DRIGINAL
IN THE HIGH COURT"OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
FELICITY KHUMALO
and
THE COMPENSATION COMMISSIONER
CHAIRPERSON: MR MOEKETSI
Coram:
Heard: Opperman J et Van Rhyn J
17 February 2025 Reportable : YES/NO
Of interest to other Judges: YES/NO
Circulate to Magistrates : YES/NO
Case no.: 4083/2020
Applicant
First Respondent
Second Respondent
Delivered: 21 February 2025. This judgment was handed down in court and
electronically by circulation to the parties' legal representatives by email and release
to SAFLII. The date and time for hand-down is deemed to be on 21 February 2025 at
15h00.
Summary : Review of irregular proceedings at objection hearing in terms of
s 91 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993
(COIDA)
2
ORDER
1. Condonation is granted for the late filing of the review application.
2. The objection hearing and subsequent decision on 13 September 2018
whereby the second respondent upheld the first respondent's decision to dismiss the
objection lodged by the applicant in terms of s 91 of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993, are reviewed and set aside.
3. The matter is remitted for a re-hearing in terms of s 91 (2) and/or 91 (3) of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993.
4. The first respondent is ordered to pay the costs of the review as on party and
party scale A.
Opperman J
Introduction JUDGMENT
[1] This is a review that was brought before the court in terms of rule 53 of the
Uniform Rules of Court. The review targets the hearing and the outcome of an
objection that was lodged in terms of s 91 of the Compensation for Occupational
injuries and Diseases Act 130 of 1993 (COIDA).1 The review application was brought
more than two years after the objection ruling and the condonation application of the
applicant is opposed.
[2] The applicant is an unemployed 51-year-old lady. The incident that caused her
claim occurred during her employment at Foodzone, Bloemfontein on 2 November
2012. She was employed as a general worker at said Foodzone for approximately four
to five years at the time.
1 Further amended notice of motion, 'Bundle 8' at 71 to 72.
3
[3] The first respondent is the compensation commissioner appointed in terms of,
and deriving its authority from, the COIDA. The second respondent is one Mr.
Moeketsi cited in his capacity as the chairperson of the hearing conducted in terms of
s 91.
The issue
[4] The crux of the review is that on 29 November 2017, the compensation
commissioner addressed a letter to the applicant. It states, inter alia, that:
'On available information compensation and medical aid expenses are not payable in terms
of the above-ment ioned Act, as you were not injured in an accident arising out of and in the
course of your employment as the employer says the journey that you took was not
authorised .'2 (Accentuation added.)
[5] It is common cause that the applicant never took any journey and the reason is
bizarre since she only walked to the ladies' room where she fell. It is on this basis that
the applicant lodged an objection in terms of s 91 of the COIDA. This is what the
applicant prepared for and the case that she objected to.
[6] The matter did not proceed on the 12th of September 2018 as scheduled . The
applicant was verbally informed on this day by the employer 's representative that the
above reason from the commissioner that caused the rejection of the applicant's claim,
was an error.
[7] In the objection hearing that proceeded on the 13th of September 2018, initiated
by the applicant, the respondents went forth and introduced new crucial medical
evidence to bolster the case for the respondents . The medical evidence was disclosed
to the applicant, who was unrepresented , on the day the hearing started.
[8] The applicant now submits that the new grounds of rejection was irregular and
renders the process reviewable because it amounts to, among others, a 'trial by
ambush'.3 There are also peripheral complaints such as that the commissioner
admitted hearsay evidence. I will only deal with the fairness of the hearing on the first
2 'Bundle A' at 45.
3 Applicant 's supplementary heads of argument , at 3 para 7.
4
issue since it disposes of the matter. It is also not prudent to venture into the merits of
the evidence adduced if the initial process does not pass constitutional standard.
[9] Context demands , however, that the dispute of facts that prevails be depicted.
It is the case for the respondents that on the day of the incident the applicant allegedly
suffered a 'left sided posterior communicating artery aneurysm ' .4 The aneurism was
caused by a pre-existing condition and is the reason that she fell. The applicant
maintains that she went to the ladies' room on the day of the incident where she
slipped, fell and sustained the injury that caused her to lose consciousness and
subsequent 'head operations '. 5
[1 O] The respondents argued that the process followed by the commissioner to mero
moto, on the day of the hearing, inform the applicant of the amendment to their findings
and to introduce the new evidence promptly and without notice to the applicant, was
accepted by the applicant and cannot be faulted.
[11] It is glaringly obvious that she did not receive notice of the change in the findings
and the new evidence adduced in order to prepare.
[12] The fact that an unrepresented person completely ignorant of the law and the
resultant process yielded to the hearing does not prove in any way whatsoever that
her conduct was legally informed and with proper understanding of the consequences .
The mere fact that she immediately started to look for resources to assist her to object
to the findings and process that was embarked upon by the commissioner, speaks
volumes.
[13] The core issue must not be deflected by the medical evidence that was
adduced. It remains that the process to get to the evidence was flagrantly flawed and
that the applicant had to be given access to justice in the least in terms of ss 33 and
34 of the Constitution of the Republic of South Africa of 1996. 6
4 'Bundle A', at 53. This is a report dated 12 September 2018 compiled by one Dr F van Niekerk;
neurosurgeon.
5 'Bundle B' at 14 to 15, para 5.4.
6 Venter v Compensation Commissioner2001 (4) SA 753 (T).
5
[14) It is worth noting that the probability that a person properly represented would
have submitted to the process is naught. The law on conduct such as what the
commissioner embarked upon is clear.
The law
[15) Section 33 of the Constitution demands that:
'33. Just administrative action.-(1) Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.'
[16] Section 34 of the Constitution decrees that:
'34 Access to courts.-Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.'
[17) In MEG for Public Works and Infrastructure, Free State Provincial Government
v Mofomo Construction CC7 it was concluded that:
'[50] Kirland supra was taken on appeal to the Constitutional Court and in MEG for Health,
Eastern Cape and Another v Kirland Investments (Ply) Ltd tla Eye and Laser Institute 2014
(3) SA 481 (CC) at para [65] Cameron J held as follows:
"When government errs by issuing a defective decision, the subject affected by it is entitled to
proper notice, and to be afforded a proper hearing, on whether the decision should be set
aside. Government should not be allowed to take short cuts. Generally, this means that
government must apply formally to set aside the decision. Once the subject has relied on a
decision, government cannot, barring specific statutory authority, simply ignore what has been
done. The decision, despite being defective, may have consequences that make it undesirable
or even impossible to set it aside. That demands a proper process, in which all factors for and
against are properly weighed." (Accentuation added.)
[51] The effect of the last two sentences of the quotation in the previous paragraph is that the
enquiry does not stop simply at whether the appointment was unlawful. The court must upon
a declaration of invalidity make an order in terms of s 8 of PAJA, according to what justice and
equity dictate. See Al/pay Consolidated Investment Holdings (Ply) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and Others 2014 (4) SA 179 (CC)
(the second Allpay judgment) at para [61] and further. In casu the Department 's simple
allegation that no valid tender process was followed is in itself insufficient and it was not even
7 MEG for Public Works and Infrastructure, Free State Provincial Government v Mofomo Construction
CC (A138/2016) (2016] ZAFSHC 196 (24 November 2016).
6
necessary to consider a just and equitable remedy consequent upon a finding of unlawfulness .
See Kwa Sani supra.'
Conclusion
[18] In conclusion, the decision by the commissioner as per their notice to the
applicant and whereupon she lodged her objection , is constrained by the doctrine of
legality that they may exercise no power and perform no function beyond those
conferred upon them by law. The subject affected by a decision taken in error is
entitled to proper notice and to be afforded a proper hearing on whether such a
decision should be set aside.
[19] Section 90 of the COIDA confirms the intention of the lawgiver on the subject
in that:
'90. Review of decisions by Director-General.-(1) The Director-General may after notice, if
possible, to the party concerned and after giving him an opportunity to submit representations ,
at any time review any decision in connection with a claim for compensation or the award of
compensation on the grounds ... ' (Accentuat ion added)
[20] In casu, the applicant was not even informed of what caused the error or the
reason for the finding in the first instance and why it was without warning or notice and
suddenly necessary to adduce expert medical evidence to bolster the case for the
respondents . In essence, the respondents embarked on a new hearing without
following proper and constitutional process; they caused an unconstitutional and illegal
hearing. The conduct of the commissioner was and is the cause of gross irregularity
and misdeed.
[21] The finding of the first respondent that was made in apparent error does not lie
for review here; it is only the s 91-objection hearing. The application in prayer 3 is a
contradiction as it applies for remittance to the first respondent for reconsideration
without an application for the finding to be reviewed and set aside. The re-hearing of
the s 91-objection may however be ordered after it was reviewed and set aside. The
'erroneous order' conveyed in the correspondence dated 29 November 2017 remains
in effect.
7
Condonation and costs
[22] The applicant took her time to bring the matter to court. Her explanations of the
delay were often vague and undetailed. The dictum in Grootboom v National
Prosecuting Authority and Another> that condonation cannot be had for the mere
asking is trite. A party seeking condonation must make out a case entitling it to the
court's indulgence. It must show sufficient cause. In casu the court would have
hesitated to grant condonation if it was not for the significant facts of this case. The
effective administration of justice demands that condonation be granted.
[23] It was agreed during the hearing by counsel for the parties that costs on party
and party scale A will suffice given the circumstances of the case and that costs should
follow the cause.
Order
[24] The following order is made:
1. Condonation is granted for the late filing of the review application.
2. The objection hearing and subsequent decision on 13 September 2018
whereby the second respondent upheld the first responden t's decision to dismiss the
objection lodged by the applicant in terms of s 91 of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993, are reviewed and set aside.
3. The matter is remitted for a re-hearing in terms of s 91 (2) and/or 91 (3) of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993.
4. The first respondent is ordered to pay the costs of the review as on party and
party scale A.
Opperman J
8 Grootboom v National Prosecuting Authority and Another (CCT 08/13) {2013) ZACC 37; 2014 (2) SA
68 (CC); 2014 (1) BCLR 65 (CC); {2014) 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013)
para 23.
I concur,
Appearances
For applicant:
Instructed by:
For respondents:
Instructed by: Q. J. Moletsane
Bloemfontein
Gcsamba Inc. Attorneys
Bloemfontein
A.1.8. Lechwano
State Attorney: Free State
Bloemfontein 8
Van Rhyn J