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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 103308/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 9 December 2025
SIGNATURE
In the matter between:
EDWIN KHOMOTSO SERUBA
(Identity number: 8[...]) Applicant
and
THE COMMISSIONER: COMPENSATION FUND Respondent
JUDGMENT
MINNAAR AJ:
Introduction:
[1] The applicant has been self -employed since June 2012, conducting business
in the printing industry.
[2] In October 2002, the applicant sustained a medical injury which left him with a
personal disability. The applicant states that because of the injury, he was
awarded a monthly pension in terms of the provisions of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”). To this effect,
a letter of confirmation from the respondent, dated 24 June 2025, is attached
to the founding affidavit. This letter certifies that the applicant is receiving a
monthly pension of R1 941.24 in terms of section 54(1)( A) of COIDA and that
this pension is payable for life.
[3] I pause to state that the reference to section 54(1)( A) must be incorrect, as no
section 54(1)(A) is to be found in COIDA. Suppose the letter is intended to
refer to section 54(1)(a) of COIDA. In that case, the reference to this section is
also a misdirection, as section 54(1)(a) provides for compensation in the event
of the death of an employee. It is accepted that the applicable pension is paid
in terms of the provisions of section 49 (1)(a) of COIDA , as this section
provides for compensation for permanent disablement through payment of a
monthly payment throughout the remainder of the employee's life.
[4] At the end of August 2023, the applicant, in terms of section 49 of the
Workmen’s Compensation Act, Act 30 of 1941 , applied to commute the
monthly pension into a lump sum. It is unclear why the provision of section 49
of the Workmen’s Compensation Act, Act 30 of 1941 , is referenced in the
application form (Annexure “FA-2” to the founding affidavit) when section 52 of
COIDA contains a similar provision.
[5] In terms of the application, the applicant sought a lump -sum payment of
R550 000.00. It is of crucial importance to note that the calculation of the
amount of R550 000.00 is not explained in the founding affidavit . The
motivation for the commutation was to expand the applicant’s printing
business by investing in machinery , to employ more staff, and, in doing so, to
prevent outsourcing. In the application, the applicant listed his income as
R31 719.81 (of which R1 719.81 appears to be the pension he is recei ving)
and his living expenses as R31 719.81.
and his living expenses as R31 719.81.
[6] On 26 October 2023, the respondent declined to grant the commutation on
the basis that the applicant’s monthly pension was calculated using the
earnings ceiling prescribed in terms of section 83(8) of COIDA , namely
R4 993.00. The respondent asserted that this amount fell below the
prescribed minimum threshold for commutation.
[7] The applicant then proceeded in terms of section 91(1) of COIDA , providing
for objections and appeals against decisions of the Director-General, to object
to the Panel.
[8] Following a hearing on 7 August 2024, the Panel delivered a judgment. In
terms of the judgment, the Panel made the following findings:
a. The respondent failed to explain the rationale for requesting the
applicant to disclose any extra or additional income to his monthly
pension.
b. The respondent vehemently denied the existence of a policy or a
directive limited only to a commutation.
[9] The Panel concluded:
a. In deciding the application for a commutation, the Panel agreed to
invoke Instruction number 191, particularly the provisions of paragraph
2.8 (Commencing own business) and paragraph 3.2 (Income of
pensioner in respect of salary).
b. As the applicant wishes to extend his business and proof has been
furnished to the respondent, paragraph 2.8 of Instruction 191 supports
the application.
c. The applicant disclosed his salary of R40 000.00 to the respondent,
and he confirmed same under oath. If this amount is considered, the
applicant's monthly pension will exceed the prescribed amount of
R4 993.00.
d. Based on available information, it is clear that the respondent, in
determining the application for commutation, ignored or neglected to
take into account the provisions of Instruction 191.
e. As a result, the decision of the respondent is deemed to be
unreasonable and not in compliance with the provisions of section 33
of the Constitution of South Africa, Act 108 of 1996 (dealing with just
administrative action).
[10] The Panel ultimately upheld the objection , overturned the respondent's
initial refusal, and directed that the pension be commuted in a lump sum. No
order was made as to the amount of the lump sum.
[11] The applicant then lodged an application to this court in terms of which
the following relief is sought:
a. That the decision of the respondent, refusing to give effect to the
decision of the Panel, dated 19 August 2024 ( ‘the decision ’), be
reviewed and set aside to the extent that it constitutes a refusal to
comply therewith.
b. That the respondent be directed and compelled to give effect to the
decision of the Panel upholding the applicant’s objection and
authorising the commutation of the applicant ’s monthly pension into a
lump sum of R550 000.00.
c. That the respondent be ordered to make payment to the applicant, the
lump sum of R550 000.00 commutation within 10 (ten) days of the
granting of this order.
d. That the respondent be ordered to pay the costs of this application.
The applicant’s objection and commutation:
[12] The respondent did not take any steps to appeal or set aside the
Panel’s decision. The Panel's decision, therefore, remains active and
binding.1 The effect of the Panel's decision is that the applicant’s objection is
upheld.
[13] The applicant’s objection (Annexure “FA -4”) relates to the declaration
by the respondent that his monthly pension is below the prescribed amount of
R4 993.00. The objection does not contain any mention of the calculation of
the R550 000.00 lump sum or of the respondent’s refusal to pay this amount
to the applicant.
1 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) at paras 26 and 27;
MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) at paras
101 to 103
[14] The calculation of the R550 000.00 lump sum was also not traversed
before the Panel, and the Panel did not rule that this amount must be paid to
the applicant.
[15] On the first appearance of this application (1 October 2025) , I raised
concerns as to how the amount of R550 000.00 was calculated. The
application was stood down to 3 October 2025 for a supplementary affidavit to
set out the calculation of the R550 000.00 and to provide the court with a copy
of Instruction 191.
[16] The applicant provided the supplementary affidavit, in terms of which
the lump sum is premised on a quotation from Jonachantelle Trading and
Projects (Pty) Ltd, setting quoted prices for the purchase of embroidery
machines, a vinyl cutter machine and a vinyl printer machine (‘the quotation’).
[17] Instruction 191 was provided ; it is unclear how it is relevant to the
Panel’s decision, as this Instruction addresses medical tariffs for medical
service providers.
[18] The supplementary affidavit did not address my concern, and the
application was postponed to 13 October 2025 for the filing of heads of
argument. Heads were delivered, but the calculation of R550 000.00 was still
not addressed. I then reserved judgment.
[19] Section 59 of COIDA provides that compensation payable in terms of
COIDA may, for reasons deemed by the Director -General to be sufficient, be
paid in instalments or in such other manner as he may deem fit.
[20] In Knowles v Compensation Commissioner Vuyo Mafata (75337/2016)
[2018] ZAGPPHC 773 (13 February 2018) , reference was made that an
appropriately qualified expert should be approached for “proper calculations”
to be made with regard to the amount payable. In Knowles, the applicant
enlisted the assistance of a registered account /chartered accountant, who
calculated past and future amounts due to the applicant, using, among others,
an average consumer price index for the applicable period until the applicant
would probably have retired. In the application before me, no such evidence is
provided, nor was any such evidence provided in the complaint or to the Panel
in support of the calculation of the R550 000.00 lump sum.
[21] Commutation from a monthly pension to a lump sum cannot be a
thumb suck exercise premised on a quotation to purchase desired machinery.
Factors such as the applicant's age, estimated retirement date, inflation, and
applicable pension payments must be considered. An appropriate expert,
such as an actuary or a chartered accountant, must determine the lump -sum
calculation.
[22] In the premises, there is no basis upon which this court could order
payment of the amount of R550 000.00. The Panel's decision is that the
applicant is entitled to a lump-sum payment. The Panel did not direct payment
of a specified amount. Nothing prevents the applicant from presenting
evidence to the respondent to substantiate payment of a specified amount.
[23] The applicant is entitled to a review and setting aside of the
respondent’s decision, but only insofar as it relates to the refusal by the
respondent to give effect to the decision of the Panel that the applicant is
entitled to a lump-sum payment.
ORDER:
The following order is made:
[1] The decision of the respondent, refusing to give effect to the decision of
the Panel dated 19 August 2024 (‘the decision’), which Panel is constituted
in terms of of section 91(2) of the Compensation for Occupational Injuries
and Diseases Act 130 of 1993 (‘COIDA’) (‘the Panel’), is reviewed and set
aside to the extent that it constitutes a refusal to comply therewith.
[2] The respondent is directed and compelled to give effect to the decision of
the Panel upholding the applicant’s objection and authorising the
commutation of the applicant’s monthly pension into a lump sum.
[3] The determination of the amount payable as a lump sum is referred back
to the respondent.
[4] The applicant is to submit expert evidence to the respondent in support of
the amount claimable as a lump-sum payment.
[5] There shall be no order as to costs.
___________________
MINNAAR AJ
ACTING JUDGE OF THE HIGH COURT: PRETORIA
For the Applicant: Adv C van der Merwe instructed by Raubenheimers Inc
Date of hearing: 1 October 2025, 3 October 2025, 14 October 2025
Date of judgment: 9 Decemb er 2025