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[2025] ZAGPPHC 1345
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Ngubane v Department of Employment and Labour and Another (A107/2024) [2025] ZAGPPHC 1345 (18 November 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. A107/2024
(1) REPORTABLE:
NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED.
DATE: 18/11/2025
SIGNATURE
In
the matter between:
BHEKEPHI
NGUBANE
Appellant
and
DEPARTMENT
OF EMPLOYMENT AND LABOUR
1
st
Respondent
COMPENSATION
COMMISSIONER
2
nd
Respondent
Firs
JUDGMENT
The
judgment and order are published and distributed electronically.
PA
VAN NIEKERK, AJ
[1]
This is an appeal
against a decision of the Second Respondent delivered on 13 March
2024 in terms of the provisions of Section 91(5)
of the Compensation
for Occupational Injuries and Diseases Act 130 of 1993.
[2]
The grounds of appeal
as formulated in the Appellant’s Notice of Appeal are
succinctly summarised as follows:
[2.1]
The Compensation Award is so inadequate that it could not reasonably
have been made within the provisions of Section
91(5)(a)(i) of the
Act;
[2.2]
The Compensation Commissioner mechanically applied instruction 157 to
fix the Appellant’s permanent disability
at 3% in circumstances
where such instruction is only a guide and does not override the Act
and further that instruction 157 bears
no rational connection to the
true injuries by the Appellant;
[2.3]
The Compensation Commissioner should have given effect to the
uncontradicted findings of Dr Mohamed and the Occupational
Therapist
that the Appellant had suffered permanent disability which rendered
her incapable of continued employment.
[3]
From a perusal of the
findings of the Compensation Commissioner, read together with the
Notice of Appeal it is clear this court,
sitting as a court of
appeal, is called upon to consider whether the all the evidence
available to the Compensation Commissioner
were considered
alternatively
properly considered
and if such evidence supports the finding of the Compensation
Commissioner.
[4]
On 23 October 2025
the Registrar of this court was informed in writing that the record
of proceedings from the Tribunal is not available
and further that
the parties attempted to reconstruct the record and concluded that
same cannot be reconstructed. An affidavit
from the Legal
Administration Officer of the Compensation Fund was provided wherein
it is explained that the device that was used
to record the
proceedings is lost and not available.
[5]
The
unavailability of a proper record offence the Appellant’s right
to a fair trial.
[1]
[6]
In the circumstances,
it is appropriate to order that the matter be remitted back to the
Tribunal to be determined
de
novo
by
a new panel.
[7]
The parties have
agreed that a draft order, which was handed up at the hearing of the
appeal, be made an order. This order provides
for the remittance of
the matter as set out above an an agreed order on the wasted costs.
[8]
In the premises, the
draft order that was handed up and marked “ X” was made
an order of court.
A MILLAR J.
I agree
P A VAN NIEKERK AJ
[1]
See:
State v Schoombee & Another 2017 (2) SACR1 (CC); Muravha v
Minister of Police (179/2022)
[2024] ZASCA 11
(30 January 2024)