Govender v Argyle Poultry Farms (Pty) Ltd (1055/09) [2009] ZAKZPHC 73; (2010) 31 ILJ 1593 (KZP) (7 December 2009)

IN THE KWAZULU-NATAL HIGH COURT

PIETERMARITZBURG

REPUBLIC OF SOUTH AFRICA CASE NO.1055/09

In the matter between

RAVINDRAN GOVENDER Plaintiff

and

ARGYLE POULTRY FARMS (PTY) LTD Defendant

J U D G M E N T

STEWART AJ.

[1] In this action the plaintiff asserts a cause of action in delict. He states that he had been employed by the defendant as a site foreman and as such he was a member of the Rainmaker Plus Pension Fund. By virtue of that membership he was entitled to disability benefits in the event of him being rendered permanently disabled to the extent that he was incapable of engaging in work for remuneration or profit. In terms of the policy governing his membership of the Pension Fund, the defendant was obliged to report in writing to the Pension Fund any event that gave rise to a claim for a disability benefit.

[2] The plaintiff further pleaded that he was involved in a motor vehicle accident as a result of which he sustained serious injuries which rendered him permanently disabled to the extent that he is incapable of engaging in remunerative or profit generating activities. He asserts that in breach of its obligations the defendant failed to notify the Pension Fund of the fact that he had sustained injuries as a result of which the Pension Fund repudiated liability to compensate him. He accordingly brings this claim against the defendant on the basis that but for that failure by it he would have been paid out a disability benefit by the Pension Fund.

[3] The defendant admitted in its plea that it was obliged to report to the Pension Fund any event that gave rise to a claim for a disability benefit. It however asserts that at the time of the accident the plaintiff was deliberately absent from the defendant’s service without permission with the result that in terms of clause 5.10.1 of the policy the plaintiff had no valid claim against the Pension Fund. The clause in question provides as follows:

‘No claim for payment in terms of this policy shall be admitted if the disability arises during a period in which the

MEMBER concerned is deliberately absent from the PARTICIPATING EMPLOYER’S service without permission.’

[4] At the Rule 37 conference it was agreed that the trial would proceed at this stage only on the issue of whether the conduct of the plaintiff constituted deliberate absence without permission from the defendant’s service as contemplated in clause 5.10 of the policy. I accordingly made an order in terms of Rule 33(4) separating that issue out for prior determination, the remaining issues standing over to be determined later.

[5] The plaintiff gave evidence. I shall concentrate on the undisputed parts of his evidence and identify those parts which were in dispute. His evidence included the following. The defendant conducts a broiler production business. To this end it has a number of farms and on some of the farms there are a number of sites of poultry houses. The plaintiff commenced working for the defendant in March 2002. During the week he was the foreman responsible for a particular site of poultry houses, and every other weekend he was on duty and had to manage two sites. The job both during the week and at weekends when he was on duty entailed a lot of walking as a consequence of which he developed some problems with his feet. It is common cause that as a result thereof he used to use his own vehicle to get from the one site to the other and back again at weekends.

[6] In March 2004 he was transferred to a different site on a different farm. The site was referred to as B1B. On alternate weekends he was also responsible for another site on the same farm. It was referred to as B1A. The distance between the sites was approximately 700 metres. As on the previous farm, the job entailed a lot of walking. There were six poultry houses at B1B and 18 poultry houses at B1A. Each house is nearly 100m in length and they are 50m apart at B1B and 20m apart at B1A. The result is that to walk the length of each house and back, which would be required to be done more than once a day, and possibly several times depending on the conditions, meant walking an impressive distance.

[7] The plaintiff was not given a vehicle to drive between the sites. As a consequence he used his own vehicle. He states that he was promised compensation for the fuel he used for this purpose, but his immediate supervisor, Mr Graeme Attwell who gave evidence for the defendant, denied that. It was also in dispute whether the defendant knew that he used his vehicle for this purpose although, as I have said, Mr Attwell said that he knew that the plaintiff used his own vehicle to get from one site to the other on the previous farm. Mr Attwell accepted that the plaintiff could use his own vehicle to get from one site to the other and back again, and hence to make his work easier, if he chose to.

[8] It was sharply in dispute whether it was necessary for the plaintiff to use a vehicle for his work. The defendant’s attitude was that it was a ‘walking job’ that required no vehicle, whereas the plaintiff claimed that the distances that had to be travelled were too great and that a vehicle was necessary, particularly in view of the problem that he had had with his feet. He said that he could manage the walking that had to be done at one site, but the distances between the sites were too great for it to be comfortably done on foot. Although he did not have problems with his feet in 2004 he did not want the previous problems to be repeated by him walking too much.

[9] In any event, on Saturday 28 August 2004 the plaintiff was on duty and, because it was a weekend, was responsible for B1B and B1A. He testified that the staff who were supposed to have been on duty to assist him had gone off for much of the day to collect their wages in town and to buy supplies. He was consequently alone. He stated that it was a very hot day which required his constant attention at all the 24 houses situated at the two sites. This required that he use his vehicle to go back and forth between the sites. The significance of the heat was that the temperature in the poultry houses has to be kept below a particular maximum temperature or there would be mortality amongst the chickens.

[10] He testified that about 15h00 and before the staff had returned from town, he realised that he was running low on fuel and resolved to drive the approximately eight kilometres to a petrol station to put fuel into his vehicle. He said that the chickens were ‘comfortable’

and that he expected to be back again very soon. Although on knocking-off from work at 16h30 he would usually leave the keys to

the poultry houses with the security guards who were permanently on site, on this occasion he locked up the houses at site B1B and took the keys with him. This corroborates his stated intention to return.

[11] He was involved in a motor vehicle accident near the fuel station and was consequently unable to return. That is the accident from which he suffered the injuries which, so he claims, had the result that he is no longer able to pursue remunerative activity or engagement.

[12] The plaintiff’s evidence was that he did not require permission to leave the farm for a short period, particularly to get fuel to assist with his work. On his version he had the discretion as a manager to come and go provided that all was in order at the poultry houses or, possibly, he had implied permission to come and go. Mr Attwell, in contrast, stated that although the plaintiff had the discretion to determine when the staff who reported to him could come and go, the plaintiff could not leave the farm during his duty hours without express permission to do so.

[13] The important factual disputes with regard to the separated issue are accordingly, first, whether in going to get fuel the plaintiff was deliberately absent from the defendant’s service and, secondly, whether he was so absent without permission. As will be seen, on the view that I take of the matter it is not necessary to resolve the factual disputes because even on the common cause facts taken together with those parts of the defendant’s version which are disputed by the plaintiff the plaintiff was not ‘deliberately

absent from the [defendant’s] service’ within the meaning of clause 5.10.1.

[14] The starting point in construing the clause in question is to understand the policy as a whole. In that regard, the policy pays out on partial disability or total disability, each of which is defined as having resulted from ‘illness or injury’ which impacts on the member’s ability to work. The benefits under the policy are available to a member from the first day of the month during which the person became a member until the last day of the month in which the member attains what is described as the ‘expiry age’. There is nothing in the policy to indicate that the benefits are payable only if the disability arises from a workplace or work related cause. Indeed, in argument it was common cause that provided that the disability arises during the time that the employee in question is a member of the scheme, subject to the exclusion in clause 5.10.1 and the other conditions of the policy, the employee is entitled to the benefits.

[15] Counsel for the defendant drew attention to clause 5.8.3 which provides that the participating employer shall immediately notify the Pension Fund of any material change in the manufacturing or other physical processes or other business activities undertaken by the employer and that on receipt of such a notice the Pension Fund may in its sole discretion adjust the provisions of the policy and the premium rates relating thereto. Attention was drawn to this provision, as I understood it, to indicate some relationship between the cause of the disability and the employee’s work. However, clearly the clause does not go so far as to provide that only disability arising from a work related activity is covered. The clause merely enables the Pension Fund to adjust the premium, and possibly the provisions of the policy, on a change in that part of the risk which arises from the member’s work at the place of employment.

[16] That the policy benefits are available even if the disability arises from a non-work related event is underscored by clause 5.9 which deals with ‘territorial limitations’. The clause provides that a member shall be entitled to cover under the policy provided that he or she is present in the Republic of South Africa, save that the member may reside or travel outside the Republic of South Africa for no longer than 12 consecutive months without thereby prejudicing his or her rights in terms of the policy. If it had been the intention to limit the benefits to work related causes then one would have expected there to be such a limitation, if not elsewhere in the policy then certainly in clause 5.9.

[17] Clause 5.10.2, which obviously immediately follows clause 5.10.1 which is the clause centrally at issue in this case, may also have some bearing on the interpretation of clause 5.10.1. It provides as follows:

‘If the PARTICIPATING EMPLOYER gives the employee permission to be temporarily absent from his/her service, the MEMBER’S cover will remain in force, on condition that the PARTICIPATING EMPLOYER notifies [the Pension Fund] of the period of temporary absence if it is of longer duration than 2 (two) months, and on condition that premiums continue to be payable in respect of the MEMBER during the period of temporary absence.’

[18] A convenient starting point in seeking to construe clause 5.10.1 is to consider the phrase ‘absent from the participating employer’s

service’. In particular, does that phrase include within its ambit the incident at the heart of the present case?

[19] The word ‘service’ is used in the clause in question as a noun. The Shorter Oxford English Dictionary (1973) gives the following relevant meanings to the word ‘service’ as a noun:

‘I.

1. The condition, status, or occupation of a servant …

2. … The condition of being a servant of a particular master …

3. …b. A particular employ; the serving of a certain master or household.’

[20] That notion of ‘service’ has a temporal aspect; it is not about the performance of particular services, but about a relationship or status over time. Moreover, the phrase in question is about absence from service, not a lapse in service or a neglect to perform

services. That is to say, the idea is that the member in question must still enjoy an employment relationship with the employer, and in that sense be within the employer’s service or employment, at the relevant time and must not have absconded, or be AWOL, from that service or employment.

[21] That reading of the phrase in question is supported by clause 5.2.2, and in particular the idea in that clause that premiums continue to be payable during the relevant ‘period of temporary absence’. Such a provision can have no application if the kind of absence that is contemplated includes an absence of mere momentary duration. In terms of clause 4.1 the premium is calculated annually and payable in monthly instalments. This too indicates that something more than momentary absence is required before the exception applies.

[22] The idea of service which clause 5.10.1 appears to cover is illustrated by Sentraboer Koőperatief Bpk v Boshoff en ʼn Ander 1990 (4) SA 687 (T). In that case an insurer, the appellant, indemnified the respondents in the event of an accident arising from the use of a motor vehicle in respect of, inter alia, ‘death of or bodily injury to any person but excluding death of or bodily injury to any person in the service of the insured arising out of and in the course of such service …’. The plaintiff in the action against the respondents was a convicted prisoner in a prison and had been doing labour on the respondents’ farm in terms of an agreement for the supply of labour with the Department of Prisons. Under that agreement the Department would ‘allocate’ prisoners to farmers to do labour under the exclusive instructions and directions of the farmer, but under the supervision of a prison warder.

[23] The trial court found that to ‘be in service’ there had to be a contractual nexus between a person and another and that there was no such nexus between the prisoner and the farmers in that case. In the appeal to a full bench it was argued for the appellant that the words ‘in service’ merely pointed to someone doing something for another and that a service contract was not necessary. The full bench held that the exclusionary clause applied when the person concerned was in the service of another on the basis of an agreement. In that case there was no contractual relationship between the prisoner and the farmers and the exclusionary clause accordingly did not apply.

[24] I accept, of course, that the policy in the present case must be interpreted according to its own provisions and that an interpretation of another policy dealing with a quite different nature of cover can be of little assistance in that exercise. My reference to the Sentraboer case is, however, merely by way of illustration as to the type of ‘service’ that it seems to me clause 5.10.1 of the present policy refers to. That is to say, it is an absence from service in the sense of a temporary severance or suspension of the employment

relationship that is envisaged. Moreover, that absence must be ‘deliberate’. That qualification applies not only to the particular activity in question, in this case leaving the farm to get fuel which was obviously deliberate, but also to the absence from service. That is to say, for the exclusion to apply the employee must intend to at least temporarily sever or suspend the service relationship.

[25] By way of example, the absence of an employee from work because the employee is on his or her annual leave to which there is a contractual entitlement will not amount to ‘temporary absence from service’ because there is no severance or suspension of the service relationship. However, temporary absence on unpaid or special leave for which there is no contractual entitlement will amount to ‘temporary absence from service’, although obviously in such a case it will be with permission so the exclusion will not apply – provided that the duration is less than two months or, if longer, the employer has notified the Pension Fund.

[26] In the present case even on the defendant’s version the plaintiff was not deliberately absent from the defendant’s service in the manner required by the exclusion. The plaintiff had not absconded or abandoned his employment relationship, even temporarily, and he had every intention of returning to work. As I have indicated, in my view, on the probabilities, that intention included to return to work that afternoon. But even if the situation was such that the plaintiff had in fact knocked-off early that afternoon and did not intend to return until his next day of duty, which was presumably the following day, he was not temporarily absent from the defendant’s service; he was merely working fewer hours that day than what he was supposed to work. Even if he had abandoned his duties and neglected the services he was supposed to render, he was not absent from his employer’s service as contemplated by the exclusion clause.

[27] In the result, in my view the conduct of the plaintiff on the day in question did not constitute deliberate absence without permission

from the defendant’s service as contemplated in clause 5.10 of the policy and I decide the issue which was separated out for my decision accordingly. The costs to date should be costs in the cause. I accordingly make the following order:

(1) It is declared that the conduct of the plaintiff on 28 August 2004 did not constitute deliberate absence without permission from the defendant’s service as pleaded in paragraph 7 of the plea;

(2) The costs to date are costs in the cause.

DATES OF HEARING 25, 26 NOVEMBER 2009

DATE OF JUDGMENT 7 DECEMBER 2009

PLAINTIFF’S COUNSEL MR K.P. CHETTY

PLAINTIFF’S ATTORNEYS BARATH JAGAROO &

ASSOCIATES

DEFENDANT’S COUNSEL MR R.M. VAN

ROOYEN

DEFENDANT’S ATTORNEYS GEYSER DU TOIT LOUW &

KITCHING INC.