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[2018] ZAKZDHC 25
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Murugan v Minister of Labour and Others (12805/2011) [2018] ZAKZDHC 25 (26 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 12805/2011
In
the matter between:
M
K
Murugan Applicant
and
The
Minister of
Labour First
Respondent
Director-General:
Department of
Labour Second
Respondent
Compensation
Commissioner Third
Respondent
Judgment
Lopes,
J
[1]
The applicant is M K Murugan, who seeks leave to amend his Notice of
Motion dated the 16
th
of November 2011. The respondents
oppose the application to amend on the basis that the main
application was withdrawn by the applicant
on the 27
th
of
March 2013. The respondents contended that as the application has
been withdrawn, the applicant has no right to seek to amend
the
Notice of Motion, and the application for an amendment should be
dismissed with costs.
[2]
The background to the application is relevant and may be viewed as
follows:
(a) From 1995 the
applicant was employed at Shell and BP South Africa Refineries (Pty)
Ltd (‘SAPREF’).
(b) During July or August
of 1996 the applicant was diagnosed with toxic hepatitis. It was
believed that he had contracted the toxic
hepatitis as a result of
his contact with certain chemicals he encountered during his
employment at SAPREF.
(c) During 1996 he lodged
a claim with the third respondent, the Compensation Commissioner (now
referred to as the Director-General)
appointed in terms of the
Compensation for Occupational Injuries and Diseases Act, 1993 (“the
Act”).
(d) That claim was
dismissed by the third respondent on the 27
th
of October
2000.
(e) The applicant
appealed against that decision in terms of s 91 of the Act on the 6
th
of November 2000. His appeal was dismissed on the 13
th
of
August 2002 on the basis that his toxic hepatitis was not caused by
his exposure to toxic chemicals during his employment at
SAPREF.
(f) In January 2004 the
applicant returned to work. After a period he again became ill.
(g) In June 2004 the
applicant launched his second claim for compensation, based on new
facts and new medical opinions.
(h) The applicant’s
second claim for compensation was rejected on the 27
th
of
January 2011.
(i) The applicant then
again appealed in terms of s 91 of the Act against the rejection of
his second claim. This appeal was successful
and on the 4
th
of
March 2011, the third respondent advised him in the following terms:
‘
Subsequent to your
objection launched against the Compensation Commissioner’s
decision dated 27
th
of October 2000, we hereby wish to
advise you that after consideration all your medical reports and
reviewing the claim in terms
of section 90 of the Act, we hereby
advise you that we offer you hundred percent (100 %) permanent
disablement and all medical
expenses incurred thereof will be settled
by the Compensation Commissioner.
In the light of the above
the Compensation Commissioner shall regard your objection as tacitly
withdrawn. If you do not respond
to this letter within thirty [30]
days from the date hereof. (sic)’
(j) On the 8
th
of July 2011 the applicant was notified by the third respondent that
the offer to accept liability, pursuant to the applicant’s
appeal of the rejection of his second claim, was made erroneously.
This was, according to the third respondent, because the claim
had
already been considered on the 4
th
of March 2002, and
dismissed by the third respondent. The second claim lodged by the
applicant was regarded as a duplicate by the
third respondent. The
third respondent had therefore reviewed his decision to accept
liability in terms of s 90 (2) of the Act.
He decided not to award
compensation in line with the decision which had already been made by
the third respondent pursuant to
s 91 of the Act during 2002. The
applicant was then invited to support his contention, supported by
documentary evidence, that
the offer made by the third respondent on
the 4
th
of March 2011 should stand, and that those
representations should reach the third respondent’s office
within 30 days’
of receipt of the letter.
(k) The applicant’s
attorney then addressed the third respondent on the 19
th
of July 2011 pointing out that the second claim lodged by the
applicant during 2004 was a claim
de novo,
which was supported
by new medical records. The applicant’s attorney disputed any
suggestion that the claim was opened in
error as it was not a
duplicate of the first claim. Those representations were rejected by
the third respondent.
(l) As opposed to lodging
yet another s 91 appeal against this latest rejection of his
application, the applicant then instituted
review proceedings in this
court on the 17
th
of November 2011. The application was
initially set down for hearing on the opposed roll for the 2
nd
of April, 2013. The inordinate delays which took place were
principally as a result of the failure by the respondents timeously
to deliver opposing affidavits.
(m) Shortly prior to the
opposed hearing, the applicant was advised by his attorney and
counsel that his case was weak. They suggested
that the application
should be removed from the roll, and the applicant’s attorney
would attempt to secure the position where
the applicant would not be
liable for the respondents’ costs, which were anticipated to be
considerable.
(n) On the 22
nd
of March 2013 the applicant’s attorney addressed the
respondents’ attorney indicating that the applicant was
prepared
to withdraw his application which was set down on the
opposed roll on the 2
nd
of April 2013, subject to each
party paying its own costs. That proposal was accepted and on the
27
th
of March 2013, the applicants attorney delivered a
Notice of Withdrawal in the following terms:
‘
KINDLY TAKE NOTICE
that pursuant to the Parties reaching a settlement agreement the
Applicant herein hereby withdraws his Application
against the
Respondents set down for hearing on the Opposed Roll for 02 APRIL
2013.
KINDLY TAKE NOTICE
FURTHER that it has been agreed that each Party is to pay its own
costs.’
(o) As the applicant was
dissatisfied with the fact that his application was not argued, he
consulted with his present attorney
during May of 2013. His file was
received by his present attorney from his erstwhile attorney, in
September of 2013. It was at
this stage that the letter of the 22
nd
of March 2013 and the Notice of Withdrawal came to light.
(p) The applicant
maintains that he believed that the matter was simply being withdrawn
from the roll for hearing on the 2
nd
of April 2013, and he
did not give his attorney an instruction that the application itself
should be withdrawn.
[3]
The applicant now seeks to amend the original prayers in his initial
Notice of Motion. The amendments to the Notice of Motion
are not
extensive, and seek only to clarify the relief which the third
respondent awarded to him after his s 91 appeal on the second
claim.
The amendments seek an order that the second respondent award
compensation to the applicant in respect of the permanent
disability
sustained by him in consequence of having contracted an occupational
disease. The compensation to be awarded to the
applicant is to be
determined on the basis that he suffered a one hundred percent
permanent disablement as contemplated in s 49,
read with schedule 4
of the Act, and that the date of commencement of the occupational
disease was the 14
th
of September 2004. In addition the
applicant seeks interest on the arrear compensation amounts at the
prescribed legal rate from
the 14
th
of September 2004 to
date of payment.
[4]
In my view there is nothing per se objectionable in the amendments
sought to the Notice of Motion. The defence, which was vigorously
pursued at the hearing by Mr
Naidu
, who appeared for the
respondents, was that the amendment could not be granted because the
matter had been settled and withdrawn.
No
lis
existed between
the parties.
[5]
Mr
Spoor
, who appeared for the applicant, submitted that the
third respondent had, in terms of s 90(2) of the Act, reviewed his s
91 decision
to award compensation to the applicant because he
regarded the matter as having previously been decided by him. The
applicant’s
second claim, however, was based on new medical
evidence, and new facts, inasmuch as he had returned to work in
January of 2004,
before again becoming ill. Mr
Spoor
submitted
that as the applicant’s attorney had not been given authority
to withdraw the application, but merely to withdraw
the matter from
the opposed roll, his attorney had had no authority to make the offer
which he did, or issue the Notice of Withdrawal.
As no such mandate
was given to the attorney by the applicant, his act of withdrawal is
a nullity. In those circumstances there
is no reason why the
applicant cannot persist with the original Notice of Motion, but as
amended in the manner proposed in this
application.
[6]
Mr
Naidu
pointed to the complete lack of any explanation from
the applicant’s erstwhile attorney as to how the offer came to
be made
and the Notice of Withdrawal came to be delivered. He
submitted that the applicant was obliged to content himself with
recourse
against his erstwhile attorney by way of an action for
damages. The respondents’ legal representatives had clearly
accepted
that the withdrawal of the application from the opposed roll
was in fact a withdrawal of the main application. From the time the
Notice of Withdrawal was lodged, and the matter removed from the roll
on the 2
nd
of April, 2013, there was no
lis
between
the parties. No court order was made on the day in question, because
the matter was withdrawn from the roll. However, in
this regard, I
note that the cover of the court file reflects that on the 2
nd
of April 2013 an order was made as follows:
‘
Notice
of withdrawal, matter removed.’
[7]
It is in my view, readily conceivable that the applicant, as a
layman, may easily have misunderstood what his attorney and counsel
intended when they recommended that the matter not be proceeded with
on the 2
nd
of April 2013, in order to protect the
applicant from having to pay a considerable amount in costs. If the
applicant’s understanding
was that the matter was only being
withdrawn from the roll, and that the main application was not being
withdrawn, then that confusion
would have resulted in the fact that
there was no agreement between himself and his attorney, and
accordingly he gave no mandate
to his attorney to withdraw the entire
application. There could have been no agreement between the applicant
and his attorney to
withdraw the entire application if they were not
of one mind as to what should happen to it. The probabilities favour
this conclusion
because the applicant approached his current attorney
for assistance approximately one month after the 2
nd
of
April 2013. Had he understood that the main application had been
withdrawn, he is unlikely to have done so.
[8]
In addition to the aforegoing, Mr
Spoor
drew my attention to
the provisions of s 33 of the Act which is as follows:
‘
33. Cession or
relinquishment of benefits void.
– Any provision of an
agreement existing at the commencement of this Act or concluded
thereafter in terms of which an employee
cedes or purports to
cede or relinquishes or purports to relinquish any right to benefits
in terms of this Act, shall be
void.’
Mr
Spoor
submitted that the provisions of s 33 prevented the
applicant from relinquishing his rights to benefit in terms of the
Act. The
Act is an instrument of social legislation which confers
fundamental rights to compensation upon the applicant. Any
interpretation
of the provisions of the Act should be in a manner
designed to promote the purposes of the Act and s 27 of the
Constitution (the
right to social security). I agree with these
submissions.
[9]
I accordingly find that the applicant could not have concluded an
agreement to withdraw the application, in circumstances where
that
would have compromised his right to social security in the form of
compensation in terms of the Act. In addition, there appears
to be no
reason why the withdrawal of the application cannot, in itself, be
withdrawn, which is the very purpose of setting down
the original
Notice of Motion and seeking its amendment as is being done in this
application. (See:
Roupell v Metal Art (Pty) Ltd &
Another
1972 (4) SA 300
(W)).
[10]
The effect of a withdrawal of proceedings is akin to an order of
absolution from the instance. It is not determinative
of the
lis
which existed between the parties, even though costs may
have to be paid of the proceedings up to the date of the withdrawal.
It
would be a most expensive and unnecessary exercise were the
applicant to have to begin the claim process anew. That could
notionally
be done the day after this judgment, but would entail an
enormous waste of resources and money on both sides. The practical
course
is simply to allow the amendment of the Notice of Motion, with
the review to continue.
[11]
Had this application been unopposed, the applicant would have had to
bear the costs thereof. However, as the application
has been
unsuccessfully opposed, costs should follow the result.
[12]
In all the circumstances I make the following order:
1) The applicant is
granted leave to amend his Notice of Motion dated the 16
th
of November 2011 as set out in the amended Notice of Motion which is
annexure “A” to the applicant’s founding
affidavit
in this application.
2) The respondents,
jointly and severally, the one paying the other to be absolved, are
directed to pay the applicant’s costs
of the application.
____________________
Graham
Lopes J
Dates
of hearing: 16
th
April 2018
Date
of Judgment: 26
th
April 2018.
Counsel
for the Plaintiff: Mr R
Spoor
of Richard Spoor Incorporated,
Attorneys.
Counsel
for the Defendant: Mr R
Naidu
(instructed by The State
Attorney ).