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[2019] ZAGPPHC 26
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Compensation Solutions (PTY) Limited v Compensation Commissioner and Another (47268/18) [2019] ZAGPPHC 26 (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NO: 47268/18
In
the matter between:
COMPENSATION
SOLUTIONS (PTY) LIMITED
APPLICANT/PLAINTIFF
And
THE
COMPENSATION COMMISSIONER
FIRST RESPONDENT/ DEFENDANT
THE
DIRECTOR-GENERALOF THE
DEPARTMENT
OF LABOUR OF THE
NATIONAL
GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA
SECOND RESPONDENT/ DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
[1]
This is an opposed application for
Summary Judgment.
BACKGROUND
[2]
The plaintiff conducts business of
inter
alia
factoring medical accounts. The
plaintiff annually factors approximately 260 000 medical accounts
from approximately 1250 medical
services providers, that are payable
by the defendants from the Compensation Fund.
[3]
The fund was established in terms of
section 15 of the Compensation for Occupational Diseases and Injuries
Act, Act 130 of 1993
("CIODA").
[4]
The plaintiff took cession of all
rights, title and interest in and to each one of all such accounts in
terms of a separate agreement
concluded between the plaintiff and
each of the approximately 1810 medical service providers.
[5]
The plaintiff in conducting its
business, submitted claims for payment of medical accounts so
factored to the first defendant, who
is required in terms of COIDA
and the duties delegated to him by the second defendant, to process
and validate medical accounts
to the plaintiff from annual
contributions/premiums collected by the first defendant from
employees registered with it.
[6]
During or about 2009, the plaintiff
instituted proceedings against the defendants alleging that the
defendants had failed to fulfil
their duties in terms of COIDA.
Particularly, so the plaintiff alleges, the defendants had failed to
process accounts submitted
by the plaintiff to
effect payments.. Flowing from such
proceedings,
a settlement agreement, annexure ("POC
1") was reached, which resulted in a court order, marked "POC
2"
annexed to the particulars of claim.
[7]
In terms of the settlement agreement the defendants were obliged to
process and validate or validly reject medical accounts
and effect
payment of such validated medical accounts, within 75 calendar days
of acceptance by the first defendant of a claim
for compensation in
terms of COIDA by an employee resulting from an injury whilst on
duty. Alternatively where such medical accounts,
relating to that
accepted claim, were submitted by the plaintiff after the date of
acceptance of the claim by the first defendant,
within 75 calendar
days of submission of such medical accounts.
[8]
The defendants have breached the terms of annexures "POC 1"
and "POC 2", in that the medical accounts submitted
by the
plaintiff to the first defendant for payment in terms of COIDA,
pursuant to accepted claims, have not been paid within the
75 day
period, and remain unpaid due and payable despite having been
processed and validated by the first defendant.
THE
LAW
[9]
In the matter Breitenbach v Fiat SA
(Edms) BPK at 227F-G, the Court held:
"To
avoid summary judgment the defendant is required in terms of Rule
32(3)
(b)
of the High Court Rules to set out in an affidavit, facts which if
proved at the trial, will constitute an answer to the plaintiff's
claim. The rule also requires that the defendant satisfy the court
that the defence is bona fide. This means that the defendant
must
swear to
a
defence,
valid in law, in
a
manner
which is not
seriously
unconvincing. Finally, it is required of the defendant that he
discloses
fully
the nature and grounds of the defence and the material facts relied
upon therefore. This means that the statement of material
facts must
be sufficiently full to persuade the court that what the defendant
has alleged, if it is proved at trial, will constitute
a
defence to the plaintiff's claim."
[10]
In First National Bank of Sa Ltd v
Myburg and Another
2002 (4) SA 176
(C) at 177D-F the Court held:
"The
Court will grant summary judgment only where the plaintiff has an
unanswerable case. If it has the slightest doubt, the
Court will not
grant summary judgment."
DEFENCES
BY THE DEFENDANT
[11]
The defendants in opposition to the
summary judgment had raised the following points
in
limine
which it persisted with at
the hearing of the application:
11.1.
The first being that the plaintiff
has no
locus standi;
11.2
. secondly, non-compliance with
the provisions of Rule 32(2);
11.3
thirdly, non-compliance with the
provisions of Rule 18; and
11.4
lastly, failure by the plaintiff to
prove that the claims submitted are due, owing and payable.
Absence
of Locus Standi
[12]
In
this regard the defendants contend that, as the plaintiff alleges in
its particulars of claim that it took cession of all right,
title and
interest in and to all accounts of separate agreements concluded
between the plaintiff and each of the medical service
providers, the
plaintiff should have annexed the cession agreements concluded with
the medical providers to prove its
locus
standi.
Failure
, by the plaintiff to annex the cession agreements it so contends,
disentitled to plaintiff to institute these proceedings
against the
defendants.
[1]
[13]
Upon a mere reading of the particulars
of claim, it is clear that the plaintiff's particulars of claim is
not premised on the cession
agreements concluded with
each of the medical service providers, but that it is premised, on
the settlement agreement
("POC 1") which resulted in an
order of court ("POC 2").
[14]
In terms of both the settlement
agreement and the court order, the plaintiff is cited as the
applicant and this is the
locus
standi
which the plaintiff relies
upon before this court.
[15]
Consequently, I find no merit in the
first point
in limine
raised
.
Non-compliance
with Rule 32(2)
[16]
Rule 32(2) provides as follows:
"The
plaintiff shall within 15 days after the date of delivery of notice
of intention to defend, deliver notice of application
for summary
judgment, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying
the cause of
action and the amount, if any, claimed and stating that in his
opinion there is no bona fide defence to the action
and that notice
to defend has been delivered solely for the purpose of delay....."
[17]
In
the affidavit filed in support of the application for summary
judgment, the deponent sets out that he is the Chief Executive
Officer of the applicant, and that he is duly authorised to depose to
the affidavit in support of the application for summary judgment.
Furthermore, by virtue of his position within the plaintiff, both
operational and financial, he exercised control and authority
insofar
as all records and documents pertaining to this matter are concerned;
has first-hand knowledge of this matter and as such
he can and do
swear positively to the facts verifying the cause of action and the
amount claimed.
[2]
[18]
In this regard the defendant contends
that as the plaintiff's cause of action is based on the medical
services rendered by different
practitioners to different employees,
the deponent is neither the service provider, nor the medical
practitioner and has not rendered
any medical services to the
affected employees . Therefore, they challenge that the deponent has
any knowledge and as such they
further challenge that the deponent
can swear positively to the facts that form the subject-matter of
this action.
[19]
As previously mentioned, the plaintiff's
cause of action is not based on medical services either rendered by
it, as service provider
or as medical practitioners. Its cause of
action is based and "POC 1" and "POC 2" annexed
to the particulars
of claim.
[20]
The defendant having misconstrued the
plaintiffs cause of action, could therefore, not have meaningfully
challenged the authority
of the deponent to the affidavit filed in
support of the application for summary judgment.
[21]
Consequently, I conclude that the second
point in limine
also
without merit.
Non-compliance
with the provisions of Rule 18(4)
[22]
Rule 18(4) of the rules of court
provides as follows:
"Every
pleading shall contain a clear and concise statement of the material
facts upon which a pleader relies for his claim,
defence, or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto."
[23]
In Benson and Simpson v Robinson
1917
WLD 126
it was held that the object of pleading to is to define the
issues so as to enable the other party to know what case he has to
meet.
[24]
In this regard the defendants contend,
that the plaintiff as per paragraphs 5.2 and
of
the particulars of claim, relies and annexure "POC 1" and
"POC 2". If one has regard to annexure "POC1"
with specific reference to paragraph 3 thereof, it mandates the
first defendant to process the backlog medical accounts referred
to
in annexure
"JL12",
by 30 October 2009. Furthermore, the said "JL12" was not
annexed to the particulars of claim to
enable the defendants to
consider whether outstanding accounts forming the basis of this
action fall within the list.
[3]
[25]
In
addition to what has been stated above, if one considers the content
of annexure "POC 3" to the particulars of claim,
it
reflects dates of injury and treatment, all occurring after 31 July
2009; being the date when the agreement was made an order
of court.
As a result these outstanding accounts, so the defendants went on to
contend, cannot form part of the backlog medical
accounts as
contained in annexure "JL12" which was not attached to the
particulars of claim.
[4]
[26]
In respect of this
point
in limine,
Mr Welgemoed appearing on
behalf of the plaintiff had argued, annexure "POC 3"
contains sufficient particularity to enable
the defendants to reply
thereto. Furthermore, that the defendants have all the information
which they might require on their computer
system whereby the
correctness of the plaintiff's claim could be verified.
[27]
This argument with respect, I cannot
find favour with. It is not for the defendants to check their
computer systems to verify the
correctness of the plaintiff's claim.
If one has regard to annexure "POC 3" it reflects how the
liquidated amount sounding
in money sued for by the plaintiff was
arrived at, but more importantly it reflects as correctly pointed out
by Mr. Mothibe acting
on behalf of the defendants, dates of injury
and treatment all incurring after 31 July 2009. This being the date
when the settlement
agreement forming the underlying
causa,
was made an order of court.
[28)
A court in considering a summary judgment application is required to
assess as to whether a defendant has disclosed the
nature and
the grounds of his or her defence and whether on the facts so
disclosed the defendant appears to have as to either the
whole or
part of the claim, a defence which is bona fide and good in law.
[5]
[29]
Furthermore, in the matter Gulf Steel (Pty) Ltd v Rack-Rite Bop (Pty)
Ltd and Another
1998 (1) SA 679
(0) at 683r-J the Court held:
"In
view of the nature of the remedy the Court must be satisfied that
a
plaintiff who seeks summary judgment
has established its claim clearly on the papers and the defendants
have failed to set up
a
bona
fide defence as required in terms of the Rules of Court. There are
accordingly two basic requirements that the
plaintiff must meet, namely
a
clear
claim and pleadings which are technically
correct before the Court. If either of these
requirements is not met,
the Court is obliged to refuse summary judgment."
[30]
Ex facie annexures "POC 1 and POC 3" and for the reasons
alluded to
supra,
I am not persuaded that the plaintiff has
established its claim clearly on the papers and that its pleadings
are furthermore, technically
correct. Consequently, I find that the
point in limine of non-compliance with the provisions of Rule
18(4)
to have merit.
[31]
The defence of the plaintiff's pleadings
not being technically correct, in my view is dispositive of the
requirements set out in
terms of Rule 32(3)(b) in that it will if
proved at trial constitute an answer to the Plaintiff's claim.
ORDER
[32]
Consequently and for the reasons alluded
to above the following order is made:
32.1
The application for summary judgment is
refused.
32.2
Leave to defend is granted to the
defendants, with
32.3
Costs in the cause.
C.
J. COLLIS
JUDGE
GAUTENG DIVISION PRETORIA
APPEARANCES
FOR
APPLICANT Adv. C.J. Welgemoed
INSTRUCTED
BY FOR RESPONDENTS: Quiryn
Spruyt Attorneys
INSTRUCTED
BY Adv. W. Mothibe
DATE
OF HEARING : The State
Attorney Pretoria.
DATE
OF JUDGMENT: 16 October 2018
[1]
Resisting Affidavit paragraph 3
[2]
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 423
[3]
Affidavit resisting paragraph 5
[4]
Affidavit resisting para 5.5
[5]
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426