Kadiega v North-West Housing Corporation (412/2001) [2005] ZANWHC 70; (2006) 27 ILJ 89 (NW) (29 September 2005)

Civil Judgment-Kadiega v NWHC

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 412/2001

In the matter between:

NANA

KADIEGA PLAINTIFF

and

NORTH WEST HOUSING

CORPORATION DEFENDANT

JUDGMENT

LANDMAN J:

[1] The plaintiff, Ms Nana Kadiega, was employed by the defendant, the North West Housing Corporation as a cashier. She was injured at work during the course of a robbery on 1 July 1998. It is common cause that on 16 November 1998, the defendant in a letter, undertook to honour all payments due in respect of her medical expenses, arising out of the robbery. The plaintiff alleges that the defendant has not complied with the contract. She consequently issued a summons. She claims payment of R177 390.77.

[2] The defendant entered appearance to defend. The essence of the defendant’s defence is found in paragraph 14 of the plea. It reads:

“The contents hereof are denied. Defendant pleads that the letter was not an undertaking to honour all payments due in respect of Plaintiff's medical expenses, and avers that it was merely to assist Plaintiff who was experiencing financial difficulties at that time. Defendant further pleads that the understanding was that Plaintiff would be compensated from the Workmen's Compensation Fund, and this was merely an interim internal arrangement. Defendant further pleads that Plaintiff was compensated by the Workmen's Compensation.”

[3] The parties held a pre-trial conference. At this conference they agreed that:

(a) Plaintiff was in the employ of the defendant during 1998 and employed as a cashier.

(b) A robbery occurred on 1 July 1998 at the offices of the defendant whilst the plaintiff was acting within the scope of her employment with the defendant.

(c) Annexure "A" to plaintiff particulars of claim dated 16 November 1998 was sent by the defendant to plaintiff’s erstwhile attorneys of record.

(d)

A letter of demand dated 29 June 2001 was sent by plaintiff's attorneys to defendant.

[4] The parties agreed that the following issues were in dispute:

(a) That plaintiff sustained injuries as a result of the robbery;

(b) Whether annexure "A" was an undertaking or not; and

(c) Liability for past and future medical expenses as claimed by the plaintiff.

[5] The parties agreed that there should be a separation of trials regarding quantum and merits. They agreed that the merits be tried first. This is a convenient arrangement. The parties agreed that only after discovery of documents will the parties reach agreement as to whether it is necessary to prove documents or not. The parties have not reached any agreement about the status of the documents.

[6] The letter of demand reads:

“…Copies of the aforesaid reports, certificates and vouchers are once again attached hereto.…The North West Housing Corporation has breached the aforesaid undertaking as they have failed to pay for our client's medical expenses and other expenditures in the amount of R177 390.77 (one hundred and seventy seven thousand three hundred and ninety rand and seventy seven cents).

Our instructions are to demand from you, as we hereby do, payment of the amount of R177 390.77 and the costs of this letter with interest on the full outstanding amount, within 14 days from receipt of hereof, failing which we will have no other option but to institute action against you for the recovery of the aforesaid amounts.”

[7] At the outset of proceeding Mr Hitge, who appeared for the defendant, raised a point in limine. This point should have been pleaded but it was not. Nevertheless, as he submitted that the point went to the issue of jurisdiction, I allowed him to argue it. I dismissed the point and indicated that reasons would be given in due course.

[8] The trial commenced. The plaintiff gave evidence. Mr Kekana, who appeared for the plaintiff, closed his case. Mr Hitge applied for absolution from the instance. I dismissed this application. The matter stood down to the next day when Mr Hitge closed his case without leading any evidence.

[9] The plaintiff said she worked for the defendant as a cashier from 1996 until her dismissal on 1 July 1998. She was at work, issuing a receipt at about 08:30 on 1 July 1998, when some one pointed a firearm at her. She was frightened. She screamed and was pushed to the ground. She fell on her knee. A robbery was in progress at her place of work.

[10] She related some details of the treatment she has undergone. She has had two operations on her left knee and requires a further operation.

[11] She experienced some credit difficulties, inter alia, with her pharmacy. The phamacy threatened to issue summons. She could not get medicine. She consulted the defendant’s human resources manager who referred her to the company secretary, Mr Mape. He agreed to assist her in her crisis but he wanted proof of invoicing first. He wanted all the documents. According to the plaintiff, Mr Mape said if she brings the documents he will pay for everything. A letter setting this out was signed by Mr Mape.

[12] The letter reads:

“RE : N A KADIEGA / NW HOUSING CORPORATION

We refer to your MR. KGOMO/k.OI 19/CIV dated 06 November 1998.

The date of the appeal hearing is as contained in our letter KAD/nvm dated 11 November 1998, a copy of which was delivered to your offices.

The North West Housing Corporation is desirous of honouring all payments due in respect of Ms Nana Kadiega's medical expenses, arising out of the robbery, provided any such request is accompanied by the treating doctor's medical report or certificate stating clearly the reason for the consultation and the date thereof.

We will therefore appreciate if all future claims can be accompanied by supporting documentation.

We should also point out that unless vouchers are received for meals, transport or any other expenditure incurred by her, we will not be in a position to remit payment if any.

Yours faithfully

Company Secretary”

[13] The letter from Mr Kgomo referred to in Mr Mape’s letter has not been traced.

[14] She confirmed that the orthopedic surgeon whom she has consulted informed her that she has a compensation claim and it must be reported to the “Workmens Compensation Commissioner”. She confirmed that the defendant submitted forms to the Compensation Fund. The commissioner has paid her R33 000. She waited a long time for payment. Her four doctors have not been paid. She claims for future medical expenses. She has not yet had the operation in question.

[15] She was dismissed on 9 July 1998 for not banking her takings. She admits she wrote a memo explaining what happened but further admits that the memo was not the truth. She also admitted that she completed a form LRA 7.11 at the CCMA when she complained of an unfair dismissal. She wrote that she had to undergo surgery for cancer of the neck. She had no medical aid. So “…she lent herself R1 700.00. I could not bank for that day as there was a shortfall. This was explained to the Estate Manager. The money was returned the next day.” This was not correct. She said her child was suffering from cancer. She said she believed the defendant suspected that she organized the robbery.

[16] It was put to her that the defendant had paid her accounts. She replied that she was unaware of this. The accounts of Stoddard Pharmacy and two others were mentioned to her. She said they were not paid.

[17] Mr Hitge submitted that the “undertaking” did not give rise to a contract. But if it did, the contract was not enforceable. He submitted that the plaintiff bore the onus to prove:

(a) The existence of a contract, entered into with the required animus contrahendi. See Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd 2002 (4) SA 681 (SCA);

(b) The terms and conditions of the contract, including that a certain term or terms do not exist. See: Kriegler v Mintzer 1949 (4) SA 821 (A) and Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A); and

(c) The contract was invalid and unenforceable because it contravened s 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).

(d) The breach of the contract.

[18] Mr Hitge submitted that the plaintiff failed to prove the existence of an enforceable contract, because:

(a) Plaintiff failed to testify about her acceptance of an offer;

(b) The wording of Annexure "A" does not constitute an offer in a contractual sense, but is a mere expression of desire or promise;

(c) The purpose of the defendant's letter was to assist the plaintiff in respect of a specific crisis without animus contrahendi:

(d) Plaintiff testified that the understanding was: "An arrangement was made with the employer, that I will collect medication from the chemist, submit the invoices to the employer, who would pay them.”

(e) Neither of the parties intended to contract in respect of future operations, as they were unaware of any complications in respect of the surgery, which only became known on 17 August 1999.

(f) No evidence was tendered of payments made after the report, or after the compensation was received by the defendant from the commissioner, thereby negating the possibility of a tacit agreement.

[19] It seems that I should begin with an interpretation of the alleged contract. The literal wording of the letter comprises an undertaking to pay all payments due in respect the plaintiff’s medical expenses, arising out of the robbery, provided any request for payment is accompanied by the treating doctor's medical report or certificate stating clearly the reason for the consultation and the date thereof, and supporting documentation. In addition the defendant will pay for meals and transport provided vouchers are received.

[20] The undertaking does not say that it is in replacement of the Compensation Fund’s obligations. Nor does it state that it is a temporary arrangement. The fact that it covers all medical expenses arising out of the robbery and that it was concluded after the plaintiff had left the defendant’s employment tends to indicate that no limitation was stipulated.

[21] The plaintiff conceded that the defendant’s motive was a charitable one; namely to assist her in her financial crisis. It may also be inferred that the arrangement was not to provide the plaintiff with more assistance than she was entitled to in terms of COIDA. In terms of s 73 of the COIDA, the Director General is obliged to pay, for a period of not more than two years from the date of the accident, the reasonable cost incurred by or on behalf of an employee in respect of medical aid necessitated by the accident. The Director General may pay the cost of further medical aid in addition to the 24 months period if in his or her opinion the medical aid will reduce the disablement from which the employee is suffering.

[22] The undertaking was seriously made. It was an offer. It was at least tacitly accepted by the plaintiff. It may be that the undertaking was to be interim one. Presumably this means that the payments would be made until the plaintiff’s financial crisis abated. This is not said. It is not pleaded that there was an implied term to this effect. No evidence was led to the effect that her crisis has _. But the Compensation Fund has paid some money. Her service providers have not sued her.

[24] The agreement contemplated future medical expenses and meals and transport. It did not envisage that any payments would be made before an expense had been incurred.

[25] The letter records an undertaking. The plaintiff accepted it by submitting statement from medical providers to the defendant. Prima facie the undertaking was made with the intention that it be accepted and that this would lead to an enforceable contract. No evidence was adduced by the defendant that destroys the prima facie impression. I am satisfied that the defendant intended to enter into an enforceable contract to pay the plaintiff’s medical expenses stemming from the robbery. I am also satisfied that the undertaking was subject to an implied term that the arrangement was to tide the plaintiff over her financial difficulties. The defendant did not intend to supplant COIDA. The agreement was intended to provide interim assistance while the plaintiff waited for the fruits of COIDA.

[26] How long was the obligation to pay the plaintiff’s to endure? It seems that the outside limit was coupled to the last claim made in terms of COIDA i.e. the claim for medical expenses made before the two year period expired. If the undertaking may have endured longer provided the plaintiff applied in terms of s??? of COIDA for further assistance. There is no evidence that she did this.

[27] Coida provides an all encompassing system for addressing injuries suffered in the course of employment. In Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC), Yacoob J said:

“[13] By way of contrast the effect of the Compensation Act may be summa­rised as follows. An employee who is disabled in the course of employment has the right to claim pecuniary loss only through an ad­ministrative process which requires a Compensation Commissioner to adjudicate upon the claim and to determine the precise amount to which that employee is entitled. The procedure provides for speedy adjudica­tion and for payment of the amount due out of a fund established by the Compensation Act to which the employer is obliged to contribute on pain of criminal sanction. Payment of compensation is not dependent on the employer's negligence or ability to pay, nor is the amount susceptible to reduction by reason of the employee's contributory negligence. The amount of compensation may be increased if the employer or co-employee were negligent but not beyond the extent of the claimant's actual pecuni­ary loss. An employee who is dissatisfied with an award of the Commissioner has recourse to a court of law which is, however, bound by the provisions of the Compensation Act. That then is the context in which section 35(1) deprives the employee of the right to a common-law claim for damages.

[14] The Compensation Act supplants the essentially individualistic common-law position, typically represented by civil claims of a plaintiff employee against a negligent defendant employer, by a system which is intended to and does enable employees to obtain limited compensation from a fund to which employers are obliged to contribute. Compensation is payable even if the employer was not negligent. Though the institution of the regime contemplates a differentiation between employees and others, it is very much an open question whether the scheme is to the disadvantage of em­ployees.”

[28] Section 35(1) of the Compensation Act provides as follows: -

"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."

[29] In terms of s 47(3), an employer is, however, liable for the payment of compensation for the first three months from the date of accident, which compensation shall be repaid to such employer by the Director General from the Compensation Fund.

[30] I am of the opinion that the analysis of Wunsch J is applicable in this case. That dictum reads:

”One purpose of s 100 of the Act is to preclude a person who has received or is receiving benefits under the Compensation for Occupational Injuries and Diseases Act 30 of 1993 in respect of adisease from obtaining benefits in respect of it under the Act. Those who administer Act 30 of 1993 are obliged to enforce it and cannot waive the application of s 100 of the Act so as to admit and pay a claim which it excludes (South African Co-operative Citrus Exchange Ltd v Director-General: Trade and Industry and Another [1997] ZASCA 6; 1997 (3) SA 236 (SCA); . . .

The other function of s 100, set out in ss (2), is to disentitle a person who is or was employed at a controlled mine and has a claim to benefits under the Act in respect of a compensatable disease from obtaining benefits in respect of the disease under 'any other law'. What I have said about the inability of those who administer Act 30 of 1993 to waive the enforcement of s 100 of the Act applies to persons who administer any other statute. If 'any other law' includes the common law, a proposition supported by the contentions which counsel for the defendant has placed before the Court, contrary to the plaintiff's counsel's arguments the other way, there is nothing to preclude the present defendant, a concern in the ,, private sector, from waiving its immunity. A person may 'contract out' of the provisions of a statute if the contracting out is not expressly or by necessary implication prohibited and it is not against public policy to allow him/her to do so (Tompkins v Goltz 1978 (1) SA 88 (W) at 90G-H; Govender v Sana Development Co (Pty) Ltd 1980 (1) SA 602 (D) at 604H-606A; De Wet en Andere v Dauth 1966 (4) SA 57 (O); Multilateral ' Motor Vehicle Accident Fund v Meyerowitz 1995 (1) SA 23 (C) and cases cited in these decisions). Put another way, the waiver by an individual of a right conferred or prescribed by a statute, even if not prohibited in the statute, is ineffective if the right or provision is enacted for the public benefit or embodies a principle of public policy (Springs Town Council v MacDonald; Springs Town Council v Badenhorst 1967 (3) SA 229 (W); Springs Town Council v MacDonald; Springs Town Council v Badenhorst 1968 (2) SA114-(T).

Parties cannot waive a legal principle or rule and thereby seek to confer on a Court a power beyond its jurisdiction. This was held in Nel v Cockroft and Another 1972 (3) SA 592 (T)...

The defendant's counsel drew my attention to the passage of the judgment of the Constitutional Court on Act 30 of 1993 in Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC) in para [17] at 12D-G in which there is a discussion of the constitutionality of s 35(1) of Act 30 of 1993. Section 35(1) of Act 30 of 1993 substitutes compensation under that Act for an action for damages by any employee or a dependant of an employee in respect of any occupational injury or occupational disease as defined in that Act which results in the disablement or death of the employee against the employ­ee's employer. The remarks have no bearing on the maintainability of an action for damages under the Act against a concern which conducts a controlled mine without objection on its part.”

[31] The plaintiff was not employed by the defendant at the time the undertaking was given as a matter of the law of contract. It is not clear what her status was in terms of the Labour Relations Act 66 of 1995.

[32] The plaintiff must show that the defendant waived the right which s 35 of COIDA conferred on it. R H Christie, The Law of Contract 4th Edition 513 – 514 explains that:

Murray J's words in Ex parte Sussens 1941 TPD 15 20 may be taken as a correct statement of the law:

"The necessity for a full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract, in which one party is taken deliberately to have surrendered his rights: there must therefore be proof of an intention so to surrender, which can only exist where there is knowledge both of the facts and the legal consequences thereof."

The necessity to prove knowledge of the rights allegedly waived before it can be said that the conduct in question amounts to waiver, applies equally to a case where the act of alleged waiver has been performed not by the party to the contract himself but by his agent. In Pretorius v Greyling 1947 1 SA 171 (W) 177 Price J said:

"It seems to me, however, that in a matter of waiver it cannot be said that the knowledge of the principal is that of the agent or that knowledge of the agent is that of the principal, because before there is a waiver there must be an unequivocal act done with full knowledge of all the relevant facts as well as of the rights which it is argued have been waived. This knowledge, to be effective in the case of waiver, must be the knowledge of a single person, not partly of one and partly of another, because no intention to waive can be inferred unless the particular person himself who commits the act which is said to constitute waiver knew of the relevant facts and intended to waive the rights of which he was fully aware.

If in this case it is the agent who waived the rights then it must be proved that he himself knew all the relevant facts as well as the principal's legal rights and intended to waive those rights, and it must also be proved that he was authorised to waive his principal's rights.”

Whether a particular act evinces an unequivocal intention to waive a particular right is a question of fact in each case, but some assistance can be derived from cases on facts of frequent occurrence.

[33] Nothing in the plaintiff’s evidence indicates that the company secretary was aware of the provisions of s 35 of COIDA when he made the undertaking, that he was authorized to waive those rights and did waive those rights.

[34] The plaintiff has not shown that the defendant waived its s 35 COIDA rights before it made the undertaking.

[35] In the premises the claim cannot succeed. Absolution from the instance is granted with costs.

______

A. A. LANDMAN

JUDGE

OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 12 SEPTEMBER 2005

DATE OF JUDGMENT: 29 SEPTEMBER 2005

COUNSEL FOR PLAINTIFF: ADV K KEKANA

ATTORNEY FOR PLINTIFF NIENABER & WISSING

COUNSEL FOR DEFENDANT: ADV M G HIGTE

ATTORNEY FOR DEFENDANT: KGOMO, MOKHETLE &TLOU