RESERVED JUDGMENT Delivered on: 29 January I shall in this matter refer to the parties as plaintiff and defendant.

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1 IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND COAST LOCAL DIVISION 6236/2007 BERNICE VIOLET COLLINS PLAINTIFF versus SERCO INDUSTRIES (PTY) LTD DEFENDANT RESERVED JUDGMENT Delivered on: 29 January 2008 NTSHANGASE, J [1] This was an argument on a special plea. I shall in this matter refer to the parties as plaintiff and defendant. In an action brought in her personal capacity and in a capacity as mother and natural guardian of minor children, the plaintiff claims an amount of R as damages as a result of the death of Clive Lesley Collins ( the deceased ) when he, within the course and scope of his employment with the defendant, was engulfed in flames caused by welding operations conducted by defendant s employee RD Manickum in a spray booth where he was, in a manner, as averred by plaintiff, in which the defendant and its employees in breach of defendant s obligations in terms of the implied terms of a contract of employment concluded orally, deliberately acted wrongfully and unlawfully, alternatively negligently as described in plaintiff s pleadings. 1

2 [2] The defendant has raised a special plea and prayed for dismissal of the action with reference to section 35(1) of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993, ( the Act ) which provides as follows: No action shall lie by an employee or any dependant 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. [3] I have been referred to various authorities including Kau v Fourie 1971(3) SA 623 (T) which was decided in terms of the provisions of section 7(a) of the repealed Workmen s Compensation Act, No. 30 of 1941 which contained provisions similar to those of section 35(1) of the Act. [4] There is no dispute that the deceased was the defendant s employee, that the plaintiff and the minor children, were dependants of the deceased and that the deceased s death was the result of an occupational injury. The latter touches on plaintiff s contention that it resulted from the wrongdoing of the defendant. [5] As Ms Naidoo for the plaintiff submitted, we are not dealing simply with a case that does not fall within the ambit of the Compensation Act. We are dealing with a case that does fall within the ambit, but that in addition to that she is entitled to institute a claim for the damages 2

3 against the employer on the basis of deliberate wrongdoing. As did the facts in Kau s case, the facts in this case do not take the matter out of the ambit of the Act. There is no distinction between the two cases. Those were her submissions. [6] In Kau an employee claimed damages for assault by his employer who was angered after the employer s vehicle driven by the employee was damaged in a collision. Viljoen J decided the case of Kau on the basis of an acceptance that the incident in that case was an accident which arose out of and in the course of a workman s employment and resulting in personal injury. Section 7(a) of the Workman s Compensation Act precluded liability of the employer as does section 35(1) of the Act, by reason of lack of causal connection between the incident and the employment. As pointed out by Mr Jeffrey, for the defendant, the court referred to and applied Minister of Justice v Khoza 1966(1) SA 410 (AD) where Rumpff JA (as he then was) postulated certain exceptions to section 7(a) of the Workmen s Compensation Act, without an attempt to trace them. [7] Ms Naidoo, for the plaintiff advanced the following proposition cited from Thompson and Benjamin, South African Labour Law, Vol 2 H1 35 : However, an employee is not prevented from claiming damages where the accident results from the deliberate wrongdoing of the employer. Mr Jeffrey cites this proposition as follows from Lawsa Vol 30, First Re issue para 288 at fn 12 : 3

4 Where however, an employee has been injured unlawfully, not by reason of the service relationship but by the wrongful and unlawful act of his employer, he may sue the latter at common law. [8] It is this, as submitted on behalf of the Plaintiff, which removes the case from the ambit of section 35(1) of the Act. Mr Jeffrey argued that whereas on the facts of Kau, the causal connection did not exist, in the present case it does and he pointed to the circumstances of the incident which have been explicitly pleaded by the plaintiff in the present case as follows: At all material times welding operations within the spray booth was the norm at the defendant s premises, alternatively a deliberate and standard practice authorised by Holscroft and Govender. Holscroft was the Managing Director of the defendant and Govender the Supervisor and Safety Officer of the defendant. [9] In my view, if one wilfully, wrongfully and unlawfully engulfed another in flames by engagement in welding operations in a spray booth, the fact that such an act is perpetrated where welding is normally done and is standard practice, would not affect the motive and would also not by itself absolve the perpetrator from liability. [10] The position as it appears to me from a reading of the plaintiff s pleadings postulates a position that while welding in the spray booth was the norm and standard practice, the deceased s engulfment in flames has its cause in that the defendant and its employees deliberately acted wrongfully and unlawfully as described in the 4

5 pleadings. That, in my view is an issue which I consider to be an exception proper to remove the act imputed to the defendant and its employees from the ambit of section 35(1) of the Act. In my view the interests of justice will be best served by the ventilation of the issue in court so that the motive, if any, of the defendant and its employees may be considered from the evidence before court, and in order to determine from such evidence whether or not the plaintiff s case in fact falls within that exception. [11] I accordingly make the following order: i) The determination of the issue raised in the special plea is deferred for oral evidence to be heard. ii) Costs are reserved. 5

6 Date of Hearing: 30 November 2007 Date of Judgment: 29 January 2008 Counsel for the plaintiff: Instructed by: Adv LR Naidoo Jay Reddy Attorneys Counsel for the first defendant: Adv AG Jeffrey Instructed by: Carl Van der Merwe & Associates 6

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