ER24 Holdings v Smith NO and Another (392/06) [2007] ZASCA 55; [2007] 4 All SA 679 (SCA) ; 2007 (6) SA 147 (SCA); (2007) 28 ILJ 2497 (SCA) (18 May 2007)

ER24 Holdings v Smith NO and Another (392/06) [2007] ZASCA 55; [2007] 4 All SA 679 (SCA) ; 2007 (6) SA 147 (SCA); (2007) 28 ILJ 2497 (SCA) (18 May 2007)

The court held that Romy Staracek was not an 'employee' for purposes of the Compensation for Occupational Injuries and Diseases Act, as she received no remuneration, whether in cash or in kind, as required by the Act. The vocational experience and exposure provided by ER24 did not constitute remuneration 'in kind' with objectively ascertainable value for assessment or compensation purposes. The indemnity clause in the contract was ambiguous and did not clearly exclude ER24's liability to Romy herself; thus, the contra proferentem rule applied against ER24. There was no evidence of a common intention to rectify the contract to exclude liability to Romy. Accordingly, both special pleas and...

Citation
[2007] ZASCA 55
Parties
Appellant: ER24 Holdings; Respondent: Smith NO; Respondent: Compensation Commissioner
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 May 2007
Case Number
392/06
Procedural Posture
Civil Appeal / Appeal From Dismissal of Special Pleas and Third Party Relief
Outcome
Appeal dismissed. ER24 is ordered to pay the costs of the curator ad litem and the Compensation Commissioner, including the costs of two counsel in each case.
Judges
Scott, Cameron, Cloete, Maya, Theron
Legal Topics
Compensation for Occupational Injuries and Diseases Act, Definition of Employee, Remuneration in Kind, Exemption Clause, Contra Proferentem Rule
Labour Law Civil Procedure Compensation for Occupational Injuries and Diseases Act Definition of Employee Remuneration in Kind Exemption Clause Contra Proferentem Rule

Case Brief

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Parties

ER24 Holdings

Appellant

Smith NO

Respondent

Compensation Commissioner

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Special Pleas and Third Party Relief

Legal Issues

  1. 1 Whether Romy Staracek was an 'employee' as defined in the Compensation for Occupational Injuries and Diseases Act, 130 of 1993, for purposes of s 35.
  2. 2 Whether the contract between ER24 and Romy excluded ER24's liability for injuries suffered by Romy.
  3. 3 Whether the exclusion clause in the contract should be rectified to exclude liability to Romy.

Ratio Decidendi

The court held that Romy Staracek was not an 'employee' for purposes of the Compensation for Occupational Injuries and Diseases Act, as she received no remuneration, whether in cash or in kind, as required by the Act. The vocational experience and exposure provided by ER24 did not constitute remuneration 'in kind' with objectively ascertainable value for assessment or compensation purposes. The indemnity clause in the contract was ambiguous and did not clearly exclude ER24's liability to Romy herself; thus, the contra proferentem rule applied against ER24. There was no evidence of a common intention to rectify the contract to exclude liability to Romy. Accordingly, both special pleas and...

Court Disposition

Appeal dismissed. ER24 is ordered to pay the costs of the curator ad litem and the Compensation Commissioner, including the costs of two counsel in each case.

Orders

  • The appeal is dismissed.
  • ER24 Holdings is ordered to pay the costs of the curator ad litem, including the costs of two counsel.