Pretorius v Compensation Commissioner and Another (A17/2007) [2007] ZAFSHC 128; (2010) 31 ILJ 1117 (O) (15 November 2007)

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[2007] ZAFSHC 128
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Pretorius v Compensation Commissioner and Another (A17/2007) [2007] ZAFSHC 128; (2010) 31 ILJ 1117 (O) (15 November 2007)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A17/2007
In
the appeal between:-
JOHANNES
LODEWIKUS PRETORIUS
Appellant
and
THE
COMPENSATION COMMISSIONER
1
ST
Respondent
THE
COMPENSATION FUND
2
ND
Respondent
_____________________________________________________
CORAM:
C.J.
MUSI, J
et
Van
Zyl, J
_____________________________________________________
HEARD
ON:
5
NOVEMBER 2007
_____________________________________________________
JUDGMENT
BY:
C
J MUSI, J
_____________________________________________________
DELIVERED
ON:
15
NOVEMBER 2007
_____________________________________________________
[1] This
is an appeal in terms of section 91 (5) (a) (i) and (iii) of the
Compensation for Occupational Injuries and Diseases Act,
No 130 of
1993 (the Compensation Act).
1
_____________________________________________________
1. Section 91 (5)(a) (i)
and (iii) of the Compensation Act reads as follows:
“Any
person affected by a decision referred to in subsection (3) (a), may
appeal to any provincial or local division of the Supreme
Court
having jurisdiction against a decision regarding-
the interpretation of
this Act or any other law;
…
[2] The
appellant was employed by Lewis Stores (Pty) Ltd when he met with an
accident and sustained an injury on 20 October 2001 (a
garage door
dislodged and fell on his head, neck and shoulders).
2
[3] The appellant lodged
a claim and the Compensation Commissioner (the Commissioner) declared
him 10% permanently disabled. He objected
to the award, subsequent
to which the Commissioner increased the percentage permanent
disablement to 15%. An objection against the
15% award led to a
tribunal consisting of a presiding officer assisted by two assessors
and a medical assessor hearing the objection.
The objection was
dismissed by the court a quo (tribunal). The appellant now appeals
against the decision of the tribunal.
_____________________________________________________
The
question whether the amount of any compensation awarded is so
excessive or so inadequate that the award thereof could not
reasonably
have been made;…”
2. Accident is defined by
section 1 of the Compensation Act as
“
an
accident arising out of and in the course of an employee’s
employment and resulting in a personal injury, illness or the death
of the employee”. He is therefore entitled to Compensation in terms
of section 22 (i) which reads “if an employee meets with
an
accident resulting in his disablement or death such employee or the
dependants of such employee shall, subject to the provisions
of this
Act, be entitled to the benefits provided for and prescribed in this
Act.”
[4] The
appellant and Dr Relling – a neurosurgeon testified at the
tribunal. Reports compiled by Sunè Minnaar – an occupational
therapist – and Prof. C L Odendaal – the head of the Pain Control
Unit at the Faculty of Health Sciences, University of the Free
State
– in relation to the appellants’ condition were also placed
before the tribunal.
[5] The appellant
confirmed – without giving detail – that he sustained an injury
on 20 October 2001. He testified that although
he had previous
operations he was a 44 year old physically fit sportsman at the time
of the accident. Subsequent to the injury he
had a neck operation
that was performed by Dr Relling. He denied that he had a neck
operation prior to this one. The operation was
successful and he
reported for duty; still in pain and wearing a neck brace. As part
of his job as a credit controller he had to
visit defaulting clients
at their homes. This meant that he had to drive around in a bakkie.
It was not always a smooth ride and
he experienced extreme pain
whilst driving. The pain became unbearable and he consulted Dr
Relling again. Another operation was
done. Subsequent to the second
operation he had constant headaches, twinging on his neck, visual
impairment, a lame right hand,
persistent neck and shoulder muscle
spasms, pain in the lower back and loss of memory. He also could not
sit for more than 20 minutes
neither could he walk for 500 metres
without resting. As a result of the excruciating pain he regularly
consulted Prof Odendaal.
A hearing was held on 24 February 2003, by
his employer, and he was dismissed for incapacity. Although he
looked for other suitable
employment he did not get any because of
his condition.
[6] Dr Relling testified,
on 16 August 2006, that the last contact he had with the appellant
was on 1 October 2003. He first examined
the appellant on 22 October
2001. The appellant complained of severe pain in the head and neck
area with radiation of symptoms down
the right-hand side and to a
lesser extent to the left-hand side. After a clinical evaluation he
suspected a disc or nerve injury
to the neck. A CT Scan was done and
brain injury was excluded. After doing diagnostic tests a fusion at
the C5/6 level of the neck
was done. He noted that a previous fusion
at the C6/7 level was done on the patient. He was informed that it
was done six years
before October 2001. The C6/7 fusion was good and
no complications in relation thereto were noted.
[7] After
the operation the appellant complained about pain due to muscle
spasms as well as pain from the joints adjacent to the current
and
previous surgical levels progressing higher up the neck to the C3/4
levels. He was treated on several occasions with physiotherapy;
injections inside the joints between the vertebrae to relieve the
chronic inflammatory process. Nothing helped. During March 2002
a
radio frequency legion was performed i.e. high heat treatment –
with little success. When he saw the appellant on 12 June 2002
he
presented clinical changes in that he had symptoms of spasticity in
his hands and legs which, to him, related to either a spinal
cord
problem or low inter –cranial brain problem. A MR Scan was done
which did not show any severe changes in the spinal cord
causing
lameness or spasticity. These symptoms progressed. He referred the
appellant to Prof Abe Kruger who was attached to the
Department of
Neurology at Universitas Hospital but he could also not see any
clinical signs pointing to injury to the spinal cord
or brain. There
was progressive degeneration and progressive pain in the appellant’s
neck. On 12 August 2002 Dr Steve van Niekerk
did an EEG on the
appellant but it was 100% normal. Dr Beverley Peens a psychiatrist
also saw the appellant and concluded that he
has major depression and
anxiety related to his work and financial condition. When X rays
were done, Dr Relling saw that he was
getting worse because there
were changes at the 3
rd
and 4
th
vertebrae. The appellant was referred to Prof Koert de Vries, the
head of the Radiology Department at Universitas Hospital. Prof
de
Vries noticed severe degeneration at C3/4 level. After consulting
with colleagues it was decided that a fusion at the C3/4 level
should
also be done. Motion of the appellant’s neck was therefore
impaired from C3 to C7. This long fusion is normally accompanied
by
post operative symptoms such as pain, which the appellant exhibited.
Although this operation was also a success the appellant
complained
about severe neck pain. Normal doses of potent analgesics,
anti-inflammatory and physiotherapy did not relieve his symptoms
to
such an extent that he could go back to work. The appellant had
chronic pain with spasms which diminished concentration and the
ability to function physically. He had weakness of the right arm to
such an extent that he was unable to do proper work. Dr Relling
could not give any reason for the visual impairment as well as the
memory loss because there were no clinical signs which could lead
to
those symptoms. He concluded his testimony by stating that:
“
I have not seen the patient since
2003 and I do not know what improvement or deterioration happened
since then but at the point when
I saw him last, I did not think that
he was able to perform in the open market sector to go and be
productive and be able to work
without severe discomfort.”
He was
further of the view that the appellant’s clinical condition was due
to the accident on 20 October 2001. During cross examination
he
conceded that he seldom uses the American guides in relation to
disablement and that he normally refers patient to Dr Repko for
medico-legal opinions of an objective kind. He conceded that Dr
Repko would be in a better position to give an objective medical
opinion in relation to the appellant’s disablement because he (Dr
Relling) does not have proper knowledge of the whole system as
he is
not trained to do so. He also said that as far as he was concerned
“
the
appellant was not able to continue the work or his sport activities
that he up to that point was able to do;
he
was unable to continue the work or the situation he was in
previously”.
According
to him, the appellant was not ready to go back to work at that stage.
[8] Prof
Odendaal whose report is dated 25 May 2005 confirmed that he saw the
appellant on numerous occasions at the Pain Control
Unit. He states
the following:
“
Sy
huidige toestand is presies die van ‘n jaar gelede naamlik dat hy
hierdie spasma aanvalle kry wat vir hom baie pynlik is en normale
bewerings van die kop en nek tot
aal
ONMOONTLIK maak. Die spasma veroorsaak dat dit vir hom bykans
ONMOONTLIK is om ‘n normale lewe te voer want sy totale psige
word
inbeheer geneem deur die pyn.
Dit is my opinie dat die toestand
steeds tewyte is aan die OORSPRONKLIKE BESERING van nek fraktuur en
beserings aan die nekwerwels
en die gevolglike twee operasies wat hy
moes ondergaan as gevolg van die beserings…
Hy vind wel verligting na ‘n sessie
in die hospital waartydens hy intensiewe behandeling ontvang met
lokale infiltrasies, fisioterapie,
arbeidsterapie, gesprekke met
sielkundiges, gesprekke met maatskaplike werkers en
dieëtkundiges.”(Prof Odendaal’s emphasis)
[9] In a comprehensive
and impressive 20 page report dated 9 January 2004 Sunè Minnaar
(occupational therapist), inter alia, states
the following. When she
saw the appellant for the first time he walked approximately 2.5 to
3km to her consulting rooms. He did
not look exhausted. She tested
the appellant in order to quantify his pain level and she concluded
as follows:
“
Ek
is van mening dat mnr. Pretorius wel pyn ervaar wat sy funksionering
beinvloed
– die omvang van die pyn, is soos reeds genoem baie subjektief en
nie kwantifiseerbaar nie. Die resultate van die pyn vraelyste
dui op
‘n baie hoë vlak van pyn wat ‘n persoon se funksionering
maksimaal sal beinvloed. Die kliniese observasies ten opsigte
van
pyn gedrag (aangepaste bewerings, fiksasie van die beseerde
liggaamsdeel, gesigsuitdrukkings wat pyn weerspieël ens) wat gedoen
is tydens die evaluasie proses dui wel ‘n mate van pyn ervaring,
maar korreleer nie met dit wat verwag sou word van iemand met
die hoë
tellings wat behaal is in die vraelyste nie”.
In
relation to his impairment she states that:
“
Ek
is dus van mening dat mnr. Pretorius as gevolg van genoemde
inperkinge, nie op hierdie stadium op
die ope arbeidsmark kan meeding nie tensy hy volledige rehabilitasie
ondergaan en indien sekere toegewings gemaak kan word vir sy
toestand. Volgens JAN (“Job Accommodation Network”) wat
aanpassing by die werksplek bespreek spesifiek ten opsigte van
sekere patologieë, kan ‘n persoon
nog produktief wees ten spyte van inperkinge…”
[10] The
tribunal made no factual or credibility findings in its unanimous
judgment. Notwithstanding the provisions of Rule 51(1)(a)
and (b) of
the Magistrates’ Court Rules the presiding officer did not, in his
written judgment, show which facts they found to
be proved.
3
His reasons for judgment are at best, at least to me, a mystery. He
just regurgitated, without digesting, the evidence of the witnesses.
_____________________________________________________
3. In
terms of section 91(5)(b) of the Compensation Act an appeal in terms
of section 91(5)(a) is noted and prosecuted as if it were
an appeal
against a judgment of a magistrate’s court in a civil case.
Rule 51 (1) of the
Magistrate’s Court Rules reads as follows:
“
Upon
a request in writing by any party within 10 days after judgment and
before noting an appeal and upon payment by such party of
a fee of
R70, which shall be affixed to such request in the form of a revenue
stamp, the judicial officer shall within 15 days hand
to the clerk of
the court a written judgment which shall become part of the record
showing-
(a) the facts he found to
be proved; and
(b)
his reason for judgment”
His
regurgitation culminated, inexplicably but expectedly, in a finding
that they could find no fault with the Commissioner’s award
because:
“
the
Act is a social grant based on that. It is not pain and suffering,
it is not an Act that compensates for pain and suffering or
a loss
result or whatever. It is solely a grant, a social grant Act, so
under those circumstances we have to stick to what the Act
provides.”
[11] In
Grobbelaar
v Workmen’s Compensation Commissioner
1978
(3) SA 62
(TPD) at 64 A it was said, with reference to section 25 (7)
(b) of the Workman’s Compensation Act 30 of 1941, that:
“
an
appeal to this Court lies only on the limited grounds relating to any
questions as to the interpretation of the Act. All findings
of fact
must be accepted as final…”
4
The factual findings of
the tribunal would ordinarily be final but in a case such as this,
where no factual findings were
_____________________________________________________
4. See
also Odayar v Compensation Commissioner 2006 ILJ vol 27 7 – 9 page
1477 at
1480 D.
made
we would be at large to make own factual findings. Our conclusion
however renders it unnecessary for us to make any substantial
factual
findings.
[12]
Mr Cilliers, on behalf of the appellant, argued that the tribunal
misinterpreted the Act and that the amount of the compensation
award
is so inadequate that the award thereof could not reasonably have
been made. Ms Eloff, on behalf of the respondent, attacked
the
credibility of the appellant as well as the expertise of Dr Relling
and argued that the ruling of the tribunal was correct irrespective
of the absence of factual findings.
[13] The task of the
tribunal is set out in section 91 (3)(a) of the compensation Act
which reads as follows:
“
After
considering
an objection the presiding officer shall, provided that at least one
of the assessors, agrees with him, confirm the decision
in respect of
which the objection was lodged or give such other decision as he may
deem equitable.”
In
considering the objection the tribunal is enjoined by the
Compensation Act to apply with the necessary alterations, sections 6,
7, 45 and 46 of the Compensation Act.
5
The relevant portions of these sections reads as follows:
6.
Powers
of Director-General regarding witness and subpoenas
.–(1)(a)
The Director-General may subpoena any person who in his opinion is
able to give information concerning the subject of any
inquiry in
terms of this Act, or who is suspected to have or in the opinion of
the Director-General has in his possession or custody
or under his
control any book, document or thing which has a bearing on the
inquiry, to appear before him at a time and place specified
in the
subpoena, to be interrogated or to produce such book, document or
thing, and the Director-General may retain such book, document
or
thing for further investigation…
7.
Powers
of authorized person
.
– (1) The Director-General may authorise any assessor, any office
or employee referred to in section 1 of the Public Service Act,
1984
(Act No. 111 of 1984), or any medical practitioner to investigate any
matter that he may deem necessary fro the performance
of his
functions.
(2) A person authorized under
subsection (1) (in this section referred to as an “authorized
person”) shall be furnished
_____________________________________________________
5.
See section 91 (2)(C) of the Compensation act.
with a
certificate
to that effect signed by the Director-General.
(3) An authorized person may-
(a) without previous notice, at all
reasonable times
enter any premises,
and take an interpreter or other assistant or a police officer with
him onto the premises;
while he is on the premises, or at
any time thereafter, question any person who is or was on the
premises, either alone or in the
presence of any other person on any
matter to which this Act relates;
order any person who has control over
or custody of any book, document or thing on or in those premises to
produce to him forthwith,
or at such time and place as may be
determined by him, such book, document or thing;
at any time and place order any
person who has the possession or custody of or is in the control of
a book, document or thing relating
to the business of an employer or
previous employer, to produce forthwith or at such time and place as
may be determined by him,
such book, document or thing;
seize any book, document or thing
which in his opinion may serve as evidence in any matter in terms of
this Act;
examine or cause to be examined any
book, document or thing produced to him or seized by him, and make
extracts therefrom or copies
thereof, and order any person who in
his opinion is qualified thereto to explain any entry therein;
order an employee to appear before
him at such time and place as may be determined by him, and question
that employee…
45.
Consideration
of claim
.
– (1) The Director-General shall consider and adjudicate on a
claim for compensation, and for that purpose may carry out such
investigation as he may deem necessary or he may formally hear the
claim.
(2) If the Director-General decides
upon a formal hearing, he shall in the prescribed manner give notice
of the date, time and place
of the hearing to the claimant and
employer.
(3) If
the Director-general considers it necessary that any person,
including the claimant and the employer, should be present at
a
formal hearing to be interrogated, he may issue a subpoena for the
appearance of such witness.
(4) Upon
application by a person who in the opinion of the Director-General
has a sufficient interest in the subject of a formal hearing,
the
Director-General shall issue a subpoena for the appearance of a
person except if he is of the opinion that such person cannot
further
the investigation, in which case the Director-General shall issue a
subpoena only if the party applying therefore deposits
with the
Director –General a sum sufficient to cover the necessary expenses
to be incurred by the witness as well as the witness
as well as the
cost of the service of such subpoena.
46.
Appearance
of parties
.
– (1) (a) Every party to a claim for compensation or his
representative may appear before the Director-General at a formal
hearing.
(b) The Director-General may designate
any person to investigate a claim, attend a formal hearing,
cross-examine witnesses, adduce
rebutting evidence and present
argument…”
[14] It
is clear from these sections that the role of the tribunal is more
inquisitorial than adversarial. The members of the tribunal
in this
matter were either not aware of their role or they forsook it. A few
comments in relation to the role of a tribunal will
be apposite. The
tribunal is given extensive powers in relation to the gathering of
evidence and summoning of witnesses to give
evidence or produce any
books and or documents in their possession. The tribunal’s role is
not that of an impartial referee.
It is neither a partisan nor a
dispassionate spectator. It ought to participate in the proceedings
to such an extent that an equitable
decision or award can be made.
The tribunal is enjoined to play an active and meaningful role before
and during the hearing of the
objection.
[15] In
its quest to arrive at an equitable decision it should take all the
relevant information and evidence into consideration.
The statutory
limits on compensation imposed by the legislature for a particular
injury or disease should also be considered. Although
the guidelines
should be considered, the tribunal should be mindful of the fact that
guidelines are not cast in stone neither are
they the laws of the
medes and the persians. The tribunal should not, like in this
matter, follow a mechanistic approach. An equitable
award need not
be an award equal to that stipulated in the guidelines. The medical
evidence, consisting of signs, symptoms and medically
acceptable
clinical and laboratory diagnostic techniques, as well as the
subjectively quantifiable complaints of the individual should
be
considered. The subjective complaints of the individual must however
be in synch with the medical evidence.
The
tribunal should exercise its discretion judiciously and not
arbitrarily. It should not approve the Director-General’s decision
without proper consideration and thereby reducing itself to a body
that rubber stamps the Director General’s decisions. It should
set
out its reasons in sufficient detail to enable the employee and if
necessary the court of appeal to discern the principles used
in
making the assessment. The Compensation Act should not be
interpreted restrictively so as to prejudice an employee if it is
capable
of being interpreted in a manner more favourable to him or
her. See
Davis
v Workmen’s Compensation Commissioner
1952 (3) SA 105
(C) at 109 C;
Workmen’s
Compensation Commissioner v Van Zyl
[1996] ZASCA 19
;
1996 (3) SA 757
(AD) at 764 E – F.
[16]
Ms
Eloff correctly argued that an employee may not claim for pain and
suffering under the Compensation Act because an award under
the
Compensation Act relates only to patrimonial loss. See
Senator
Versekeringsmaatskappy BPK v Bezuidenhout
1987 (2) SA 361
(A) at A – C.
6
She argued that the appellant’s claim is nothing but a claim for
pain and suffering. This argument however misses the point. Mr
Cillier’s argument was that the fusions as well as the chronic pain
that the appellant suffers render him 100% disabled to perform
any
work. The appellant should, the way I understand his argument, not
be compensated for past, present or future pain and suffering
but, if
he has made out a case for such, he should be compensated because due
to the accident of 20 October 2001 he underwent a long
fusion and he
experiences post operative chronic pain which renders him unable to
work. I agree with Mr Cillier’s argument.
[17] Ms Eloff argued that
pain is subjective and granting compensation for pain would open the
flood gates and deplete the compensation
fund. To this I say the
following, firstly pain is quantifiable as Sunè Minnaar points out
in her report, secondly, each case must
be viewed on its own
6. See also Jooste v
Score Supermarket Trading (Pty) Ltd 1999
(2)SA 1 (CC)
paragraphs [13] to [15].
merits,
thirdly, it was done in
Kirtley
v Compensation Commissioner and Another
(2005) 26 ILJ 1593 (E) without the heavens opening and lastly as was
said in
Kirtley
supra
at 1598 H it would, given the purpose of the Compensation Act,
“
unfairly
discriminate against the appellant and those in his position”
.
In
Kirtley
supra
it was said that
“
(T)he
first respondent’s
contrary finding evinces a failure properly to consider the import of
the medical evidence that pain can be as debilitating as any
physiological impairment thereby rendering a claimant 100%
permanently disabled.”
7
The
appellant’s chronic pain in so far as it is quantifiable and
debilitating should be considered during the assessment of his
disablement.
_____________________________________________________
7. At 1598 G – H.
[18] Mr
Cilliers argued that the tribunal should have found that the
appellant is 100% permanently disabled. I disagree. Disablement
is
defined as
“
temporary
partial disablement, temporary total disablement, permanent
disablement or serious disfigurement as the case may be;
”
8
Permanent disablement is
defined as follows:
“
in
relation to an employee and subject to section 49, means the
permanent inability of such employee to perform any work as a
result
of an accident or occupational disease for which compensation is
payable”
9
_____________________________________________________
8. Section 1 of the
Compensation Act.
9. Section
1 of the Compensation Act.
Section 49 reads as
follows:
Compensation for
permanent disablement.- (1) (a) Compensation for permanent
disablement shall be calculated on the basis set out in
terms 2,3,4
and 5 of Schedule 4 subject to the minimum and maximum amounts.
(2)(a) If an employee has
sustained an injury set out in schedule 2, he shall for the
purpose of this Act be
deemed to be permanently disabled to the degree set out in the second
column of the said Schedule.
If an employee has
sustained an injury or serious mutilation not mentioned in Schedule 2
which leads to permanent disablement, the
Director-General shall
determine such
percentage of disablement in respect thereof as in his opinion will
not lead to a result contrary to the guidelines
of Schedule 2.
Section
49 read with schedules 2 and 4 envisages degrees of permanent
disablement. An employee may therefore be partially permanently
disabled, for example an employee who meets with an accident and
loses an eye is rendered 30% permanently disabled.
10
Such employee would in character be partially disabled but
permanently in quality. He or she can still see but has permanently
lost
the quality of seeing with both eyes. The question that arises
is whether the appellant was correctly found to be partially
permanently
disabled or is he 100% permanently disabled as Mr
Cilliers contended.
[19] In
order to be 100% or totally permanently disabled the employee must be
unable to perform any work. The appellant in this matter
did not
regard himself as totally permanently disabled. He looked for
employment but could not find suitable employment. Dr Relling’s
evidence is that he is not an expert and could therefore not make an
assessment in relation to the degree of permanent disability.
He was
also unable to testify in relation to the appellant’s state on the
date of the inquiry or immediately prior to that.
_____________________________________________________
10. See Schedule 2 of the
Compensation Act.
Sunè Minnars report
unambiguously states that the appellant is not totally permanently
disabled and that he can be rehabilitated.
She also states that his
test scores (for pain) does not tally with what he said and what she
observed. There is no medical evidence
or explanation for the loss
of memory and the deteriorating eye sight. The appellant informed
Prof Odendaal that he suffered a cerebral
concussion – which was
not true. During Mr Pienaar’s argument, on behalf of the appellant
at the tribunal, the presiding officer
said the following:
“
Here is another aspect, do not
dwell too much into it, okay? Today all that we know is that Mr
Pretorius is seeing somebody,
we do not have any
evidence of the nature of whatever treatment that he receives and
everything. Of course we do not
say
we reject that. Dr Relling’s evidence is the last time I saw him
was in 2003.
Can
you address me on that one because no evidence as to his present
status is before us now except what Mr Pretorius says
.”
(My
underlining).
[20] All
this points, in my judgment, to the fact that the presiding officer
could not make a finding of 100% disablement. Neither
can we. But
more seriously it points to the fact that the tribunal did not apply
its discretion judiciously. Faced with such terse
evidence it was
incumbent on the tribunal to call for more and better evidence in
order to place it in a position where it could
properly apply its
mind to the facts and make an equitable award.
[21] In
my view the general approach adopted in compensation cases should
also be applied in an appeal from a tribunal established
in terms of
the Compensation Act. In compensation cases a court of appeal will
not easily upset the discretion exercised by the
court of the first
instance if it has properly considered all the relevant factors. In
AA
Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805
(A) at 809 Joubert JA said:
“
It
is settled law that a trial Court has a wide discretion to award what
it in the particular circumstances considers to be a fair
and
adequate compensation to the injured party for his bodily injuries
and their seq
uelae.
It follows that this court will not, in the absence of any
misdirection or irregularity, interfere with a trial Court’s
award
of damages unless there is a substantial variation or a striking
disparity between the trial Court’s award and what this
Court
considers ought to have been awarded, or unless this Court thinks
that no sound basis exists for the award made by the trial
Court.”
This
however does not mean that a Court of appeal will defer to the
estimate or award of the court a quo. When considering a
compensation
award the court of appeal will consider all the relevant
aspects and if it is of the view that the award of the court a quo
differs
substantially from the award it arrives at it will be
justified to alter the award of the court a quo. See
Sandler
v Wholesale Coal Supplies Ltd
1941 AD 194
at 200,
Mentz
v Simpson
1990 (4) SA 455
(A) at 457 A – C.
[22] In
this matter we are in no position to make an equitable award. The
parties and the tribunal did not call relevant witnesses.
Dr Relling
saw the appellant approximately three years before he gave evidence.
He conceded that he is not an expert when it comes
to determining the
degree of disablement. Ms Sunè Minnaar was not called to testify.
Her report is also inconclusive. It seems
like the appellant
embellished his evidence as to his actual condition. An equitable
award can only be made after all the relevant
evidence is canvassed
and properly considered by the tribunal. The current award seems to
me to be a mere rubber stamping of the
Director-General’s decision.
The tribunal did not apply its mind properly in this matter. With
this scanty evidence before us
we are also not in a position to make
a fair award. Difficulty would attend any effort by this Court to
endeavour to make an equitable
award. All the circumstances of this
matter considered, it is my view that this matter should be remitted
to the Compensation Commissioner.
[23]
I
accordingly make the following order:
(a) The appeal
succeeds.
(b) The decision of
the court a quo (tribunal) is set
aside.
(c) The
matter is remitted to the 1
st
respondent for the
determination of an
equitable and appropriate award, after an enquiry, along the lines
indicated in this judgment.
(d) The
1
st
respondent is ordered to pay the appellant’s costs.
_________________
C.J. MUSI, J
I
concur.
_________________
C. VAN ZYL, J
On
behalf of the appellant: Adv. H.J. Cilliers
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of the
respondents: Adv. Z. Eloff
Instructed by:
The State’s
Attorneys
BLOEMFONTEIN
/ms