IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG

CASE NO: AR118/2024
In the matter between:

ARUNACHELLA M NARAYANASAMY APPELLANT

and


DEPARTMENT OF LABOUR: COMPENSATION COMMISSIONER RESPONDENT
____________________________________________________________

ORDER
____________________________________________________________

On appeal from : the Tribunal constituted in terms of section 91(2) of the Compensation
for Occupational Injuries and Diseases Act 130 of 1993 (comprising of Presiding Officer
SZ Zungu with assessors ):
1. The appeal is upheld .
2. The decision of the Tribunal, dated 12 October 2023, is set aside and substituted
with the following order:
‘(a) The Compensation Commissioner is ordered to accept liability for the
Objector’s occupational diseases, Post -traumatic Stress Disorder and Major
Depressive Disorder, contracted in the course and scope of his
employment;
(a) The Compensation Commissioner is ordered to issue, in favour of the
Objector, a written Award of Compensation, stating the following particulars:

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i. The Objector’s earning per month for compensation purposes is
R6 650.85;
ii. The diagnosis of disability is Post Traumatic Stress Disorder and
Major Depressive Disorder;
iii. The date of the accident is 6 May 1993;
iv. The percentage of permanent disablement is 100%;
v. Compensation in the form of a monthly pension shall commence on
6 May 1993;
vi. All increases in monthly pensions, as prescribed from time to time
in terms of section 57(1) of COIDA, shall accrue from 6 May 1993
onward s.
(c) The Compensation Commissioner is ordered to publish the aforesaid Award
of Compensation to the Objector’s attorneys of record and the Objector’s
employer within 20 (twenty) days of this order;
(d) The Compensation Commissioner shall bear the costs in the objection on a
scale as between attorney and own client .’
3. The respondent shall pay interest on the amount of the arrear pension at 15,5%
per annum from 6 May 1993 .
4. The respondent shall pay the costs of the appeal, such costs to be tax ed on
scale C.
____________________________________________________________

JUDGMENT


Henriques J (R Singh J concurring) :

Introduction
[1] This is an appeal in terms of the provisions of s 91(5) of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (COIDA) against the ruling of a
tribunal convened in terms of s 91(3) of COIDA on 12 October 2023 (the Tribunal) . The
appellant appeals only against two aspects of the ruling , namely the decision that:
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(a) the effective date of liability of the respondent is 3 May 2007; and
(b) the appellant is entitled to only 20% permanent disablement.

[2] The grounds of appeal , as stated in the notice of appeal , are the following, namely:
‘2.1 that the ruling or judgment is based on a fundamental misconstruction and/or
misinterpretation of the facts and evidence adduced at the hearing of the appellant’s
objection;
2.2 that the ruling of judgment is predicated on the incorrect interpretation of the COID Act
and/or other laws;
2.3 the ruling/judgment has the effect that the extent of compensation awarded to the
appellant, is so inadequate that the award thereof could not reasonably have been made. ’

[3] The appeal is opposed by the respondent on both grounds advanced and the
respondent submits that the effective date of liability , being 3 May 2007 , and the allocated
20% permanent disability , were correctly determined by the Tribunal. The respondent ,
however , submits that the order for costs on an attorney and own client scale granted by
the Tribunal was unreasonable and has no basis. It submits that the order for costs is only
warranted in exceptional circumstances and that the facts o f this matter do not justify such
a finding and that an award of costs on a party and party scale is more appropriate. In
addition, the further submissions advanced relate to the applicable interest rate.

[4] There is, however, no cross -appeal on these point s by the respondent, and these
challenge s cannot be raised absent a cross -appeal. Considering the ambit of s 91(5) of
COIDA , it is doubtful that an appeal can be brought against the costs order awarded by
the Tribunal, but no finding i s made in this regard. In either event , the complaint by the
respondent to the costs order is not properly before this court nor is the issue relating to
the applicable interest rate and consequently will not be dealt with further.

Ruling of the Tribunal
[5] In its ruling of 12 October 2023 , the T ribunal ruled in favour of the appellant (who
was the objector in those proceedings) and found that his objection succeeded with costs
on an attorney and own client scale. In respect of costs , it found that the basis for a
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punitive costs order was that ‘the object or was entitled to costs given the unfair and
unjustified dec ision by the F und. The objector had to employ the services of a specialist
legal practitioner ’. The presiding officer of the Tribunal was assisted by a medical
assessor, as well as an assessor for the employer and one for the employee.

[6] The respondent , by way of a letter dated 24 February 2013 , had repudiated the
appellant’s claim on the basis that , firstly, the diagnosis of post -traumatic stress disorder
(PTSD) could n ot be accepted in terms of COIDA, as conflict and stress were not ground s
to claim for PTSD , and secondly , the case was reported long before the accident.
Pursuant to such le tter of repudiation , the appellant lodged an objection against this
decision on 9 April 2013 . Despite the objection being lodged in 2013 , the objection was
only heard and decided upon in 20 23 by the T ribunal in terms of s 91 of COIDA.

[7] The T ribunal was of the view that the issues which it had to decide were :
(a) Firstly, whether the decision by the respondent to repudia te the claim by the
appellant was fair and justified ;
(b) Secondly, whether the incident arose in the course or out of the employment of the
appellant and whether the claim had to be accepted ; and
(c) Thirdly, the effective date of liability and the percentage for which the respondent
was liable.

[8] In determining these issues , the Tribunal found that the decision by the respondent
was ‘unfair and unjustified on factual and medical evidence ’ and that it was liable for the
appellant ’s claim , as it arose in the course or out of his employment. It determined the
effective date of liability of the respondent to be 3 May 2007, which was the date on which
Dr M ansoor first diagnosed the appellant with suffering from PTS D. In addition, it
determined that according to the AMA Guides to the Evaluation of Permanent
Impairment ,1 it was in the interest s of justice to allocate a permanent disability and
proceeded to allocate a permanent disability of 20%.


1 AMA Guides to the Evaluation of Permanent Impairment 6 ed (2023).
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[9] Regrettably, the ruling is silent on how the T ribunal arrived at these findings.

[10] It is perhaps apposite at this point to deal with the factual matrix which was
presented before the T ribunal. It is also important to mention that the respondent did not
lead any evidence, and was content with merely cross -examin ing the appellant. In
addition, the documentary evidence presented , specifically in relation to the various
medical reports filed in support of the application was not challenged and rig ht at the
outset of the hearing , the respondent agreed to the content of these reports .

Factual matrix
[11] The appellant, a former employee of the Department of Education (the employer) ,
was medically boarded due to ill health , effective from 1 February 199 7. At the time of his
application for medical boarding , he was the principal at Victoria Primary School. The
application for medical board ing was supported by medical reports from various medical
professionals and experts , which were accepted by the employer. The m edical reports
were completed by Dr DP Moodley , a psychiatrist ; Dr L Moodley, a specialist physician ;
Dr TGR Govender, a general practitioner ; as well as Dr DK Meeran , a specialist
psychiatrist. There was no dispute th at the appellant consulted with and was treated by
the various medical professionals on the dates indicated in the ir medical reports and these
reports were submitted by consent.

[12] What precipitated the application for medical board ing due to ill health , were the
following common cause facts :
(a) On 6 May 1993 , whilst acting principal at G randmore Pr imary School, educators
went on a ‘chalk down ’ strike. It is common cause that : most of these ed ucators were
members of the South African Democratic Teachers Union (SADTU) ; the appellant was
not a member of SADT U and did not support the strike ; and as a consequence of the
strike on the day of the incident , the appellant was threatened with assault by various
educators and forced to lock himself in the HOD’s office. He was protected from assault
and physical injury by the parents who had attended at the school on the day in question .
6

(b) As a result of the strike , the appellant was asked to take special leave in an attempt
to calm d own the situation at the school which had culminated in the strike. At this stage ,
the strike had extended to other schools in the area.
(c) After the incident and during the same year , the appellant assumed duties as an
acting principal at Palmcroft Primary S chool. This was precipitated by him engaging the
services of an attorney to enforce his return to his post , as he was not allowed to return
to the school and his special leave w as extended .
(d) Subsequently , on 1 January 1994, he was appointed to the post of principal at
Victoria Primary S chool. Whilst at such post in 1996 , the cleaners embarked on a strike
and this is what prompted the appellant to come to his decision to request medical
boarding. He indicated that the reason for doing so was that during the time of the
cleaner s’ strike , he experience d flashbacks regarding the incident in May 1993. As a
consequence of the incident in May 1993 , he was threatened with assault by teachers
and whilst on special leave , he received threatening phone calls and death threats . All the
while the employer was aware of what was transpirin g at the school. The appellant
indicated that he had no intention to leave Grandmore Primary School but was forced to
do so as a consequence of the chalk down strike and the t hreats which he endured.
(e) Given the situation which prevailed at Victoria Primary School and the nature of
the treatment and diagnosis , the appellant applied for a discharge from service due to ill
health , which was made effective on 1 February 1997.

Documentary evidence
[13] As already alluded to , at the hearing before the T ribunal , the parties by agreement
adduced a joint tri al bundle which was received in to evidence. There was no challenge to
the content of any of the documents, exhibits , or medical reports contained there in. These
were the same documents which had served before the respondent when it repudiated
the appellant's claim.

[14] In terms of the documentary evidence , which was accepted at the time of his
application for medical boarding due to ill health , the conclusion s of the medical experts
were that the appellant was permanently disabled and unable to return to his normal work.
7

Most interestingly and noteworthy , was the fact that given the status of this joint bundle
and the fact that it had been adduced by agreement , neither party called any experts to
controvert the documentary evidence . Instead , the respondent's representative at the
hearing before the Tribunal indicated that the medical report s were sufficient for a ruling
to be made. This is evident from the record of proceed ings where Mr Chetty, who was the
legal representative for the respondent , placed the following on record ‘They are sufficient
for a decision to be made ’.2

[15] That the respondent was not disputing the content of the medical report s in the
bundle was pertinently questioned by the chairperson and there was no objection from
the respondent when the appellant's representative confirmed that it was not disputed.
This is evident from the transcript where the following question is posed :3
‘CHAIRPERSON : The Respondent is not disputing the medical reports contain ed in the
bundle?
MR. BOSHOFF : No.’

[16] The respondent had also made various factual admissions which were recorded at
the hearing , and which remain relevant in the appeal. These include the following
statements of fact:
(a) ‘Objector has no family history of psychological illness, and was of good
psychological health at the commencement of employment with the Employer ’;
(b) ‘Objector was exposed to various incidences of trauma by way of intimidation,
harassment, violence, threats of assault against his person, threatening telephone calls,
death -threats against his person – during the “chalkdown” by educators during 1993 -05-
06 to 1993 -05-14’;
(c) ‘Objector reported such exposures to the Employer in writing on 1993 -05-14’’;
(d) ‘As a result, Objector developed and was diagnosed with “Major Depression / Major
Depressive Episode and Post -Traumatic Stress Disorder ’;
(e) ‘On 1 February 1997, Objector’s employment was terminated on account of

2 Record of proceedings, bundle 1, at page 75.
3 Record of proceedings, bundle 1, at page 34, lines 11 and 12.
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Continued Ill -health ’;
(f) ‘Objector has been incapable, due to such ill -health, to perform work, since at least
1 February 1997 ’;
(g) ‘Objector’s psychiatric disabilities are chronic and permanent ’;
(h) ‘The decision to repudiate Objector’s claim was posted on 2013 -02-24’.

[17] At the hearing , the chairperson questioned the necessity of the appellant having to
testify given the fact that the medical reports were no t disputed and the various factual
admission s which had been made . The only reason for request ing the appellant to testify
emanated from the minu tes of the pre -trial conference , which were handed in by consent ,
in terms of which the respondent disputed that the appellant had been exposed to
incidences of trauma by way of intimidation, harassment, violence, and threats. The
representative for the respondent confirmed that because the employer's report of the
accident only mentioned one date when the incident occurred , it required the appellant to
testify on the issues. This is despite the fact that the affidavit filed by the appellant
indicated that the incidence s of trauma occurred over a week (which affidavit was not
disputed ), and the aforementioned factual admission s that were recorded .

[18] The appellant testified during the course of the Tribunal hearing in detail in relation
to the first incident which occurred in May 1993 and what transpired during that week. He
confirmed that he made a report to the employer on 14 May 1993 of what occurred during
the course of the week. None of this was disputed by the respondent . At most , the
representative for the respondent challenge d why it was that only one incident was
mentioned in the Employer’s Report of the Accident and why none of the incidents which
occurred on the individual days were reported.

[19] The appellant confirmed , and this was not disputed , that the ch alk d own
commenced on 6 May 1993 , and a series of events followed over the course of the next
week , culminat ing in the recorded incident o f 14 May 1993 . The recorded incident was
when the appellant was required to lock himself in the H OD's office , as the strike had
escalated , resulting in some of the teachers attend ing at the school with firearms and
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threaten ing to assault and shoot him. On this day , there was a demonstration by teachers
and parents from other schools who had attended and assembled on the school grounds.
He was threatened with assault , and it was only due to the intervention by some of the
parents of pupils at the school , which is how he was able to lock hims elf in the office.

[20] The appellant confirmed, and this was once again not challenged, that during that
week , he received threatening telephone calls at night that he would be killed. Cars would
be parked in his driveway and the acts of intimidation were an ongoing event. He did not
sleep at his home because of the fear of being violently assaulted. He confirmed that he
had a meeting with parents after the chalk down. His resignation was demanded and it
was reported that he must resign as he was an alcoholic.

[21] After the incident of 14 May 1993 , the appellant was forced to take special leave
for a period of three months. During this period , threats to his person and threats of assault
continued. On 26 May 1993, a SADTU meeting was held to deal with the allegations . An
investigation was conducted and the allegations were found to be without merit .

The medical evidence
[22] After the incident , the appellant attended at his general practitioner , Dr TGR
Govender , who confirmed that apart from minor illnesses , the appellant had chronic peptic
ulcers , and the appellant suffered from major depression due to the problems he
experienced at the school. Dr Govender confirmed that he had referred the appellant to
Dr Moodley, a psychiatrist , who then saw the appellant on 14 September 1993 .

[23] The appellant had reported what transpired in May 1993 and Dr Moodley
thereafter , as a consequence , diagnosed the appellant with ‘acute situational crisis
together with stress reaction and elements of depression ’. The appellant was counselled
and prescribed medication and was to be reviewed in a fortnight.

[24] Subsequently, in May 1996 , Dr Moodley once again consulted with the appellant
and diagnosed that the appellant was depressed , displayed poor concentration , and was
10

easily distracted. These events were precipitated by what had transpired in 1993.
Subsequently, on 29 May 1996, a specialist psychiatrist, Dr DK Meeran , filed a report
after consulting with the appellant on 29 January 1996, 2 May 1996 , and 9 May 1996. He
found the appellant to be depressed and such depression was long -standing, dating from
1993 when the appellant had problems at the school. The present crisis which prompted
the appellant to see Dr Meeran w as precipitated by a cleaner s’ strike at his school.

[25] Dr Meeran indicated that t he depression had worsened , as the appellant had not
overcome the trauma and depre ssion of the 1993 episode. Dr Me eran supported the
appellant's request for medical boarding. On 9 January 1997 , Dr Me eran repeated his
diagnosis of 1996 . He was of the view that the appellant was still depressed as a
consequence of the 1993 episode and this was despite him seeing the appellant in
December 1996 and twice in January 1997. He once again reiterated the recommendation
that the appellant be medically boarded .

[26] On 24 January 1997 , the employer informed the appellant that he would be
discharged on account of continued ill health w ith effect from 1 February 1997. The
appellant had explained the events that led to his illness which had occurred in May 1993.
The employer had also completed a report in terms of COIDA , dated 26 March 2007 ,
which recorded the date of the incident as being 6 May 1993 at the G randmore Primary
School. It specifically records at paragraph 36 that the incident occurred at work during
the course of his employment and that the ‘educators embarked on a strike action and
occupied Mr Narainsamy’s o ffice and intimidated him ’. It records the nature of the injury
sustained at paragraph 40 as being major depression. At paragraph 41 , the employer
confirms that it is satisfied that the employee was injured in the manner as alleged by him.

[27] On 31 M arch 2007 , an educational psychologist and clinical hypnotherapist, Dr RM
Naidoo , completed a report in respect of the appe llant. T he appellant was diagnosed with
major depression and post -traumatic stress. As part of the treatment , he had noted that
the prognosis of the appellant was guarded and that the appellant would require long -
term psychotherapy and psychiatric consultations. This report was followed up by a report
11

of Dr FB Manso or, a specialist psychiatrist , dated 3 May 2007. She confirmed that she
was treating the appellant for PTSD and major depression on an ongoing basis. The
treatment was for continued psychotherapy and medication .

[28] A numbe r of reports were thereafter completed by D r RM Naidoo, the psychologist ,
dated May, June , and A ugust 2007 . Such report s record that the appellant reported
symptoms of post -traumatic stre ss, irritability , and insomnia. T hese reports were
submitted in terms of COIDA to the respondent .

[29] During the course of the submission of these various reports , the appellant was
hospitalised on a number of occasions for treatment of PTSD as well as depression. O n
4 September 2007 , Dr M ansoor once again reported that the appellant had been
medically boarded since 1 February 1997 by Dr Meeran (who has in the meantime passed
away ) on the basis of PTSD and major depression emanating from work -related issues.
According to her assessment , the appellant had residual features of PTSD and chronic
depression.

[30] Despite medication and continuous psychotherapy , the appellant ’s prognosis for
full functioning was poor.

[31] Dr Naidoo prepared a similar report , dated 9 September 2008 , in which he
recorded that the appellant had been hospitalised. Dr Mans oor further confirmed the
diagnosis of chronic depression and the prognosis as being poor on 4 September 2008,
18 September 2009, 2 June 2011, 21 November 2011 , and 24 May 2012 . Dr Naidoo , on
20 November 2009 , confirmed that the appellant had been hospitalised on a number of
occasions in April 2010 , August 2010 , and September 2010 and th at he required ongoing
psychotherapy, counselling , and medication. A psychologist , Ms J Ramsoorooj , on 3 May
2011 , confirmed the appellant's diagnosis of PTSD and a major depressive episode. The
appellant's prognosis was poor.


12

[32] Such diagnosis was repeated on 17 November 2011 and 24 May 2012. After the
repudiation of the appellant's claim, both Dr Mansoor and Ms Ramsoorooj confirmed the
appellant's diagnosis of PTSD , and that his prognosis was poor.

[33] Despite this extensive history , the respondent in February 2013 repudiated the
appellant's claim. The appellant thereafter lodged an objection to such repudiation on 22
April 2013.

[34] Prior to the objection ser ving before the Tribunal , Dr SL Reddy, a psychiatrist , on
30 May 2015 reported on the condition of the appellant and stated that the appellant's
illness has followed a chronic relapsing course , despite being on a combination of
psychotropic medication and receiving ongoing psychotherapy. He still requires
hospitalisation almost 20 years after the precipitating factors and therefore has a poor
prognosis. A combination of these reports indicated that the appellant has very little
chance of recovery.

Analysis
[35] At this juncture , it is perhaps useful to remind ourselves of the purpose for which
COIDA was enacted. Having r egard to its long title , it was enacted to
‘provide for compensation for disablement caused by occupational injuries or diseases sustained
or contracted by employees in the course of the ir employment, or for death resulting from such
injuries or diseases; and to provide for matters connected there with.’

[36] In Davis v Workm en's Compensation Commissioner ,4 it was held
‘The policy of the Act is to assist workm en as far as possible … The Act should therefore not be
interpreted restrictively so as to prejudice a workman if it is capable of being interpreted in a
manner more favourable to him. ’




4 Davis v Workmen's Compensation Commissioner 1995 (3) SA 689 (C) at 694F -G.
13

[37] A psychiatric disorder or psychological trauma has been recognised as constituting
an occupational injury , even though COIDA, in the definition s for ‘accident ’ and
‘occupational injury ’ does not specifically mention this. That the appellant is entitled to be
compensated has been acknowledged in Urquhart v Compensation Commissioner ,5
where the court held the following:
‘The law has long recogni sed that for purposes of compensation or damages a psychiatric
disorder or psychological trauma is as much a personal injury as a cracked skull, and there is
nothing in the definitions of “acciden t” and “occupational injury” in the Act to indicate that this
legislation has a contrary intention. Indeed, the definitions in the Act are not so much definitions
as a broad classification to make provision for different kinds of compensation for different kinds
of disorder. This is quite a pparent from the wording of the definitions in s 1 which say nothing
about the nature of the accident or the occupational injury envisaged other than to confine them
to an event within the sphere of employment. The section says that “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 ” and “occupational injury” means “a personal injury susta ined
as a result of an accident” . Section 22 says that if an employee meets with an accident resulting
in his disablement he shall, subject to the provisions of this Act, be entitled to the benefits provided
for and prescribed in the Act. The benefit provided for and prescribed in the Ac t is the right to
compensation for personal injuries in terms of ch 4.’

[38] The appellant’s final diagnosis was that of major depressive disorder and PTSD .
Although amendments were tabled in 2012 to amend schedule 3 of COIDA to include
mental and behavioural disorder, these were never proceeded with. A circular was issued
in June 2003 regarding PTSD, which was an instruction regarding compensation for
PTSD.6

[39] The first major point of contention in the appeal does not relate to whether
compensation is payable to the appellant , but relates to the date from when the
compensable injury should be calculated. COIDA provides the answer as to how this date
is to be determined.

5 Urquhart v Compensation Commissioner 2006 (1) SA 75 (E) para 14.
6 Circular Instruction Regarding Compensation for Post Traumatic Stress Disorder (PTSD), GN 936,
GG 25132, 27 June 2003.
14

[40] As was correctly emphasised by Mr Boschoff, for the appellant, s 65(5) of COIDA
provides as follows :
‘For the purposes of this Act the commencement of a disease referred to in subsection (1) shall
be deemed to be the date on which a medical practitioner diagnosed that disease for the first time
or such earlier date as the Director -General may determine if it is more favourable to the
employee .’7 (Own emphasis .)

[41] Section 67(1) of COIDA is of further assistance , and under the heading of
‘Calculation of Compensation ’, states:
‘(1) Compensation for a disease referred to in section 65(1) shall be calculated on the basis of
the earnings of the employee calculated mutatis mutandis in accordance with the provisions of
section 63 and the disablement of the employee at the time of the commencement of the disease
or such earlier date as the Director -General may determine, if it is proved to his satisfaction that
the employee was suffering from the disease at an earlier date, whichever earnings are more
favourable to the employee .’ (Own emphasis .)

[42] While the appellant’s formal diagnosis may have been made by Dr Naidoo on 31
March 2007, the undisputed evidence and expert reports lead solely to the conclusion
that the events that led to his depression and PTSD were the event s of the chalk down in
May 1993.

[43] In terms of the facts agreed upon between the parties, the appellant has been
unemployable ‘since at least 1 February 1997 ’. The diagnosis of depression from 1997
accords with the subsequent diagnosis of a major depressive disorder on 31 March 2007,
and no evidence was led by the respondent to suggest another trigger event for this
depression or the PTSD, other than the chalk down protests of May 199 3.

[44] In the circumstances of the agreed facts and the undisputed medical evidence ,
there can be no doubt that the appellant’s condition, while only being given the additional
label of PTSD in 2007, commenced in May 199 3.

7 An amendment to this section was passed in terms of the Compensation for Occupational Injuries and
Diseases Amendment Act 10 of 2022, though it is not yet operative and nothing turns on this.
15

[45] This should have been considered in the assessment under ss 65(5) and 67(1),
and it is clearly to the advantage of the appellant that the date of compensation be set 12
years earlier to the date when the injury was actually sustained .

[46] The failure to set the date of compensation is a misdirection which this court is
enjoined to correct.

[47] Compensation was calculated on the basis of the injuries constituting a permanent
disability. Permanent disablement under COIDA is defined in s 1 as mean ing ‘the
permanent inability of such employee to perform any work as a result of an accident or
occupational disease for which compensation is payable ’.

[48] That the injury is permanent was a necessary conclusion from the agreed facts,
partly from the admission that the ‘[o]bjector has been incapable, due to such ill -health, to
perform work, since at least 1 February 1997 ’, which definitively meets the definition of
permanent disability under COIDA , and is also in accordance with the undisputed medical
evidence that was presented . Although the medical reports might not specifically state
that the appellant may not be able to work again, they do repeatedly confirm his inability
to work at the stage of the assessment and record the appellant’s prognosis as ‘poor’.

[49] The first challenge by the respondent on appeal to the apportionment was an
attempt to argue that this court should not find that the appellant was permanently
disabled.

[50] Agreements reached in the pre -hearing stage are binding between the parties,
including agreements on facts that a court or other quasi -judicial forum may receive as
being common cause. This principle has long been established in our law, including in
Price NO v Allied -JBS Building Society , where the following was held :8
‘It seems to me that in any event the parties are at this stage bound by their pleadings and the
admissions made therein. The pre -trial conference conducted under the terms of Rule of Court

8 Price NO v Allied -JBS Building Society 1980 (3) SA 874 (A) at 882D -H.
16

37 is designed to afford an opportunity to the parties, amongst other matters, to endeavour to find
ways of curtailing the duration of the trial by redefining the issues to be tried. One of the methods
of doing so is by way of admissions of fact which coul d lead to the elimination of one or more of
the issues raised in the pleadings. The results of an agreement between the parties' legal advisers
come to at a pre -trial conference to amend pleadings is not comparable to the circumstances
appertaining in the case of R v Papangelis 1960 (2) SA 309 (O) to which appellant's counsel
referred us. In that case the accused's representative made an admission during the course of
argument after the cases for the State and the accused had been closed. The question arose
whether for the purposes of s 284 (1) of Act 56 of 1955 - then operative - this admission could be
treated as being one of fact which when made would constitute sufficient proof of such fact. The
Court held that the accused's representative did not make t he admission with the intention that it
should substitute for evidence of the fact required to be proved by the State. Moreover the
admission was held to be in truth not one of fact but one relative to the legal consequences flowing
from facts proved durin g the trial. The judgment would appear to be of no assistance to appellant
in this case. I conclude, therefore, that appellant cannot in this Court revert to and seek to rely on
the claim founded on the contract and I proceed to consider counsel's remainin g arguments. ’

[51] A party wishing to resile from such an agreement requires special circumstances
to be demonstrated, usually in the form of a challenge vitiating the actual consensus said
to be reached.9

[52] Accordingly, and while it generally remains open to a party making a factual
admission to argue the legal consequences of that fact in the context of the particular
case, the fact itself remains binding without further proof , unless compelling
circumstances attacking the basis of such an agreement of fact are presented.

[53] In the present matter , the agreed fact that the appellant has been unable to work
since he left work in 1997 is binding on the respondent, and further meets the definition
of permanent disability under s 1 of COIDA. Attempts by the respondent to argue that
evidence of the appellant’s permanent disability was not presented , ignores that, in the
circumstances of the agreed facts, no such evidence was required. Accordingly, the

9 Filta-Matix (Pty) Ltd v Freudenberg and others 1998 (1) SA 606 (SCA) at 614C -D.
17

argument that the appellant should not be regarded as permanently disabled cannot be
upheld.

[54] Having found that the injuries constitute a permanent disability, s 49 must be
referenced , which determines the basis for the calculation of the percentage of the
compensation which an employee is entitle d to. In particular, s 49(2) provides:
‘(a) If an employee has sustained an injury set out in Schedule 2, he shall for the purposes of
this Act be deemed to be permanently disabled to the degree set out in the second column
of the said Schedule.
(b) 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.
(c) If an injury or serious mutilation contemplated in paragraph (a) or (b) has unusually serious
consequences for an employee as a result of the special nature of the employee’s
occupation, the Director -General may determine such higher percentage as he or sh e
deems equitable. ’

[55] The respondent’s contention is that the injuries sustained by the appellant do not
fall under Schedule 2 to COIDA. Accordingly, and emphasising the caution given by the
Supreme C ourt of Appeal in Department of Labour: Compensation Commissioner v
Botha ,10 the injuries are not automatically to be regarded as entitling a claimant to a 100%
disablement .

[56] Item 6 of Schedule 2 to COIDA provides that the percentage of permanent
disablement should be regarded as 100% for ‘[a]y other injury causing permanent total
disablement ’. While ‘permanent total disablement ’ is not a defined term, I am in full
agreement with the ratio of this court in Ramanand v Department of Labour:
Compensation Commissioner ,11 where it was held:

10 Department of Labour: Compensation Commissioner v Botha [2022] ZASCA 38; (2022) 43 ILJ 1066
(SCA) para 18.
11 Ramanand v Department of Labour: Compensation Commissioner [2023] ZAKZPHC 41; [2023] 7 BLLR
702 (KZP) (Ramanand ).
18

‘[51] The appellant contends that it is not disputed that a medical expert in the form of Dr
Agambaram has determined him to be totally permanently disabled and that such disablement
falls within the last category of classification referred to in the table above (the sixth classification).
[52] Schedule 2 to the Act specifically identifies those injuries that entitle a claimant to claim
total disablement. The sixth classification does not specify the nature of the injury, unlike the five
classifications that appear before it. The sixth classification is dependent for its applicability not
on the nature of the injury, but on the effect of that injury, whatever it may be. It stands to reason
that the Legislature could not have thought of every type of injury that would lead to 100 percent
disablement. The range of human activity is vast and the possibility for misfortune is virtually
limitless. Any injury that results i n 100 percent disablement thus falls within the sixth classification,
irrespective of the physical nature of the injury. It must be assumed that the sixth classification
was inserted in the schedule for a purpose. It seems to me that that purpose is to cat er for injuries
that were not initially thought of or capable of description when the Act was conceived but which
result in 100 percent disablement. An excessive exposure to nuclear radiation may be one such
example of this.
[53] It is so that schedule 2 was considered in Department of Labour: Compensation
Commissioner v Botha , and, in particular, the provisions of the sixth classification. Nicholls JA
stated the following:
“It is inconceivable that any injury not listed in Schedule 2 should attract an award of 100%
permanent disablement, irrespective of the nature of the injury. There are countless
injuries which an employee may suffer in the workplace which are not listed i n the
Schedule. As pointed out by this Court, almost anything which unexpectedly causes
illness, injury to, or death of, an employee falls within the concept of an accident. Should
an injury, which is not listed in Schedule 2, befall an employee as a resul t of such an
accident, this does not axiomatically mean that he or she is 100% disabled. The extent of
the disability must be determined in light of the facts of the specific case and according to
medical evidence.” (Footnote omitted.)
[54] In my view, this does not create an impediment to the success of the appeal. The
appellant’s case is not that because his injury is not listed in schedule 2 he is automatically 100
percent disabled, as alluded to in Botha . Botha makes it plain that the extent of the disablement
must be determined with reference to the facts of the case, which facts would include the opinions
of the medical experts who have ventured an opinion in the matter. In this case, only the appellant
present ed evidence, none of which was disputed by the respondent. His injury, whilst not
19

mentioned in schedule 2, nonetheless thus falls within the sixth category mentioned in schedule
2 by virtue of the fact that he is totally permanently disabled.
[55] I must thus find that the appellant’s contention regarding the classification of his injury as
falling within the sixth classification is correct. ’ (Footnotes omitted.)

[57] Ramanand also relates to a diagnosis of PTSD leading to unemployability.

[58] While it is true that the medical reports in Ramanand appear to be more assertive
in leading to the conclusion of permanent disablement , the plethora of medical reports
confirming the appellant’s inability to work and that his prognosis is poor, combined with
the agreed facts , including that of an inability to work, lead overwhelmingly to the
conclusion that the injuries sustained by the appellant constitute 100% permanent
disablement.

[59] The decision to apportion the appellant’s entitlement to compensation to 20% is
not explained by the Tribunal . The finding is not supported by any facts or medical
evidence and appears to be arbitrary . It is not in accordance with s 49(2) of COIDA and
falls to be set aside and replaced with an award calculated at 100% disablement .

[60] Accordingly, both the date from which compensation was to be calculated and the
percentage apportionment applicable to such compensation were incorrectly decided and
fall to be set aside. The appeal must therefore succeed.

Costs
[61] The usual rule is that an award of costs should follow the result. There is no reason
to deviate from this in the present matter. This court, however, has been requested to
award costs in favour of the appellant on the punitive scale of attorney and client. The
request is predicated on the submissions that there is a higher duty on an organ of state
to respect the law ,12 and the opposition by the respondent in the appeal should be

12 See Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA
331 (CC) para 60 .
20

regarded as vexatious.

[62] In White Rock Property Trading (Pty) Limited v Khaka and another ,13 the court
held:
‘An attorney client costs order may issue where the other party has been guilty of dishonesty,
fraud or that his motives and conduct may have been vexatious, reckless, malicious or frivolous,
or that he has been guilty of some form of misconduct in connection with the matter investigated
or in the conduct of the case. The intention to delay the matter and to prolong the first respondent’s
occupation of the property, is readily discer nible in this matter.14’

[63] The delay from the time of the injury until the Tribunal hearing has already been
compensated for in the form of a punitive costs order in favour of the appellant in those
proceedings. Accordingly , the consideration of whether the respondent’s conduct is
worthy of censure by way of a punitive costs order is limited to considerations of the
appeal.

[64] In this appeal, and w hile the arguments raised by the respondent in the appeal
should have been more carefully considered before they were raised, the respondent’s
conduct is not so egregious that it can be regarded as vexatious and meriting an attorney
and client costs order.

[65] The matter is, however, of a sufficiently complicated nature that costs should be
taxed on scale C.

Order
[66] Accordingly, the following order is made:
1. The appeal is upheld .
2. The decision of the Tribunal, dated 12 October 2023, is set aside and substituted
with the following order:

13 White Rock Property Trading (Pty) Limited v Khaka and another [2017] ZAGPJHC 175 para 48.
14 Referencing Van Dyk v Conradie and another 1963 (2) SA 413 (C); De Goede v Venter 1959 (3) SA 959
(O); and Ward v Sulzer 1973 (3) SA 701 (A).
21
'(a) The Compensation Commissioner is ordered to accept liability for the
Objector's occupational diseases, Post-traumatic Stress Disorder and Major
Depressive Disorder, contracted in the course and scope of his
employment;
(b) The Compensation Commiss ioner is ordered to issue, in favour of the
Objector, a written Award of Compensat ion, stating the following particulars:
i. The Objector's earning per month for compensat ion purposes is
R6 650.85;
ii. The diagnosis of disability is Post Traumatic Stress Disorder and
Major Depressive Disorder;
iii. The date of the accident is 6 May 1993;
iv. The percentage of permanen t disablemen t is 100%;
v. Compensation in the form of a monthly pension shall commence on
6 May 1993;
vi. All increases in monthly pensions, as prescribed from time to time
in terms of section 57(1) of COIDA, shall accrue from 6 May 1993
onwards.
(c) The Compensation Commiss ioner is ordered to publish the aforesaid Award
of Compensat ion to the Objector's attorneys of record and the Objector's
employer within 20 (twenty) days of this order;
(d) The Compensation Commiss ioner shall bear the costs in the objection on a
scale as between attorney and own client.'
3. The respondent shall pay interest on the amount of the arrear pension at 15,5%
per annum from 6 May 1993.
4. The respondent shall pay the costs of the appeal, such costs to be taxed on
scale C.
HENRIQUES J
22

CASE INFORMATION

Date of Hearing: 24 January 2025

Further written submissions: 01 February 2025

Date of Judgment : 07 May 2025


For Appellant: RJJ Boshoff
Instructed by: Cornelius Boshoff Attorneys
Email: rjjb.corinc@gmail.com
C/O Tatham Wilkes
Office F008, First Floor, Athlone Circle,
1 Montgomery Drive,
Pietermaritzburg
Email: nabeel@tathamwilkes.co.za
Ref: NE Dhoo ma/13/T150324
Heads of Argument drafted by: TP Krüger SC


For Respondent: N. Z Khuzwayo SC
Instructed by: State Attorney KwaZulu -Natal
AM Dlamini
Senior Assistant State Attorney
6th Floor, Metlife Building
391 Anton Lembede Street
Durban
Email: MandiDlamini@justice.gov.za
C/O State Attorney KZN Satellite Office:
2nd Floor, Magistrates’ Court Building
302 Church Street, Pietermaritzburg
Ref: 72/27034/24/N/P14/ld
Email: Theodore.Chetty@labour.gov.za

This judgment was handed down electronically by circulation to the parties’ representatives by
email and released to SAFLII. The date and time for hand down is deemed to be 9h30 on 7 May
2025.