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2009
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[2009] ZAGPPHC 151
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Etsebeth v Minister of Defence and Another (23698/2002) [2009] ZAGPPHC 151 (20 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
UNREPORTABLE
DATE: 20/11/2009
CASE NO:
23698/2002
In
the matter between:
GERT
HENDRIK JOHANNES ETSEBETH
Plaintiff
And
MINISTER
OF DEFENCE
First Defendant
CHIEF
OF THE SOUTH AFRICAN DEFENCE FORCE
Second
Respondent
______________________________________________________
JUDGMENT
LEDWABA,
J
[1] The
plaintiff is claiming a substantial amount of money as damages from
the defendants as a result of the negligent conduct
of the personnel
of the second defendant.
[2] Defendants’
filed a special plea to the plaintiff’s claim stating the
following:
“…,
the plaintiff was a permanent member of the South African National
Defence Force and was aboard the Alouette III
616 helicopter
(“helicopter”) in the course of his employment with the
South African National Defence Force. In the
premises, and in terms
of Section 35(1) of the Compensation for Occupational Injuries and
Diseases Act No 130 of 1993, the Plaintiff
is barred from recovering
any damages from the Defendants in respect of any occupational injury
resulting in the Plaintiff’s
disablement.”
[3] As per
the agreement of the parties, the court ruled that the special plea
would be dealt with and the other remaining issues
be stayed. More
particularly, the parties wanted the court to adjudicate on the
following issues:
3.1 Did the accident on
which the plaintiff’s claim is based, arise out of and in the
course and scope of his employment
with the SANDF?
3.2 Is the
plaintiff’s claim accordingly affected by the provisions of
section
35 of the Compensation for Occupational Injuries Disease Act No 130
of 1993 (COIDA)
as alleged in the defendant’s special plea?
[4] The
defendants’ accepted that they bore the onus of proof and the
duty to begin on the aforesaid issues. The defendant
called one
witness warrant officer Michael Bottom (Mr. Bottom), to testify and
they closed their case. The plaintiff testified
and closed his case.
[5] The evidence of Mr.
Bottom relevant to the special plea can be summarised as follows:
5.1 On 2
September 1999 he was a passenger in the helicopter mentioned in the
defendant’s plea, as flight engineer together
with the
plaintiff. Plaintiff was an apprentice aircraft mechanic. The trip
was discussed with warrant officer Badenhorst, one
of the
plaintiff’s seniors, a day before it was undertaken.
The
plaintiff was also a co-observer for poachers in the flight.
5.2 He said
by further exposing the plaintiff to a flying helicopter, the
plaintiff would gain the experience which could assist
him to
determine if he wished to pursue being an aircraft engineer as a
career.
5.3 Mr.
Bottom testified that, according to him the plaintiff’s
presence in the flight was part of his duties. He denied
that the
plaintiff was on a jolly ride. He also mentioned that when civilians
participated in casual flights, they normally
filled in indemnity
forms. However, in this instance the plaintiff did not complete
same. He further said that whilst the plaintiff
was in the
helicopter he could operate the microphone.
5.4 He also
stated that if the plaintiff did not want to take the flight he
could stay behind and continue with his normal duties.
[6] The
plaintiff’s evidence can be summarised as follows:
6.1 He said
his duties involved cleaning, refilling, greasing, oiling aeroplanes
and helicopters on the ground.
6.2 On 2
nd
September 1999 he was in the helicopter as a ‘flip’
mechanic, that is, he was just on a jolly ride and was not on
duty.
He stated that he was informed that they would also observe the
poachers and safety briefing were made before the helicopter
took
off, however, he cannot remember if he was shown technical
operations. He further said had a headset which was switched
off.
6.3 Regarding
a claim to the Commissioner in terms of
COIDA
,
he said he knew nothing about it.
6.4 Under
cross-examination he conceded that if he was not an employee of the
SANDF he would not have the privilege to be in
the helicopter.
[7] It is
common cause that the plaintiff was employed as an apprentice
mechanic by the second defendant at the time when the helicopter
was
involved in the accident. However, the plaintiff contends that he was
on a jolly ride when the accident occurred.
[8] Mr.
Bottom explained that in involving the plaintiff in the trip, he
wanted to give him exposure to a helicopter maybe he would
develop an
interest in becoming a flight engineer. The plaintiff said he was
given a safety briefing by Mr. Bottom and he cannot
remember if
technical operations were shown to him.
[9] The
plaintiff further said he knew that he was going to assist as a
spotter for poachers.
[10] The
trip was taken during working hours and the trip was also arranged or
organised by the plaintiff’s seniors for work
related matters.
The crew in the flight was not on a frolic and I do not think that
they would just allow the plaintiff to have
a jolly ride during
working hours whilst they had to perform some duties.
[11] The
issue herein is not to determine if the accident occurred when the
plaintiff was strictly performing his duties or not.
The word
accident in the
Act
is
defined as follows:
“
’accident’
means an accident
arising out of and in the course an employee’s employment and
resulting in personal injury, illness or the
death of the employee.”
[12]
Section
35(1) of COIDA
reads
as follows:
“
35.
Substitution of compensation for other legal remedies
1)
No action shall lie by an employee or any
dependant
of an employee
for recovery of damages in respect of any
occupational
injury
or disease
resulting in the
disablement
or death of such employee against such employee's 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 or death.”
[13]
COIDA
does
not state that it should be in the course of employees ‘duties’
but employment. The word employment has, in my
view, broader meaning
than the word duties.
[14] The
plaintiff’s presence in the flight was, in my view, connected
with his employment. The fact that he did not have
a note book or
binoculars is in my view, material.
[15] Even
though the plaintiff testified that he knew that he did not know if a
claim was submitted to the Compensation Commission,
on the documents
referred to in court, I am satisfied that such a claim was submitted.
[16] On the
evidence and information available the accident on which the
plaintiff’s claim is based arose out of and in the
course and
scope of his employment with the SANDF.
[17]
I
therefore, make the following order:
(i) The
defendant’s special plea is upheld.
(ii) The plaintiff is
liable for the costs.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT