complainant suffered
a flesh wound
and
has recovered.
"
[13]
Although the award or the order does not specifically make reference
to
s 300
, the terms used in the agreement, at clauses 4.7 and 4.10
unambiguously refer to
"compensation for injuries"
and
"the negotiations
are for a civil settlement.
"
Moreover, if one has regard to the fact that there was no appeal or
review launched against the regional court proceedings,
then the
submission that this was not compensation as contemplated in
s 300
cannot pass muster.
[14]
The
plaintiff, at whose instance the award was granted may, within 60
days after the date on which the award was made, renounce
the award
in writing. Unquestionably, the plaintiff did not renounce the award
as aforesaid. He is, therefore, precluded from instituting
any
further civil proceedings against the third defendant in respect of
the injury for which the award was made.
[6]
Had the plaintiff noted his dissatisfaction with the amount of
compensation awarded by the court in terms of
s 300
, he would have
been entitled to renounce the award within the 60-day period in order
to be able
to institute separate civil proceedings
against
the
defendants
for
a claim
greater than the compensation
awarded
by the
court.
[15]
It is necessary to show the distinction between
sections 297
and
300
.
Section 297(1)(a)(i)(aa)
provides that where the court convicts a
person of any offence, other than an offence in respect of which any
law prescribes a
minimum punishment, the court may, in the exercise
of its discretion, postpone the passing of sentence for a period not
exceeding
five years and release the person concerned on one or more
conditions, which may include an award of compensation. An important
distinction between the two sections is that a compensation order in
terms of
s 300
is made as part of the conditions of sentence, whereas
a compensation order in terms of
s 297
is a condition of suspension
of sentence. Failure by the accused to pay the compensation in terms
of
s 300
will not result in his incarceration. However, where the
accused fails to pay compensation in terms of
s 297
he/she may be
committed to prison.
[16]
A further distinction is that
s 297
does not give the complainant the
right to apply for compensation. The court has a discretion whether
to invoke the provisions
of this section or not. Any award of
compensation under
s 297
does not have the effect of a civil
judgment, as is the case of an award made in terms of
s 300.
Where
the amount of compensation awarded in terms of
s 297
is less than the
actual amount of damages suffered by the complainant, the complainant
concerned will be entitled to institute
separate civil proceedings
against the accused for the recovery of the balance of such damages.
[17]
Sight must not be lost of the following facts: The Magistrate made
that award based on
the information that
the plaintiff suffered a
flesh wound and has recovered.
I could not detect in the
plaintiffs particulars of claim that he did not instruct the
prosecutor to negotiate the civil settlement
on his behalf. More
importantly, there was no renunciation of the award within the sixty
days of the order. The plaintiff claimed
his damages from the
defendants jointly and severally, therefore, if he settled with the
third defendant and accepted the amount,
it absolves the first and
second defendants.
[18]
Regard
being had to the analysis above, I am persuaded that the defendants
have made the case that the plaintiffs claim has been
settled
or
extinguished on 27 February 2018. I do not deem it necessary to deal
with the alternative in 1.2 above. Careful thought
has been
given to the application
for a
separation of issues.
[7]
The
conclusion
reached,
therefore,
is
dispositive of the entire claim by the plaintiff.
[19]
In as far as costs are concerned there is no reason why they should
not follow the result.
[20]
It is ordered that:
1.
The application for the separation of issues to determine the
questions of law and fact before the determination of merits and
quantum
of the plaintiffs claim is granted in terms of Rule 33(4) of
the Uniform Rules of Court.
2.
The plaintiffs claim is dismissed with costs.
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the plaintiff:
Adv. SL Erasmus
Instructed
by:
Elliot, Maris, Wilmans & Hay Attorneys
For
the defendants:
Adv. A Mooij
Instructed
by:
Blake Bester De Wet & Jordaan Inc
c/o
Van de Waal & Partners
[1]
Sec 1 of COIDA provides the following definition for the word
"accident": accident means 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.
[2]
"compensation' means compensation in terms of this Act, and,
where applicable, medical aid or payment of the cost of such
medical
aid.
[3]
I deemed it unnecessary to include the banking details in this
judgment.
[4]
Tshwane City v Blair Athol Homeowners Association
2019 (3) SA 398
(SCA) at 400 para 2
[5]
Hiemstra's Commentary on the Criminal Procedure, 6th Ed at page 779
[6]
(see s 300(5)(a) and (b)).
[7]
Tshwane City v Blair Atholl Homeowners Association
2019 (3) SA 398
(SCA) para 2