IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
( l ) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
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DATE MNGQ IBISA-THUSI NP
In the matter between:
ESTELLE HARMSE
and
THE COMPENSATION COMMISSIONER
THE DIRECTOR GENERAL , DEPARTMENT
OF LABOUR
ORDER
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CASE NO: 078692/2024
Applicant
First Respondent
Second Respondent
2
The following order is granted:
[1] The respondents are directed to make a recommendation in respect of the
applicant’s claim for compensation in terms of COIDA within 30 days of this
order.
[2] The respondents are liable for the costs of this application on a party and
party scale B.
________________________________________________________________
J U D G M E N T
________________________________________________________________
The matter was heard in open court and the judgment was prepared and authored by the
judge whose name is reflected herein and is handed down electronically by circulation to the
parties’ legal representatives by email and by uploading it to the electronic file of this matter
on Caselines. The date for hand-down is deemed to be 20 August 2026.
MNGQIBISA-THUSI, J
[1] The applicant seeks an order di recting the first respondent, the Compensation
Commissioner (“the Commissioner ”) and the second respondent, the Director
General in the Department of Labour (“the DG”), to make a recommendation and
effect payment in terms of the respondents’ acceptance of her claim under the
Compensation for Occupational Injuries and Disease s Act 130 of 1993 (as
amended) (“COIDA”). The COIDA came into effect from 01 March 1994.
[2] COIDA is administered by the Compensation Fund which resides within the
Department of Employment and Labour, and its headed by the first respondent.
The purpose of COIDA is to provide compensation to employees for any
disablement due to an occupational injury, disease or death.
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[3] At the beginning of proceedings, the court engaged counsel for the applicant with
regard to prayer 1 of the notice of motion as it appeared as though the applicant
was seeking the court to direct the respondents to make a recommendation that
compensation should be paid. In terms of COIDA, only the first respondent has
the power to consider the claim and decide whether or not to recommend that
the applicant be compensated. Counsel conceded this point and undertook to
amend the suggested draft order in the event that the applicant is successful, so
that the only order to be made is to direct the respondents to consider the matter
and decide whether or not to make a recommendation for compensation to be
paid. If a recommendation is made that the applicant qualified for compensation,
the amount of such compensation would be determined as set out in section 47
of COIDA and the regulations thereto.
[4] The respondents are opposing the application and besides their opposition, have
raised three points in limine in their answering affidavit and in a uniform rule
6(5)(d)(ii) notice which was served on the applicant’s legal representatives. The
points raised, in the alternative, are the following:
4.1 that the applicant’s claim is based on an unliquidated claim for damages
and that the applicant should, therefore, have pursued her claim by means
of action proceedings as envisaged in uniform rule 17(2) read with uniform
rule 18 (10).
4.2 that there is a dispute of fact which cannot be resolved on paper and that
there was a need for the matter to be referred for oral evidence.
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4.3 that there is a misjoinder in that the applicant failed to join the SAPS as it
had a substantial interest in the matter . It is the respondents ’ contention
that there is no proof that the applicant was a member of the SAPS and that
had the applicant joined the SAPS, the SAPS would have provided
evidence as to whether the applicant was a SAPS employee.
[5] The respondents, besides the points in limine raised, are opposing the relief
claimed on the grounds that the applicant should have instituted action
proceedings as there are disputes of fact which cannot be resolved on paper.
Further, it is the respondents’ contention that there is no record of the applicant’s
claim being lodged with the department.
[6] Besides the points in limine raised and as set out above , the respondents are
opposing the relief claimed on the same grounds as the points raised.
[7] The respondents’ answering affidavit was filed out of time and condonation was
sought. In view of the fact that counsel for the applicant intimated the application
for condonation would not be opposed, condonation was granted.
[8] The following allegations are made in the applicant’s founding papers. She was
employed as a captain in the South African Police Service (SAPS). In the course
of her employment, she was exposed to several traumatic operations when
deployed at the country’s borders. As a result, in 1994 she was diagnosed with
major depression and other conditions. In support of these allegations, attached
to the applicant’s founding affidavit are reports of the treating medical
practitioners, Dr A Potgieter and Dr S D Stahmer, both psychiatrists and Dr R
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Matthews, a (clinical psychologist) . At the time of consulting with Dr Stahmer,
the applicant was Dr Potgieter’s patient who treated her with anti -depressants.
Dr Stahmer who diagnosed the applicant of suffering from ‘psychotic depression
with melancholy and chronic burnout syndrome ’. Dr Matthews has opined that
the applicant suffers from psychotic depression and opined that the applicant
was not suitable to do policing work.
[9] All three treating doctors recommended that the applicant be given extended sick
leave and was eventually medically boarded.
[10] The applicant further reports that as a result of the effects on her mental state as
a result of her border posting, from 1990 she was no longer able to perform her
functions optimally.
[11] According to the applicant her claim for compensation was lodged with the first
respondent by her employer, after a certain constable Duvenhage completed an
Employer’s Report of an Accident (W.C1.2) and a Final/Progress medical Report
(W.C1304), including the medical reports of the doctors the applicant had
consulted with. She got no response from the respondents.
[12] During 2021 her attorneys wrote several letters/emails to the respondents
inquiring about progress in her claim but got no response. The reports of the
treating doctors mentioned in paragraphs 6 and 7 above were attached to the
correspondence the applicant’s legal representatives sent to the respondents in
2021. The applicant alleges that it was only in 2022 that her legal representatives
got a response on behalf of the respondents where there was an
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acknowledgement of one of the enquiries made and informed that her claim has
been escalated to the relevant section within the department. Since then there
has been no response to her claim , which precipitated the launching of these
proceedings. Attached to the applicant’s papers are all the documents pertaining
to her claim.
[13] On behalf of the applicant it was submitted that the relief sought is only to get the
respondents perform their statutory functions as provided for in COIDA. Counsel
for the applicant argued that the respondents’ contention that action proceedings
should have been initiated has no basis as the applicant was not seeking
damages which needed to be quantified. C ounsel further submitted that the
applicant was seeking compensation which is provided for in C OIDA if she met
the requirements of the Act. With regard to the point that there are disputes of
fact, it was submitted on behalf of the applicant that the fact that the respondent
disputed the facts alleged by the applicant does not necessarily raise a real
dispute of fact which necessitates a referral to oral evidence. C ounsel further
argued that the respondent s could not dispute that the applicant was in the
employ of the SAPS for the following reasons: ( i) all the documentation lodged
with the first respondent reflected the applicant’s persal number, which number
could easily have been verified by the respondents; and (ii) that as proof that the
applicant was employed by the SAPS, she was currently receiving a pension
from the Government Pension Fund, which is indicative of the fact that she had
been a State employee. With regard to the non -joiner of the SAPS , it was
submitted on behalf of the applicant that the SAPS had no substantial interest in
the matter as its role ended when constable Duvenhage completed the
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Employer’s Form and submitted the documents and annexures thereto to the
first respondent and therefore, it was not necessary to join the SAPS.
[14] On behalf of the respondents, beside the points raised and the reasons given, it
was submitted that since the applicant had used an incorrect process to claim
damages, her application was frivolous, vexatious and amounted to an abuse of
process, necessitating a punitive cost order against the applicant. Further it was
submitted that the respondent s have no record of the applicant’s claim being
lodged with the department.
[15] There is no basis for the points in limine raised by the respondents and the
opposition to the application. Firstly, in their answering affidavit and in argument,
no substance was given to the alleged dispute of fact which cannot be resolved
on paper. In all the documentation submitted by the applicant’s employer, her
persal number is reflected and the respondents could easily have verified her
claim of being employed by SAPS with SAPS. Further, in her founding papers,
the applicant has asserted that she is getting a government pension. These two
facts dispose of the respondents’ argument that the applicant was not employed
by SAPS. There is no countervailing evidence that the applicant was not
employed by the SAPS , particularly as the employer had completed the
necessary form relating to her medical issues. The d ispute raised does not
amount to a real dispute necessitating oral evidence at a trial.
[16] Secondly, with regard to the non-joinder of the SAPS, as correctly pointed out by
Counsel for the applicant, the SAPS do not have a substantial interest in the
matter as they play no role in the assessment and determination of the
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applicant’s claim. That function falls squarely within the purview of the first
respondent.
[17] Further, the applicant’s claim is not for damages as alleged by the respondents.
What the applicant seeks is f or the respondents to be directed to perform their
statutory duties. Whether or not they recommend that the applicant qualifies for
compensation, taking into account the documentation submitted and the
requirements of the COIDA, is an other matter. Should the respondents
recommend that the applicant qualifies to be compensated, it is not up to the
applicant to quantify the quantum due. It is the duty of the respondents to
calculate what is due to the applicant as set out in section 47 of COIDA and its
regulations.
[18] I am satisfied that the applicant has shown that the respondents failed in
performing their statutory functions and that she is entitled to the relief sought.
[19] In the result the following order is made:
1. The respondents are directed to make a recommendation in respect of the
applicant’s claim for compensation in terms of COIDA within 30 days of this
order.
2. The respondents are liable for the costs of this application on a party and
party scale B.
NP MNGQIBISA-THUSI
Judge of the High Court
Date of hearing: 13 October 2025
Date of judgment: 20 August 2026
Appearances
For Applicant: Adv L Louw (instructed by Cilliers & Associates)
For Respondents: Adv NM Seleso (instructed by the State Attorney, Pretoria)
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