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[2018] ZAGPPHC 777
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Knowles v Compensation Commissioner Vuyo Mafata (75337/2016) [2018] ZAGPPHC 777 (13 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA).
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: 75337/2016
13/2/2018
In
the matter between:
SHAUN
ROBERT
KNOWLES
Applicant
and
COMPENSATION
COMMISSIONER
Respondent
VUYO
MAFATA
Dates
of Hearing
:
06 & 11 December
2017
Date
of Judgment
:
13 February 2018
JUDGMENT
MANAMELA,
AJ
Introduction
[1]
The
applicant seeks an order directing the respondent to calculate and
pay a claim for compensation in terms of the provisions of
the
Compensation for Occupational Injuries and Diseases Act 130 of 1993
(COIDA). The application initially purported to take the
form of a
mandamus
and/or
review application, both in terms of the provisions of the Promotion
of Administrative Justice Act 3 of2000 and Rule 53 of
the Uniform
Rules of this Court. However, it is clear from the papers that the
applicant, a lay person, may have drafted the papers
without
technical legal input and therefore could not craft the relief sought
strictly along conventional lines for same. Be that
as it may,
nothing turns on this, as the Court was able to determine the nature
and extent of relief sought by the applicant.
[2]
There
is proof that the application was served on the respondent by the
sheriff on the 07 September 2017, at the respondent's headquarters
by
handing a copy thereof to a legal clerk of the respondent.
[1]
However, the respondent failed to deliver a notice of intention to
oppose the application or even to react to further notices of
set
down of the matter. The history of this matter is littered with
inaction or what could be considered dereliction of duty on
the part
of the respondent and its officials. The respondent's officials, at
all levels, adopted a very tardy and nonchalant manner
in dealing
with the applicant. They totally ignored the rights of the applicant
as. a prospective pensioner and pushed him from
pillar to post. The
events in this matter squarely fit a textbook case of unfair
administrative action. This is totally unacceptable
behaviour for
persons who are entrusted with the responsibility to serve the public
and, more so, because they deal with vulnerable
members of our
society, who are either afflicted by injuries, diseases or other
forms of disability, including in some respects
the loss of
breadwinners. This type of conduct will not be countenanced by the
Court.
[3]
The
matter came previously before Van der Westhuizen AJ on 01 November
2017, when it was postponed
sine
die
for
the applicant to file what is referred to as "proper
calculations". Thereafter, it came before me in the unopposed
motion court of 06 December 2017 and was stood down until 14 December
20 I 7 to allow the applicant an opportunity to serve on
the
respondent, the supplementary affidavit constituting a recalculation
compiled by an expert of the proposed pension amount payable
to the
applicant. On 14 December 2017, I reserved this judgment in order to
further reflect on the legal issues and rather hand
down a written
judgment, due to the peculiar circumstances of this matter.
[4]
Next,
I briefly deal, by way of background, with the material historical
aspects of this matter in order to place context to the
issues to be
determined. I am immensely indebted to Ms E Steyn, who assisted the
applicant as counsel, ostensibly upon request
of the Court at a
previous occasion. She also filed, on behalf of the applicant,
written heads of argument, for which I am also
grateful.
Brief
background
[5]
The
applicant was born on 05 July 1968 and is therefore a few months shy
of his 50
th
birthday. On 13 June 2012, he was involved in what he considers "a
freak accident''., whilst working at CSK Material Handling
CC from
which he lost his right and dominant hand. He is or was a member of
the aforementioned close corporation, although he considers
himself a
"working member". The respondent had initially objected to
the claim, as it considered the applicant, an owner
rather than a
"workman", but this appears now to be water under the
bridge, so to speak.
[2]
The applicant, clearly, is entitled to compensation.
[6]
The
applicant is a father of 5 children and was a breadwinner of his
family at the time of the accident. Following the accident,
the
applicant was admitted at a hospital only on emergency basis to be.
stabilised, as that hospital refused to accommodate him
as a
"workman" due to a history of non-payment by the
Compensation Fund. His family assisted him financially for him
to
undergo surgery to his hand at another hospital, but could only
afford a brief stay at the hospital due to financial limitations.
The
applicant abandoned his claim in respect of past medical expenses due
to frustration and delay experienced in the hands of
the respondent's
functionaries.
[7]
On
the same date of the accident (i.e. on 13 June 2012), the applicant's
then employer, acting in terms of the provisions of COIDA,
submitted
an employer's report of the accident. It was only on 28 November 2012
that the respondent acknowledged receipt of the
applicant's claim.
Thereafter there was no meaningful progress and the applicant says
that he sent to the respondent no less than
174 electronic mails,
persistently urging for necessary attention to be given to his
matter. But, as indicated above, the respondent's
officials were
either lethargic or indifferent to the plight of the applicant.
[8]
As
a result of the accident and the applicant's loss of his arm, it is
stated that the applicant was rendered 55% permanently disabled.
On
07 September 2016, the applicant finally received a letter from the
respondent advising him that he will be receiving a monthly
pension
in amount of R 12,000.18 as from 30 August 2013. The respondent
considered the latter date to be the stage at which the
medical
doctor indicated that the applicant's condition became stabilised.
[3]
In the same letter, the respondent promised to pay a lump sum
amounting to R396 236.47 representing accrued pension since 30 August
2013.
[4]
The applicant preferred payment of a lump sum as opposed to monthly
pension.
[9]
Dissatisfied
with the· aforementioned decision by the respondent , on 14
November 2016, the applicant ·objected against
the decision
and filed an appeal to the tribunal, as envisaged in terms of section
91 of COIDA. But, again as with previous processes,
the applicant had
to enlist the assistance of the Chairperson of the Parliament' s
Portfolio
Committee
on Labour to reach this milestone. The tribunal found against the
applicant, hence this application to the Court.
[10]
The judgment of the tribunal reads as follows:
" In terms
of Section 52(1) of COIDA 130/1 993 the Pensioner must apply to the
DO for payment of a lump sum in lieu of the
Pens ion. There was no
evidence presented that proved that such application, as contemplated
in Section 52(1) of the Act was ever
made to the DO. Thus the
Tribunal does not have jurisdiction to entertain the Section 52(1)
related objection."
[5]
Applicable
legal principles and the facts (a discussion)
[11]
As
indicated above, the determination required in this matter is in
terms of the provisions of the Compensation for Occupational
Injuries
and Diseases Act 130 of 1993 (COIDA).
[12]
The
primary objective of COIDA is encapsulated in its preamble which
states:
"To provide
for compensation for disablement caused by occupational injuries or
diseases sustained or contracted by employees
in the course of their
employment, or for death resulting from such injuries or diseases;
and to provide for matters connected
therewith."
And
the decision of
Mankayi
v
Anglogold
Ashanti,
[6]
accurately
captures the mechanisms of COIDA. A few of the provisions of COIDA
finds application in this matter. I deem it necessary
to quote some
of these provisions, before applying them to the issues in this
matter.
[13]
Section
22 of COIDA grants an employee the right to compensation and reads as
follows in the material part:
"(1)
If an employee meets with an accident resulting in his disablement
... such employee ... shall, subject
to the provisions of this Act,
be entitled to the benefits provided for and prescribed in this Act.
(2)
No periodical payments shall be made in respect of temporary total
disablement or temporary partial
disablement which lasts for three
days or less."
[14]
Section
29 deals with the liability for payment of compensation and reads as
follows the material part:
"If an
employee is entitled to compensation in terms of this Act, the
Director-General or the employer individually liable
or the mutual
association concerned, as the case may be, shall be liable for the
payment of such compensation."
[15]
On the other hand, section 49 provides for the basis for calculation
of compensation for permanent
disability and reads as follows in the
material part:
"
(1)
(a)
Compensation
for permanent disablement shall be calculated on the basis set out in
items 2, 3, 4 and 5 of Schedule 4 subject to
the minimum and maximum
amounts
.
(b)
…
(2)
(a)
If an employee has sustained an injury set out in Schedule 2, he
shall for the purposes of this Act be deemed to be permanently
disabled to the degree set out in the second column of the said
Schedule."
[underlining
added for emphasis]
[16]
Section 52 deals with the discretion of the Director-General in
respect .of payment of lump sum
in lieu of pension or a portion
thereof. It reads as follows in the material part:
“
(1)
If
a pension does not exceed a prescribed amount,
the
Director-General ' may, upon the application of the pensioner, pay or
direct the payment of a lumpsum in lieu of that pension
or a portion
thereof.
(2)
(a)
If a pension
exceeds
the prescribed amount,
the Director-General may, upon the application of the pensioner,
in
lieu of a portion of that pension not exceeding the prescribed amount
pay or direct the payment of a lump sum
.
(b)
If
the balance of the pension payable is less than the prescribed amount
per month, the Director-General may pay or direct the payment
of a
lump sum in lieu of the whole of such pension.
(3)
(4)
Any
lump sum in terms of this section shall be calculated on the basis
determined by the Director-General, and the payment thereof
shall be
subject to the control of the Director-General as referred to in
section 59."
[underlining
added for emphasis]
[17]
Section 59 reads as follows in the material part:
“
(1)
Compensation
payable in terms of this Act may for
reasons
deemed by the Director-General to be sufficient, be-
(a)
paid
to the employee or the dependant of an employee entitled thereto, or
to any other person on behalf of such enrolee or dependant,
in
instalments or in such other manner as he may deem fit;
(b)
invested
or applied to the advantage of the employee or the dependants of an
employee;
(c)
paid
to the Master of the Supreme Court, a trustee or any other person to
be applied in accordance with such conditions as may be
determined by
the Director-General;
(2)
applied
according to one or more of paragraphs
(a),
(b)
and
(c)."
[underlining
added for emphasis]
[18]
The dispute in this matter concerns the manner of calculation of
compensation due to the applicant
and whether the applicant is
entitled to a lump sum payment, as opposed to monthly pension. As
stated above, in terms of section
49(1)(a) compensation " for
permanent disablement is to be calculated on the basis set out in
items 2, 3, 4 and 5 of Schedule
4 subject to the minimum and maximum
amounts". The parties appeared to be
id adem
on the
application of the aforementioned provisions. However, they disagree
as to the manner in which a calculation is to be made.
[19]
It is common cause that the applicant suffered permanent disablement
amounting to 55% disability
in terms of Schedule 2 of COIDA, as a
result of the accident or loss of his ann. The respondent calculated
the pension payable
to the applicant and communicated this to the
applicant in terms of its letter of 07 September 2016 as follows:
"A monthly
pension was approved and currently amounting to
R12 000.18 as from
30 August 2013
and this was the date on which the doctor
indicated that your condition becomes stabilised.
The
calculation of pension is: The salary (or the maximum as contemplated
by the Act) times 75% times percentage of permanent disablement.
In
your case it is R24 336 X 75% X 55% = R10 038 .60.
The annual
adjustments were added therefor your current monthly pension amounts
to R12 000.18 .
A lump sum
amounting to
R396 236.47 was approved being a refund of the accrued pension ."
[7]
[underlining
added for emphasis]
[20]
On the other hand the applicant submits that in terms of Schedule 4
of
COIDA
permanent
disability for 31 to 100% is calculated at 75 of the employee's
monthly earnings subject to a prescribed maximum and minimum
recommendation of such compensation. The applicant earned a monthly
salary ofR60 000.00 at the time of the accident. According
to the
applicant when considering the calculation in terms of item
5
of
the schedule for his pension should be as follows: "If 100%
disability equate 75% [sic] of return of earnings then it is
common
cause that 55% disability will equate 41.25% of return of earnings
(R60 000.00)".
[8]
It is not
clear, whether the applicant's objection to the tribunal included a
calculation on this basis and, if so as to the total
amount submitted
by the applicant to be payable in respect of his pension or lump sum
payment. The judgment of the tribunal referred
to above,
[9]
appeared to have dealt with the issue lump sum payment.
[21]
The Court previously directed that the applicant should acquire
assistance of an appropriately
qualified expert in order for "proper
calculations" to be made with regard to the amount payable. He
enlisted the assistance
of a certain Mr Andre Steyn, a registered
accountant/chartered accountant
(SA)
and also senior lecturer
at the Department of Financial Accounting of the College of
Accounting Science of the University of South
Africa. He holds a
Bachelor of Commerce in Accounting Science and honours degree in
Accounting Science.
[22]
Mr
Steyn calculated the monthly amount due to the applicant to be
limited to R18 252.00 per month and made calculations of past
and
future amounts due to the applicant, using, among others, an average
consumer price index from 2012 to 2033, when the applicant
would have
probably retired around the age of 65 years. The total settlement
amount or lump sum suggested by Steyn is in an amount
of R6 705
650.87, as opposed to monthly pension. This document is new and was
obviously not included in the original papers. It
also did not serve
at the internal processes of the respondent, including the tribunal,
although I directed that a copy be served
on the respondent, which
was done.
[23]
The
applicant submits that section 52 grants discretion to the
Director-General .in respect of payment of lump sum in lieu of
pension
or a portion thereof. The tribunal refused to entertain this
aspect of the objection as it found no evidence that the applicant
had approached the Director-General requesting payment of the lump
sum . However, the applicant submits that the tribunal did not
consider his application in this regard, which is clearly incorrect.
I do not see any reason why this Court ought to grant a lump
sum
payment. But, nothing stops the applicant from taking this aspect
through the necessary channels, despite the view that 've
taken in
the matter and the ultimate order made herein.
[24]
It.
is my view that the manner of calculation of the pension payable
adopted by the applicant is the correct one. However, as the
calculation by Steyn only related to a lump sum payment, which, as
already indicated, I am disinclined to grant, the Court finds
itself
without benefit of calculations by an expert in respect of the
monthly pension payable t6 the applicant. Therefore, I will
order
that the respondent calculate and pay to the applicant the pension
payable to him using the method adopted by the applicant.
But, due to
the history of this matter and the frustrations that the applicant
suffered in the hands of officials of the respondent,
I will take an
extra ordinary step in the event of failure by the respondent to
adhere to the order within a period of 30 days.
This, in my view,
will prevent the applicant from being further exposed to continuous
maladministration on the part of the respondents
officials.
[25]
I
will therefore exercise my discretion and utilise the calculations
used in the calculation for final settlement by Steyn in order
to
award pension for the period up to and including 28 February 2018. An
amount of R1 717 117.60 is stated as outstanding as at
end of
December 2017. I will further add two amounts of R25 812.79 for the
months of January and February 2018. The result is a
grand total of
R1 768 743.18. I will also direct that the applicant receive a
monthly pension as from March 2018 . As indicated
above this scenario
will only apply if the respondent does not comply with the other
aspects of the order.
Conclusion
and Costs
[26]
The
applicant did not seek a cost order against the respondent, despite
the frustrations he suffered due to conduct of the respondent,
which
clearly precipitated this application. This was also confirmed in the
written heads of argument filed on behalf of the applicant.
[10]
Therefore, no cost order will be made against the respondent.
Order
[27]
In
the circumstances, the application is granted with the order being in
the following terms:
(a)
the
respondent is directed to recalculate the pension owing to the
applicant due to injuries sustained by the applicant during the
accident on 13 June 2012 on the basis that 55% disability of the
applicant equates to 41.25% of return of earnings of R60 000.00·
per month within 20 days from date of service of this order;
(b)
the
respondent is directed to advise the applicant of the recalculated
amount in terms of (a) hereof within 20 days from date of
service of
this order;
(c)
the
respondent is directed to make payment to the applicant in the amount
recalculated in terms of (a) hereof within 30 days from
date of
service of this order;
(d)
the
respondent is directed to make payment to the applicant monthly as
pension further from the amount recalculated in terms of
(a) hereof
within 30 days from . . date of service of this order;
(e)
in
the event no payment is received by the applicant within 30 days from
date of service of this order, the respondent is directed
to make
payment to the applicant in an amount of R1 768 743. 18, plus
interest at the rate of 10.5% per annum from 07 September
2017 to
date of full payment;
(f)
the
applicant is directed to furnish details of a bank account where
payment is to be made within 10 days from date hereof;
K.
La M. Manamela
Acting
Judge of the High Court
13
February 2018
Appearances:
For
the Applicant
:
E Steyn
Instructed
by
:
Shaun Robert Knowles
(previously
appearing in person)
For
the Respondent
:
No appearance
[1]
See the return of service by the sheriff of the court dated signed
at 11 September 2017. A
[2]
See par 17 of the founding affidavit; certificate issued by the
Companies and Intellectual Property Commission on 06 July 2015
in
respect of CSKA Material Handling CC.
[3]
See
annexure " SRK9" at indexed pp 38-39.
[4]
See annexure "SRK9" at indexed p 38.
[5]
See indexed p 49.
[6]
Unreported
version under (126)/2009)
[2010] ZASCA 46
(31 March 2010) at par
(19).
[7]
See annexure " SRK9" on indexed p 38.
[8]
See
par 8 of the founding affidavit.
[9]
See par [10] above.
[10]
See par 24 of the heads of argument.