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[2024] ZAECBHC 25
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Ndiki v MEC for Education, Eastern Cape Province (128/2014) [2024] ZAECBHC 25 (3 September 2024)
FLYNOTES:
PERSONAL
INJURY – Workplace –
COIDA
exclusion
–
Teacher
having altercation with pupil at school – Stabbed by pupil
and sustaining injuries – Whether injury arose
out of or was
incidental to employment – Role of educator is to educate
learners – Disgruntled learner assaulting
an educator in the
exercise of his duties – Not something that arises out of
his employment or is incidental thereto
– Not accident as
defined by COIDA – Special plea dismissed –
Compensation for Occupational Injuries and
Diseases Act 130 of
1993, s 35(1).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO: 128/2014
Date
Heard: 15 August 2024
Date
Delivered: 3 September 2024
In
the matter between:
ZOLA
NDIKI
PLAINTIFF
and
MEC FOR EDUCATION,
EASTERN CAPE PROVINCE
DEFENDANT
JUDGMENT
MULLINS
AJ
[1]
On 6 September 2011 the Plaintiff, who was an educator employed by
the Department
of Education, Eastern Cape, at Nontswabu Junior
Secondary School, was stabbed by a learner as a result of which he
sustained certain
injuries, both physical and psychological (the
details of which are not relevant for present purposes).
[2]
In due course the Plaintiff issued summons against the Defendant, his
employer, claiming
damages in delict (the details of the grounds of
negligence and the quantification of the damages not being relevant
for present
purposes).
[3]
The Defendant has defended the action, denying liability and, in
addition, in its
amended plea taking a special plea to the effect
that the Plaintiff was precluded from instituting an action against
his employer
in that he (the Plaintiff) had failed to comply with
s35(1) of the Compensation of Occupational Injuries and Diseases Act,
130
of 1993 (“COIDA”).
[4]
It is the Defendant’s contention that the altercation that
occurred between
the Plaintiff and the learner, which resulted in the
Plaintiff being stabbed, was an occupational injury, alternatively an
accident,
as envisaged in COIDA.
[5]
The Plaintiff filed a replication admitting that when the incident
occurred he was
on duty and that he was performing his duties as an
educator. However, he denied that the assault fell within the scope
of COIDA.
[6]
The matter was eventually set down for trial on 17 April 2024, three
days being allocated
for the matter.
[7]
On 15 April 2024 the Defendant’s attorney wrote to the
Plaintiff’s attorney
suggesting that the COIDA issue should be
decided by way of a stated case and attaching a draft of the proposed
terms thereof in
accordance with rule 33(2).
[8]
On 16 April 2024 the Plaintiff’s attorney responded that the
Defendant’s
special plea had been filed in October 2019, yet
the Defendant had waited until the 11
th
hour to propose
that the matter be dealt with by way of a stated case. The Plaintiff
had prepared for trial and did not at that
late stage have adequate
time in which to prepare to deal with a stated case. In the
result the Defendant’s attorney
refused to agree to the
proposal and stated that any application to have the matter dealt
with in this manner would be opposed.
[9]
At the commencement of the trial on 17 April 2024 the Defendant
brought a substantive
application in terms of rule 33(4), not rule
33(1) as had been suggested in the correspondence, for the special
plea to be decided
separately from the other issues.
[10]
I am advised that the matter stood down and that the parties reached
an agreement that the special
plea would be dealt with as a stated
case. The Defendant tendered the costs of the first day of trial, the
balance of the wasted
costs being reserved to be dealt with when the
stated case was argued. The matter was postponed to 15 August 2024.
[11]
In due course the parties reached agreement as to the terms of the
stated case, the issue in
dispute being defined as follows:
“
The issue for
determination by this Honourable Court in this stated case is whether
COIDA finds application. Consequently, COIDA
prevents the plaintiff
from pursuing the damages claim against the defendant.”
[12]
The terms of the dispute are somewhat inelegantly phrased and it
would make more sense if the
word “
Consequently…”
read “
If that is the case
…”. I intend
to deal with the matter accordingly.
[13]
The agreed facts may be summarised as follows:
(a)
On the day in question an altercation occurred between the Plaintiff
and a learner;
(b)
The Plaintiff’s colleagues intervened and the learner left the
school premises only
to return later with a knife, which he used to
stab the Plaintiff;
(c)
At the time the Plaintiff was on duty and performing his duties as an
educator.
[14]
The following provisions of COIDA are of relevance to the stated
case:
“
Section 1
‘
accident’
means 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;
‘
occupational
injury’ means a personal injury sustained as a result of an
accident;
Section 15(1)
There is hereby
established a fund to be known as the compensation fund.
Section 16(1)
The compensation fund
shall, subject to the provisions of this Act, be under the control of
the Director-General and its monies
shall be applied by the
Director-General to –
(a)
the payment of compensation, the cost of medical aid or other
pecuniary benefits to or on
behalf of or in respect of employees in
terms of this Act when no other person is liable for such payment;
Section 22(1)
If an employee meets with
an accident resulting in his disablement or death such employee or
the dependents of such employee shall,
subject to the provisions of
this Act, be entitled to the benefits provided for and prescribed in
this Act.
Section 35(1)
No action shall lie by an
employee or any dependent of an employee for the 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.”
[15]
In simple terms, if an employee is injured (or contracts a disease)
in circumstances which arise
out of his/her employment, he/she cannot
sue his/her employer, but must submit a claim for compensation in
accordance with COIDA
[1]
(which
is still commonly referred to as “workmen’s compensation”
because of the now repealed very similar Workmen’s
Compensation
Act, 30 of 1941).
[16]
Despite the apparent clarity of the provisions of the Act quoted
above COIDA (and the previous
Act) has spawned a plethora of
litigation which shows no signs of abating, as is evidenced by this
matter. The reason being is
that there is sometimes a fine line, or
grey area, between what qualifies as an event which arises out of an
employee’s employment,
and hence covered by COIDA, and an event
that does not. Nor has there been a Uniform approach to the
issue.
[17]
In the seminal decision of
Minister
of Justice
v
Khoza
,
[2]
dealing with what “
out
of his employment
”
meant,
Williamson JA had the following to say (at 419A –B):
“
On this aspect of
the matter this Court was treated to an interesting dissertation by
both counsel on a number of decisions, chiefly
in the Courts of
England, as to when it can be said that the workman’s injury
arose “out of his employment”.
I regret to say that,
through no fault of counsel, I did not find an examination and
consideration of all these decisions, as well
as several others on
similar lines referred to in the 36
th
edition of Willis on Workmen’s Compensation, rendered any
material assistance comparable to the interest created by counsel’s
arguments.
In
fact a perusal of the leading English authorities reveals a number of
completely irreconcilable approaches to the problem from
time to
time
.”
(My underlining).
[18]
And in
MEC
for Health, Free State
v
DN,
[3]
Navsa ADP stated the
following (at para 23):
“
South African
courts have not been a model of consistency in their approach to the
determination of whether an accident arose out
of an individual’s
employment.”
[19]
The problem is that every case has to be decided based on its own
specific facts, and as no two
cases will ever have the same factual
matrix, conflicting decisions are bound to arise. As was stated by
Williamson JA in
Khoza
(at 419H):
“
On every set of
facts the question to be answered is the same; but it is seldom that
facts are identical. The decision is in essence
in each case one of
fact related only to the particular facts in issue. The enquiry on a
particular issue is whether it was the
actual fact that he was in the
course of his employment that brought the workman within the range or
zone of the hazard giving
rise to the accident causing the injury. If
it was the accident arose “out of employment…”.
[20]
The problem is illustrated by two cases involving police officers
being shot by a colleague while
on duty. In
Khoza
the
court held that the matter fell to be decided in accordance with
COIDA, whereas
Twalo
v
Minister
of Safety and Security and Another
[4]
came to the opposite
conclusion.
[21]
In
Khoza
two police constables were guarding prisoners. One of
them was playing with his firearm and accidentally fired a shot which
struck
his colleague. The Appellate Division held that COIDA’s
predecessor, the Workmen’s Compensation Act, was of
application.
In
Twalo
a police officer was taunting a
colleague about his wife’s morals as a result of which the
offended officer shot and killed
the colleague. The court found that
COIDA did not apply.
[22]
The distinguishing feature between these two cases appears to be that
the one involved in accidental
act, whereas the other was
intentional. Thus, in
Khoza
in dealing with a causal
connection between the event and the workplace Rumpff JA stated the
following (at 417F – I):
[5]
“
It is in any event
clear that this causal connection for the purposes of the Act would
among other things disappear if the accident
was of such a nature
that the workman would have suffered the injuries even though he was
at a place other than the one his work
demanded, or if the workman by
his own act severed the existing connection between his service and
the accident,
or
where the workman was deliberately injured by another person and the
motive for the assault had no connection with the working
duties of
the workman
.”
(My emphasis).
[23]
However, as is dealt with below, the fact that an injury results from
a deliberate, intentional
and/or premeditated act is not necessarily
decisive.
[24]
With regard to a school environment two cases are illustrative of the
issue, namely
MEC
for Education, WCP
v
Strauss
[6]
and
Ndala
v
Minister
of Education and Others
.
[7]
[25]
In
Strauss
the educator in question was teaching learners how
to throw a discus. In the process she was struck on the forehead by a
discus
and seriously injured. The educator sued her employer,
the MEC for Education, and on appeal it was held that COIDA applied.
In
Ndala
the facts are remarkably similar to the present
matter. An educator instructed a learner to bring his hairstyle
in line with
the school’s dress code. He did not do so
and when again confronted by the educator the learner went home and
fetched
a knife and on his return stabbed the educator. In this
instance the court held that COIDA did indeed apply. The learned
judge stated as follows (at para 16):
“
The plaintiff in
refuting the defendant’s plea, contends that the injuries of
knife stab wounds or injuries sustained are
not related or incidental
or ancillary to occupational injuries in the ordinary course of
employment and as such do not ordinarily
arise in the workplace. This
argument is of no moment when considering the definition of
occupational injury.”
[26]
I am in respectful disagreement with the conclusion reached by the
learned judge in the
Ndala
matter. The test to be
applied is, in my view, whether the injury complained of is not
whether it occurred
during the course
of the educator’s
employment (which it did) but whether it
arose out of
or was
incidental
to the employee’s employment. Thus, a
soldier can hardly be heard to complain if, in the line of duty, he
is shot;
a security guard, whose job it is to protect property from
being broken into, can hardly be heard to complain if he is assaulted
by persons breaking into the property; a doctor working in a
psychiatric hospital in which there are violent patients would be
in
a similar position. In contrast, the doctor in
DN
was
attacked and raped in hospital by an intruder, not a disgruntled
fellow employee or deranged patient. The court held that COIDA
did
not apply.
[27]
In
Churchill
v
Premier,
Mpumalanga and Another
[8]
Wallis
JA stated (at para 20):
“
The closer the
link between the injury sustained and the performance of the ordinary
duties of the employee, the more likely it
will be that they were
sustained out of their employment. The further removed from
those duties, and the less the likelihood
that those duties will
bring the employee into a situation where such injuries might be
sustained, the less likely that they arose
out of their employment.
In the case of Ms Churchill, it is common cause that her injuries
were sustained
in
the course
of her employment. The only issue is whether they
arose
out of
her employment.” (My emphasis).
[28]
In
Churchill
the plaintiff, who was employed in the
defendant’s office, got caught up in strike action and was,
inter alia
, assaulted. She sued her employer for damages
who took a special plea that COIDA applied. The special plea
was successful
in the court
a quo
. Overturning the
judgment on appeal Wallis JA stated
:
“
[26]
Did this incident arise out of Ms Churchill’s employment so
that her injuries, both physical and psychiatric,
were sustained in
an accident for the purposes of COIDA? It was accepted that
because it happened at her place of employment
and while she was
going about her duties it arose
in
the course of her employment
.
Did it
arise out of her employment
?
In other words, was it sufficiently closely connected to her
employment to have arisen from it? The fact that it occurred
in
her workplace when she was going about her duties is undoubtedly a
factor that connected it to her employment. In that
sense her
employment brought her within the zone of risk, but that is merely
where the enquiry commences. Was the risk also
incidental
to her employment?
[27]
The respondents argued that the risk was foreseeable, because it is a
regrettable reality that
protest action and industrial action can
sometimes lead to incidents where people are pushed, shoved or
attacked in a more aggressive
fashion. They referred to a
previous protest in 2016, where women members of the bargaining group
who had remained at their
posts were forcibly removed from their work
stations. It was agreed that the employees not engaged in the
protest were wary
of intimidation by the protestors and realised that
because feelings were running strong the protest might turn
“unpeaceful”,
that is, violent, with a risk of physical
injury to those employees.
[28]
It is not apparent to me why the possibility of protests or
industrial action turning violent and resulting in assaults on
non-participating
employees, means that the assaults are risks
incidental to the employment of those assaulted
. The wider
implications of this were explored with counsel. They appear to be
far-reaching. Take the case of a non-striking employee
who crossed a
picket line to work and was condemned as a scab by the strikers.
Would an aggravated assault aimed at persuading
them to desist arise
from their employment? Would it make a difference if the assault was
an act of revenge after the strike ended?
Neither situation seems to
me to be closely connected to the performance of their duties as an
employee.
To adopt the language used in
Khoza
in
describing an instance where the assault would not arise out of the
employee's employment, such an assault has no connection
with the
working duties of the employee. It is connected to their employment,
but not to their duties in that employment
.” (My
emphasis).
[29]
In concluding the discussion on this point I can do no better than,
once again, quoting from
DN
:
[30]
By employing terms such as “necessary risk of employment”
or “risk incidental
to employment”, courts have attempted
to determine whether the cause of injuries sustained by employees was
related to the
employee’s employment. The latter part of the
quote in
Khoza
set out in para [16] and summarised in English
in para [17], in similar fashion, sought to provide some guidance in
determining
whether an accident “arose out of employment”.
[31]
Counsel on behalf of the Defendant did not go so far as to suggest
that the dictum in
Khoza,
referred to in the preceding
paragraph, was clearly wrong and that I should depart from it, but
pointed out that relating the causal
connection, as Rumpff JA did, to
the motive of the perpetrator of the wrong that caused the injury was
problematic and would lead
to uncertainty. I agree. However it
appears to me that the problem can be resolved by a slight
adjustment, namely to ask
the question whether the wrong causing the
injury bears a connection to the employee’s employment.
Put
differently, the question that might rightly be asked is whether the
act causing the injury was a risk incidental to the employment
.
There is of course, as pointed out in numerous authorities, no
bright-line test. Each case must be dealt with its own facts
.
[32]
I am unable to see how a rape perpetrated by an outsider on a doctor
– a paediatrician
in training – on duty at the hospital
arises out of the doctor’s employment. I cannot conceive of the
risk of rape
being incidental to such employment…”
(My emphasis).
[30]
An unusual situation arose in
Van
De Venter
v
MEC of
Education, Free State Province.
[9]
The
plaintiff, who was the cashier at a school, was injured in an armed
robbery. In due course she issued summons against
her employer
for damages. The action was defended and,
inter
alia
,
the defendant pleaded that the plaintiff had failed to deliver the
statutory notice timeously. She applied for condonation.
In opposing condonation one of the points taken was that, as COIDA
applied, the action against the MEC had no prospects of success
and
hence condonation should be refused. The learned judge agreed
and stated (at para 44):
“
[44]
On the strength of decided caselaw, I am persuaded that the proposed
action has no prospects of success.
The facts did not give rise
to a novel situation. The fact that the applicant was injured
by criminal outsiders and not by
fellow employees made no
difference. A few litigants have previously travelled down that
same route before and all of them
ended nowhere. I am certain that
the applicant’s proposed action would probably be found
seriously wanting.”
And (at para 53):
“
Accordingly I have
come to the conclusion that, even if section 35, Act No 130/1993 did
not apply, the proposed main action would
still have no prospects of
success, to mitigate her unsatisfactory explanation and culpability
as a whole.”
And, quoting
Urquhart
v
Compensation
commissioner
[10]
with
approval (at para 41):
“
It follows,
therefore, that any personal injury sustained by an employee caused
by an criminal act arising out of and during the
course of an
employee's employment amounts to an accident as defined in section
1.”
[31]
Urquhart
concerned a press photographer who over the years had
been exposed to many traumatic events, the last straw being assaulted
while
photographing a fraud suspect outside a court building.
He suffered from post-traumatic stress (which was not in dispute).
On appeal the court held that the plaintiff’s condition was an
accident as defined in section 1 of COIDA.
[32]
I am in respectful agreement with the conclusion reached in
Urguhart
. The plaintiff’s job placed him in
potentially dangerous situations. I also do not take issue with
the conclusion
reached by the learned judge in
Van De Venter
.
The plaintiff was in control of the school’s money which was on
the premises and a robbery was not beyond the realms
of possibility.
However, what I do take issue with is the “hard line”
adopted by the learned judge, as quoted
above, which does not accord
with the weight of authority. Not every criminal act arising
out of or during the course of
an employee's employment falls to be
determined in accordance with COIDA.
[33]
To return to the present matter. The role of an educator is to
educate learners. As an educator
often has to deal with large groups
of learners it goes with the territory that they, the learners, will
on occasion become unruly
and that friction between them and the
educator will occur. There will always be those learners who
test the boundaries.
It is for this reason that the Department has
rules, as do schools, governing what is, and what is not, acceptable
behaviour. Incidental
to an educator’s employment is the
enforcement of those rules. However, that a disgruntled learner
would, or even may,
assault an educator in the exercise of his/her
duties is not something that arises out of his/her employment and/or
is incidental
thereto.
[34]
In the circumstances, I find that the incident giving rise to the
Plaintiff’s injuries
was not an accident as defined by COIDA
and that the special plea stands to be dismissed with costs.
[35]
On the question of the wasted costs occasioned by the matter having
to be postponed on 17 April
2024, counsel for the Plaintiff urged me
to make an order that the wasted costs should include all three days
which had been allocated
to the matter on that occasion (the first
day’s costs having already been tendered by the Defendant) as
well as preparation,
travel and accommodation costs, and so forth.
[36]
I am satisfied that the Plaintiff is entitled to the wasted costs
whatever they may be, but to
order that these costs are to include
the days allocated for trial would be usurping the role of the taxing
master. What
is reasonable in the circumstances is not
something a court should determine and I do not intend to do so.
[37]
Insofar as the costs occasioned by the special plea are concerned,
both counsel were
ad idem
that scale A should apply.
The same scale shall apply to the wasted costs.
[38]
In the circumstances I make the following order:
1.
The Defendant’s special plea is dismissed.
2.
The Defendant is liable for the costs occasioned by the special plea,
such costs
to be taxed according to scale A.
3.
The Defendant is liable for the wasted costs occasioned by the
postponement of
the matter on 17 April 2024, such costs to be taxed
according to scale A.
NJ
MULLINS
ACTING
JUDGE IN THE HIGH COURT
DATE:
APPEARANCES:
Plaintiff:
Adv. S
Conjwa
Attorneys ZYM Ndzabela
Inc.
c/o Sigaba and Associates
Defendant:
Adv. S
Swatbooi SC
State Attorney, King
William’s Town
[1]
See generally: Lawsa; Vol. 13(2); First Reissue; paras 328 -
334
[2]
1996 (1) 410 (AD).
[3]
2015 (1) SA 182 (SCA)
[4]
[2009] 2 All SA 491 (E)
[5]
Translated from Afrikaans
[6]
2008 (2) SA 366
(SCA)
[7]
[2019] ZAGPPHC 387
[8]
[2021] ZASCA 16
[9]
[2012] ZAFSHC 185
[10]
2006 (1) SA 75
(ECD)