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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                                                CASE NO: 828/2011

In the matter betwee

BEYERS NAUDE LOCAL MUNICIPALITY

(formerly IKWEZI LOCAL MUNICIPALITY)                   Applicant/First Defendant

And

P[…]-A[…] E[…]                                                              First Respondent/Plaintiff

XOLA VINCENT JACK                             Second Respondent/Second Defendant

JUDGMENT

PICKERING J:

[1]      On 31 March 2016 I delivered judgment in the matter between P[…]-A[…] E[…], plaintiff, and Ikwezi Municipality, first defendant, and Xola Vincent Jack, second defendant.  At the conclusion of my judgment I made the following order:

“1.        It is declared that the first and second defendants are jointly and severally liable for such damages as the plaintiff may prove she has suffered in consequence of the sexual assault upon her on 16 November 2009 at the offices of first defendant in Jansenville.

2.         Defendants are ordered jointly and severally to pay the costs of the action on the merits, the one paying the other to be absolved.”

[2]      After judgment was delivered the MEC for Local Government, Eastern Cape Province, acting in terms of sections 12, 14 and 17 of the Local Government Municipal Structures Act, no 117 of 1998, disestablished the Baviaans, Camdeboo and Ikwezi Local Municipalities and established in their place the Dr. Beyers Naude Local Municipality.  In consequence thereof the disestablished municipalities ceased to exist on 3 August 2016 and an entirely new entity, Dr. Beyers Naude Local Municipality, replaced them.  Dr. Beyers Naude Local Municipality has now applied for leave to appeal against my order on the merits, citing plaintiff as first respondent and Xola Vincent Jack as second respondent. 

[3]      The application for leave to appeal is framed in the following terms:

“1.        That the applicant/first defendant’s failure timeously to file a notice of application for leave to appeal in this matter be condoned.      

2.         That the applicant/first defendant be granted leave to appeal the whole of the judgment of His Lordship Mr. Justice Pickering, delivered on 31 March 2016, the grounds of which are as follows:

2.1       The applicant/first defendant will make application, on appeal, for leave to amend the applicant/first defendant’s plea to incorporate a special plea in terms of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’).

          Take further notice that:

3.         Should the relief sought in paragraph 2.1 above be granted, the applicant/first defendant will apply for leave to amend the applicant/first defendant’s plea, on appeal, to incorporate the special plea in terms of section 35 of COIDA.

4.         The applicant/first defendant will apply to lead further evidence (should it be necessary), on appeal, to demonstrate the existence of, and/or the first respondent/plaintiff’s entitlement to, a claim in terms of COIDA.

5.         Once any necessary evidence has been led, the applicant/first defendant will present argument on appeal, requesting that the special plea be upheld, and the decision of His Lordship Mr. Justice Pickering in regard to the first respondent/plaintiff’s claim on the merits be set aside, and the first respondent/plaintiff’s claim on the merits dismissed with costs.”

[4]        Section 35 of COIDA states as follows:

“35 Substitution of compensation for other legal remedies

(1)  No action shall lie by an employee or any dependent of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.

(2)  For the purposes of subsection (1) a person referred to in section 56 (1)(b), (c), (d) and (e) shall be deemed to be an employer.”

[5]        For the sake of convenience I shall continue to refer to plaintiff and first defendant as such.  The tortuous history of the matter is fully set out in my judgment on the merits and it is not necessary to repeat the details here save to state that I found that plaintiff was the victim of a sexual assault perpetrated upon her by second defendant in the course of her employment with first defendant.  Such assault occurred on as far back as 16 November 2009.  In consequence thereof plaintiff issued summons on 15 March 2011 against both the defendants. 

[6]        Second defendant did not enter an appearance to defend the matter and has played no relevant role in these proceedings.  In its plea first defendant admitted that plaintiff had been sexually assaulted by second defendant as alleged but denied that in so doing second defendant was acting within the course and scope of his employment with first defendant.  The issue of the possible application of section 35 of COIDA was not pleaded. 

[7]        The matter eventually only came to trial before me during October 2015.  Final argument was addressed to me on 23 March 2016 whereafter I delivered my judgment on 31 March 2016.  No application for leave to appeal against my judgment was forthcoming.  My judgment has been reported as PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG).    

[8]        Very considerable preparation for the trial on quantum was thereafter made by plaintiff including the filing of various expert reports by, inter alia, a psychiatrist, industrial psychologist, a counselling psychologist and an actuary.

[9]        The trial in respect of quantum was eventually set down for hearing on 12 June 2019.  On 25 March 2019 first defendant’s counsel who acted for first defendant at the trial on the merits indicated that he would not be available on the trial date.  New counsel was then briefed whereafter the issue of the “possible” application of section 35 of COIDA was mooted for the first time, it being noted by the new counsel that certain reports by plaintiff’s psychiatrist, Dr. van der Merwe, had been submitted to the office of the Compensation Commissioner in terms of COIDA during 2011 and 2012, the final such report being dated 17 March 2012.  In light of the fact that there was apparently an unfinished COIDA claim of which plaintiff’s legal representatives were unaware plaintiff reluctantly agreed to a postponement of trial to 20 August 2019.  It was, however, throughout, plaintiff’s contention that COIDA was not of application to the matter despite the lodging of the claim.

[10]      Thereafter in the light of the confusion surrounding the COIDA claim the trial on quantum was again postponed.  It was only in October 2019 that first defendant sought an opinion from senior counsel on the prospects of success of an application for leave to appeal in regard to the COIDA issue.  On 28 October 2019 senior counsel furnished an opinion apparently stating that there were reasonable prospects of an application for leave to appeal succeeding.  Further investigations by applicant’s legal representatives as far back as June 2019 revealed that a claim under COIDA had indeed been lodged with the Compensation Commissioner whereafter it had apparently languished unattended to for over 7 years until applicant’s enquiries brought forth a letter, EMR7, from the office of the Commissioner dated 4 June 2019 requesting plaintiff to submit her final medical report.  Eventually on 4 November 2019 the claim for compensation was rejected by the Commissioner on the basis, contrary to the provisions of COIDA that plaintiff had suffered no permanent disablement. 

[11]      I should mention at this stage that much was made in the affidavits filed on behalf of first defendant in support of this application concerning the alleged failure by plaintiff to have enlightened first defendant of the fact that a claim for compensation under COIDA had been filed on her behalf.  In my view there is no merit whatsoever in the submission.  It appears from the affidavits filed on plaintiff’s behalf that at some stage during 2011 plaintiff was requested by a psychiatrist, Dr. van der Merwe, who had consulted with her, to take the “First Medical Report” (EMR8) compiled by him in terms of COIDA, together with a blank form for the employer to report the incident, to a member of the Human Resources Department of the erstwhile Ikwezi Municipality.  This was done without her having received legal advice with regard to a possible COIDA claim and without the knowledge of her attorneys.  Without going into the matter in any great detail it is abundantly clear from the papers that plaintiff, as a lay person, had no appreciation whatsoever of the import of having delivered Dr. van der Merwe’s report dated 12 March 2012 to first defendant’s offices.  Applicant’s attempts to lay some of the blame on plaintiff for its failure to appreciate the possible application of section 35 of COIDA are, in my view, disingenuous and I reject them.  As I have said, it has never been suggested on plaintiff’s behalf that section 35 was applicable to her matter nor has plaintiff ever contended that section 35 was applicable and it was not for her to enlighten first defendant’s legal representatives in this regard. 

[12]      In Federated Employers Insurance Co. vs McKenzie 1969(3) SA 360 (AD) Holmes JA stated the principles applicable to a matter such as this at 362G - 363A:

“In considering petitions for condonation under Rule 13, the factors usually weighed by the Court include the degree of non-compliance, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice; See Meintjies v H.D. Combrinck (Edms) Bpk. 1961 (1) SA 262 (AD) at page 264A – B; Melane v Santam Ins. Co. Ltd. 1962 (4) SA 531 (AD) and Kgobane’s case, supra.  The cogency of any such factor will vary according to the circumstances, including the particular Rule infringed.  Thus, a badly prepared record – Rule 5(7) to (10) – involves both the convenience of the Court and the standard of its proceedings in the administration of justice.  A belated appeal against a criminal conviction – Rule 5(5) - may keenly affect the public interest in the matter of the law’s delays.  On the other hand the late filing of the record in a civil case more closely concerns the respondent, who is allowed to extend the time under Rule 5(4)(c).  the late filing of a notice of appeal particularly affects the respondent’s interest in the finality of his judgment – the time for noting an appeal having elapsed, he is prima facie entitled to adjust his affairs on the footing that his judgment is safe; see Cairns’ Executors v Gaarn 1912 AD 181 at page 193, in which Solomon JA said:

‘After all the object of the Rule is to put an end to litigation and to let parties know where they stand.’”

[13]      At the hearing, however, Mr. Smuts S.C., who with Ms. Molony appeared for applicant, submitted that if section 35 was of application the Court had no discretion in respect of condonation but was obliged to grant leave to appeal however egregious first defendant’s and applicant’s conduct in failing to apply timeously for leave to appeal may have been.  In those circumstances, so he submitted, the application for condonation was merely filed ex abundante cautela.  With reference to Government of the Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA) he submitted that condonation was not a requirement in an application for leave to appeal against an order made on a legally invalid premise.  In the same breath, however, if I understood him correctly, Mr. Smuts submitted that it was not for me to decide definitively whether or not section 35 was indeed of application in a matter such as this.  That decision, so he submitted, was for the Court before which the application to amend first defendant’s plea would be argued should leave to appeal be granted.  Indeed, no more than passing reference was made to certain cases in support of the submission that section 35 of COIDA might be of application.  Mr. Smuts submitted that there were reasonable prospects of the Court hearing the special plea finding that section 35 was indeed of application. 

[14]      The Von Abo principle might well be applicable if indeed s 35 was itself of application.  I am, however, far from being persuaded that this is so.  The matter of Member of the Executive Counsel for the Department of Health, Free State Province v EJN [2015] 1 All SA 20 (SCA) is instructive.  It concerned the application of section 35(1) of COIDA in the case of a doctor who was raped whilst on duty at a provincial hospital by an intruder who gained access to the hospital premises.  She sued the MEC for damages in response to which the MEC filed a special plea asserting that the doctor’s claim was barred by section 35(1).  At paragraph [8] Navsa ADP stated that COIDA provided a ready source of compensation for employees who suffered employment related injuries and provided for compensation without the necessity of having to prove negligence.  He continued to state:

“It should, however, be borne in mind, that the object of the Act is to benefit employees and that the common law remedies were restricted to enable easy access to compensation.  It does not necessarily mean that compensation for every kind of harm they suffer whilst at their place of employment has to be pursued through that statutory channel.  However, if the injury was caused by an accident that arose out of an employee’s employment, then the latter is restricted to a claim under the Act.”

[15]      At [10] Navsa ADP stated further that:

“In order for COIDA to operate and preclude a common law claim, the facts must show that the employee contracted a disease or met with an accident arising out of and in the course of his or her employment.  This requires a determination of whether the respondent’s rape constituted an ‘accident’ for the purposes of COIDA and arose out of and in the course of her employment by the appellant.  If that is answered in the affirmative, the special plea should succeed.”

[16]      As further pointed out by Navsa ADP “courts in this country and elsewhere have over decades grappled with the enduring difficulty of determining for the purposes of similar, preceding and present litigation whether an incident constitutes an accident and arose out of and in the course of employment of an employee.”  In so stating the learned Judge emphasized the decision depended on the particular facts of each case.  He referred further to the matter of Ford v Revlon Inc 153 Ariz. 38 as being instructive.  In that matter the Supreme Court of Arizona stated the following:

“By law, exposure to sexual harassment is not an inherent or necessary risk of employment, even though it may be or may have been endemic.”

Navsa ADP stated further that:

“Given the substantive nature of the wrong committed here, I believe that this form of the action falls outside the compensation system.” 

[17]      At [33] the learned Judge stated:

“I can understand that courts have strained to come to the rescue particularly of impecunious individuals and have held them entitled to claim compensation from a fund established for that purpose.  I also understand that courts have done this by adopting a position in line with the policy behind the worker’s compensation legislation, namely, that workers should as far as possible be assisted to claim compensation that is their due under the Act and which flow from incidents connected to their employment and which can rightly be said to be a risk attendant upon or inherent to the employment.  Dealing with a vulnerable class within our society and contemplating that rape is a scourge of South African’s society, I have difficulty contemplating that employees would be assisted if their common law rights would have been restricted as proposed on behalf of the MEC.  If anything, it might rightly be said to be adverse to the interest of employees injured by rape to restrict them to COIDA.  It would be sending an unacceptable message to employees, especially women, namely that you are precluded from suing your employer for what you assert is a failure to provide reasonable protective measures against rape because rape directed against women is a risk inherent in employment in South Africa.  This cannot be what our Constitution will countenance.”

[18]      In my view the same applies to sexual harassment in the work place.  Indeed, in his affidavit in this matter applicant’s municipal manager states, much to the same effect, that he was advised by applicant’s legal representatives “that a COIDA claim in regard to sexual assault is somewhat unusual, as a sexual assault, and the resulting PTSD, would not be considered a typical basis for a COIDA claim.”  Because of this applicant’s legal representatives did not even consider the aspect of a COIDA claim prior to or during the trial on the merits.  In the light of what I have said above I am not convinced that a special plea in terms of s 35 of COIDA would necessarily be upheld.

[19]      I agree also with the submission on behalf of plaintiff that first defendant and thereafter applicant, in effect acquiesced in and abided by my judgment on the merits until such time as the issue of the possible application of COIDA was belatedly raised by applicant’s new counsel.                 

Compare: Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 600 A – B.

[20]      Be that as it may, I am prepared to accept for purposes of this application that the matter is not unarguable and that some prospects of success, although in my view slight, may exist.  I do not accept, however, that the application of s35 in the circumstances of this matter is so clear cut as to lead to the conclusion that an application for condonation is not required.  On the contrary, I am of the view that such application is required and that I retain my discretion in that regard.  The prospects of success are a factor which I must take into account in the exercise of that discretion.  As set out in the Federated Employers case, supra, however, it is but one of the factors to be considered.

[21]      I turn then to consider the issue of the degree of non-compliance by first defendant with the Rules as well as the explanation therefor.  This is an unusual matter in that there was a complete failure by first defendant’s legal representatives to appreciate from the outset that s 35 of COIDA might be applicable.  Be that as it may that failure persisted for a further three and a half years after my judgment had been delivered.

[22]      In support of the condonation application the present applicant’s municipal manager, states that after the amalgamation of the three local municipalities it became apparent that Ikwezi Municipality was completely dysfunctional, bankrupt, and unable to pay the legal fees already incurred in the trial or to fund further litigation.  The legal representatives who had been representing first defendant accordingly withdrew.  He avers further that for various reasons it was only in or about June 2017 when plaintiff’s expert witness summaries were delivered to its offices that applicant became aware of the existence of the action, necessitating the removal of the trial on quantum which was set down for 21 April 2017 from the roll.    More than 15 months had now elapsed from the date of delivery of my judgment.  The Municipal Manager then states as follows:

“Consideration was given to an appeal of the judgment on the merits, inter alia, as the judgment on the merits had extended the common law in order to hold Ikwezi vicariously liable for the conduct of Jack, but at that stage the ground/s considered did not include Section 35 of COIDA, as the applicant’s legal representatives were unaware that a COIDA claim had in fact been lodged on the respondent’s behalf.”

[23]      I interpose to state that the fact that a COIDA claim has been lodged is in my view irrelevant to the issue of whether or not COIDA in fact applies.  It is, however, an illustration of the negligence and incompetence of first defendant who had lodged the claim in failing to follow it up.

[24]      As set out above it was only after new counsel had been briefed that the issue of a possible COIDA claim arose, apparently during discussions between applicant’s attorney and counsel, presumably in June 2019 although no precise dates are furnished by applicant.  Of significance, however, is that applicant and its legal representatives were alerted in June 2019 by the medical report of Dr. van der Merwe to the fact of the COIDA claim and yet it took another four months before senior counsel’s opinion was sought.  Even after that opinion was received on 28 October there was a further unexplained delay of 22 days before the present application was launched. 

[25]      In my view the explanation tendered by applicant for the delay in applying for leave to appeal is woefully inadequate.

[26]      In Cairns Executors v Gaarn 1912 AD 180 the following was stated at 190:

“When a party has obtained a judgment in his favour and the time allowed by law for appealing has lapsed, he is in a very strong position, and he should not be disturbed except under very special circumstances.  And I do not myself think that the mere fact that no effect has been given to the judgment is in itself such a special circumstances.  Otherwise a similar argument might be used in every case where the judgment has been given in favour of the defendant in the case.  In such cases the position of the parties remains unaltered by the decision, but the defendant, having obtained his judgment, is entitled, when the time for appeal has elapsed, to assume that the judgment is final and conclusive, and to regulate his conduct accordingly.  As Lindley LJ said in the case of Esdaile v Paine (40 Ch. Div. page 554):

‘In my opinion it is for the interest of the public that litigants should know as soon as possible when certainty has been reached, and that if people have deliberately elected to let the time for appealing go by, the Court should not give them leave to appeal without special circumstances.’”

[27]      In Juta & Co Ltd v Legal and Financial Publishing Co (Pty) Ltd 1969 (4)  SA 443 (CPD) van Wyk J stated at 445 E- F that “[t]here is such a thing as the tyranny of litigation, and a Court of law should not allow a party to drag out proceedings unduly.”

[28]      See also Cloete and Another v S; Sekgala v Nedbank Ltd 2019 (4) SA 268 CC at para [56] in which the remarks of van Wyk J are referred to with approval.

[29]      In my view in the circumstances of this matter plaintiff will suffer undue and manifest prejudice should the present application be granted.  The incident occurred well over 10 years ago.  Plaintiff issued her summons timeously eight years ago and first defendant filed its plea on 15 July 2011 without raising the COIDA point.  A further eight years elapsed in the course of which a full trial on the merits took place.  Plaintiff testified at that trial, which was no doubt a traumatic experience for her.  In this regard Mr. Louw, who appeared with Ms. Teko for plaintiff, referred to the supplementary report of Prof. Charles Young, a counselling psychologist, prepared on 11 February 2019 in which he states at [38]:

“[38]    While Mrs. E[…] did not meet the diagnostic threshold for PTSD on 4 September 2017, she does appear to meet it now.  The worsening of her mental state is probably a result of the impending court date, which she is dreading.  Indeed, in my experience, it is not unusual for psychologically traumatized plaintiffs to report an increase in symptoms in the lead up to a court hearing, as they are typically expected to describe their experiences in preparation and during the trial and often meet the people implicated in their distress.

And

[40]      Finally, the persistent experience of clinically-significant symptomology and functional impairment is likely to erode her morale as well as her social support.  I would expect that there would be some improvement to her mental state at the conclusion of the protracted legal proceedings.”

[30]      Applicant now wishes in effect to wipe the slate clean and to render all that has occurred in the interim pro non scripto and to turn the clock back to 15 July 2011 when first defendant’s plea was filed. 

[31]      In my view to allow applicant to do so in these circumstances with all the resultant trauma for plaintiff would be unconscionable and would be a classic example of the tyranny of litigation.  Plaintiff has waited 10 years for justice and to obtain redress for the grevious wrong perpetrated upon her.  No further delays can be countenanced. 

[32]      Having regard to all the factors outlined above I am satisfied in the exercise of my discretion that the application for condonation cannot succeed.  Accordingly the following order will issue:

“1.        The application for condonation of the late filing of the appeal in this matter is refused.

2.        The application for leave to appeal is dismissed.

3.         The applicant is to pay the costs of this application such costs to include the costs of two counsel.

___________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing for the applicant: Adv. Smuts S.C. and Adv. Molony

Instructed by: Netteltons Attorneys, Mr. Hart

Appearing on behalf of the respondent:  Adv. Louw and Adv. Teko

Instructed by: Nolte Smit Inc., Ms Nel

Date of Judgement: 14 February 2020

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