The plaintiff claims for additional compensation in terms
of section 9 of the National Social Security Authority (Accident Prevention and
Workers Compensation Scheme) Notice (1990) (hereinafter referred to as “the Notice”).
The plaintiff is a former employee of the first defendant.
The second defendant is the General Manager of the National Social Security
Authority (NSSA). He is cited in his official capacity in terms of section 9 of
the National Social Security Authority (Accident Prevention and Workers
Compensation Scheme) Notice (1990).
The analogy of events leading to this claim is as follows.
The plaintiff was employed by the first defendant from 1990
to February 2006 as a Cibra Machine Operator and as an assistant operator of a
Tapeline machine. On 20 April 2006, the plaintiff was involved in a workplace
accident resulting in his right hand getting trapped between the rollers of the
Tapeline machine which had developed a fault. The plaintiff's hand was crushed
resulting in him suffering 65 per cent permanent disability. The plaintiff
permanently lost the use of his right hand and he received compensation from the
National Social Security Authority under the Workers Compensation Insurance
Fund in 2007 and receives a monthly pension. The plaintiff claims that the
accident was caused by the negligence of the employer.
In January 2008, the plaintiff instituted a claim against
the first defendant under HC421/08. The claim was based on the averment that
the defendant caused the accident through its negligence and the plaintiff
claimed damages for loss of income, pain and suffering, permanent
disfigurement, loss of future earnings and future medical expenses. At the end
of the hearing, the trial judge entered judgment in favour of the plaintiff.
The court found that the claim before him was one for additional compensation
and awarded the plaintiff damages. The first defendant appealed the decision on
the basis of two main grounds;
(i) The first ground was that the court a quo erred at law
in finding that the claim by the plaintiff was one for additional compensation
in terms of the National Social Security Authority (Accident Prevention and
Workers Compensation Scheme) Notice (1990).
(ii) Secondly, that the court a quo erred in its approach
to quantification of damages.
The Supreme Court set aside the decision of the High Court
on September 20, 2011.
No reasons were given for the order.
In November 2011, a fresh set of summons was issued by the
plaintiff against the first and second defendants.
The plaintiff brought yet a similar claim, in terms of section
9 of the National Social Security Authority (Accident Prevention and Worker's
Compensation Scheme) Notice (1990).
The second defendant emerged joined to the claim.
In this claim, the second defendant is cited in his
official capacity as General Manager of the National Social Security Authority.
The plaintiff claims additional compensation on the basis that the compensation
from the National Social Security Authority is inadequate. He claims
compensation under the same categories as in the first claim. He gives
particulars of negligence which I will not summarise as they are not relevant
to this judgment. The plaintiff justified the claim on the second basis that a
new party, thus the General Manager for the National Social Security Authority
has been added to the claim.
At the hearing of this matter, counsel for the defendants…,
raised two points in limine which she requested the court to deal with before
going into the merits of the matter. Counsel submitted that the claim has
prescribed, and, further, that the matter is res judicata.
Counsel representing
the plaintiff opposed the application.
Counsel for the
plaintiff submitted, in response, that the plaintiff prosecuted his claim to
final judgment and that the previous claim was interrupted in terms of section
19(3) of the Prescription Act [Chapter 8:11].
Prescription begins to run when the debt or other cause of
action arises.
Prescription is interrupted by the service of process on
the debtor thus commencement of a suit. In Du Bruyn v Joubert 1982 (4) SA 69,
the court laid down the requirements of interruption as follows;
(1) There must be process;
(2) The process must be served on the debtor; and
(3) By that process, the creditor must claim payment of the
debt.
For process to interrupt prescription, the claimant is
required to prosecute the claim to final judgment and not abandon the matter. In
the same case, the court held that if the judgment is set aside for whatever
reason, interruption will not take place.
The first issue that this court is being asked to resolve
is whether this claim has prescribed.
Section 19 of the Prescription Act [Chapter 8:11] deals
with interruption of prescription. It reads, in part, as follows,
“19 JUDICIAL
INTERRUPTION OF PRESCRIPTION
(1) ….,.
(2) The running of prescription shall, subject to
subsection 3, be interrupted by the service on the debtor of any process
whereby the creditor claims payment of the debt.
(3) Unless the debtor acknowledges liability, the
interruption of prescription in terms of subsection (2) shall lapse and the
running of prescription shall not be deemed to have been interrupted, if the
creditor –
(a) Does not successfully prosecute his claim under the
process in question to final judgment, or
(b) Successfully prosecutes his claim under the process in
question to final judgment but abandons the judgment or the judgment is set
aside.”
This section deals with judicial interruption of
prescription.
This court had occasion to consider the issue of judicial
interruption of prescription in Chiwawa v Mutzuris 2009 (1) ZLR 72. The facts of this case are as follows. The
parties entered into a verbal agreement for sale of a property in November
2002. This was followed, in July 2003, by a signed written agreement over the
same property and transfer was not effected. In June 2004, the plaintiff filed
an application for transfer of the property and the court dismissed the
application in May 2005 on the basis that there were disputes of fact that
could not be resolved on the papers and that the matter should have come by way
of trial. In November 2006, the plaintiff issued summons to compel transfer of
the property. The defendant raised the defence of prescription and the court
upheld the defence.
The plaintiff appealed to the Supreme Court under SC4/11.
The plaintiff contended that prescription had been interrupted by the issue of
process in 2004 and insisted that the claim had not prescribed.
GARWE JA considered the use of the word 'successfully' in
the phrase “does not successfully prosecute his claim under the process to
final judgment,” in section 19(3)(a) of the Prescription Act [Chapter 8:11]. To
aid it in its interpretation, the court followed the interpretation given to section
15(2) of the Prescription Act 68 of 1969 of South Africa in the case of Van Der
Merwe v Protea Insurance Co Ltd 1982
(1) SA 770 (E). That section is similar to our section 19. At p 773 C-D,
SMALBERGER J remarked as follows;
“It seems to me that the whole purpose of s15(2) is that,
if a creditor fails to prosecute successfully his claim under the process which
interrupts prescription, either in the court in which such process commences
legal proceedings, or on appeal to a higher tribunal, or, having been
successful in the initial prosecution of his claim, abandons the judgment in
his favour, or it is set aside on appeal at the instance of the debtor, the
running of prescription is deemed not to have been interrupted. (Evins v Shield
Insurance Co. Ltd 1980 (2) SA 814 (A) at 827G-828A; Titus' case supra at 704C
[Titus v Union & SWA Insurance Co. Ltd 1980 (2) SA 701 (Tk)]…,.”
The court, at p 793A-C, went further and remarked as follows;
“The 'process in question' is clearly that by which
prescription was originally interrupted. It is that process which must be
successfully prosecuted to final judgment by the creditor, and not any other.
The reference to 'final judgment', in the context, contemplates judgment in the
court in which process is instituted or, if the creditor is unsuccessful in
such court, any higher tribunal in which the creditor is ultimately successful
on appeal in relation to the 'process in question.' When a creditor is
successful in the court in which the process in question commences legal
proceedings prescription stands interrupted until the judgment is abandoned or
set aside on appeal.”
After analysing this case, and others, the court in Chiwawa
v Mutzuris 2009 (1) ZLR 72 held that;
“The creditor is required to successfully prosecute his
claim to final judgment before prescription shall be deemed to have been
interrupted. He is not simply required to prosecute his claim to final judgment
and that there must be a successful prosecution to final judgment in the sense
that the creditor must obtain a judgment in its favour.”
The court in Chiwawa v Mutzuris 2009 (1) ZLR 72 held, further, as follows;
“Paragraph (b) of subs 3 of s 19 has, without doubt, put
the matter beyond argument. It has provided that if the creditor successfully
prosecutes his claim under the process in question to final judgment but
abandons the judgment or the judgment is set aside then prescription shall not
be deemed to have been interrupted. As the respondents' have correctly pointed
out in their heads of argument, one can only abandon a judgment given in one's
favour. Similarly, in the context of subs 3(b), only a judgment in one's favour
can be set aside on appeal or review.
I am satisfied that on a correct reading of the section and
regard being had to the cases cited above, the correct interpretation is that
there must be a successful prosecution to final judgment in the sense that the
creditor must obtain a judgment in its favour. The suggestion by the appellant
that the section simply means that the creditor must pursue the matter to final
judgment ignores the use of the word 'successfully' and renders the word
superfluous.”
The effect of section 19 of the Prescription Act [Chapter
8:11] is succinctly explained in these cases. I agree with the position adopted
in these cases. Put simply, the effect of section 19(2) of the Prescription Act
[Chapter 8:11] is that process issued in
respect of a debt and served on a debtor within three years of the cause of
action has the effect of interrupting prescription. The running of prescription
shall not be deemed to have been interrupted, in terms of section 19(3) of the
Prescription Act [Chapter 8:11] if the creditor;
(a) Does not prosecute the proceedings under that process
to finality; or
(b) Successfully prosecutes the claim under the process in
question to final judgment but he abandons the judgment or the judgment is set
aside.
The mischief behind the section is that the creditor must
successfully prosecute the matter to final judgment and must get a judgment in
his favour. If he does not, he is entitled to pursue the matter until he gets
final judgment in his favour. He is only entitled to successfully prosecute to
final judgment the proceedings under the process in question that is, the
process by which prescription was originally interrupted and not any other.
The defendant was injured in 2006. That is the date when
the plaintiff's cause of action arose. The prescriptive period began to run from
the date the plaintiff sustained the injury. The plaintiff was required to
bring proceedings within three (3) years of the occurrence in terms of section 15
of the Prescription Act [Chapter 8:11].
The first claim against the first defendant was bought in
2008.The first suit against the first defendant was brought within the
prescription period. It was timely brought. The effect of the service of
summons commencing action in the High Court action had the effect of
interrupting prescription. The plaintiff was entitled to successfully prosecute
this claim to final judgment. The judgment of the High Court was set aside on
appeal. It does not matter whether it was set aside on the basis of the merits
or on technicalities. Prescription stood interrupted as the plaintiff had not
successfully prosecuted his claim to final judgment. The plaintiff was entitled
to pursue his claim under the process in question until he obtained final
judgment in his favour.
The plaintiff did not prosecute the first claim to finality.
Those proceedings stand interrupted. The plaintiff can still pursue these
proceedings
This matter is on all fours with Chiwawa v Mutzuris 2009 (1) ZLR 72. In both cases the
plaintiffs did not prosecute the initial proceedings to finality. They then sought
to bring fresh proceedings.
The plaintiff claims for additional compensation in terms
of section 9 of the National Social Security Authority (Accident Prevention and
Worker's Compensation Scheme) Notice (1990). Section 9 of the Notice states as
follows:
“Notwithstanding anything to the contrary contained in this
scheme, if a worker meets with an accident which is due:-
(a) To the negligence -
(i) Of his employer; or
(ii) Of a person entrusted by his employer with the
management or in charge of such employer's trade or business or any branch or
department thereof; or
(iii) Of a person having the right to engage or discharge
workers on behalf of his employer; or
(b) To a patent defect in the condition of the premises,
works, plant or machinery used in such trade or business, which defect his
employer or any person referred to in para (a) has knowingly or negligently
failed to remedy or caused….,;
the worker or, in the case of his death as a result of such
accident, his representative, may, within three years of such accident, proceed
by action in a court of law against his employer, where the employer is an
employer individually liable, or otherwise against his employer and the General
Manager, jointly, for further compensation in addition to the compensation
ordinarily payable under this scheme. Provided that in the case of an action in
which the employer and the General Manager are joined, nothing in this section
shall be construed to mean that any compensation awarded under this section is
payable by the employer.”
Liability in a claim for additional compensation is based
on proof of negligence on the part of the employer. A party bringing a claim
for additional compensation is required to cite both the employer and the National
Social Security Authority. He has to cite the employer in order that he may be
able to establish the negligence element of the claim and the National Social
Security Authority because it is the authority responsible for payment of
compensation.
The claim cannot be successful in the absence of either of
the two defendants and hence the decision to join the second defendant.
Although the reasons why the judgment of the High Court was
set aside were not given, it appears that the first defendant's ground of
appeal that the court erred in finding that the claim before it was for
additional compensation was upheld. Realising that a claim for additional
compensation would not succeed without adding or joining the second defendant
to the claim, the plaintiff issued summons against both defendants. A second
set of summons was issued in November 2011. To this claim is now introduced the
second defendant who was not previously cited.
These are fresh proceedings.
In order for additional compensation proceedings to succeed
they ought to be brought within three years of the accident.
When one has regard to the requirements of interruption of
prescription, it is clear that none of the requirements were met. There was no
process served on the second defendant within the three year prescriptive
period. The second defendant was not served with any summons until the
plaintiff lost in the Supreme Court - and more than five (5) years after the
occurrence of the accident. By this time, the prescriptive period had run out
and the cause of action against the second defendant lapsed. The plaintiff
failed to bring the claim against the second defendant within the prescription
period as required in terms of the law. The second defendant was not part of
the interrupted proceedings. Because the plaintiff failed to bring the second
defendant to the fore within the required time, he cannot do that now.
Where a suit has been timely filed against one defendant,
the filing of that suit does not interrupt prescription as against other
defendants not served with the process. Prescription is not interrupted where a
party is subsequently added to the same suit in circumstances where the party
sought to be joined was not timely served with process. The proceedings by
which prescription was originally interrupted are the proceedings which must be
prosecuted to finality under the process. A litigant cannot bring a fresh set
of summons and hope that those too will fall under cover of previous process
that interrupted process in the first claim. The second defendant was not part
of the initial proceedings, the claim against him has prescribed.
The second set of summons was brought out of time for both
defendants. The preliminary point disposes of the case. It will not be
necessary for me to determine the second point related to res judicata. The
defendants' special plea is upheld.
In the result, it is ordered as follows;
1. The defendants are absolved from the instance.
2. The plaintiff shall bear the costs of this
application.
