Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert and Others

• Jurisdiction: South Africa
• Citation: 2002 (2) SA 21 (SCA)

Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert and Others
2002 (2) SA 21 (SCA)

2002 (2) SA p21

Citation	2002 (2) SA 21 (SCA)
Case No	7/2001 and 8/2001
Court	Supreme Court of Appeal
Judge	Nienaber JA, Harms JA, Olivier JA, Schutz JA and Froneman AJA
Heard	November 16, 2001
Judgment	November 27, 2001
Counsel	Appeal from a decision in Transvaal Provincial Division (Roux J). The facts appear form the judgment of Schutz JA.; Z F Joubert SC (with him P Stais) for the first and second appellants.; C W Jordaan SC for the third appellant.; W F Pienaar for the respondents.

Flynote : Sleutelwoorde H

Employment law — Workmen's compensation — Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 36(2) — Supposed clash with s 1 of Assessment of Damages Act 9 of 1969 — Whether I compensation to be deducted from common-law damages awarded against tortfeasor who is not employer — Section 36(2) of 1993 Act successor of s 8(1) of Workmen's Compensation Act 30 of 1941 — Clash between s 8(1) of 1941 Act and s 1 of Assessment of Damages Act resolved by application J

2002 (2) SA p22

of presumption against unexpressed repeal and principle of generalia specialibus non derogant — Section 36(2) of 1993 A Act merely substantially re-enacting s 8(1) of 1941 Act — Accordingly, compensation to be deducted from damages awarded.

Maxims — Generalia specialibus non derogant — Application of interpretation of s 36(2) of Compensation for Occupational Injuries and Diseases Act 130 of 1993. B

Headnote : Kopnota

The issue in the instant case was whether payments made in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the 1993 Act) to a widow and dependent children in consequence of the death in a workplace accident of the husband and father, one L, had to be deducted from their delictual claims for damages for loss of C support against the first and second appellants. The respondents contended that the compensation they had received were 'pensions' which were not deductible from any award of common-law damages because of the operation of the Assessment of Damages Act 9 of 1969 (the 1969 Act). In other words their common-law claims for damages for loss of support were not to be reduced by the amounts of employee's D compensation received. The appellants in turn contended that in terms of the express provisions of s 36(2) of the 1993 Act, the compensation had to be deducted. L was working at one of the first appellant's plants when he suffered his fatal injuries, which were caused by the negligence of one of its employees, one F, the second appellant, acting within the course and scope of his duties. The first appellant was thus E vicariously liable with F in delict. L was not at the time employed by the first appellant, but by another firm, A (Pty) Ltd, which was joined as a third party by the appellants. The basis of the joinder was a contractual indemnification of the appellants by A (Pty) Ltd against claims of the sort brought by the respondents. A (Pty) Ltd made common cause with the appellants in contending for the deduction of the compensation received. A Provincial Division found in favour of the F respondents, holding that, because the compensation received consisted of 'pensions', the 1969 Act forbade their deduction from the damages awarded to the respondents. The Court granted leave to appeal to the Supreme Court of Appeal.

At the time of the deceased's fatal injury s 36 of the 1993 Act provided that: '(1) If an occupational injury or disease in respect of which compensation is payable, was caused in circumstances resulting in G some other person than the employer of the employee concerned (in this section referred to as the ''third party'') being liable for damages in respect of such injury or disease (a) the employee [which includes a dependant of a deceased employee] may claim compensation in terms of this Act and may also institute action for damages in a court of law against the third party; and (b) the commissioner or the employer by whom compensation is H payable may institute an action in a court of law against the third party for the recovery of compensation that he is obliged to pay in terms of this Act. (2) In awarding damages in an action referred to in ss (1)(a) the court shall have regard to which the employee is entitled in terms of this Act. . . . (4) For the purposes of this section compensation includes the cost of medical aid already incurred I and . . . in the case of a pension, the capitalised value as determined by the commissioner of the pension. . . .' The relevant part of the 1969 Act provides: '1(1) When in any action . . . damages are assessed for loss of support as a result of a person's death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death, shall be taken into account. (2) For the purposes of ss (1) . . . J

2002 (2) SA p23

''pension'' includes a refund of contributions and any payment of interest on such contributions, and also any payment of a gratuity or other lump sum by a pension or provident fund or by an employer in respect of a person's employment.' The issue in the appeal was thus the supposed clash, where 'compensation' takes the form of a 'pension', between the requirement that 'the court shall have regard to the amount' of compensation paid, in s 36(2) of the 1993 Act, and the exclusion from deduction of a 'pension' in 'any action', contained in s 1(1) of the 1969 Act. The predecessor of the 1993 Act, the Workmen's Compensation Act 30 of 1941, which had a broadly similar purpose and structure to the 1993 Act, had relieved a workman injured at his workplace (or his dependants if he died) of the need to prove fault, but at the same time limited the compensation receivable and exempted the employer from liability for common-law damages. In s 8(1) (the forerunner of s 36 of the 1993 Act) it provided that where a person other than his employer was liable for his injury at common law, the workman could both claim compensation from the commissioner and sue that other person for damages. The second proviso to s 8(1)(a) provided that when the court awarded damages it 'shall, in estimating the damages, have regard to the amount which that person shall be liable to pay to the commissioner or the employer concerned under para (b)', which corresponds to s 36(1)(b) of the 1993 Act. The 1941 Act had been subject to a long line of decisions which held that the phrase 'shall . . . have regard to' had to be interpreted to mean 'shall be deducted from' damages. It was furthermore held that in a case where a 'third party' was involved the workman was entitled, in the form of compensation plus damages, to the amount of his full common-law damages, but no more. Lastly, it was held that the 'third party' could be liable to the workman and the employer or commissioner taken together for the full amount of the common-law damages, but no more. On appeal counsel for the respondents sought to convince the Court that s 36 had set off on a new and opposite course, viz that a workman or his dependants could recover overall more than common-law damages, and that the third party could well be liable overall for more than common-law damages.

Held, that it was clear against the above background that when s 36 was enacted in 1993 the intention had been to maintain the interpretation the Courts had placed on s 8 of the 1941 Act. Counsel for the respondents' contentions in this regard ran counter to G what had been held to be the purpose of s 8 of the 1941 Act - and all this without a word in the 1993 statute that such a departure was intended. On a proper construction of s 36(2) of the 1993 Act, seen against the background of the 1941 Act and the cases decided before 1993, compensation had to be deducted from damages also where it took the form of a pension and where the workman had died. (Paragraphs H [12] and [14] at 28G - I/J and 29C - D.)

Held, further, that the 1969 Act did not affect this conclusion, first, because the 1969 Act did not expressly or by implication repeal s 8(1) of the 1941 Act (an application of the rule against unexpressed repeal), and, secondly, because the general provisions contained in the 1969 Act, a general Act that dealt not with workmen as such, but with the generality of cases in which dependants I had suffered loss due to the death of a breadwinner, could not detract from the special provision contained in s 8 of the 1941 Act, a special Act dealing with the interrelationship between compensation and damages where the common law remained largely undisturbed (an application of the rule generalia specialibus non derogant). (Paragraphs [15] - [18] at 29D - 30G, paraphrased.) J

2002 (2) SA p24

Held, accordingly, that the question of law had to be answered in favour of the appellants: compensation paid under s 36 of A the 1993 Act, even if it was in the form of a pension, had to be deducted from any award of common-law damages. Accordingly, the order of the Court a quo fell to be set aside and replaced with an order declaring that the compensation received by the respondents in terms of the 1993 Act had to be deducted from any damages awarded to them. (Paragraphs [20] and [23] at 30I - I/J and 31F - G.) B

The decision in the Transvaal Provincial Division in Lambert and Others v Sasol Synthetic Fuels (Pty) Ltd and Another; Lambert and Others v ABC Recruitment (Pty) Ltd reversed.

Cases Considered

Annotations

Reported cases C

Consolidated Employers Medical Aid Society and Others v Leveton 1999 (2) SA 32 (SCA): dictum...