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[2003] ZASCA 113
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Road Accident Fund v Maphiri (391/2002) [2003] ZASCA 113; [2003] 4 All SA 168 (SCA); 2004 (2) SA 258 (SCA) (30 September 2003)

Reportable
Case No 391/2002
In the matter between:
ROAD ACCIDENT FUND
Appellant
and
BETHWELL MAPHIRI
Respondent
Coram: HARMS, MARAIS, MTHIYANE,
CONRADIE JJA and SHONGWE AJA
Heard: 14 MAY 2003
Delivered: 30 SEPTEMBER 2003
Subject: Interpretation and application of s 36
of the Compensation for Occupational Injuries and Diseases Act 130 of
1993
J U D G
M E N T
HARMS JA/
HARMS JA:
[1] The plaintiff (the respondent on appeal)
was involved in a motor collision on 6 September 1996, in which he
suffered damages
for which the defendant, the Road Accident Fund (the
‘RAF’) is by statute liable. Since the plaintiff was also
negligent, his
claim has to be apportioned and the agreed
apportionment is 50:50. The plaintiff was at the time of the accident
an ‘employee’
as defined in the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 (herein referred to as ‘the
Act’) and
was injured in an ‘accident’
‘
arising out of and in the
course of an employee’s employment and resulting in a personal
injury’.
(Section 1 sv ‘accident’.) This meant that
he was entitled to ‘compensation’ as defined from the
Compensation Commissioner
in terms of the Act which he received.
[2] This table sets out the detail of his
actual loss, his loss as apportioned and the compensation received
from the Commissioner
under the different heads:
Hospital (past):
Loss of income
Total disablement
Generals
Actual Loss
36 367,51
5 965,16
60 000
102 332,67
50%
18 183,75
2 982,58
30 000
51 166,33
Compensation
33 872,30
4 473,87
38 346,17
[3] Future medical costs have, by agreement,
been the subject of an undertaking by the RAF to pay 50% thereof and
need not detain
us.
1
The plaintiff was totally disabled for the period 6 September to 24
November 1996, and that gave rise to payment of compensation
for
total disablement for that period. It also gave rise to the loss of
income. The Commissioner does not pay compensation for
general
damages such as pain and suffering.
[4] The appeal raises the question of the
effect of s 36 of the Act on the amount of the plaintiff’s claim
against the RAF.
At the time the section read as follows:
2
‘
Recovery of damages and
compensation paid from third parties
(1) If an occupational injury or
disease in respect of which compensation is payable, was caused in
circumstances resulting in
some person other than the employer of
the employee concerned (in this section referred to as the 'third
party') being liable
for damages in respect of such injury or
disease-
(a) the employee may claim
compensation in terms of this Act and may also institute action for
damages in a court of law against
the third party; and
(b) the Compensation
Commissioner
3
or the employer by whom compensation is payable may institute action
in a court of law against the third party for the recovery
of
compensation that he is obliged to pay in terms of this Act.
(2) In awarding damages in an
action referred to in subsection (1) (a) the court shall have regard
to the amount to which the
employee is entitled in terms of this
Act.
4
(3) In an action referred to in
subsection (1) (b) the amount recoverable shall not exceed the
amount of damages, if any, which
in the opinion of the court would
have been awarded to the employee but for this Act.
(4) For the purposes of this
section compensation includes the cost of medical aid already
incurred and any amount paid or payable
in terms of section 28, 54
(2) or 72 (2) and, in the case of a pension, the capitalized value
as determined by the Compensation
Commissioner
5
of the pension, irrespective of whether a lump sum is at any time
paid in lieu of the whole or a portion of such pension in terms
of
section 52 or 60, and periodical payments or allowances, as the case
may be.’
[5] The section replaced a similar section
contained in the repealed Workmen’s Compensation Act 30 of 1941,
namely s 8. These
sections have been the subject of a number of
decisions, also of this Court, all culminating in an encyclopaedic
judgment in
the Court below
6
in which all or nearly all of them were subjected to a detailed
analysis. Instead of interpreting prior judgments I prefer to
begin
with the meaning of the section and then, if necessary, to turn to
some of them. Particularly unhelpful, I find, are the
recalculations
done by the learned Judge in order to determine what some of them
meant, simply because these recalculations raise
issues that may not
have been considered by those courts.
[6] In
Jooste v Score Supermarket Trading
(Pty) Ltd
1999 (2) SA 1
(CC) Yacoob J, speaking on behalf of the
Court, gave this useful exposition of the general effect of the
COIA:
‘
[13] The purpose of the
Compensation Act, as appears from its long title, is to provide
compensation for disability caused by
occupational injuries or
diseases sustained or contracted by employees in the course of their
employment. The Compensation Act
provides for a system of
compensation which differs substantially from the rights of an
employee to claim damages at common law.
Only a brief summary of
this common-law position is necessary for the purposes of this case.
In the absence of any legislation,
an employee could claim damages
only if it could be established that the employer was negligent. The
worker would also face the
prospect of a proportional reduction of
damages based on contributory negligence and would have to resort to
expensive and time-consuming
litigation to pursue a claim. In
addition, there would be no guarantee that an award would be
recoverable because there would
be no certainty that the employer
would be able to pay large amounts in damages. It must also be borne
in mind that the employee
would incur the risk of having to pay the
costs of the employer if the case were lost. On the other hand, an
employee could,
if successful, be awarded general damages, including
damages for past and future pain and suffering, loss of amenities of
life
and estimated 'lump sum' awards for future loss of earnings and
future medical expenses, apart from special damages including loss

of earnings and past medical expenses.
[14] By way of contrast, the
effect of the Compensation Act may be summarised as follows. An
employee who is disabled in the course
of employment has the right
to claim pecuniary loss only through an administrative process which
requires a Compensation Commissioner
to adjudicate upon the claim
and to determine the precise amount to which that employee is
entitled. The procedure provides for
speedy adjudication and for
payment of the amount due out of a fund established by the
Compensation Act to which the employer
is obliged to contribute on
pain of criminal sanction. Payment of compensation is not dependent
on the employer's negligence
or ability to pay, nor is the amount
susceptible to reduction by reason of the employee's contributory
negligence. The amount
of compensation may be increased if the
employer or co-employee were negligent but not beyond the extent of
the claimant's actual
pecuniary loss. An employee who is
dissatisfied with an award of the Commissioner has recourse to a
Court of law which is, however,
bound by the provisions of the
Compensation Act. That then is the context in which s 35(1) deprives
the employee of the right
to a common-law claim for damages.
[15] The Compensation Act
supplants the essentially individualistic common-law position,
typically represented by civil claims
of a plaintiff employee
against a negligent defendant employer, by a system which is
intended to and does enable employees to
obtain limited compensation
from a fund to which employers are obliged to contribute.
Compensation is payable even if the employer
was not negligent.
Though the institution of the regime contemplates a differentiation
between employees and others, it is very
much an open question
whether the scheme is to the disadvantage of employees.’
[7] The first and axiomatic principle,
therefore, is that the object of the Act is to provide
‘compensation’ for disablement
caused by occupational injuries
or diseases sustained or contracted by employees in the course of
their employment. ‘Compensation’
is not the same as ‘damages’,
a distinction drawn clearly by s 36. There may be a complete
overlap, as in the case of hospital
and medical expenses (although
for the general purposes of the Act medical costs are not regarded
as ‘compensation’). There
may also be a partial overlap, as in
the case of loss of income (as a head of damages) and compensation
for disablement under
the Act. But then there may be no congruent
relief such as in the case of general damages for pain and
suffering, which are claimable
under the
lex Aquilia
, and for
which there is no corresponding head of compensation in the Act.
[8] The second point, which tends to be
overlooked, is that the Act is not for the benefit of third parties,
such as the RAF,
who are liable in delict; it is for the benefit of
the employee and the employer, and ‘premiums’ have to be paid
for this
‘insurance’. This means that the starting point of any
litigation under s 36 is a determination of the third party’s
liability.
Some cases have referred to it as ‘common law
liability’, a concept that gave the Court below some trouble. All
it means
is ‘delictual liability’ and what the courts have
attempted to do by using the phrase was to distinguish between
‘compensation’
and ‘damages’. Once this is understood, an
apportionment of damages under the Apportionment of Damages Act 34
of 1956 does
not give rise to any problems or to another method of
calculation.
7
In this case the starting point is then the RAF’s liability for
50% of the plaintiff’s damages which is R51 166,33.
[9] The converse point has often been made and
that is that s 36 does not increase the liability of a third party.
Consequently,
the full amount of its liability (in this case 50% of
the plaintiff’s loss) has to be divided between the employee and
the
Commissioner. The division of the RAF’s liability appears to
be the nub of the appeal and that is why the RAF contends that the

total of the Commissioner’s award should be deducted from its
liability. On this basis it would be liable for R12 820,17 (R
51
166,33 minus R 38 346,17). The plaintiff, on the other hand, argues
that a court should only have regard to the amounts paid
by the
Commissioner in relation to specific heads of damage to which these
amounts relate and should therefore not be deducted
from heads of
damage to which they do not relate. This means that, in this case,
the Court should only ‘have regard to’ or
deduct the amount of
R19 173,09 – 50% of the amount awarded by the Commissioner (which
was R38 346,17) – as ‘the amount
to which the employee is
entitled in terms of this Act’ (s 36(1)(b)) from the delictual
liability of the RAF of R51 166.33.
The difference of R31 993,26
would then represent the RAF’s liability to the plaintiff.
[10] To simplify the plaintiff’s contention:
Since the Commissioner did not award compensation for general
damages, those cannot
be taken into account in determining the
plaintiff’s entitlement from the RAF. Medical expenses, on the
other hand, may be
taken into account (the Commissioner pays for
them under s 73) as may be loss of income since the latter can be
equated to a
payment for disability (which is calculated with
reference to the employee’s earnings: Schedule 4).
[11] Can one read this limitation into the
section? I believe not. Those who believe differently, rely on the
fact that the Legislature
requires of a court ‘to have regard to’
the amount receivable from the Commissioner and point out that the
court is not told
to ‘deduct’ that amount. It is too late now to
raise this argument, I believe, because this Court has held that ‘to
have
regard to’ means, in this context, ‘to deduct’.
8
Schutz JA also mentioned two further principles underlying the
section. They are:
‘
The second is that in a case
where a “third party” is involved the workman may be entitled,
in the form of compensation plus
damages, to the amount of his full
common-law damages, but no more. The third is that the “third
party” may be liable to
the workman and the employer or
commissioner taken together for the full amount of common-law
damages, but no more.’
9
[12] The section requires a court to deduct
(‘have regard to’) the ‘compensation’ to which the employee
‘is entitled’
under the Act – not part of the compensation or
certain heads of compensation only – in determining the employee’s
entitlement
vis-à-vis the third party. This is made abundantly
clear by ss (4), which defines by way of extension the meaning of
‘compensation’
for purposes of the section.
9
That ‘compensation’ must be deducted from the award of ‘damages’
(‘skadevergoeding’ has always been the Afrikaans
rendition), and
not from certain heads of damages.
[13] Milne J came to the same conclusion in
Wille and Another v Yorkshire
Insurance Co Ltd
1962 (1) SA 183
(D) 186D-187B, a passage worth quoting:
‘
To my mind nothing was said in
that case
10
nor in
South
British Insurance Co. Ltd v Harley
,
1957 (3) SA 368
(AD), nor in
Natal
Provincial Administration v Buys,
1957 (4) SA 646
(AD), to which Mr.
Harcourt
also
referred, which can possibly support the view that the
“compensation” which the Commissioner “is obliged to pay”

within the meaning of sec. 8 (1) (b) must be limited, with respect
either to category or to amount, to items claimable both against
the
Commissioner and at common law. The provisions of sub-paras. (a) and
(b) of sec. 8 (1) are interlocked and must be read together.
They
are designed to ensure, firstly, that there should be deducted from
the amount of the workman's common law claim against
the third
party, if he makes one, the amount which it appears that the
Commissioner is obliged to pay the workman under the Act;
secondly,
that the latter amount should be recovered in full by the
Commissioner subject only to the third party's not having
to pay
more, in all, than the total amount of damages which the workman
could have recovered from such third party if the Workmen's

Compensation Act had not been passed . . .. Mr.
Harcourt
argued that where a workman had suffered, say, R2,000 damages for
pain and suffering which he was
prima
facie
entitled
to recover from the third party, but nothing for estimated loss of
future earnings, and was, at the same time, entitled
to compensation
under the Act in an amount of R2,000 for the loss of two legs, but
still able to earn his living as before because
his work did not
require the use of his legs, it would be anomalous and unfair and,
therefore, not contemplated by the Legislature,
to hold, in effect,
that the workman would be entitled to receive nothing for his pain
and suffering. I find myself unable to
agree that this result is
anomalous or unfair. I cannot see any reason why the Legislature
should have intended that a person,
wholly innocent of fault
himself, having a valid and available cause of action against a
third party for damages so as to be
entitled to claim from that
third party for all the damage whatsoever that he has suffered and
will suffer in future in consequence
of his injuries, should receive
more than the sum which represents that damage merely because he is
a workman who, as such, is
entitled to claim a sum of money from the
Commissioner in respect of such injuries.’
[14] The second submission in support of the
plaintiff’s argument is based upon the so-called ‘like from
like’ principle
which is said to have been derived from two
judgments of this Court, namely
Klaas v Union & South West
Africa Insurance Co Ltd
1981 (4) SA 562
(A);
Senator
Versekeringsmaatskappy Bpk v Bezuidenhout
1987 (2) SA 361
(A).
The ‘principle’ is said to have arisen in the following context:
an employee is compensated by the Commissioner for
medical expenses.
In claiming damages from the third party he does not include a claim
for them. In this event, it said, it would
be unfair to deduct the
amount paid by the Commissioner for medical costs from the damages
claimed. In order to solve the conundrum,
‘like’ (medical costs
paid by the Commissioner) is to be deducted from ‘like’ (a claim
for medical costs by the plaintiff)
and not from unlike (such as
generals). The Court below applied the principle by deducting the
compensation paid for past hospital
expenses from the plaintiff’s
claim under that head, which gave a minus figure; it deducted the
compensation for disablement
from the plaintiff’s claim for loss
of income, which also gave a minus figure; and since no compensation
was awarded for generals,
there was nothing to deduct from the R30
000. The plaintiff was, accordingly, awarded that sum.
[15] The practical answer to this type of case
is not to be found in a ‘like from like’ principle but in the
point made earlier,
namely that the starting point of any litigation
under s 36 is a determination of the third party’s liability, i.e.
its gross
liability. The calculation is to be taken from there and
not from the claimed amount. This is in accordance with the
concluding
statement of Van Heerden AJA in
Klaas
11
where he said:
‘
There is accordingly much to
be said for the view that the compensation falls to be deducted from
the
total amount
of the workman's common law damages even if he actually chose to
claim a lesser sum.’
(Underlining added.) In other words, in
determining the plaintiff’s award, a court has first to establish
the defendant’s
full liability, including the unclaimed medical
costs. It then deducts from that amount the full compensation
(including the
medical costs) payable. Were it otherwise, the other
principle mentioned earlier, namely that the Act is not intended to
reduce
the third party’s liability, would be violated.
[16] I believe that I have indicated that the
like from like principle cannot be reconciled with the wording of
the section and
that it is wrong. The judgment of the Court below
proves that it leads to confusion and inconsistent results and
should no longer
be used. If one postulates the case where the
Commissioner has paid compensation of, say, R10 000 and the employee
suffered damages
in a like amount, the Commissioner who, on a
reading of the section, is entitled to recover ‘compensation that
he is obliged
to pay’ and not only some of it, would be entitled
to recover the R10 000 and not only those amounts for which there
are congruent
heads. The employee would have no claim unless the
damages suffered are more that R10 000.
[17] In any event,
Klaas
12
did not hold that there is a ‘like from like’ principle. On the
facts of the case the principle as understood by the plaintiff
did
not arise not was it applied. The term was used in the following
context by Van Heerden AJA (at 580H-581B):
‘
It is clear that the
Legislature did not intend the benefits received by a workman under
the Act to be regarded
as
res inter alios acta
.
A Court is enjoined to have regard to such benefits, ie the
compensation (including medical aid) that the Commissioner is
obliged to pay and entitled to recover under s 8 (1) (b). In
Bonheim v South
British Insurance Co Ltd
1962 (3) SA 259
(A) at 266 OGILVIE THOMPSON JA pointed out that the
precise meaning of the words ‘shall have regard to’ in s 8 (1)
(a) is
not entirely clear, but assumed that they mean ‘deduct’.
However, there may be a good reason why the Legislature used the

above words. If a workman received free medical and hospital
treatment he may decide not to claim from the wrongdoer any amount

in respect of such treatment. In such a case it would be inequitable
to deduct from the damages established by him the amount
relating to
medical aid which the Commissioner is entitled to claim under s 8
(1) (b). It therefore appears to me that only like
should be
deducted from like. However, in order to obviate repetition, I
shall henceforth merely refer to a deduction to be
made in terms of
the proviso to s 8 (1) (a).’
I understand this to mean what has been
explained above: if the workman does not claim for a head of damages
suffered, that head,
nevertheless, has to be included in the
computation. The deduction is made, not from the other damages
established, but from
the gross damages. This interpretation is
consistent with the statement from the judgment quoted earlier and
the learned Judge’s
preceding discussion relating to the question
of whether one may claim damages from a wrongdoer in respect of free
medical or
hospital treatment received (at 576A-580H).
[18] The judgment in
Senator
13
did also not underwrite or apply the principle. This Court found, on
an interpretation of the pleadings and the common cause
facts (at
367I) that the plaintiff had suffered, over and above the amount of
the compensation paid, an amount of R15 950,00
(at 367I-J). This
amount the plaintiff claimed. The argument of the third party,
namely that the compensation paid by the Commissioner
should be
deducted from the claimed amount was rightly rejected. The reference
(at 368A-D) to the fact that the Act does not
provide for
compensation for general damages was simply made to underscore the
Court’s interpretation of the pleadings and
the common cause
facts, namely that it had been agreed that the plaintiff’s
‘common-law damages’ – and the third party’s
gross liability
– amounted to the claimed amount plus the amount of the
compensation paid.
[19] It follows from this that I agree with
the RAF’s contentions and would uphold the appeal accordingly. It
also follows that
I do not agree with the approach of the Court
below, which was neither that of the plaintiff nor the RAF (at
402A-F) – it granted
judgment for R30 000 as explained earlier.
This means that the judgment in favour of the plaintiff has to be
reduced to R12 820,36
as calculated above. The reader may wonder why
the RAF is so concerned to protect the interests of the
Commissioner. The answer
is that it is not – it is here to protect
its own interests because the Commissioner has failed to claim from
it under s 36
(1)(b) and any claim by the Commissioner may have
become prescribed. Because of the interest of the present Director
General
in the outcome of the case, after oral argument, we invited
the Director General to file written representations, which was done

and in which the Director General sided with the plaintiff.
[20] The RAF did not ask for an order for
costs on appeal against the plaintiff since this is a matter of
principle for the RAF.
Consequently no such order is called for. The
intervention of the Director General, who should probably have been
joined, was
at the request of the Court and should not have any
further costs implications.
[21] Last, it should be pointed out that s 36
in 1997
14
underwent some amendments which may either be substantive or merely
cosmetic. In the past the amount which the Commissioner would
have
been liable for had to be deducted from the employee’s claim; now
it is the amount actually paid – at least that is
what is said.
The future obligations, such as future pension payments cannot be
deducted. But then ss (4) conveys a contrary
intention. The same
applies to ss (1)(b) which entitles the Director General to claim,
not only for moneys actually paid but
for those ‘that he is
obliged to pay’. Something appears to have gone wrong.
[22] I concur with the order proposed by
Mthiyane JA.
____________________
L T C HARMS
JUDGE OF APPEAL
AGREE:
CONRADIE JA
MTHIYANE
JA:
[23]
This appeal concerns the interpretation and application
of s 36 of the Compensation for Occupational Injuries and Diseases
Act
130 of 1993 (‘the Compensation Act’), in particular the
question of how compensation paid in terms of the Act is to be dealt

with where there is an apportionment. The appeal is from a judgment
of Gautschi AJ reported as
Maphiri v Road Accident Fund
2002
(6) SA 383
(W).
[24]
The respondent (the plaintiff) sued the appellant (the
defendant) for damages arising out of injuries sustained in a motor
vehicle
collision which occurred on 6 September 1996. The parties
agreed that an apportionment of 50% would apply. The matter came
before
the court
a quo
by way of a stated case in terms of
Rule 33 of the Uniform Rules of Court. The stated case read as
follows:
‘1. The following amounts were paid by the Compensation
Commissioner in terms of the Compensation Act:
1.1 Compensation in respect of the plaintiff’s total disablement
from 6 September 1996 to 24 November 1996
4
473,87
1.2 Past medical, hospital and transport expenses
33 872,30
1.3 Total award by Compensation Commissioner
38
346,17
2. The plaintiff’s claim set out in its particulars of claim
consists of the following:
2.1 Past hospital and medical expenses 26
169,11
2.2 Estimated future medical expenses 50 000,00
2.3 Past loss of income
5 645,00
2.4 Estimated future loss of income
75 000,00
2.5 General damages
50 000,00
206 814,11
3. The parties have agreed that for purposes of the stated case,
the plaintiff’s common law damages are assessed in the following

amounts:
3.1 Past hospital and medical expenses
36 367,51
3.2 Past loss of income
5 965,16
3.3 General damages
60 000,00
102 332,67
3.4 An undertaking as envisaged in art 43(a) of Act 93 of 1989 of
the costs of the future accommodation of the plaintiff in
a hospital
or nursing home and such treatment, services or goods as the
plaintiff may require as a result of the accident, limited
to 50% of
such costs.
4. The parties agreed that the quantum of the plaintiff’s claim
be settled as set out in para 3 above.
5. The parties agreed that the only issue in dispute shall be the
method of calculating the award to be made to the plaintiff,
having
regard to:
5.1 the apportionment of 50%; and
5.2 the award by the Compensation Commissioner.
6. The parties agreed that the Court in awarding damages shall have
regard to the Compensation Commissioner’s award set out
in para 1
supra
.
7. The plaintiff has not been compensated for general damages by
the Compensation Commissioner.
8. The plaintiff contends that:
8.1 the above Honourable Court should only have regard to the
amounts paid by the Compensation Commissioner in relation to
specific heads of damage to which these amounts relate and which
should therefore not be deducted from heads of damage to which
they
do not relate;
8.2 the above Honourable Court shall only have regard to the amount
likely to become payable to the Compensation Commissioner
in terms
of the provisions of s 36 of the Act which amount the plaintiff
contends is 50% of R38 346,17, ie R19 173,09;
8.3 on the aforestated basis, the defendant is liable in the sum of
R31 993,26 and an undertaking limited to 50%.
9. The defendant contends that:
9.1 the whole amount of the plaintiff’s claim should firstly be
reduced by 50%;
9.2 thereafter, and secondly, the total of the Compensation
Commissioner’s award should be deducted from the apportioned

remainder;
9.3 on the aforesaid basis, the defendant is liable in the
sum of R12 820,17 and an undertaking limited to 50%.’
[25]
The court
a quo
gave judgment for the plaintiff
and ordered the defendant to pay damages in the sum of R30 000 and
costs of suit, and to furnish
the plaintiff with an undertaking
15
in respect of future medical expenses limited to 50%. Relying on the
so called ‘like from like’ principle (about which more
later)
referred to in
Klaas v Union and South West Africa Insurance Co
Ltd
16
and
Senator Versekeringsmaatskappy Bpk v Bezuidenhout
17
the judge
a quo
held that the compensation paid by the
Commissioner in respect of one head of damage had to be deducted
from the equivalent head
of damage in the plaintiff’s claim
against the defendant. The appeal is before this Court with leave
of the court
a quo
.
[26]
The right to recover compensation and damages is
governed by s 36 of the Compensation Act. At the time, it read:
‘
Recovery of damages and compensation paid from third parties
.
(1) If an occupational injury or disease in respect of which
compensation is payable, was caused in circumstances resulting in

some person other than the employer of the employee concerned (in
this section referred to as the “third party”) being liable
for
damages in respect of such injury or disease –
the employee may claim compensation in terms of this Act and may
also institute action for damages in a court of law against
the
third party; and
the Compensation Commissioner
18
or the employer by whom compensation is payable may institute
action in a court of law against the third party for the recovery

of compensation that he is obliged to pay in terms of this Act.
(2) In awarding damages in an action referred to in sub-section (1)
(a) the court shall have regard to the amount which the employee
is
entitled in terms of this Act.
(3) In an action referred to in sub-section (1) (b) the amount
recoverable shall not exceed the amount of damages, if any, which
in
the opinion of the court would have been awarded to the employee but
for this Act.
(4) For the purposes of this section compensation includes the cost
of medical aid already incurred and any amount paid or payable
in
terms of section 28, 54(2) or 72(2) and, in the case of a pension,
the capitalized value as determined by the Compensation
Commissioner
of the pension, irrespective of whether a lump sum is, at any time
paid in
lieu
of the whole or portion of such pension in terms
of section 52 or 60; and periodical payments or allowances, as the
case may
be.’
[27]
The position was previously governed by s 8 of the
Workmen’s Compensation Act 30 of 1941
19
(the Workmen’s Compensation Act). It read:
‘
Recovery from third party by workman of damages and by
Commissioner or employer of compensation paid.
Where an accident in respect of which compensation is payable was
caused in circumstances creating 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
–
the workman may both claim compensation under this Act and take
proceedings in a court of law against the third party to
recover
damages: Provided that where any such proceedings are instituted
the court shall in awarding damages, have regard
to the amount
which, by virtue of the provisions of para (b), is likely to
become payable to the Commissioner or the employer,
individually
liable (hereinafter referred to as the employer), as the case may
be, by the third party; and
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 instituted
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.’
[28]
Sections 36 and 8 referred to above are more or less to
the same effect. So are the objects of the two Acts which are:
(a) To provide compensation from the Commissioner for the injured
employee (workman) irrespective of fault;
(b) To allow the employee (workman) both to claim that compensation
and to claim damages from a third party;
(c) To oblige a court considering an employee’s (a workman’s)
claim for damages against a third party to ‘have regard to’

(deduct) the compensation which the Commissioner may have paid or
will be liable to pay the employee (workman).
(d) Where the Commissioner has already paid and seeks to recover
what he has paid or will be liable to pay (whether by intervention

in the workman’s or employee’s case against the third party or
by separate action) the Commissioner cannot get more than
what the
employee is entitled to recover from the third party.
In my view the construction which the courts have previously placed
on the meaning and effect of s 8 of the Workmen’s Compensation
Act
remains valid and instructive
in interpreting and applying
the provisions of s 36 of the Compensation Act.
[29]
Section 36 (2)
20
provides that when a court considers the damages to be awarded to a
plaintiff (employee) it is obliged to ‘have regard to’
the
compensation paid in terms of the Act. In
Bonheim v South British
Insurance Co Ltd
21
Ogilvie Thompson JA
assumed (without deciding) that the
words ‘shall have regard to’ in s 8 of the Workmen’s
Compensation Act meant ‘deduct’.
That approach has ever since
been followed in this Court
22
and in many decisions of the provincial and local divisions. The
main issue in this case is whether the compensation paid by
the
Commissioner (R38 346,17) should be deducted from the plaintiff’s
total damages (R51 166,33) or only from the equivalent
heads of
damage. In
Bonheim
it was held that such compensation had to
be deducted from the plaintiff’s total claim or ‘aggregate
damages’.
23
Two principles were laid down in
Bonheim
. The first was that
‘the legislature did not intend to increase the third party’s
liability
beyond the aggregate amount of his common law
liability to the workman’
and the second was that
‘the
injured workman should [not]
obtain recompense for his
injuries in any sum, which when added to the compensation receivable
by him under the
[Workmen’s Compensation]
Act, would
exceed the aggregate of his common law damages’. In
Maasberg v
Springs Mines Ltd
24
it was said that the legislature did not intend that the workman
‘should be paid twice over for the same injury’.
[30]
In
Wille and Another v Yorkshire Insurance Co Ltd
25
and
Botha v Miodownik and Co (Pty) Ltd
26
it was held that the amount paid under the Workman’s Compensation
Act had to be deducted from the total amount found to be
payable to
the workman
27
as common law damages after apportionment. In
Nqcobo
28
supra
Stafford J came to the same conclusion. This approach is
fiercely contested by the plaintiff. The plaintiff argues that the

compensation (R38 346,17) should be deducted from the special
damages and not from the total agreed claim (R51 166,53). For this,

as previously stated, reliance was placed on the
obiter dictum
in
Klaas
where Van Heerden AJA remarked that ‘only like
should be deducted from like’
29
and on
Bezuidenhout
where reference was made to the
Klaas
case. In
Klaas
the court was concerned with the
interpretation of the word ‘compensation’ in s 8 of the
Workmen’s Compensation Act and
the ‘like from like’ principle
was never applied. In
Bezuidenhout
the workman had been
awarded R21 375,69 as compensation by the Commissioner. The only
issue was whether this amount should be
deducted from the injured
workman’s determined future medical costs and agreed general
damages, which totalled R15 950. The
court rejected the defendant’s
argument that such deduction should be made. On the facts it
appeared that the plaintiff had
incurred further medical expenses
which were claimed from the third party and for which compensation
had not been paid. Those
medical expenses formed a component of the
claim for R15 950. On a proper reading of the judgment the main
reason for rejecting
the defendant’s argument was not that the
facts favoured the matching of heads of damages. It seems to me that
one of the reasons
for the decision is to be found in the following
passage in the judgment:
‘Al wat blykens die notule in geskil was, is of die totale
toekenning van R21 375,69 deur die Kommissaris afgetrek moes word

van die bedrae genoem in (6)
wat dan sou meebring dat verweerder
hoegenaamd nie vir betaling van skadevergoeding aanspreeklik sou
wees nie
’.
30
[Emphasis added]
[31]
The ‘like from like’ principle must be understood in
the context of the facts of the case that Van Heerden JA was dealing

with. All he was saying, it seems to me, was that one cannot deduct
from the plaintiff’s claim the amount which the Commissioner
has
paid for medical treatment where the plaintiff has made no claim for
damages for the cost of such treatment. It would be
otherwise if the
plaintiff had also claimed damages for the costs of such medical
treatment. The court would then have deducted
from the total amount
of damages to be awarded, the amount which the Commissioner had
paid. If the Commissioner’s claim was
in fact larger (and provided
it was correctly quantified in terms of the Act) then the whole
amount of the claim would fall to
be deducted, even if that meant
that the award for general damages would be reduced
pro tanto
.
The case was one to which the Commissioner was not a party and the
defendant sought to exploit the Commissioner’s liability
in
respect of medical treatment in order to reduce its own liability
for general damages. There was no investigation of that
issue and
therefore no basis for reducing the award to be made to the
plaintiff for general damages.
[32]
I do not see why a deduction of the compensation from
the plaintiff’s total claim in terms of
Bonheim
should give
rise to problems. Take as an example a case where the plaintiff is
awarded R30 000 by the Commissioner (made up of
R15 000 for past
medical and hospital expenses and R15 000 for temporary total
disability). The plaintiff sues the defendant
for R80 000 (R30 000
for special damages and R50 000 for general damages). Where there is
no apportionment the court would deduct
R30 000 and the plaintiff
would receive R50 000. The plaintiff gets nothing more and nothing
less than the full common law damages
to which the plaintiff is
entitled, if account is taken of the fact that R30 000 had already
been paid as compensation by the
Commissioner. The defendant does
not pay anything more than its full common law liability. The
Commissioner recovers what he
is entitled to in terms of the Act.
[33]
Turning now to where there is a 50% apportionment, the
court would deduct R30 000 from the apportioned sum of R40 000 and
the
plaintiff would receive R10 000. The plaintiff is not getting
anything less than the full common law damages, if regard is had
to
the fact that payment of R30 000 as compensation has already been
made by the Commissioner. The defendant does not get off
scot-free
because it is liable for the full amount of R40 000, even though R30
000 goes to the Commissioner and R10 000 to the
plaintiff.
[34]
As to the facts of this case the position is exactly the
same. The Commissioner paid R38 346,17 as compensation (R33 872,32
for
past medical and hospital expenses and R4 473,87 for temporary
total disability). The plaintiff’s apportioned claim is R30 000

for general damages, R18 183,75 for past medical and hospital
expenses and R2 982,58 for loss of income. In total the plaintiff’s

claim was (after apportionment) agreed at R51 166,53. If the
compensation (R38 346,17) is deducted from it the plaintiff would

receive R12 820,36. The Commissioner would recover full compensation
paid in terms of the Act and the defendant would not pay
more than
what it is liable to pay at common law (R51 166,53). Although the
plaintiff gets R12 820,36 nothing less than his common
law damages
has been awarded if account is taken of the amount paid by the
Commissioner (R38 346,17).
[35]
On the other hand if the ‘like from like’ principle
as understood and construed by the plaintiff is applied the
following
would occur. The compensation (R38 346,17) will have to be
deducted only from the special damages (made up of R18 183,75 and R2

982,58) and not from the plaintiff’s total damages (R51 166,3) as
this would reduce the general damages (R30 000). So, on this
basis
then, the plaintiff would receive the R30 000 for general damages
plus the excess of special damages over the amount already
paid as
compensation. The Commissioner would not get back what was paid by
way of compensation as provided for in terms of s
36 (2) of the
Compensation Act. The judge
a quo
says it does not matter, as
the Commissioner would in any event have got nothing if the employee
had been 100% at fault.
[36]
I have not been able to find anything in s 36 (or the
old s 8) justifying this approach. If there is anything to be said
for
the point, there is still no convincing explanation in the
judgment as to why the plaintiff should be allowed to recover more
than his [or her] aggregate damages. The judge
a quo
attempts
to get past this hurdle by saying that the expression ‘full common
law damages’ refers to the assessed damages (R102
332,67) rather
than the apportioned damages (R51 166,33). This is a construction
which in my view is not justified by the plain
wording of s 36(2).
It seems to me that at the point at which a court considers the
amount to be deducted, it is then concerned
with the amount
‘recoverable’ by the plaintiff rather than the full damages
claim. It therefore follows that the relevant
amount from which a
deduction had to be made was R51 166,33 and not R102 332,67.
[37]
In my view the whole amount of the compensation (R38
346,17) is to be deducted from the plaintiff’s total award
irrespective
of the fact that it exceeded what the plaintiff has
been held to be entitled to in respect of the heads of damage to
which the
compensation related (if it can be related!). It is true
that the plaintiff’s general damages are being reduced by the
amount
of the excess. But does the Compensation Act prevent the
court from deducting the excess merely because it exceeds the amount
to which the plaintiff would be entitled under the particular head
of damage to which the Commissioner’s payment relates? That
would
only be so, if one interprets the ‘like from like’
dictum
in the
Klaas
case as requiring a
qualitative
correlation
between the particular amounts being considered.
There is nothing in the Act or in the
Klaas
judgment itself
to suggest that the Act was to be interpreted in that way. The judge
a quo
in a detailed judgment has not pointed to such
correlation. As a matter of law the contrary is true. The form in
which compensation
is awarded does not mirror the heads of damage to
be found at common law. It has been said that compensation paid
under the Act
is not the same as damages.
31
Nor is there room to compare ‘compensation’ received under the
Compensation Act to a benefit under a policy of insurance.
An
attempt to do so was rejected by Schreiner J in the
Maasberg
case
supra
, where the learned judge said
‘compensation
received by the workman should
[not]
be approximated
to, and treated on the same basis as, insurance monies, sick-fund
benefits and the like’.
32
[38]
It does not matter under which head of damage the
Commissioner has paid or will be liable to pay compensation nor that
the amount
exceeds the amount to which the plaintiff has been found
entitled under that head by the court. It is sufficient that it is
an
amount which the Commissioner was obliged to pay and that the
notional
total sum of damages
to which the plaintiff would be
entitled is equivalent to or exceeds that sum. In short, if it means
that the award for general
damages is reduced or wiped out, that
simply is the consequence of the application of the Compensation Act
or as Viljoen J put
it in the
Botha
case
supra
‘ the
impact of the provisions of an Act of Parliament upon the common
law’.
33
[39]
For the above reasons the appeal is upheld with costs.
[40]
Marais JA, who was a member of the Court which heard the
appeal, was as a result of indisposition unable to participate in
the
finalisation of this judgment and the matter was accordingly
proceeded with in terms of s 12 (3) of the Supreme Court Act 59 of

1959.
[41]
Accordingly the order of the court
a quo
is set
aside and the following is substituted:
‘1. The defendant is ordered to pay to the plaintiff the sum of
R12 820,36 and costs of suit.
2. The defendant is ordered to furnish the plaintiff with an
undertaking in terms of article 43 (a) of Act 93 of 1989 in the

terms set out in para 3.4 of the stated case.’
___________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
SHONGWE AJA
1
Art 43(a) of the agreement contained in the Multilateral Motor
Vehicle Accidents Fund Act 93 of 1989.
2
The amendments introduced by Act 61 of 1997 are indicated in the
footnotes that follow.
3
‘Compensation Commissioner’ was replaced with ‘Director
General’.
4
It now reads: ‘In awarding damages in an action referred to in
subsection (1) (a) the court shall have regard to the compensation

paid in terms of this Act.’
5
Now: ‘Director General’.
6
Maphiri v Road Accident Fund
2002 (6) SA 383
(W).
7
Botha v Miodownik & Co (Pty) Ltd
1966 (3) SA 82
(W).
8
Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert v Others
2002 (2) SA 21
(SCA) para 10
.
9
Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert v Others
2002 (2) SA 21
(SCA) para 10
.
9
10
10
Chapter VI deals with the different types of compensation.
Workmen’s
Compensation Commissioner v Norwich Union Fire Insurance Society
Ltd
1953 (2) SA 546
(A).
11
Klaas v Union South West Africa Ins Co Ltd
1981 (4) SA 562
(A) 587B-C.
12
Klaas v Union South West Africa Ins Co Ltd
1981 (4) SA 562
(A).
13
Senator Versekeringsmaatskappy Bpk v Bezuidenhout
1987 (2) SA
361
(A).
14
By Act 61 of 1997. The detail appears from fn 4 above.
15
in terms of Article 43 (a) of Act 93 of 1989.
16
1981 (4) SA 562
(A).
17
1987 (2) SA 361
(A) at 366I-J.
18
Now ‘Director General’
19
The Workmen’s Compensation Act 30 of 1941 was repealed and
replaced by the Compensation for Occupational Injuries and Diseases

Act 130 of 1993 with effect from 1 March 1994.
20
as did s 8(1)(a) of the Workmen’s Compensation Act.
21
1962 (3) SA 259
(A).
22
Klaas
and
Bezidenhout, supra
and more recently,
Sasol
Synthetic Fuels (Pty) Ltd and Others v Lambert v Others
2002 (2)
SA 21
(SCA).
23
Bonheim
at 269;
Botha v Miodownik and Co (Pty) Ltd
1996
(3) SA 82
(W);
Ngcobo
v Santam Insurance Co Ltd
1994 (2) SA
478 (T).
24
1944 TPD 1
at pp 6 et sec;
Bonheim
at 267 H.
25
1962 (1) SA 183
(D) at 187D.
26
1966 (3) SA 82
(W) at 89D.
27
Now ‘employee’ under the Compensation Act
28
at 485D and 486C.
29
at 580i.
30
Bezuidenhout
at 366C.
31
See
SAR and
H v SA Stevedores Services
1983 (1) SA
1066
(A) at 1088F-H.
32
See
Bonheim
at 267H-268A
.
33
at 90A