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1986
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[1986] ZASCA 114
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Workmen's Compensation Commissioner v Crawford and Another (257/1985) [1986] ZASCA 114 (30 September 1986)
LL
Case No 257/1985
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
WORKMEN'S COMPENSATION COMMISSIONER
Appellant
and
JOHN PHILLIP CRAWFORD First Defendant
AAF (PROPRIETARY) LIMITED Second Defendant
CORAM
: RABIE CJ, BOTHA, GROSSKOPF, JACOBS
et SMALBERGER JJA
HEARD: 11 SEPTEMBER 1986
DELIVERED: 30 SEPTEMBER 1986
JUDGMENT
/BOTHA JA
2.
BOTHA JA
:-
The appellant is the Workmen's Compensation Commissioner, duly appointed as
such in terms of section 12 (1) of the Workmen's Compensation
Act 30 of 1941, to
which I shall refer as "the Act". Pursuant to the provisions of section 8 (1)
(b) of the Act, the appellant, as
plaintiff, brought an action in the Transvaal
Provincial Division against the respondents, as defendants, arising out of an
occurrence
on 28 April 1977, when one Pieterse sustained serious injuries while
working on the premises of Ferralloys Ltd, in the district of
Camperdown, Natal.
In his particulars of claim the appellant alleged,
inter alia
, that the
occurrence constituted an accident as defined in the Act; that Pieterse was at
all material times a workman as defined
in the Act; that in terms of the Act the
appellant became obliged to pay and did in fact pay compensation in respect of
the accident
in various amounts,
/totalling ...
3.
totalling R17 046,35; that the said amount did not exceed the
amount of damages suffered by Pieterse; that the accident was caused
by the
negligence of the first respondent, acting within the course and scope of his
employment with the second respondent; and that
in terms of section 8 (1) (b) of
the Act the respondents were obliged to pay the said amount of R17 046,35 to the
appellant- In their
plea the respondents, broadly speaking, placed all the
appellant's allegations that. I have mentioned in issue, save for admitting
the
fact of the occurrence and that Pieterse had sustained serious injuries.
The appellant's allegation that Pieterse was a workman as defined in the Act
- which is the only matter directly pertinent to this
appeal - was contained in
para 5 (ii) of his particulars of claim. Prior to their denial of that
allegation in their plea, the respondents
had requested further particulars to
it;
inter
/alia.....
4.
alia
, the appellant was requested to state in whose
service Pieterse was at the time of the incident and what his annual earnings
amounted
to, calculated in the manner set forth in section 41 of the Act. The
appellant's reply was that Pieterse was employed by Spicer Mitchell
(Pty) Ltd
and that he earned R130,50 per week. In the minutes of a pre-trial conference
(para 7) the parties recorded the following:
"Subject to the proof that Pieterse qualified in terms of the Act the
Defendant admits (
sic
) the allegation contained in paragraph 5 (ii) of
the Particulars of Claim."
What was intended to be conveyed by this statement became clear at the trial:
the respondents were placing the allegation that Pieterse
was a workman in terms
of the Act in issue on the sole ground that his earnings at the time of the
accident exceeded the limit laid
down at that time in section 3 (2) (b) of the
Act, with the result that he fell outside the category of workmen
/catered ...
5.
catered for in the Act. It may be said at once that the issue thus raised by
the respondents did not relate to the sum of R130,50
alleged to have been earned
by Pieterse per week. It was and is common cause that that was his basic wage at
the time of the accident-The
issue was whether or not certain payments for
overtime work received by Pieterse at the time should have been included in the
calculation
of his earnings in terms of sections 3 (2) (b) and 41 of the Act, as
will be more fully explained below.
The case went to trial before WEYERS J. The appellant led evidence on all the
issues and then closed his case. Thereupon application
was made on behalf of the
respondents for absolution from the instance, on the ground that, on the
evidence adduced on behalf of
the appellant in regard to the remuneration
received by Pieterse for overtime work performed by him, no reasonable person
could find
that he was at the
/time ...
6-
time of the accident a workman in terms of the
Act. WEYERS J acceded to the application and accordingly decreed absolution from
the
instance, with costs. It is against that order that the present appeal is
directed, the trial Judge having granted the appellant
leave to appeal against
it to this Court.
Section 3 (2) (b) of the Act at present reads as follows:
"3. (2) The following persons shall not be regarded for the purposes of this
Act as workmen -
(a)
(b) persons whose annual earnings
calculated in the manner set
forth in
section 41 exceed
R18 000 or, from a date deter
mined by the State
President
by proclamation in the
Gazette
, such higher amount as he may so
determine."
It is common cause that at the time of the accident the maximum figure
applicable in terms of section 3 (2) (b) was R7 260, instead
of the present
figure of
/R18 000 ...
7.
R18 000. It is also common cause that a calculation of
Pieterse's annual earnings based only on his basic wage of R130,50 per week
results in a figure of R6 778, which is below the relevant maximum, with the
consequence that, if only his basic wage were to be
taken into ac- . count, he
would have qualified as a workman in terms of the Act. On the other hand, it is
common cause once again
that, if the overtime payments received by Pieterse, to
which reference will be made below, were to be taken into account in the
calculation of his annual earnings, such earnings would have exceeded the
relevant maximum figure, with the result that Pieterse
would not have qualified
as a workman in terms of the Act.
Section 3 (2) (b) uses the expression "annual earnings calculated in the
manner set forth in section 41". The relevant provisions
of section 41 - on
which the decision of this appeal turns - are the following:
"41. (1) For the purpose of determining the
/compensation ...
8.
compensation payable, the commissioner shall compute the
earnings of the workman in such manner as, in his opinion, is best calculated
to
give the monthly rate at which the workman was being remunerated by his employer
at the time of the accident including -
(a)
(b) any overtime payments or other special remuneration of a constant character
or for work habitually performed,
but excluding
remuneration for intermittent overtime and casual payments of a non-recurrent
nature, sums paid by an employer to a
workman to cover any special expense
entailed on the workman by the nature of the work, or any
ex gratia
payment to the workman, whether given by the employer or any other person."
Later, particular attention will have to be given to the expressions "of a
constant character" and "intermittent overtime". But first,
it is necessary to
consider generally the evidence led on behalf of the appellant at the trial and
the approach which is to be adopted
to the resolution of the issue in this
appeal.
/Two ...
9.
Two witnesses were called to testify for the appellant on the
point in issue, Mr H G Fisher and Pieterse himself. Pieterse was called
to give
evidence concerning the regularity with which he received overtime payments from
his employer. He gave details of the periods
during which he worked overtime and
for which he was paid, over a total period of about 18. months prior to the
accident. He also
gave evidence generally as to the practice which was followed
in regard to overtime work in his relationship with his employer. I
shall deal
later with his evidence on these matters.
Mr Fisher is employed in the office of the appellant as a senior manpower
administrative officer. He was the official in charge of
Pieterse's claim for
compensation arising out of the accident. He was called to give evidence on the
practice and procedure followed
in the appellant's office in regard to the
calculation
/of ...
10.
of a workman's annual earnings with a view to determining
whether or not he qualified as a workman in terms of the Act, with particular
reference to the manner in which overtime payments are dealt with. In the course
of his evidence he said that in this particular
instance the appellant's
officials were satisfied that Pieterse was a workman in terms of the Act and
that the appellant had "classified"
him as such. The determination that Pieterse
was a workman in terms of the Act was based on a calculation of his earnings as
being
Rl30,50 per week. The information regarding Pieterse's weekly wage, Fisher
explained, was obtained from an accident report supplied
to the appellant by
Pieterse's employer in terms of section 51 of the Act. In that report no
overtime payments were reflected under
the heading of Pieterse's earnings.
Pieterse also submitted an accident report to the appellant, in terms of section
54 of the Act.
In his report Pieterse
/reflected ...
11.
reflected his weekly earnings as being Rl30,50, plus a cost
of living allowance of R27,50 (it is common cause that this item can be
ignored), plus overtime at R90,00. This latter figure, Fisher testified, was not
taken into account in calculating Pieterse's annual
earnings, because it was the
practice in the appellant's office to base the calculation of a workman's
earnings solely on the information
supplied by his employer and to disregard any
contrary information given by the workman himself. Under cross-examination
Fisher was
constrained to concede that the question of Pieterse's overtime
receipts was not investigated and that it was simply assumed by the
appellant's
officials, by virtue of the contents of the employer's accident report, that
such receipts did not qualify for inclusion
in the calculation required to be
made in terms of section 41 (1) of the Act. In cross-examination it was also
elicited from Fisher
that the appellant had received
/a ...
12.
a letter from Pieterse's employer (exhibit D.4), in which it
was stated that Pieterse's average weekly earnings at the time of the
accident
were R27 3,86. That letter, however, was received more than two years after the
appellant had determined that Pieterse was
a workman in terms of the Act. In
fact, the letter was written after the appellant had already instituted action
against the respondents.
It was therefore rightly disregarded by the trial
Judge, but I shall have occasion to refer to it again a little later. To round
off my summary of Fisher's evidence, it should be mentioned that he was
questioned about the practice in the appellant's office regarding
the
interpretation and application of the expressions "of a constant character" and
"intermittent overtime" in section 41 (1) of
the Act. In the view I take of the
matter, however, it is not necessary to deal with his evidence in that
regard.
/In ...
13.
In the Court
a quo
the issue under discussion was approached by
counsel on either side and by the trial Judge on the supposition that the Court
was
free to form its own opinion as to whether or not Pieterse was a workman,
with reference to the calculation of his earnings in respect
of overtime, on the
basis of the evidence placed before the Court, and to give effect to its own
opinion thus formed, regardless
of the fact that the appellant had already
determined that he was a workman. The heads of argument filed by both counsel in
this
appeal reflected the same approach. The propriety of this approach was
broached with counsel during the hearing of the appeal. Counsel
for the
appellant thereupon promptly submitted that the appellant had exercised a
discretion and that the Court was not entitled
to interfere with his decision.
It is necessary, therefore, to consider this aspect of the matter.
/The ...
14.
The appellant derives his cause of action against the
respondents in this case from the provisions of section 8 (1) (b) of the Act,
which reads as follows:
"8. (1) Where an accident in respect of which compensation is payable, was
caused in circumstances creating a legal liability in some
person other than the
employer (hereinafter referred to as the third party) to pay damages to the
workman in respect thereof -
(a)
(b) the commissioner or the employer
by whom compensation is
payable
shall have a right of action
against the third party for
the
recovery of the compensation he
is obliged to pay under this Act
as
a result of the accident, and
may exercise such right either
by
intervening in proceedings insti
tuted by the workman against
the
third party or by instituting
separate proceedings: Provided
that
the amount recoverable in
terms of this paragraph shall not
exceed the
amount of damages, if
any, which in the opinion of the
court would have
been awarded to
the workman but for the provisions
of this Act."
/On ...
15.
On general principles, when the Commissioner exercises the right of action
conferred upon him by these provisions, he would be burdened
with the
onus
of proving the prerequisites laid down for liability on the part of the
third party. So, for example, he would have to prove what
the amount of
compensation is that he is obliged to pay under the Act; and in particular, in
the context of this case, he would have
to prove that the person involved in the
accident was a workman in terms of the Act (cf
Lichaba v Shield
Ver-sekeringsmaatskappy Bpk
1977 (4) S A 623
(0) at 637 B-G). The fact that
the third party cannot, by virtue of what is contained in the proviso at the end
of para (b) of section
8 (1), be in a worse position when sued by the
Commissioner than when sued by the alleged workman himself, could not prevent
him
from challenging the Commissioner to prove the prerequisites laid down for
his liability.
/The ...
16.
The position, according to general principles, in which the Commissioner and
the third party find themselves under section 8 (1) (b)
is not, in my view,
affected by the provisions of section 25 of the Act. Section 25 (1) provides
that any decision of the Commissioner
on any matter referred to in a number of
paragraphs of section 14 (1) shall be final, subject to the further provisions
of section
25. The matters referred to include,
inter alia
, the
determination by the Commissioner whether any person is a workman for the
purposes of the Act (section 14 (1) (e)) and the decision
of the Commissioner on
any question relating to the right to compensation, the computation of earnings,
and the amount of any compensation
(section 14 (1), paras (f) (i), (iii) and
(v)). Section 25 (2) (a) gives the right to "any person affected by a decision
of the commissioner"
to lodge an objection against such decision within 60 days.
Subsections (3), (4),
/(5) ...
17.
(5) and (6) prescribe the procedure to be followed in regard to such an
objection, and subsection (7) confers on "any person affected
by" a decision
given in regard to such an objection the right on certain circumscribed grounds
to take the decision on appeal or
on review , to the Supreme Court- In my
opinion the Legislature could not have intended the provisions of section 25 to
apply to
a third party referred to in section 8 (1) (b). Such a third party is
not directly "affected" by any decision of the Commissioner;
in the normal
course of events he would come into the picture only long after the
Commissioner's decision had been taken. In
Fred Saber (Pty) Ltd v Franks
1949 (1) S A 388
(A) at 395 CENTLIVRES JA observed that
"... it would appear that only the employee
or employer concerned is a 'person affected
by a decision
1
in terms of sec. 25 (2) (a)
and (7) (b) and (d)
..."
That remark was made in a different context, but it
/supports ...
18.
supports the view that the expression "any person affected by
a decision" in section 25 should be given a limited interpretation.
In
Sibisi
v Trustees Under Natal Act No 9,
1910
1913 A D 77
at 81 DE VILLIERS CJ
said:
" . . .. the expression 'affected' does not mean remotely, but proximately
affected."
That, too, was said in a different context, but in my view that is the
meaning which is to be assigned to the word as used in section
25 (cf
Ex
parte Workmen's Compensation Commissioner: In re Plotkin v Accident Fund
1970 (2) S A 418
(T) at 421 H - 422 C and
Wilson v Zondi
1967 (4) S A 713
(N) at 718 A - B). Since a third party in terms of section 8 (1) (b) is not
proximately, but only remotely, affected by any decision
of the Commissioner, he
does not fall within the purview of section 25 (2) (a) of the Act. That being
so, it must follow, in my judgment,
that the provisions in
/section ...
19.
section 25 (1) as to the finality of any decision of the Commissioner do not
apply in proceedings between the Commissioner and a third
party pursuant to
section 8 (1) (b).
A more difficult question is whether the fact that the Commissioner exercises
a discretion in calculating a workman's earnings in
terms of sections 3 (2) (b)
and 41 (1) has any bearing on proceedings under section 8 (1) (b). That
discretion arises from the use
of the words "in his opinion" in section 41 (1).
In my view those words are not restricted in their operation to the computation
of a workman's earnings "in such manner as .... is best calculated to give the
monthly rate at which the workman was being remunerated
by his employer at the
time of the accident"; they govern also what follows in the rest of the
subsection, from the word "including"
onwards. In particular, in the present
context, concepts such as "of a constant
/character" ...
20..
character" and "intermittent overtime" are incapable of precise
circumscription, and it seems to me to be in the highest degree likely
that the
Legislature intended the Commissioner to have a wide latitude to bring his
opinion to bear on the application of those concepts
to the particular facts of
any given case. And that applies, too, in the context of the incorporation by
reference of section 41
in section 3 (2) (b). If, then, in that context, the
Commissioner has, in the exercise of his discretion, classified a person as
a
workman in terms of the Act, and in proceedings instituted thereafter under
section 8 (1) (b) against a third party the latter
puts the Commissioner to the
proof of the fact that such a person is a workman in terms of the Act, is the
Court hearing the matter
free simply to substitute its own opinion for that of
the Commissioner, on no other ground than that its own opinion differs from
the
Commissioner's? I would
/hesitate ...
21.
hesitate to give a positive answer to this question, for to
do so could, I consider, lead to anomalous results. Two examples will
suffice to
illustrate the difficulties that I foresee. The first is based on section 41 (3)
ter
, which provides as follows:
"In any case where in the opinion of the commissioner it is not practicable
to compute the workman's earnings in accordance with the
preceding provisions,
the commissioner may determine such earnings in such other manner as he deems
equitable, but with due regard
to the principles laid down in those
provisions."
If the Commissioner exercises his discretion in terms of this subsection, I
find it somewhat startling to think that the Court hearing
an action under
section 8 (1) (b) could upset the Commissioner's decision on the sole ground
that its own notion of what is equitable
differs from the Commissioner's view in
that regard. This is no doubt an extreme case, but in principle the position
should be the
same where, for example, the
/question ...
22.
question in issue is whether or not overtime worked is to be
regarded as "intermittent". The second example is based on exhibit D.4
in the
present case, to which I referred earlier, viz the letter received by the
appellant from Pieterse's employer concerning Pieterse's
earnings, after the
appellant had commenced proceedings against the respondents. It suggests the
possibility of information being
placed before the Court in evidence, which was
not, and which could not reasonably have been expected to be, available to the
Commissioner
when he made his determination. Where the question involved is a
straightforward matter of objective fact, for instance where it
appears that the
person determined to be a workman was in fact a policeman, or a domestic servant
(see paras (a) (iii) and (f) of
section 3 (2)), there might be no problem, but I
am not at all sure that the Legislature intended the Court hearing a case under
section 8 (1) (b) to conduct
/an ...
23.
an entirely fresh enquiry, for the purposes of forming its own opinion, on a
matter which has clearly been entrusted to the discretion
of the Commissioner
for decision. It may be that in such a case the Court would be limited, in
deciding the issue, to the grounds
upon which the exercise of a discretion is
ordinarily open to attack by way of review- If that be the true approach, the
Commissioner
need merely prove that he made his determination in the exercise of
his discretion, and it would then be for the third party to establish
one of the
recognised grounds for interfering with the decision, e g by showing that the
Commissioner had not properly applied his
mind to the matter, or that his
determination was so grossly unreasonable as to justify the inference that he
had not properly considered
the question he had to decide.
The questions raised in the preceding paragraph were not properly canvassed
in argument before this
/Court ...
24.
Court, because counsel had not prepared
themselves for argument on that score. Accordingly I would prefer not to express
any decision
thereon, unless it is necessary to do so. In my opinion, it is not
necessary to do so, for the following reasons. It is clear from
the manner in
which the appellant's pleadings were formulated that he assumed the full
onus
of proving that Pieterse was a workman in terms of the Act. That was
confirmed, in relation to the calculation of Pieterse's earnings,
in para 7 of
the minutes of the pre-trial conference, which I quoted earlier, and by the fact
that the appellant's counsel saw fit
to call Pieterse as a witness in order to
place before the Court details of his overtime earnings. In his judgment, WEYERS
J remarked:
"It is common cause between counsel that the onus to establish that Pieterse
was a workman on a balance of probabilities rests on
the plaintiff."
/It ...
25.
It was at no time suggested by the appellant's counsel in the Court
a
quo
that the appellant's determination that Pieterse was a workman in terms
of the Act played any role in the resolution of the issue
by the Court. On the
contrary, the manner in which the case was conducted on the appellant's behalf
is consistent only with the view
that it was accepted on the appellant's behalf
that the Court was called upon to form its own opinion on the issue, on the
basis
of the evidence adduced, and to pronounce thereon accordingly. So, the
appellant had chosen his own battle-ground, as it were, and
he has no cause for
complaint if on appeal the Court declines to move onto a different terrain. This
is not a case in which this
Court is constrained to decide a point of law and to
deal with the appeal accordingly, whatever the position taken up by the parties
may have been, on the basis that it is clear that all the relevant facts had
been fully canvassed
/(cf ...
26.
(
cf Paddock Motors (Pty) Ltd v Igesund
1976 (3) S A 16
(A) at 23 B-G). It is, on the contrary, in my opinion, a case where, if this
Court were to accept the belated submission of counsel
for the appellant on the
point of law raised in argument, it would be wrong to decide the appeal on the
basis thereof, for it would
run counter to what was common cause in the Court
a quo
, and if the point had been taken there timeously, whether in the
pleadings or otherwise, the possibility cannot be excluded that
the respondents'
conduct of their case would have been different, for example in relation to the
cross-examination of Fisher (erf
A J Shepherd (Edms) Bpk v Santam
Versekeringsmaatskappy Bpk
1985 (1) S A 399
(A) at 415 B-E). Accordingly I
refrain from deciding the questions discussed in the preceding paragraph of this
judgment.
After that detour, I now revert to the facts of this case, as they appear
from the evidence of
/Pieterse ...
27
Pieterse. He was employed as a mobile crane operator
and handyman, and he was often required to work on
construction contracts away from his home base. An
analysis of what he said in regard to his overtime
work for his employer, reveals the following, by way
of summary:
Towards the end of 1975 or the beginning
of 1976 he commenced work on the site of
Ferrometals in Witbank. He worked there
for about 3 months. During that period
he occasionally worked overtime over week-
ends, possibly once or twice every month,
He then worked at the site of Highveld
Steel, also in Witbank, for a period of
4 months, commencing in March or April
1976. During that period he worked no
overtime whatsoever.
Thereafter he went to his employer's
/premises ...
28.
premises in Springs, where he worked for about 6 to 8 weeks.
While there, he worked no overtime at all.
4. From Springs he went to work at a site
called Lime Acres, in the North
Western
Cape, where he remained from about Septem
ber 1976 to January 1977
(apart from the
period of his holiday during December-
January). At Lime
Acres he did occasional
overtime work over a week-end, but his over
time
earnings were not regular, since the
contract work was not behind
schedule.
He did, however, earn overtime pay in every month, even if only for 1
week-end in the month.
5. He then proceeded to work at the factory
site of Ferralloys at Cato
Ridge. He
worked there from 18 January 1977 to 28
/April ...
29.
April 1977, when the accident occurred in which he was injured. During that
period he did a lot of overtime because the work was behind
schedule. In every
month he worked overtime for 3 week-ends, going home for the remaining one. At
the time of his accident he had
expected to remain at Cato Ridge for some months
more, but he could not say for how long. On that contract he would have been
required
to continue with his overtime work.
6. In general, it was the practice of Pieterse's employer to send its workmen
out countrywide to perform work on outside contracts.
That, however, did not
invariably involve the doing of overtime work. Overtime was required to be done
only in cases where the contract
work was behind schedule.
/To ...
30.
To these facts section 41 (1) must now be applied. For ease
of reference I quote again the important words which fall to be considered:
" including -
(b) any overtime payments or other
special remuneration of a constant character or for work habitually
performed,
but excluding remuneration for intermittent
overtime and casual payments of a
non
recurrent nature "
In the Court
a quo
WEYERS J, in interpreting these words, relied on the decision of BEADLE J (with
MURRAY CJ concurring) in the case of
Todd N O v Rhodesian Iron and Steel
Commission
1957 (3) S A 743
(S R). In that case BEADLE J interpreted a
similar provision occurring in the Southern Rhodesian Workmen's Compensation
Act, 1941.
Expressing his total agreement with that interpretation, WEYERS J
held that the words "of a constant character" did not qualify the
words "any
overtime payments" (but found that it was not necessary, on the facts, to base
his decision in the case on that
/view) ...
31. view).
In my view, the learned Judge
a quo
erred. Looking at the wording of
para (b), I have no doubt at all that the words "of a constant character" do
indeed qualify the
words "any overtime payments"- That conclusion is inevitable,
as a matter of simple logic: the phrase "any overtime payments", by
itself, and
by the very nature of the subject-matter dealt with, certainly does not involve
any concept of being "of a constant character";
therefore, the alternative
phrase which is introduced by the word "or", after "any overtime payments", viz
"other special remuneration
of a constant character", is incapable of
constituting in its entirety a real alternative to the preceding phrase;
therefore, the
word "other" is incapable of governing the words "of a constant
character", and must accordingly be read restrictively as qualifying
only the
expression "special remuneration", thus indicating no
/more ...
32.
more than that "overtime payments" are also regarded as "special
remuneration"; and therefore, finally, the phrase "of a constant
character" must
of necessity qualify both "any overtime payments" and "other special
remuneration".
The learned Judge
a quo
, with respect, misunderstood the reasoning of
BEADLE J in Todd's case
supra
, the crux of which appears at 749 A-E,
because he overlooked (as did counsel on either side, throughout this case) one
small but
vital word which appeared in section 63 (1) (b) of the Southern
Rhodesian legislation, but which is not to be found in the corresponding
section
41 (1) (b) of our Act: the word "if". The crucial effect of that word will be
apparent at once by emphasising it in the following
quotation of the relevant
part of section 63 (1) (b) of the Southern Rhodesian Act:
"any overtime payments or other special
/remuneration .
33.
remuneration if of constant character or for work habitually
performed."
(The word "if" appeared also in the
predecessor to section 41 (1) (b) of our present Act: see section 50 (1) (b) of
Act 59 of 1934.)
It seems to me that it was because of the presence of the word
"if" that BEADLE J found (at 749 B) that it was clear that either
both the
expressions "of constant character" and "or for work habitually performed"
qualify "overtime payments", or neither does;
and it was because he found that
the words "for work habitually performed" could not have been intended to
qualify "overtime payments",
that he concluded that the words "of constant
character" equally did not do so (at 749 D). The problems with which BEADLE J
grappled,
simply do not exist under our section 41 (1), where the word "if" has
been omitted. Without that word, there is no difficulty at
all arising out of
the words "or for work habitually performed": they obviously have no bearing
whatever on "any overtime payments"
and are
/merely ...
34.
merely an alternative to "of a constant character" with
reference specifically to "other special remuneration". There is no obstacle,
therefore, in the way of giving effect to the plainly logical interpretation of
section 41 (1) (b) that I mentioned above. Similarly,
the problems of surplusage
as between section 63 (1) (b) and the rest of section 63 (1) which BEADLE J
discussed at 749 E - 750 B,
do not arise under section 41 (1) of our Act. There
is no doubt a large measure of overlapping between the concepts expressed
positively
in para (b) and the concepts expressed negatively in what follows
thereafter, but I do not think that that creates any real problems
of
interpretation.
As observed earlier, concepts such as "of a constant character" and
"intermittent overtime" are incapable of exact definition. In
argument we were
referred to a large number of dictionary definitions of "constant" and
"intermittent", and of the corresponding
/expressions ...
35.
expressions in the Afrikaans text of the Act, "ge-reelde
(aard)" and "af en toe (gewerkte oortyd)". For the purposes of coming to
a
decision in this appeal, I see no point in going to the dictionaries. Indeed, on
the view I take of the facts of this case, the
outcome of the appeal is so clear
that I find it unnecessary to enter upon a discussion of the ambit of the words
"constant" and
"intermittent" as used in section 41 (1).
WEYERS J held, on the facts, that the overtime worked by Pieterse was not
"intermittent", and, on the supposition that "of a constant
character" governed
"any overtime payments", that the overtime payments received by him were "of a
constant character" ; and, furthermore,
that the position was so clear that no
reasonable person could find for the appellant by holding otherwise.
The salient facts which emerge from my earlier
/summary ...
36. summary of Pieterse's evidence may be stated as
follows:
(1) Over a period of approximately 18 months,
Pieterse received overtime
payments in
each of the last 8 months. In the last
3 of these he worked overtime fairly regularly; in the first 5, occasionally
(albeit in every month). Prior to that, he worked no
overtime at all for a
period of 5½ to 6 months altogether. Earlier, at the beginning of the whole
period, he had worked overtime
occasionally over a period of about 3 months
(again, in every month). Thus, for about one-third of the entire period, at one
stretch,
he did no overtime work.
(2) Generally, he was required to work overtime
only when the exigencies
of the work he was
engaged upon demanded it. In this regard
37.
I would quote the following two passages from
his evidence:
" En wanneer daar kontrakwerk ge-doen moet word, kan dit gebeur of dit kan
nie gebeur nie, dat daar oortyd-werk betrokke raak, te
pas kom? —-Al
wanneer ek oortyd gewerk net, is wanneer die werk agtergeraak het.
Sal u nie met my saamstem dat dit maar eintlik in die reel dikwels gebeur het
dat 'n spesifieke kontrak
agterraak nie? Dit is nie dat alle
kontrakte agterraak nie, dit is net wanneer jy nie genoeg werksmense het
nie Dan vra hulle jou om op 'n
.
naweek te werk "
" En as u op kontrakte gewerk het waar u huis toe gegaan het, het u dan
oortyd gewerk in daardie tye? Nee,
nie in die aande nie. Net wanneer die werk agter is, het hulle ons ge-vra om
op 'n naweek te werk, maar dit was nie altyd nie.
Dit was by geleenthede? By
geleenthede."
On these facts, in my judgment, the view expressed by the learned trial Judge
(viz that no reasonable person could find that Pieterse'
s overtime was
intermittent
/or ...
38.
or that his overtime payments were not of a
constant character) is wholly untenable. Absolution from the instance should not
have
been granted.
The appeal is allowed, with costs. The order of the Court
a quo
granting absolution from the instance, with costs, is set aside, and there is
substituted therefor the following order:
"The application for absolution from the instance is refused, with
costs."
A.S. BOTHA JA
RABIE CJ
GROSSKOPF JA
CONCUR
JACOBS JA
SMALBERGERJA