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Don't Waste KZN 1 (Pty) Ltd and Others v Compensation Fund and Others (Appeal) (A378/2023) [2025] ZAGPPHC 525 (2 June 2025)

82 Reportability
Administrative Law
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Brief Summary

Administrative Law — Compensation for Occupational Injuries and Diseases Act — Internal remedy — Appellants challenged classification decision by the Commissioner under COIDA — Court of first instance held that section 91 of COIDA constituted an internal remedy, precluding judicial review — Appellants contended that the classification was irrational and did not reflect the nature of their business operations — Court found that the decision was arbitrary and not rationally connected to the information before the Commissioner, allowing for judicial intervention and substitution of the classification.

Comprehensive Summary

Case Note


Case Name: DON'T WASTE KZN 1 (PTY) LTD, DON'T WASTE KZN 2 (PTY) LTD, DON'T WASTE CTN 1 (PTY) LTD, DON'T WASTE CTN 2 (PTY) LTD, DON'T WASTE EC 1 (PTY) LTD, DON'T WASTE GAU 1 (PTY) LTD, DON'T WASTE GAU 2 (PTY) LTD, DON'T WASTE GAU 3 (PTY) LTD, DON'T WASTE GAU 4 (PTY) LTD, DON'T WASTE GAU 5 (PTY) LTD, DON'T WASTE GAU 6 (PTY) LTD versus THE COMPENSATION FUND, THE COMMISSIONER OF THE COMPENSATION FUND, MINISTER OF EMPLOYMENT AND LABOUR, DEPUTY MINISTER OF EMPLOYMENT AND LABOUR, and THE DIRECTOR GENERAL, DEPARTMENT OF EMPLOYMENT AND LABOUR

Citation: Case No. A 378/2023

Date: Heard on 17 April 2025; Delivered on 2 June 2025 with an effective hand-down date of 10H00 on May 2025


Reportability


This case is reportable because it raises significant questions regarding the interpretation and application of an administrative internal remedy. In particular, the judgment scrutinizes whether section 91 of the Compensation for Occupational Injuries and Diseases Act (COIDA) constitutes an internal remedy under section 7(2)(a) of the Promotion of Administrative Justice Act (PAJA). The decision is of interest as it clarifies the boundaries of internal review mechanisms in administrative decisions and the applicability of statutory time limitations.


The judgment holds importance for both legal practitioners and administrative bodies by distinguishing between decisions made by the Director-General and those made by the Commissioner. This distinction is crucial, as it determines the availability of judicial review under PAJA. It further affects future disputes over the classification and assessment of businesses within the statutory framework.


The case therefore contributes substantially to the evolving jurisprudence on internal remedies, the exhaustion of prescribed administrative procedures, and the wider interpretation of remedial statutes. As such, it serves as an instructive example of balancing statutory interpretation with principles of administrative justice.


Cases Cited


No specific prior case decisions are cited in the judgment. The discussion is primarily focused on the interpretation of the statutory provisions of COIDA and PAJA. References to the record, such as the bundle paragraphs (for instance, paras 9.16 and 9.17), support the analysis but do not constitute independent case citations.


Legislation Cited


The judgment relies on the following legislation in its analysis:

• Compensation for Occupational Injuries and Diseases Act 130 of 1993

• Promotion of Administrative Justice Act 3 of 2000


Rules of Court Cited


The judgment does not explicitly cite any specific rules of court.


HEADNOTE


Summary


The primary issue in this appeal is whether section 91 of the Compensation for Occupational Injuries and Diseases Act provides an internal remedy as required by section 7(2)(a) of the Promotion of Administrative Justice Act. The court examined the relationship between statutory classification provisions and the internal review mechanisms ordinarily available to affected parties. It noted that the internal remedy applies only to decisions emanating from the Director-General and not to those made by the Commissioner.


In its analysis, the court highlighted that the contested decision related to the reclassification of the appellants under COIDA. The Court acknowledged that while a remedy under section 91 exists, it clearly pertains to disputes involving the Director-General. Thus, when the Commissioner exercises discretion in applying an equitable assessment rate, that decision falls outside the ambit of the internal remedy framework provided by COIDA.


Furthermore, the judgment addresses the implications of a missed 180-day deadline for lodging an objection under PAJA. The court emphasized that the statutory limitation period is a significant factor in determining the availability of judicial review. Overall, the ruling clarifies that the Commissioner's reclassification decision does not trigger the internal remedy mechanism, and any objection must fall within the strict statutory confines.


Key Issues


The case grapples with whether the internal remedy provided in section 91 of COIDA extends to the decisions made by the Commissioner, particularly in the context of a reclassification decision. The court had to determine if the remedy under PAJA covered actions taken by both the Director-General and the Commissioner, or if it was limited solely to the former’s actions. This core issue has broad implications for administrative review in statutory schemes.


A further key issue involves the statutory time limitation. The appellants contended that they had raised their objections within a reasonable timeframe; however, the matter of whether the objection was valid under the 180-day limit of PAJA remains central. The court’s interpretation of the time limits underscores the importance of strict compliance with procedural requirements in administrative justice.


Finally, the judgment explores the equitable application of assessment tariffs when the business in question is not explicitly covered by an established classification. This raises broader questions about fairness in regulatory discretion and the balancing of administrative efficiency with the rights of affected parties.


Held


The court held that section 91 of COIDA does not provide an internal remedy for decisions taken by the Commissioner. The remedy contemplated by section 91 is confined to the decisions of the Director-General. In consequence, the appellants were required to exhaust the internal objection process applicable solely to the Director-General before seeking judicial review, which in this case was not available.


Moreover, the court confirmed that the statutory time limitation of 180 days under PAJA is pivotal. Since the objection by the appellants was directed against a decision outside the scope of section 91, the court determined that the appeal could not proceed on that basis. The judgment, therefore, reinforces the strict interpretation of internal remedy and limitation provisions.


Ultimately, the court’s decision makes it clear that equitable assessments and reclassification decisions by administrative bodies such as the Commissioner are not subject to the internal review mechanism provided by section 91 of COIDA. This finding directs future cases to carefully distinguish between decisions taken by different administrative actors in similar statutory frameworks.


THE FACTS


The appellants, operating as part of the Don't Waste Group, were initially classified under a specific tariff based on their business operations. Following an internal re-assessment application and an on-site valuation by inspectors, the Commissioner reclassified the group from sub-classification 1711.4 to sub-classification 1201. This reclassification was based on the nearest applicable assessment rate since their specific business activity was not mentioned in the Table of Assessment Rates.


After the reassessment, the appellants contended that the reclassification was incorrect. On 1 March 2020, they sent a letter to the Commissioner requesting reconsideration and proposing an alternative classification that would more appropriately reflect the risk profile of their business operations. They argued that the shared services aspect of their operations merited a different classification compared to the other operational arms engaged in waste sorting.


The factual matrix further details that the apposite classification mechanism under COIDA was designed to secure an equitable assessment rate. The appellants maintained that the alternative classification would have imposed a lesser assessment tariff, a point that was not denied by the Compensation Fund. This dispute over the appropriate classification and the internal remedy available forms the factual underpinning of the appeal.


THE ISSUES


The central legal issue for the court was whether the internal remedy provided by section 91 of COIDA could be invoked as a basis for judicial review under PAJA when the disputed decision was taken by the Commissioner rather than the Director-General. The court had to assess the scope of the internal remedy and its relevance to the reclassification decision.


Another significant issue was whether the appellants’ objection, sent after the reclassification, complied with the statutory time limits laid down by PAJA. The question of the 180-day limitation was at the heart of whether the court could allow the review to proceed.


Additionally, the court needed to consider the interpretation of assessment tariffs where the business operations were not directly included in the prescribed classification system. This issue involved balancing administrative discretion with the requirements of fair and equitable treatment under the law.


ANALYSIS


In its analysis, the court carefully considered the statutory provisions of both COIDA and PAJA. It noted that section 91 of COIDA was specifically designed to provide an internal remedy for decisions made by the Director-General, and its language did not extend the same right of review to decisions taken by the Commissioner. This distinction was critical as it directly impacted the availability of judicial review.


The court further analyzed the legislative framework to determine the intent behind the internal remedy mechanism. It reasoned that the purpose of section 91 was not to serve as a catch-all remedy for all reclassification decisions. Instead, it was intended to address only disputes where the Director-General’s decisions were in question. By applying the principle of parity of reason, the court concluded that the remedy should not be read to encompass the Commissioner’s discretionary decision on classification.


Moreover, the court scrutinized the procedural aspect pertaining to the 180-day time limitation under PAJA. It held that even if there were grounds for reconsideration of the classification, the failure to timely invoke the appropriate internal remedy rendered the objection ineligible for judicial review. The court’s reasoning thus underscored both the importance of clear statutory construction and adherence to procedural deadlines in administrative processes.


REMEDY


The remedy provided by the court was to uphold the administrative framework as set out in COIDA. The court affirmed that since section 91 does not extend to decisions made by the Commissioner, the appellants were not entitled to pursue judicial review on that basis. The classification decision made by the Commissioner was therefore not subject to an internal remedy under PAJA.


In addition, the court’s ruling effectively dismissed the appeal because the objection, which was required to be lodged within the 180-day limitation period, did not satisfy the statutory requirement for an internal remedy. The court thereby confirmed that administrative decisions taken outside the ambit of section 91 must be reviewed in accordance with the specific procedures and time limits established by the legislation.


Ultimately, the ordering of the judgment maintained the integrity of the internal remedies framework and underscored that the administrative reclassification was to be regarded as final unless procedurally challenged in the correct manner. The appellants were thus left without recourse through judicial review on the ground presented.


LEGAL PRINCIPLES


The judgment establishes that an internal remedy under COIDA is confined to actions taken by the Director-General and does not extend to decisions by the Commissioner. An important legal principle emphasized is the necessity for affected parties to exhaust the available internal review mechanisms before seeking judicial intervention. Internal remedy procedures must be strictly followed, and any deviation in the prescribed process, including the failure to meet statutory deadlines, will preclude judicial review.


Another principle is the application of equitable administrative discretion. When a business activity is not explicitly classified within the TAR, the Commissioner is authorized to apply an equitable assessment rate. This discretionary power is considered ancillary to the overall assessment process, making the precise internal remedy less critical than ensuring fairness and equity in the resulting classification and tariff.


Finally, the judgment reinforces that compliance with procedural timeframes—such as the 180-day limitation—is paramount in administrative law. The rigorous enforcement of statutory deadlines serves as a safeguard against untimely objections and ensures that internal administrative procedures are respected as a matter of public policy and justice.

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: WjSINO
(2) OF INTEREST TO OTHER JUDGES:S$1NO
:~T:7E'1~J§-
SIGNAT~ : ............ -
In the matter between:
DON'T WASTE KZN 1 (PTY) LTD
DON'T WASTE KZN 2 (PTY) LTD
DON'T WASTE CTN 1 (PTY) LTD
DON'T WASTE CTN 2 (PTY) LTD
DON'T WASTE EC 1 (PTY) LTD
DON'T WASTE GAU 1 (PTY} LTD
DON'T WASTE GAU 2 (PTY) LTD Case No. A 378/2023
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
FOURTH APPELLANT
FIFTH APPELLANT
SIXTH APPELLANT
SEVENTH APPELLANT
2
DON'T WASTE GAU 3 (PTY) LTD EIGHTH APPELLANT
DON'T WASTE GAU 4 (PTY) LTD NINTH APPELLANT
DON'T WASTE GAU 5 (PTY) LTD TENTH APPELLANT
DON'T WASTE GAU 6 (PTY) LTD ELEVENTH APPELLANT
and
THE COMPENSATION FUND FIRST RESPONDENT
THE COMISSIONER OF THE COMPENSATION FUND SECOND RESPONDENT
MINISTER OF EMPLOYMENT AND LABOUR : TW THIRD RESPONDENT
MXESI
DEPUTY MINISTER OF EMPLOYMENT AND FOURTH RESPONDENT
LABOUR: BOITUMELO MOLOI
THE DIRECTOR GENERAL, DEPARTMENT OF FIFTH RESPONDENT
EMPLOYMENT AND LABOUR: THOBILE LAMATI
Coram:
Heard on:
Delivered : Khumalo J (Ms) et Millar Jet Le Grange AJ
17 April 2025
2 June 2025 -This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by release to SAFLII. The
date and time for hand-down is deemed to be 1 0H00 on ** May 2025.
3
JUDGMENT
LE GRANGE AJ (KHUMALO J (Ms) et MILLAR J CONCURRING)
INTRODUCTION
[ 1] The central issue in this appeal is the question whether the provisions of the
Compensation for Occupational Injuries and Diseases Act1 (COIDA), and
more specifically section 91 thereof, constitute an internal remedy, as
envisaged in section 7(2)(a) of the Promotion of Administrative Justice Act2
(PAJA). This is a matter where the dispute relates to a decision taken to
classify the appellants in terms of COIDA.
[2] In this regard, the court offirst instance found that it does, and that the court
has no jurisdiction to entertain the appellants' review of the impugned
decision. The relevant portion of the judgment reads as follows:
1 130 of 1993.
2 3 of 2000. '[26] Failure to initiate and or to initiate and failure to prosecute does not
extinguish the existence of a remedy.
[27] Sect 91 of COIDA is found in chapter X under heading legal
procedures and states that any person who is affected by a decision
of the Director General may within a prescribed time lodge an
application with the Commissioner . A decision to classify according
to assessment tariffs is such a decision. Applying parity of reason,
a person affected by such a decision may raise an objection to such
classification and as a consequence request such classification to
4
be reconsidered. If with success a reclassification results. The
decision to classify remains the prerogative of the Respondents .
[31 J Any internal remedy means just that, any, and thus does not exclude
the procedures of sec 91. In flows that the 2-12 applicants must, as
the First Applicant attempted, first have exhausted the internal
remedy of sec 91 or perhaps more aptly in this case, having regard
to the facts and duration, on application clearly set out exceptional
circumstances in terms of sec 7(2)(c) upon which a Court could
have exempted them from compliance in the interest of justice.'
[Emphasis added]
[3] The court a quo granted the appellants leave to appeal this finding.
COIDA
[4] The sections relevant to this matter provide that:
'83 Assessment of employer
(1) Subject to the provisions of this section, an employer shall be
assessed or provisionally assessed by the Director-Genera/
according to a tariff of assessment calculated on the basis of
such percentage of the annual earning of his, her or its
employees as the Director-General with due regard to the
requirements of the compensation fund for the year of
assessment may deem necessary .
91 Objections and appeal against decisions of Director-General
5
(1) Any person affected by a decision of the Director-Genera/ or
a trade union or employer's organization of which that person
was a member at the relevant time may, within 180 days after
such decision, lodge an objection against that decision with
the commissioner in the prescribed manner.
(2)(a)An objection lodged in terms of this section shall be
considered and decided by the presiding officer assisted by
two assessors designated by him, of whom one shall be an
assessor representing employees and one an assessor
representing employers.
(b) If the presiding officer considers it expedient , he may,
notwithstanding paragraph (a), call in the assistance of a
medical assessor." [Empasis added]
[5] It is correct that section 83 bestows the power to assess or provisiona lly
assess upon the Director-General, as the court of first instance found, but
the act together with the Industry Classifications, Classes, Subclasses and
Assessment Tariffs/Classification list/Table of Assessment Rates (TAR),
and the facts should however further be considered.
[6] It is common cause that the business or operation, in which the appellants
are engaged, is not specifically mentioned in the TAR, for which reason, the
Commissioner invoked clause 4 thereof. To this end the respondents
(collectively referred to as the Fund) themselves stated3:
"9.16 The {Commissioner] has invoked the above provision, which gives
him the discretion , in classifying the {appellants]. It should be noted
that the Industry Classification document does not specifically refers
to the employers or business carrying out the activities similar to
those of the {1st to 11th appellants).
3 Bundle p 213 paras 9.16 and 9.17.
6
9. 17 The nearest classification available that the Compensation Fund
could allocate the {1st to 11th appellants] is 1201."
[7] Clause 4 of the TAR provides, in relevant part, that:
"If the business or operations , in which an employer is engaged, is not
specifically mentioned in the Table of Assessment Rates the Commissioner
may apply such assessment rate to the employer's business or operations
as he may under the circumstances consider equitable ... "
[8] Form the above it is clear that the duty to assess or provisionally assess,
according to a tariff, lies with the Director-General , however if the business
activity is not specifically mentioned in the TAR, the duty to "apply such
assessment rate to the employer's business or operations as he may under the
circumstances consider equitable" befalls the Commissioner.
[9] Two aspects emerge from the above: (i) Since section 91 only provides for
an internal remedy against the Director-General's decisions, and since
COIDA does not provide for a similar remedy against a decision of the
Commissioner, that in my view disposes of the main issue, that the court a
quo should have entertained the matter at least on this basis; and (ii) It is
not sought of the Commissioner to classify a business into a specific
classification , where no such classification exists. The Commiss ioner is to
consider the risk of the business and apply an assessment rate to the
employer which is fair and equitable. In the premises the classification in
such an instance is ancillary and what is more important is that the
assessment rate should be equitable.
180 DAYS LIMITATION PROVISION IN PAJA
[1 O] In limine, the Fund objected to the review, being brought in terms of the
provisions of PAJA, on the basis that it was brought beyond the 180 days
as provided for in section 7(1) of PAJA.
7
[11] The chronological facts, relating hereto, is common cause and as follows:
[12] Don't Waste Shared Services (Pty) Ltd (Shared Services) and the
appellants (collectively referred to as Don't Waste Group) was initially
classified under sub-classification 1711.4
[13] Following a re-assessment application and a physical visit and valuation by
the Fund's inspectors, the Commissioner on 28 February 2020 reclassified
the Don't Waste Group under sub-classification 1201.5
[14] It is the Fund's submission that the appellants had to apply for the rescission
of this decision by no later than 180 days from this latter date.
[15] However, on 1 March 2020, Don't Waste Group sent a letter to the
Commissioner stating that the re-classification was incorrect, requested its
intervention, and proposed a meeting. Don't Waste Group were of the view
that Shared Services should, due to its administrative business managing
the group, be re-classified as under 22106 and the appellants (whose
employees actively sorted the waste) under 19607 -which is the
classification given to their 'direct competition, in the same industry, which
is similarly responsible for the sorting of waste', an allegation which was not
denied by the Fund. The latter classification which makes sense as it has a
lesser risk and hence a lesser assessment tariff attached to it, to which I will
return.
4 CLASS XVII, AIR, ROAD TRANSPORT HAULIERS, etc., Sub-class 1711, The business of
carriage, transport or sanitary service contractors; strewing of fertilizer as a business.
5 CLASS XII, GLASS, BRICK, TILES, CONCRETE, etc., Sub-class 1201, Leaded lights
manufacturing; glazing; beveling and/or silvering, including the business of a glass merchant.
6 CLASS XXII, PROFESSIONAL SERVICES, etc., Sub-class 2210, The business of accountant ;
auditor; advocate; attorney; conveyancer; notary; law agent; quantity surveyor, editing and
journalistic work provided no printing and/or publishing, other than distribution through the post,
is undertaken ; press agency; typing and roneo work as a separate business; and other profession
not otherwise stated.
7 CLASS XIX, PERSONAL SERVICES, HOTELS, FLATS, etc., Sub-class 1960, Property
managing , including service flats, township and/or estate managing in connection with which the
functions of a local authority are not carried out and no agricultural operations are carried on (any
agricultural operation carried on are subject to the rates for Class I), the business of the
advertising agent (including bill posting) and/or contractor ; commercial artist and/or designer;
enquiry and/or collecting agent; labor recruiting agent; messenger agency.
8
[16] Following 8 months of silence from the Fund, and various complaints by
Shared Services that its business suffer damages due to this lack of
response, they on 20 July 2021, lodged a completely new re-assessment
application.
[17] Due to a further lack of proper response, notwithstand ing frequent follow­
ups, the Commissioner ultimately, a year later, on 11 March 2022 requested
further documents , which were provided on 4 April 2022 together with a
completely new re-assessment application.
[18] On 11 April 2022, the Commissioner informed Don't Waste Group that the
matter is escalated to the relevant department and a response should be
awaited within 21 working days.
[19] Due to the Fund's failure to respond, Don't Waste Group filed motion
proceedings on 23 August 2022.
[20] Part A of the application was instituted on an urgent basis during that month,
the primary purpose being to compel the Fund to decide regarding the
reclassification of the Don't Waste Group, i.e. to either allow or to disallow
their re-classification as prayed for in the Notice of Motion.
[21] This relief was achieved on 8 September 2022 when the Fund, in a letter
addressed by the State Attorney, communicated that they had made the
decision to:
[21.1] allow the reclassification of Shared Services as sub-classifica tion
2210 under CLASS XXII; and
[21.2] disallow the reclassification of the appellants as sub­
classification 1960 as sought in the Notice of Motion.
9
[22] By entertaining a new re-classification application (dated 4 April 2022) and
by making the above decision consequent to this new re-classification
application, the Fund opened the door for the appellants to have this latter
decision(s) be reviewed and set aside, the 180 days effectively being reset
(to the date of this decision) and in this instance of no consequence .
[23] For this reason, the point in limine stands to be dismissed.
IMPUGNED DECISION
[24] According to the appellants, their "businesses involves the sorting of waste (of
which approximately 3% thereof consists of the sorting of glass) at the premises of
their various clients, whereafter the removal of the waste is outsourced to third
parties. This is a function that should usually be fulfilled by the local Municipality .
Accordingly the business of the Second to Twelfth Applicants should fall squarely
within sub-classification 1960, which is described in the Classification List as
''property managing, including service flats, township and/or estate managing in
connection with which the functions of a local authority are not carried out and no
agricultural operations are carried on (any agricultural operations carried on are
subject to the rates for Class I), the business of advertising agent (including bill
posting) and/or contractor; commercial artist and/or designer; enquiry and/or
collecting agent; labour recruiting agent; messenger agency. "
[25] As stated above, on or about 25 February 2020 the Commissioner made the
administrative decision to classify Don't Waste Group under CLASS XII and
more specifically under sub-classification 1201, which is described in the
TAR as follows:
"GLASS, BRICK, TILES, CONCRETE , etc.
1201 Leaded lights manufacturing ; glazing; bevelling and/or silvering,
including the business of a glass merchant" .
10
[26] The appellants are of the view that this classification is irrational as their
respective business operations and the risks associated with their business
activities (the nature of which is not disputed) clearly did not fall within the
scope of this patently incorrect classification and more importantly that the
assessment rates is not associated with the risk of the subclass and hence
equitable. For this reason, they filed a new application for re-classification
which ultimately culminated in the review before this Court.
[27] Considering whether the appellants ' business should have been classified
as 'manufacturing ' or 'glass merchants' the Fund's own investigation into
the nature of the appellants' business becomes relevant.
[28] In this regard, the Fund's investigators on 21 February 2020 stated, in
relevant part, as follows:
"2. DISCUSSION
2.1 Don't Waste Pty Ltd consists of 12 branches in which one
branch named [Shared Services) is the head office
responsible for the admin work for all other 11 branches ...
The nature of the business performed on the sites is waste
sorting (papers, plastic, glasses and cans) at the back area of
premises of the client refer to attached (page 14), then
collection is outsourced to service providers (Waste Group,
Remade recycling, Lothlorion wastepaper , Ace of waste cc
and Skip waste) as agreements attached.
3. RECOMMENDATION:
11
3. 1 We suggested that subclass 155a8 (0. 53%) to be applied as
from start to all mentioned above reference numbers for Don't
Waste PTY LTD."
[Emphasis added.]
[29] Considering the above, the classification of, or the application of the
assessment rates to, the applicants as similar to 'manufacturers ' or
'merchants' as well as the investigators' own recommendation to classify
them as 'trade and commerce ', is simply wrong as it nowhere indicated that
manufacturing or selling (especially glass) took place -acts which would
substantially increase the risk to any employee.
[30] In argument the Fund's counsel correctly conceded that the appellants do
not manufacture , buy or sell the waste and never becomes owner thereof.
The appellants simply sort waste into different categories of paper, plastic,
glasses and cans, similar to, or an extension of, a hotel employee who takes
out the waste and sort it before it is collected by the waste removals.
[31] It is further evident from the investigator's report that the applicants do not
bring anything onto site or remove anything from site -something which
would also increase the risk -and that the sorting is done at the back of the
premises of the client.
[32] What is further lacking in the Fund's papers is their reasons why the
respondents' decisionmakers decided to astray from their own inspectors '
or the inspector's reasons why they made the recommendation they did,
which makes the decision arbitrary and even more irrational.
8 CLASS XV, TRADE, COMMERCE, etc., Subclass 1550, The business of general retail dealer:
chemist or herbalist; photographer ; photographic appliance dealer; tobacconist ; bookseller and/or
stationer; type writer agent including office equipment shops, commercial traveler and/or
manufacturer representative ; whole sale leather merchant; wholesale soft furnishing merchant;
wholesale merchant (not otherwise stated); hide, skin and wool merchant or broker, paper
merchant not undertaking any manufacturing operations; tea, coffee or sugar merchant ; with no
roasting operations ; feather dealer or maker of feather dusters; rubber merchant ; tyre or motor
accessory dealer.
12
[33] In the premises, I find that the impugned decision to be arbitrary and not to
be rationally connected to the information before the Commissioner.
[34] I further find that to the extent that the Commissioner classified the
appellants it be wrong in law as the Commissioner is not to classify but to
apply the equitable assessment rate, and at the most regard for practical
reasons a specific classification.
FURTHER AND/OR ALTERNATIVE RELIEF
[35] Save to seek the review and the setting aside of impugned decision, the
appellants, in the second part of Part B of the notice of motion, request the
Court to regard this matter as exceptional and to substitute, by virtue of
section 8(1 )(c)(ii)(aa) of PAJA, the decision the Commissioner by classifying
them under sub-classification 1960.
[36] Whether there are indeed exceptional circumstances, the following must be
considered:
[37] The Fund in their papers persist that their classification of the appellants is
correct and that there is no need for the Court to interfere. They also blamed
the appellants own failure to clarify that they do not transport the waste
which was the cause for the first erroneous classification.
[38] The Fund alleged that: "[t]he classification is always made on the information
provided by the employees themselves although the Compensation Fund may visit
the employer premises for investigation and certainty." The allegation is correct,
however, the Fund themselves , after obtaining their investigative report,
failed to follow its recommendation , and more important failed to explain
why they did so. In argument before this Court, it however became evident
by concession that the classification (under 1201) is palpably wrong.
13
[39] I find that: (i) the lack of the Fund's proper response, which spans over a 4
year period; and more importantly (ii) the Fund's persistence with a clear
and irrational decision in their papers; (iii) the investigator 's wrong
recommendation based upon its own information ; and (iv) the fact that there
is more than enough facts before court, the most important of which is the
nature of the respondents ' business which remains undisputed, that this
matter is exceptional, which warrant this Court's intervention to the extent
that the Commissioner's decision must be substituted.
[40] Considering that the risk under which the hotel employee conducts waste
sorting, which is similar to what the appellants' employees do, this Court
can with certainty find that the assessment rate applicable to the former
would be equitable to the latter.
[41] Regarding costs, I find no reason why the costs should not follow suit albeit
on scale C, due to the complexities of the arguments.
ORDER
[42] In the circumstances , I propose the following order:
[40.1] THAT the appeal is upheld.
[40.2] THAT the second respondent's decision to classify the
appellants under sub-classification 1201 is reviewed and set
aside and substituted by the follow:
"The assessment rates associated with sub-classification 1960
of the Industry Classifications, Classes, Subclasses and
Assessment Tariffs is to be applied to each and every of the
appellants from 28 January 2020".
14
[40.3] THAT the respondents are ordered to apply the assessme nt
rates associated with sub-classification 1960 to each and every
appellant; and where practically necessary to regard the
appellants as classified in terms of sub-classification 1960.
[40.4] THAT the first and second respondents are ordered to, within 10
days of this order, provide each of the appellants with an
assessment, reflecting those amounts due to the first respondent
as from 28 February 2020 in terms of the above assessment rate,
for the purpose of enabling the appellants to make payment of
any amount that may still be due to the first respondent in terms
of the above assessment.
[40.5] THAT the first and second respondents are ordered to reverse
any and all such charges and penalties that may have been
levied against the applicants since 28 February 2020, as a result
of their failure to correctly reclassify the appellants as set out
above.
[40.6] THAT the first and second respondents are ordered to,
immediately upon payment by the applicants of any outstanding
amount due in terms of the aforementioned assessment , issue
the appellants with the necessary Letters of Good Standing,
provided all other prescribed requirement have been complied
with.
[40.7] THAT the first and second respondents are ordered to pay the
costs of the appeal, jointly and severally, to include the costs of
counsel on Scale C.
I AGREE AND IT IS SO ORDERED
I AGREE,
GMENT DELIVERED ON:
-RUCTED BY: c___
A.J. LE GRANGE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
NVKHUMALO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
2 JUNE 2025
COX YEATS INC
REFERENCE:
COUNSEL FOR RESPONDENTS:
INSTRUCTED BY:
REFERENCE : 16
MS. C SEGER
ADV. MC PHATHELA
OFFICE OF THE STATE ATTORNE Y.
MR. M MA TLALA

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