IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: A04/2026
In the matter between:
THE PRESIDING OFFICER OF THE TRIBUNAL First Applicant
(Constituted in terms of section 91 (2) of Act 130 of 1993)
THE WORKMEN’S COMPENSATION Second Applicant
COMMISSIONER
THE DIRECTOR GENERAL OF Third Applicant
THE DEPARTMENT OF LABOUR
THE MINISTER OF LABOUR Fourth
Applicant
and
PERCIVAL PRETORIUS Respondent
Coram: Slingers J et Mphego AJ
Heard: 29 July 2026
Delivered: 19 August 2026
Summary: Application for leave to appeal a judgment of two judges that
presided over an appeal in terms of section 91 of the
Compensation for Occupational Injuries and Diseases Act 130 of
1993 – application for leave to appeal to the Supreme Court of
Appeal in terms of section 16(1)(b) and 17(3) of the Superior
Courts Act 10 of 2013.
ORDER
1. The point in limine is upheld.
2. The application for leave to appeal is struck from the roll with costs, which costs
shall be on scale C and shall include the costs of two counsel where so employed.
3. The applicants may approach the Supreme Court of Appeal for special leave to
appeal.
JUDGMENT
Slingers J et Mphego AJ:
INTRODUCTION AND BACKGROUND
[1] This is an application for leave to appeal against the judgment handed down on
8 June 2025.
[2] The procedural history, briefly stated, is as follows. The Respondent brought an
appeal to this Court under section 91 (‘the appeal’) of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’) against a
decision of the Tribunal (constituted in terms of section 91(2) of COIDA) dated
26 November 2025.
[3] The appeal was heard by this Court and on 8 June 2026, this Court handed
down judgment upholding the Respondent’s appeal . The following order was
made:
‘(a) the appeal is upheld and the decision of the tribunal (tribunal) dated 26
November 2025 that the appellant's permanent disablement remains at 21 %, is
set aside;
(b) the appellant's total permanent disablement is declared to be 100%;
(c) the costs of the appeal, including the costs of proceedings before the
tribunal shall be paid by the respondents, jointly and severally, one paying to
absolve the other. Such costs shall be costs on an attorney client scale,
including the costs of the preparation of heads of argument and shall include
the costs of two counsel where so employed.’
[4] On 19 June 2026, the Applicants filed a notice of application for leave to appeal
the judgment of 8 June 2026. The application seeks leave to appeal to the
Supreme Court of Appeal (‘the SCA ’), alternatively to a Full Bench of this
Division.
[5] The Respondent, through his counsel advocate Rabie, raised a point in limine
contending that this Court lacks jurisdiction to entertain the application for leave
to appeal. The Respondent submits that this Court sat as a court of appeal in
the section 91 COIDA proceedings and that, accordingly, any further appeal lies
to the SCA upon special leave granted by the SCA itself, in terms of section
16(1)(b) read with section 17(3) of the Superior Courts Act 10 of 2013 (‘the
Superior Courts Act’).
[6] Should the point in limine be upheld, then this Court would not have the
jurisdiction to entertain the application for leave to appeal and that would be the
end of the matter. Should the point in limine be dismissed, the merits of the
application for leave to appeal would be determined.
SUBMISSIONS OF THE PARTIES
The Respondent’s submissions
[7] Advocate Rabie’s submissions on behalf of the respondent can be summarised
as follows:
(a) Section 16(1)(b) of the Superior Courts Act provides
unambiguously that an appeal against any decision of a Division on
appeal to it lies to the SCA upon special leave having been granted
by the SCA.
(b) Section 17(3) provides that an application for special leave to
appeal under section 16(1)(b) may be granted by the SCA on
application filed with the registrar of that court within one month
after the decision sought to be appealed against.
(c) The court a quo (consisting of two judges) sat as a court of appeal
and handed down its judgment in that capacity.
(d) It is clear from these legislative provisions that the Applicants are in
the wrong forum and should have brought their application to the
SCA.
(e) The application should accordingly be dismissed with costs on this
basis alone.
The Applicants’ submissions
[8] Advocate Masuku SC’s submissions for the applicants may be summarised as
follows:
a) This Court sat as a court of first instance as envisaged in the
Superior Courts Act, not as a court of appeal. COIDA does not
prescribe a full court or an appeal court, it merely refers to “any
provincial or local division of the Supreme Court having
jurisdiction.” This means the appeal could have been heard by a
single judge, which would attract section 16(1)(a)(i).
b) The word “appeal” in section 91 does not necessarily import the
appellate architecture of sections 16 and 17 of the Superior Courts
Act.
c) Mr Masuku SC relies on South African Rugby Football Union v
President of the Republic of South Africa and Pharmaceutical
Manufacturers Association of South Africa: In re ex parte President
of the Republic of South Africa 2000 (2) SA 674 (CC), for the
proposition that substance prevails over nomenclature.
d) COIDA creates a specialised statutory supervisory jurisdiction, not
an ordinary appeal. The function performed by the High Court is
akin to a review, notwithstanding the statutory label of “appeal.”
e) The Respondent’s construction creates internal inconsistency
because the court cannot simultaneously be an ordinary appeal
court under the Superior Courts Act whilst being constituted
differently (two judges rather than the three required for a Full
Court).
f) Parliament did not expressly abolish the ordinary leave procedure.
In the absence of express exclusion, the Applicants retain the right
to apply to this Court for leave.
g) Even if section 16(1)(b) of the Superior Court Act applies, dismissal
does not follow and the Applicants should be permitted to redirect
their application to the SCA, rather than suffer the consequence of
dismissal.
h) Advocate Masuku SC relied on section 173 of the Constitution
which provides that the Court has inherent power to regulate its
process and section 34 dealing with the right to access to the
courts, he also referred to Mankayi v AngloGold Ashanti Ltd and
Bertie Van Zyl (Pty) Ltd v Minister for Safety and Security for the
principle that procedural rules should not frustrate access to justice.
JURISDICTION OF THE HIGH COURT UNDER COIDA
[9] It is common cause that this Court’s jurisdiction to hear the Respondent’s
appeal derived from section 91(5)(a) of COIDA. Section 91(5) provides, insofar
as is material:
‘Any person affected by a decision referred to in subsection (3)(a), may appeal to
any provincial or local division of the Supreme Court having jurisdiction against a
decision regarding—
(i) interpretation of this Act or any law,
(ii) the question whether an accident causing disablement or death of an
employee was attributable to his serious and wilful misconduct,
(iii) the question whether the amount of compensation awarded is
excessive or so inadequate that the award thereof could not reasonably
have been made,
(iv) the right to increased compensation in terms of section 56.’
[10] There was no dispute between the parties that this Court enjoyed jurisdiction to
hear the appeal.
[11] The critical question, however, is the capacity in which this Court sat when
hearing that appeal that is, whether this Court sat as a court of first instance or
as a court of appeal. The answer to this question determines the appellate
route of this matter.
[12] In Ngubane v Department of Employment and Labour and Another (A107/2024)
[2025] ZAGPPHC 1345 (18 November 2025), the court stated at paragraph [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.’
[13] Similarly, in in Bent v Rand Mutual Assurance (Pty) Ltd (Appeal) (A120/2025)
[2025] ZAGPPHC 1328 (9 December 2025), the court stated at paragraph [2]:
‘This court has jurisdiction to hear the appeal as it relates to and turns on the
interpretation of the provisions of the Act as contemplated by section 91(5)(a)(i).
There is no dispute between the parties that indeed this court enjoys jurisdiction
to hear the appeal. This court is a High Court as envisaged by section 6(1) of the
Superior Court Act.’
[14] Of particular significance is the characterisation adopted by the SCA itself. In
Compensation Commissioner v Mankayi [2022] ZASCA 38, the SCA stated at
paragraph [2]:
‘The appellant, the Compensation Commissioner (the Commissioner), has
appealed against a judgment of the North Gauteng Division of the High Court,
Pretoria (Leso AJ with Baqwa J concurring) (the high court), sitting as a court of
appeal, in terms of s 91(5) of COIDA.’
[15] This characterisation by the SCA, describing the High Court in section 91(5)
proceedings as “sitting as a court of appeal” is, in our view, determinative. It is
binding on this Court and reflects the nature of the jurisdiction of this Court as
an appellate Court.
[16] The Respondent also referred this Court to National Credit Regulator v Lewis
Stores (Pty) Ltd and Another . That decision concerned the appellate route from
a decision of the National Consumer Tribunal. In that statutory context, the SCA
held that leave to appeal against the High Court’s decision had to be obtained
from the High Court, because the High Court was to be regarded as having sat
as a court of first instance. The Respondent submitted, however, that Lewis
Stores is distinguishable: it turned on the particular wording and structure of the
National Credit Act and does not establish a general rule that every statutory
appeal to the High Court is to be treated as a first instance proceeding.
[17] The Supreme Court of Appeal in National Credit Regulator v Lewis Stores (Pty)
Ltd and Another noted that certain statutes such as the Patents Act 57 of 1978
and the Copyright Act 98 of 1978 provide how an appeal is to be noted and
prosecuted. COIDA is a further example of a statute that provides how an
appeal is to be noted and prosecuted. S ection 91(5)(b) expressly provides that
such an appeal shall be noted and prosecuted as if it were an appeal against a
judgment of a magistrates’ court in a civil case and all rules applicable to such
an appeal shall mutatis mutandis apply.” In our view, Parliament’s deliberate
legislative choice to equate the procedure with a magistrates’ court appeal is
instructive.
[18] COIDA’s section 91(5)(b) expressly equates the section 91 appeal procedure
with that of an appeal from a magistrates’ court. Appeals from magistrates’
courts to the High Court clearly fall within section 16(1)(b), which is confirmed in
Matamela. The same consequence must follow in respect of COIDA section
91(5) proceedings.
[19] In hearing the appeal, this Court did not exercise original jurisdiction but sat as
a court of appeal. Furthermore, this Court cannot ignore the provisions of
section 91(5)(b) of COIDA.
THE APPELLATE ROUTE
[20] Sections 16 and 17 of the Superior Courts Act govern the route of appeal from
the High Court. Section 16(1) provides, insofar as is relevant:
‘(1) Subject to section 15(1), the Constitution and any other law—
(a) an appeal against any decision of a Division as a court of first instance lies,
upon leave having been granted—
(i) if the court consisted of a single judge, either to the Supreme Court of
Appeal or to a full court of that Division, depending on the direction issued
in terms of section 17(6); or
(ii) if the court consisted of more than one judge, to the Supreme Court of
Appeal;
(b) an appeal against any decision of a Division on appeal to it, lies to the
Supreme Court of Appeal upon special leave having been granted by
the Supreme Court of Appeal;’
[21] Section 17(3) provides:
‘An application for special leave to appeal under section 16(1)(b) may be
granted by the Supreme Court of Appeal on application filed with the registrar of
that court within one month after the decision sought to be appealed against, or
such longer period as may on good cause be allowed, and the provisions of
subsection (2)(c) to (f) shall apply with the changes required by the context.’
[22] The statutory scheme is clear. Section 16(1)(a) applies where the High Court
has sat as a court of first instance. Section 16(1)(b) applies where the High
Court has sat as a court of appeal. In the latter instance, any further appeal lies
to the SCA upon special leave granted by the SCA itself.
[23] This Court sat as a court of appeal in hearing the Respondent’s section 91(5)
appeal, and not as a court of first instance . Therefore, section 16(1)(a) does
not apply. Section 16(1)(b) is the applicable provision. It follows that this Court
does not have jurisdiction to grant leave to appeal its own judgment in these
circumstances. The leave to appeal must be sought directly from the SCA.
[24] In Matamela, the SCA struck the matter from its roll where leave had been
wrongly granted by the High Court without proper regard to section 16(1)(b).
That decision confirms that the distinction between section 16(1)(a) and section
16(1)(b) is jurisdictional and not merely procedural.
DECISION ON THE POINT IN LIMINE
[25] Having considered the submissions of both parties and the applicable
authorities, we are satisfied that the point in limine must be upheld.
COSTS
[26] The following order is made:
1. The point in limine is upheld.
2. The application for leave to appeal is struck from the roll with costs, which
costs shall be on scale C and shall include the costs of two counsel where
so employed.
3. The applicants may approach the Supreme Court of Appeal for special
leave to appeal.
__________________________
Judge of the High Court
HM Slingers
__________________________
Acting Judge of the High Court
R Mphego
APPEARANCE
For the Applicant/s: Adv T Masuku SC with Adv L Moahloli
As Instructed by: State Attorney, Cape Town
For the Respondent: Adv PJ Rabie with Adv. P Coston
Instructed by: KG Kemp Attorneys