Davis v Workmen's Compensation Commissioner

• Jurisdiction: South Africa
• Judge: Friedman JP
• Judgment Date: 10 June 1993
• Docket Number: 4219/92
• Court: Cape Provincial Division
• Hearing Date: 01 June 1993
• Citation: 1995 (3) SA 689 (C)

A Friedman JP:

Glen Shane Davis (the applicant) was a freelance stuntman. On 25 January 1988, while working as such for Moonrose Film Productions (Pty) Ltd (Moonrose) on a film called 'Red Scorpion', he suffered serious injuries. Under cover of a letter dated 15 June 1989 applicant's attorneys submitted a claim to the Workmen's Compensation Commissioner (the B respondent) for compensation. On 27 July 1989 respondent wrote to applicant rejecting his claim on the ground that, as applicant's earnings at the time of the accident exceeded R24 000 per annum, he did not qualify as a 'workman' in terms of s 3(2)(b) of the Workmen's Compensation Act 30 of 1941 (the Act). Negotiations followed between applicant and respondent's Cape Town office, but no settlement could be reached. C Applicant then consulted his attorneys and on 14 August 1989 his attorneys addressed a letter to respondent stating that they wished to lodge an objection against his decision to reject applicant's claim.

Applicant's attorneys acknowledged in their letter that the objection was D out of time and sought respondent's condonation for the lateness. Respondent replied on 7 October 1991, stating that he had no discretion to condone the late filing of the objection, but undertook to reconsider applicant's claim. On 18 October 1991 respondent advised applicant's attorneys that his earlier decision remained unchanged.

E On 31 March 1992 applicant launched the present application, in which he claimed an order reviewing and setting aside respondent's initial decision of 27 July 1989 or, alternatively, respondent's decision of 18 October 1991.

In his founding affidavit applicant set out to show that his annual F earnings at the time of the accident did not exceed R24 000. The facts relating to applicant's earnings are not in dispute and may be summarised as follows. In terms of his contract with Moonrose, applicant's weekly remuneration comprised the following:

Wages	R 700
G Spending money	300
Stunt allowance	1 000
Food allowance	180
Hotel accommodation	1 000
Total	R3 180

H However, as applicant was working on a freelance basis, he did not expect to be employed for more than a few months in any given year. Thus, in the year preceding the accident, ie from 25 January 1987 to 25 January 1988, applicant's total earnings from the following three film productions in I which he was involved amounted to R15 969, arrived at as follows:

Journey Productions	R 2 875
Platoon Leader	3 550
Moonrose (Red Scorpion)	J 9 540
Total	R15 969

Friedman JP

A The amount of R9 540 which applicant received from Moonrose represents approximately three weeks' earnings from that source. He states that, but for the accident, he would have been employed on the Red Scorpion contract for approximately two more weeks.

Respondent's attitude in regard to the computation of applicant's earnings B at the time of the accident was stated as follows in the letter dated 18 October 1991 in which, after reconsideration, applicant's claim was rejected:

'A workman's rate of earnings is calculated at the time of the accident and not on an average basis for 12 months prior to the accident.'

C Two questions thus arise: the first is whether respondent's calculation of applicant's earnings was correct. The second is: what is applicant's remedy if respondent's calculation was incorrect and according to the correct calculation he would have qualified for compensation under the Act?

D The calculation of applicant's earnings

To qualify for compensation under the Act a claimant has to be a workman. 'Workman' is defined in s 3(1) of the Act as meaning a person who has entered into a contract of service with an employer. Section 3(2) provides that the following persons shall not be regarded as workmen for the purposes of the Act:

'(b)

E (P)ersons whose annual earnings calculated in the manner set forth in s 41 exceed R45 084. . . .'

(At the time of the accident the figure was R24 000.)

Section 41 reads as follows:

F '41 Method of calculating earnings

(1) For the purpose of determining the compensation payable, the commissioner shall compute the earnings of the workman in such manner as, in his opinion, is best calculated to give the monthly rate at which the workman was being remunerated by his employer at the time of the accident including -

(a)

G the value of any food or quarters supplied by the employer save for the purpose of determining the amount of any periodical payment payable in respect of any period of temporary disablement during which the workman receives both food and quarters to the satisfaction of the commissioner from his employer, or as part of the medical aid to which he is entitled;

(b)

any overtime payments or other special remuneration of a constant character or for work habitually performed,

H but excluding remuneration for intermittent overtime and casual payments of a non-recurrent nature, sums paid by an employer to a workman to cover any special expense entailed on the workman by the nature of the work, or any ex gratia payment to the workman, whether given by the employer or any other person.

(2) Where the workman's remuneration is fixed at a rate calculated upon I work performed, his earnings shall be taken to be his remuneration for similar work upon the same terms of remuneration for as long a period as possible prior to the accident but not exceeding 12 months. Where by reason of the shortness of time during which the workman has been in the employment of the employer it is impracticable to compute his earnings in such employment, the earnings shall be computed if possible upon the basis of the amount which the workman earned at similar work at the same terms J of remuneration with another employer during

Friedman JP

A the 12 months immediately preceding the accident, or upon the basis of the amount which during the 12 months immediately preceding the accident has been earned by other workman (sic) with the first-mentioned employer at similar employment on the same terms of remuneration, or would have been earned by the workman during such preceding 12 months had he been so employed.

(3) Where the workman has entered into concurrent contracts of service B with two or more employers, and has worked under those contracts at one time for one employer and at another time for another employer, his earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.

C (3) bis . . . .

(3) ter In any case where in the opinion of the commissioner it is not practicable to compute the workman's earnings in accordance with the preceding provisions, the commissioner may determine such earnings in such other manner as he deems equitable, but with due regard to the principles laid down in those provisions.

D (4) Nothing in this section shall prevent the computation of earnings on a weekly basis. Where the earnings are so computed the monthly earnings shall be calculated as equal to four and one-third times the amount of such weekly earnings.'

Section 41(1) confers a limited discretion on respondent; he has to E compute the earnings in such manner as, in his opinion, is best calculated to give the monthly rate at which the workman was being remunerated at the time of the accident.

In an answering affidavit Wilma du Plessis, to whom respondent delegated the duty to decide questions relating to the right to compensation, states that she calculated applicant's earnings in terms of the provisions of s F 41 'with particular reference to s 41(4) as applicant was earning in excess of R3 000 per week at the time of his accident'. It is clear from this statement that what she did was to take the weekly amount applicant was being paid by Moonrose and multiplying that figure by four and one-third to arrive at his monthly earnings and then multiplying that figure by 12 to give his annual earnings, which, on this basis, exceeded G R24 000.

Although respondent is enjoined in terms of s 41(1) to compute a workman's earnings in the manner best calculated, in his opinion, to give the monthly rate at which a workman was being remunerated at the time of the accident, he has, nevertheless, to have regard, in so doing, to the H remaining provisions of the section.

The section does not deal specifically with the situation such as that of a freelance workman, like applicant, who does not necessarily...