Cape Town Council v Jacobs

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 05 November 1917
• Citation: 1917 AD 615
• Hearing Date: 02 November 1917
• Court: Appellate Division

Solomon, J.A.:

On the 23rd March, 1916, the respondent, who was in the service of the appellant Corporation, was injured in the course of his employment, and on the 5th September he made an application under the Workmen's Compensation Act, 1914, for payment of the gum of £150 as compensation for the injuries sustained by him. Annexed to his application were certain particulars, which show that his claim was in respect of "permanent partial incapacity, being proper use of left leg broken." The application came on for hearing before the resident magistrate on the 21st September, and after it was part heard it was adjourned to the 27th September. On the previous day, however, the Corporation filed with the clerk of the Court a notice admitting their liability to pay compensation and submitting to an order for payment of the weekly sum of 12s. 6d. On the following day the hearing of the case was resumed by the magistrate. The respondent's attorney declined to accept the offer made by the appellant, and further evidence was then taken, directed chiefly to the nature and probable duration of the injuries sustained. At the close of the evidence the appellant's attorney stated that "he was prepared to pay half wages at the rate of 15s a week from date of accident." Thereafter the magistrate made the following order: "Provisional order made for half wages at rate of 15s. a week from date of accident less any sum that has been paid, with costs to date of submission. Applicant to pay subsequent costs." Under this order periodical payments were regularly made up to the 25th March, 1917, that is, to a date 12 months after the occurrence of the accident, and they then ceased. Thereupon on the 30th April the respondent

Solomon, J.A.

filed an application setting out shortly the facts above enumerated, and claiming the sum of £117 for a permanent incapacity of a partial nature. To this claim the Corporation pleaded in bar that a period of 12 months reckoned from the date of the injury had expired without the applicant taking any further steps to re-open the matter and pursue his claim, and that by reason thereof he was not debarred from so doing. The magistrate upheld this plea and dismissed the application with costs. Thereupon the case was taken on appeal to the Cape Provincial Division, which allowed the appeal, set aside the judgment in the court below, and directed the magistrate to hear the application on its merits. It is from this order that an appeal is now made to this Court.

Now the first question which we are called upon to determine is the meaning and effect of the order made by the magistrate on the 27th September, 1916, for it is upon this order that the plea in bar is based. And, setting aside for the present the construction placed upon it by the Corporation in its plea in bar, it seems to me to be fairly clear what was meant by the magistrate. In deciding upon the application for compensation he had to determine in the first instance what was the nature of the incapacity and whether it was temporary or permanent, for under the first schedule of the Act in the former case the compensation takes the form of periodical payments, and in the latter of a lump sum. If, however, at the hearing of the application, it is uncertain whether the incapacity is temporary or permanent, the magistrate may under sec. 20 (1) of the Act adjourn the hearing for a period or periods not exceeding 12 months in all, and may make an interim order that the employer shall in the meantime make periodical payments such as are provided for in the case of temporary incapacity. Now both in the magistrate's court and the Provincial Division the case was treated on the footing that the order of the magistrate of the 27th September, 1916, was made under this section, and that no doubt is due to the fact that this was the construction placed upon it by the Corporation in its plea in bar. I cannot think, however, that in fact the magistrate Over intended to make the Order under the powers conferred upon him by sec. 20 (1), for its terms are wholly inconsistent with any such intention. That section provides for an adjournment of the application and for the making of an interim order for periodical

Solomon, J.A.

payments until the matter again comes before the Court. Had, therefore, the magistrate intended to deal with the case under sec. 20 (1) it is inconceivable that he should have carefully omitted either to adjourn the application or to make an interim order, the only two things which he was empowered to do under that section. To my mind it seems clear that the magistrate intended then and there finally to dispose of the application. The order, I think, shows that he was in no doubt as to the nature of the incapacity, but that he had definitely decided that it was temporary and not permanent; and the compensation granted by him, therefore, took the form of periodical payments which under the Act would continue until the workman was sufficiently recovered to resume his work, but in no circumstances for a period exceeding 12 months after the date of the accident. Much in argument was - made of the fact that the order is described as a provisional one, but the reason for that is clear. Any order for periodical payments in case of temporary incapacity is provisional in its nature and not final, seeing that under sec. 22 (1) "it may be reviewed by the magistrate upon the application either of the employer or of the workman, and upon that application an order may be made suspending, diminishing or increasing the payments." Whether, therefore, the term "provisional" had been inserted in the order or not, its effect would have been exactly the same. And if further evidence were needed to show that the magistrate had definitely decided that the incapacity was temporary and not permanent, it is to be found in the fact that he gave costs to the applicant only up to the date of submission and ordered him to pay all subsequent costs. In the submission the Corporation admitted their liability to pay compensation as for a temporary incapacity, and unless the magistrate had been satisfied on that point it is very difficult to see on what ground he would have been justified in mulcting the applicant in costs after that date.

If we are free, therefore, to consider the case apart from the actual terms of the plea in bar, I should feel no difficulty in holding that the order made by the magistrate was not an interim one under sec. 20 (1) of the Act, but was intended finally to dispose of the application on the basis of the incapacity being temporary, subject of course to the provisions of sec. 22. And if

Solomon, J.A.

that is the real position then I do not think that the respondent would have been entitled to bring a further application claiming compensation for permanent partial incapacity, for to such a claim a plea of res judicata could be successfully raised. It was contended indeed on behalf of the respondent that even if the magistrate's order was a final and not an interim one there is nothing to prevent an...