The Director General, Labour v Bezuidenhout

• Jurisdiction: South Africa
• Judge: Pillay J, Gorven AJ
• Judgment Date: 26 June 2008
• Docket Number: AR 89/2008
• Court: Natal Provincial Division
• Hearing Date: 20 June 2008
• Citation: 2008 JDR 1035 (N)

Gorven AJ:

[1] This matter was heard on 20 June 2008. On that date the following order was granted:

1.

The application for condonation for the late filing of the applicant's notice of appeal is dismissed with costs, such costs to include:

(a)

All costs relating to the proceedings under Durban and Coast Local Division Case No 1314/2007; and

(b)

All costs arising from the applicant having filed a notice of appeal and the consequent set down of the appeal for hearing.

2.

The appeal is declared to have lapsed on 20 March 2007.

It was indicated that the reasons for the order would follow. These are the reasons.

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Gorven AJ

[2] On 23 May 1988 the second respondent suffered an injury. This happened while he was travelling underground at work when employed by Consolidated Modderfontein Mines. He fractured his left foot which led to a below knee amputation of his left leg being performed on 11 January 1990. Since then he has required a prosthesis for that leg.

[3] The first medical report, dated 5 July 1988, bears the Claim number T88/087350. The claim was therefore lodged in 1988. During this period, the Workmen's Compensation Act, No 30 of 1941 ("the WCA") was in force. No explanation has been given by the applicant as to what happened between that date and the date in 2004 on which the commissioner dealt with the claim. By way of an undated letter which appears to have been generated on 30 April 2004 the commissioner wrote to the second respondent. The letter informed him that the claim had been rejected because his annual earnings exceeded R24 000.00 and, accordingly, in terms of section 3 (2) (b) of the WCA, he could not be regarded as a "workman". It also informed him that he was "at liberty to lodge an objection, in the prescribed manner, in terms of section 91 of the Act". This is a reference to the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 ("COIDA") and not the WCA.

[4] The second respondent duly lodged an objection, dated 18 July 2004, and covered it with a letter. The letter, moderately worded, catalogues pervasive inefficiency on the part of the commissioner's staff over an extended period. The second respondent had to resubmit lost claim documents at least three times. He was promised compensation but, despite this, had medical claims turned down for necessary prostheses, amongst other things. He developed serious back pain caused by having to use an inappropriate prosthesis since he could not afford to buy one himself. He was chased from pillar to post for years whilst attempting to have

2008 JDR 1035 p3

Gorven AJ

the claim adjudicated. Despite his having kept in constant communication with the commissioner, the claim was only dealt with some 16 years after the accident.

[5] The letter which informed the second respondent of the date of the hearing of the objection referred to section 91 of the "Act". This is the section of COIDA which deals with claims, objections and appeals. Section 100 (1) of COIDA repealed the WCA with effect from 24 September 1993. Section 100 (3) provides as follows:

Any claim for compensation or medical aid under a law repealed by subsection (1) in respect of an accident that happened or a scheduled disease contracted prior to the commencement of the Act shall be dealt with in terms of the repealed law as if this Act had not been passed and any right or privilege acquired or accrued under such repealed law shall not be affected by such repeal

[6] This means that the provisions of the WCA and not COIDA applied to the second respondent's claim in its entirety, including the procedures for claims, objections and appeals. The hearing of the objection, therefore, could only have been dealt with in terms of section 25 of the WCA and not section 91 of COIDA. Section 25 (2) provides that any person affected by a decision of the commissioner may lodge an objection. Section 25 (3) provides that such objection shall be considered and determined by the commissioner assisted by two assessors...