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[2019] ZAGPPHC 1070
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Msiza v Asolutiona t/a Advocate Solutions (Pty) Ltd (15790/2016) [2019] ZAGPPHC 1070 (10 June 2019)
IN THEHIGH COURT OF SOUTH
AFRICA
(GAUTEN DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST
TO
OTHER
JUDGES:
NO
(3)
REVISED.
CASE NO:
15790/2016
10/6/2019
In
the matter between:
B.E.
MSIZA
PLAINTIFF
and
ASOLUTIONS
t/a
ADVOCATE
SOLUTIONS (PTY) LTD
DEFENDANT
JUDGMENT
NEUKIRCHER
J:
1.
In this matter the
pleadings set out the following facts:
1.1.
that on 7 December 2015, at around 08h45
the plaintiff arrived at the defendant's premises to report for duty,
opened the main gate
and entered the premises; which is situated in
Centurion;
1.2.
that whilst in the premises; the
plaintiff was attacked by three dogs belonging to one Johan
Engelbrecht;
1.3.
that the defendant was grossly negligent
by allowing employees to work in an unsafe working environment in the
presence of loose
dogs;
1.4.
that the employer/defendant is by law
required to ensure that the working environment/conditions are safe
for the employees to work;
1.5.
that, as a result of the attack the
plaintiff sustained certain injuries and as a result she demanded
damages from the defendant
for pain and suffering, trauma and medical
expenses.
2.
The defendant has filed a plea in
response to the plaintiffs allegations. Amongst its various
allegations, the following special
point of law emerged:
"12.2.
...
the
defendant pleads that in any event the plaintiff has no claim at all
or in fact against the plaintiff (sic)
[1]
under the following circumstances:
12.2.1.
During
and at the time
of
the
incident, the plaintiff was acting within the course and scope of her
employment when attending at Johan Engelbrecht's house/premise;
12.2.2.
In
the premises, the provisions of the Compensation for Occupational
Injuries and Deceases (sic) Act (130
of
1993) ("the Act are applicable;
12.2.3.
Section
35(1) of the Act provides
'no actions shall lie by an
employee
...
for
the recovery of damages in respect
of
any occupational
injury
...
resulting in the
disablement of such employee against such employees' 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.
'
12.2.4.
As
a
result,
the plaintiff has (sic) precluded from claiming damages in this court
as
a
result
of the alleged injury sustained during and arising out of her
employment with the defendant; and
12.2.5.
The
plaintiff's recourse lies within the provisions of the Act."
3.
There is no replication on this issue at
all.
4.
On 5 May 2019, Rabie J granted the
following order:
"1.
That the question whether section 35(1) of the Compensation for
Occupational Injuries and Diseases
Act 130 of 1993 applies
as
a
result of which
the plaintiff
is
precluded from
claiming damages from the defendant be determined separately;
2.
That the remainder of the issues between the parties be stayed and
postponed sine die;
..
;"
5.
The
matter came before me in the trial court on 7 June 2019 on the
separated issue alone.
6.
Mr
Van der Merwe, who appears for the defendant, informed me that the
parties had prepared an extensive list of common cause issues
and
issues in dispute. The relevant portions of that document
[2]
read as follows:
"1.4.
That the parties entered into
a
written contract
of employment
-
internship
programme on 14 September 2015;
1.5.
That the terms and
conditions contained in the written contract of employment
-
internship programme (the contents
thereof) correctly reflect the agreement of employment and will be
considered prima facie proof
thereof,·
1.6.
That the plaintiff was
bitten by dogs on the property of Mr Johan Engelbrecht situated in
Centurion ("the premises”)
on
7
December 2015 at approximately 08h45
("the incident");
1.7.
That the dogs belonged to
Mr Johan Engelbrecht;
1.8.
That the plaintiff's
presence on the premises was authorised whereas:
1.8.1.
the plaintiff had been
temporarily relocated to the premises to work there in accordance
with the terms and conditions of the written
contract of employment
-
internship programme;
1.8.2.
The plaintiff attended
Work in Place Learning ("WIL”) at the premises from
approximately four weeks prior to the incident;
1.9.
The premises
was
not accessible to the public in
general;
1.10.
The plaintiff attended the
premises solely for the purposes of complying with the written
contract of employment
-
internship
programme;
1.11.
The premises was
considered the plaintiff's place of work at the time;
1.12.
The plaintiff sustained
injuries
as a
result
of the incident;
1.13.
The plaintiff received
medical treatment for the injuries so sustained.
2.
Issues in dispute:
2.1.
Whether the plaintiff was
within the sphere or area of her employment vis-a-vis the defendant
at the time of the incident.
2.2.
Whether the injuries so
sustained by the plaintiff are considered occupational injuries as
contemplated in the Compensation for
Occupational Injuries and
Diseases Act, 130 of 1993 (“the Act”).
2.3.
Whether section 35(1)
of
the Act applies
as
a
result of which the plaintiff is
precluded from claiming damages from the defendant.
2.4.
Whether the plaintiff and
other employees
of
the
defendant were issued with access codes or not."
7.
With this in mind, the defendant assumed
the
onus
and
the duty to begin and
Mr Johannes
Petrus Engelbrecht
was
called. His evidence was that:
7.1.
he is a subcontractor of the defendant
and that he manages and trains the interns who work for the
defendant. The plaintiff was
employed by the defendant for a period
of 12 months from 1 August 2015 and her working hours during the week
were from 08h00 until
17h00;
7.2.
the interns employed by the plaintiff
may have to work at premises other than the defendant's actual
premises;
7.3.
he had been working on a project and the
plaintiff had asked to be relocated to work on the project with him -
she had sent him
an e-mail to this effect and he had agreed and so
the defendant relocated the plaintiff to work at his office in
Centurion;
7.4.
his office is on the same property as
his residence, i.e. it is a residential property with only one access
point via a gate. The
training facility is at the front of the main
house;
7.5.
the gate is electronic with pedestrian
access. One either enters a pin-code which allows the gate to open
for pedestrian access
or if the remote control is used, the gate
opens for motor vehicle entry;
7.6.
each Intern had a key-code which they
would enter on the keypad on the gate to gain access to the premises
- there was no other
method of entry for them;
7.7.
the gate closes
after 15 seconds and the general public has no access to the
property.
8.
It appears that Mr Engelbrecht was
actually in Cape Town when the incident took place and was informed
about it by one Anthony who
had contacted him. Engelbrecht then
instructed that plaintiff was to be taken to his personal doctor for
treatment. He returned
to Centurion on the following day on 8
December 2015.
9.
The next time he heard from the
plaintiff was on 14 December 2015 when he received an e-mail from her
in which she submitted her
resignation. He offered to relocate the
plaintiff instead of accepting her resignation, but the next
communication he received
from the plaintiff was that she had
commenced proceedings in the
CCMA,
where she alleged that she had been
constructively dismissed. The eventual award in the CCMA was that the
plaintiff had not been
constructively dismissed and the case was
dismissed on 20 May 2016.
10.
As to the issue of the dogs, Engelbrecht
testified that there
" was a
possibility"
he told plaintiff
about the dogs but that in any event there
was
a
"Beware of the Dogs"
sign on the front gate. The dogs are
kept inside the yard and do not roam the street and that on 7
December 2015, the plaintiff
had been working at his premises for
approximately five weeks already, and thus she knew that the dogs
were kept at the premises.
11.
It was specifically put to Engelbrecht
that it was not part of the plaintiff's job to have anything to do
with the dogs - which
he admitted, and that the plaintiff's version
was that there was no access control or lock on the gate - the
plaintiff simply opened
the gate to gain access to the premises. This
was denied by Engelbrecht.
12.
The plaintiff
herself then gave evidence. She
testified that:
12.1.
she cannot
specifically recall what time she arrived at work on 7 December 2015,
as it was a long time ago but she thinks it was
between 07h30 and
08h00;
12.2.
her duties at the time were research and
software development;
12.3.
when she arrived at the premises, there
is a gate with a chain around it and a padlock, which is unlocked.
She would take the padlock
off and take the chain off, open the gate,
gain access and then close it again;
12.4.
she never received an access-code and
testified that none of the other interns ever used or received an
access-code to gain entry
to the property;
12.5.
Engelbrecht did not tell them (meaning
any of the interns} about the dogs;
12.6.
she was inside the premises and about to
enter the office
[3]
when she was attacked by the dogs;
12.7.
the dogs had nothing to do with her
occupation.
13.
The important and relevant admissions
made by the plaintiff during her cross-examination were that:
13.1.
her working hours commenced at 08h00;
13.2.
her instructions to her legal
representatives when issuing the summons were that she arrived at
work at
"around 08h5am"
as
is evidenced by her particulars of claim and that it was possible
that she had arrived at that time;
13.3.
the sole reason for her to be on the
premises was for purposes of doing her work;
13.4.
there were no general members of the
public that she had seen on the premises or that had access to the
premises;
13.5.
that she had seen the dogs in the yard
where she worked from the window of her office, and had heard them
barking during the past
four to five weeks that she had been working
there. She had also heard them bark when someone was at the front
gate;
13.6.
that was as a result of her request that
she was relocated to Engelbrecht' s premises to work on a specific
project.
14.
The plaintiff then testified that she
had never seen a vehicle pass through the main gate. She testified
that she always had access
to the premises through a smaller
pedestrian gate but she had never had an access-code and there was no
access panel on the main
gate - at some stage she testified that
there were, in fact, two gates through which one could access the
premises but she could
not remember where the second gate was
located.
15.
She admitted that:
15.1.
she was at Engelbrecht' s premises only
to work and the dogs were part of the premises;
15.2.
the gate was closed unless someone used
it;
15.3.
when she arrived at the gate, she had
control of it, i.e. she would open and close it;
15.4.
except for
Engelbrecht's employees, family and interns, there were no members of
the public that came or went from the premises;
15.5.
the incident occurred as she was about
to enter the office and had it not been for the fact that she was
there to work, the incident
would not have occurred.
16.
It
bears mentioning that Mr Sehunane, who appeared for the plaintiff,
throughout cross-examination of Mr Engelbrecht, examination
in chief
of the plaintiff and re-examination of the plaintiff, placed much
emphasis on the fact that the plaintiff's job never
had anything to
do with the dogs or the residence on the premises, that the dogs were
kept in the main house
[4]
and the dogs were not at the office.
17.
That
then concluded the plaintiff's case.
18.
In
analysing the issue before me, it is in my view apposite to set out
Mr Sehunane's argument first: his argument is not that the
Act is not
applicable, but that (in his precise words) to expect the plaintiff
to claim from Workmen's Compensation is
"unfair',
as the defendant should have known
that there is a possibility that the dogs would attack the plaintiff,
which in fact occurred.
19.
Mr
Sehunane emphasised the fact that:
19.1.
the dogs have nothing to do with the
plaintiffs occupation;
19.2.
Engelbrecht should have known of the
danger of placing his dogs near the employees;
19.3.
any evidence given in relation to
whether the plaintiff entered the gate
via
access pin or otherwise is
irrelevant;
19.4.
the time of the plaintiff arriving at
work is irrelevant as the plaintiffs testimony was that she had
arrived between 07h30 and
07h40, but before 08h00 and that her plea
used the words
"around
08h45
am" (his emphasis) and
thus the time was not precise;
19.5.
section 16 of the Act provides that the
Compensation Fund is under control of the Director-General and its
monies are applied by
the Director-General to
"(a) the payment
of
compensation, the
cost of
medical
aid or other pecuniary benefits to or
on
behalf of or in
respect
of
employees of this
Act where no other person is liable for such payment;
...
"
20.
Mr Van der Merwe has submitted that
there are not many aspects in dispute, which is clear from the list
of common cause issues contained
in the list that was attached to the
second pre-trial minute and the evidence presented:
20.1.
the plaintiff was an employee of the
defendant and was authorised to be on Engelbrecht' s premises as she
was working there and
had been there for approximately four to five
weeks at the time of the incident;
20.2.
the dogs had been on the premises since
the plaintiff had begun her employment;
20.3.
the dogs belonged to Mr Engelbrecht;
20.4.
the premises was not accessible to the
general public and there was only one way to access the premises,
which the plaintiff attended
for the sole purpose of work;
20.5.
the incident took place at around 08h45.
21.
Mr Van der Merwe submitted that Mr
Engelbrecht was a reliable and credible witness: he answered all
questions put to him in a forthright
manner and the important aspects
of his evidence were not shaken in cross-examination. I agree that
none of the important issues
covered by Mr Engelbrecht during his
testimony were challeneged either at all or with any success and thus
I found his testimony,
insofar as the relevant issues are concerned,
to be reliable.
22.
On the other hand, he argues that the
plaintiff was not a credible or reliable witness: the aspects
pertaining to her access to
the property and the time of her arrival
at work are two important aspects which have demonstrated her
unreliability:
22.1.
as to her access to the property, the
plaintiff denies the existence of the keypad (access panel) which is
on the gate and into
which Engelbrecht stated everyone punched a
key-code. That keypad is clearly visible on the photographs at pages
56 and 57 of bundle
3;
22.2.
the photos were handed in by agreement
between the parties and at no stage was it alleged by plaintiff or
put to Mr Engelbrecht
that the keypad was a new addition to the gate
or did not exist on 7 December 2015;
22.3.
the plaintiff also alleged that she
gained access to the property
via
a
small pedestrian gate, but when given the opportunity to point out
its location on the very photos mentioned
supra,
she was unable to do so, as (in her
words) it was
"long ago",
she was
"only
there for five weeks"
and she
"could not remember';
22.4.
she also suddenly testified that there
were two points of entry to the premises but could not remember where
the second point of
entry was;
22.5.
she could not remember what time she
arrived at work on 7 December 2015 as it was "long ago",
but she thought it was approximately
07h30 to 08h00. In
cross-examination the content of her plea was pointed out, and the
time of 08h45, which she conceded could be
correct.
Re
the witnesses:
23.
It must be borne in mind that Mr
Engelbrecht was not at the premises on 7 December 2015 and therefore
could not and did not present
any evidence regarding the incident or
how it occurred or the time that the plaintiff arrived at work on
that day. His relevant
evidence was that the plaintiff's working day
commenced at 08h00 and he was never challenged on this. It was also
never put to
him that sometimes the plaintiff arrived long before
08h00.
24.
As to the access control and entry or
exit of the property, the photographs bear out the evidence given by
Mr Engelbrecht, i.e.
that there is only one point of entry or exit to
the property
via
a
large grey steel gate with a keypad attached to the right hand
pillar. As Mr Van der Merwe put it in cross-examination to the
plaintiff, it is clearly meant for a pedestrian to punch in a
key-code as the keypad is placed at too high a point for someone
sitting in a vehicle to reach.
25.
There is no chain and padlock evident
around the gate as testified by the plaintiff and it was never put to
Mr Engelbrecht that
those were either present on the day of the
incident or were removed for purposes of the photographs.
26.
There is no smaller pedestrian gate
evident on any of the photographs and it was never put to Mr
Engelbrecht that the premises was
accessible
via
a second gate elsewhere - in fact
his evidence was that the only way to access the premises was
via
the one gate or over the electric
fence and wall that surrounds the remainder of the property and this
evidence remained undisputed
during his cross-examination.
27.
It was never disputed in
cross-examination or in the plaintiff's direct evidence that there is
a
"Beware of the Dogs"
sign
on the gate or that when someone arrived at the front gate, you could
hear the dogs barking.
28.
At no stage was any evidence led
regarding the nature of these dogs or that the attack could not have
been anticipated. In fact,
during argument, Mr Sehunane emphasised
that the company should have known that there was a possibility that
these dogs would attack
the plaintiff (i.e. the risk factor).
29.
Unfortunately, given the plaintiff's
evidence in totality, it appeared to me that she was not a credible
or reliable witness: she
worked at the premises on her own version
for approximately five weeks and was
"viciously
attacked"
[5]
by three of Mr Engelbrecht's dogs.
It is inconceivable that she cannot remember what time she arrived at
work
[6]
and how she gained access to the premises,
[7]
or whether there was one or two access points to the property.
30.
Whilst Mr Sehunane has argued that these
are all
"irrelevant"
to
the issues, I must disagree for the reasons set out below and, in any
event, I must say that I take a dim view of the fact that
having
agreed that the plaintiff arrived at work at around 08h45am on 7
December 2015, the plaintiff now appears to make an attempt
to resile
from the agreed facts. I can only assume that the attempt to do so is
to place her outside of her employment hours at
the time.
31.
The question of whether section 35(1)
can survive a constitutional challenge has already been decided in
Jooste v Score Supermarket Trading
(Pty) Ltd (Minister of Labour intervening),
[8]
where Yacoob J stated the following:
"Whether an employee ought
to have retained the common law right to claim damages, either over
and above
or
as
an alternative to the advantages conferred by the Compensation Act,
represents
a
highly debatable,
controversial and complex matter of policy. It involves
a
policy choice
which the legislature and not
a
court must make.
The contention represents an invitation to this court to make
a
policy choice
under the guise of rationality review; an invitation that is firmly
declined. The legislature clearly considered that
it
was
appropriate to
grant to employees certain benefits not available at common law. The
scheme is financed through contributions from
employers. No doubt for
these reasons the employees' common law right against an employer is
excluded.”
32.
In
MEC
for Health, Free State v DN,
[9]
it was said that there was
"no bright-line test"
[10]
and each case had to be dealt with on its own merits."
33.
The enquiry into
whether or not section 35(1) is applicable is twofold: the question
is (a) whether the plaintiff is an employee
of the defendant; and (b)
whether the injuries sustained were as a result of an accident
arising out of and in the course of her
employment.
34.
The first leg of the enquiry is resolved
by having regard to the common cause facts, which state that the
parties had entered into
a written contract of employment. This is
also supported by all the evidence and thus the first hurdle has been
successfully cleared
by the defendant.
35.
The second leg of the enquiry is
slightly more complicated and requires more analysis.
36.
In
De
Gee v Transnet SOC Ltd,
[11]
Badenhorst AJ set out in detail, and
analysed all the relevant case law regarding section 35(1) and from
there distilled certain
questions to be posed when considering the
issue of whether an employee acted within the sphere or area of his
employment when
an accident occurred:
36.1.
was the plaintiff doing something he was
employed to do at the time when the accident occurred?
36.2.
in travelling the particular route to
reach his office1 was the plaintiff fulfilling an obligation to his
employer posed by the
contract of service? In other words, in doing
so, was the plaintiff doing something that was part of his service to
his employer?
36.3.
was the route the “
nearest
available route"
to the
plaintiffs office?
36.4.
was there a duty imposed on the
plaintiff to travel
via
this
route?
36.5.
was the route a private means to access
to the plaintiffs office which she was entitled to use by reason only
of her status as employee
or was it available to the general public?
36.6.
in travelling
via
this route, was the plaintiff
fulfilling an express or implied term of her contract of service?
[12]
37.
In analysing the aforementioned
questions, the following is relevant in my view:
37.1.
In
MEC for Health, Free State v DN
(supra),
the
SCA stated that what must be decided is whether the event is a risk
which can be reasonably held to be incidental to the employment,
and
held
[13]
"If it be such
a
risk, and if the
injury flows from that risk, it must be held to be an injury arising
out of the employment."
37.2.
In
Ongevallekommissarls
v Santam Versekerings maatskappy Bpk,
[14]
Vieryra J cited
Weaver v Tredegar
Iron Company,
[15]
which stated:
"...
after
a
workman
has finished his day's work and started out on his way home, his
employment continues while he is traversing the premises
on
which
he has been working and any private means to access thereto which he
is entitled to use by reason only of his status
as a
workman,
but that, unless engaged on some special errand for his employer,
which necessitates him being there, his employment ceases
when he
reaches
a
place to which the public have right of access, such
as
the public street. From that moment, he
loses
his
identity as
a
workman, and becomes one of the general public.
A similar principle, of course, applies to
a
workman on his
way to work."
37.3.
And in
Weaver
v Tredegar Iron Company
(supra)
the court stated
"The question is not
whether the man
was
on the employer's
premises. It is rather
whether
he
was
within the
sphere or area of his employment.
"
[16]
38.
In the present matter:
38.1.
the common cause facts place the
plaintiff at her place of employment and in the premises at around
08h45 on 7 December 2015;
38.2.
it was never disputed that she was on
her employer's premises at the time of the incident having entered
the gate for the sole purpose
of commencing her work;
38.3.
there was only one route to get to the
office from the street. The plaintiff's attempts to suggest that
there was a second route
was not borne out by any other evidence and
is rejected;
38.4.
it is common cause and borne out by the
evidence that the route followed by the plaintiff to the office, was
the only accessible
one to her as an employee and was not accessible
to the public in general.
39.
Furthermore, given the content of
paragraph 27
(supra}
it
was never disputed that there was a
"Beware
of the Dog"
sign on the gate or
that the dogs could be heard barking. The plaintiff herself testified
that she sometimes saw the dogs in the
yard when she was working and
thus she knew that they were a risk -as much was stated by Mr
Sehunane in his closing address.
40.
This being so, and in line with the
authorities, it must be that the plaintiffs injuries flow from that
risk and thus it must be
held that her injuries arise out of her
employment with the defendant as result of which she is precluded
from claiming damages
from the defendant under section 35(1) of the
Act.
Order:
41.
Thus, the order I make is the following:
41.1.
The separated question as set out in
paragraph 1 of the order of Rabie J dated 5 March 2019 is upheld and
the plaintiff is precluded
from claiming damages as against the
defendant.
41.2.
The plaintiff is ordered to pay the
defendant's costs of the action.
NEUKIRCHER J
JUDGE OF THE HIGH COURT
Date of hearing: 7 June 2019
Date of judgment: 10 June 2019
For
the plaintiff:
Adv M
Sehunane
Instructed
by Sehunane Attorneys
For
the Defendant:
Adv
Van der Merwe
Instructed
by: Clyde & Co Inc
[1]
Which is clearly a typographical error and should read
"the
defendant”
[2]
Which are an addendum to the minutes of the second pre-trial signed
on 30 May 2019 by plaintiff and 3 June 2019 by defendant
[3]
Which is 8 ta 10 metres from the gate
[4]
Although he never had any direct evidence of this as he failed to
cross-examine Mr Engelbrecht on this and evidence by the plaintiff
is simply hearsay as she testified she never actually saw where the
dogs were kept - she saw cages and
"assumed'
[5]
See particulars of claim, bundle 6, par. 7
[6]
The attack having taken place near minutes after her arrival.
[7]
The issue of the alleged pedestrian gate and where it was located is
relevant here
[8]
(CCT15/98) [1998) ZACC 18 at par. 16
[9]
2015 (1) SA 182
(SCA)
[10]
I.e. to determine whether the employee's claim was excluded under
section 35(1).
[11]
(30085/2015) [2019] ZAGPJHC 2 (29 January 2019)
[12]
See
supra
at par.[17]
[13]
At p.348
[14]
1965 (2) SA 193 (T)
[15]
[1940] 3 ALL E.R. 157
at 175 C-E
[16]
At 180A