THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No. 997/2021
In the matter between:
THE COMPENSATION COMMISSIONER
FIRST APPELLANT

THE DIRECTOR-GENERAL,
DEPARTMENT OF LABOUR OF THE
NATIONAL GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA
SECOND APPELLANT

THE MINISTER OF LABOUR

THIRD APPELLANT

and

COMPENSATION SOLUTIONS (PTY) LTD
RESPONDENT

Case no: 1175/2021
And in the matter between:
COMPENSATION SOLUTIONS (PTY) LTD
APPELLANT

and

THE COMPENSATION COMMISSIONER
FIRST RESPONDENT

THE DIRECTOR-GENERAL,
DEPARTMENT OF LABOUR OF THE
NATIONAL GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA
SECOND RESPONDENT

THE MINISTER OF LABOUR

THIRD RESPONDENT

Neutral citation: The Compensation Commissioner & Others v Compensation
Solutions (Pty) Ltd (Case no 997/2021) and Compensation
Solutions (Pty) Ltd v The Compensation Commissioner &
Others
(Case
no
1175/2021)
[2022] ZASCA
(29 November 2022)
Coram:
PONNAN, VAN DER MERWE and MOTHLE JJA and GOOSEN
and DAFFUE AJJA
Heard:
28 September 2022
Delivered: 29 November 2022
Summary: Compensation for Occupational Injuries and Diseases Act 130 of
1993 (the Act) – interpretation of court order of 31 July 2009 (the 75-day order)
– whether order applies to medical accounts that formed the subject matter of
application 35047/2009 or whether it also applies to medical accounts to be
submitted after 31 July 2009 – whether compliance with the so-called W.CI.20

procedure reflected in the applicable regulations issued pursuant to the Act is
mandatory and a jurisdictional prerequisite to legal proceedings – whether s 32
of the Act prohibits the cession by medical service providers of their medical
accounts.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Teffo J, case no
30147/2018) and (Fourie J, Mali J and Makhoba J, case no 34386/2020 &
34387/2020) sitting as court of first instance):
In the first appeal under SCA case no 997/2021:
1.1
The appeal is upheld with costs, including the costs of two counsel where
so employed.
1.2 The order of the high court is set aside and replaced with the following:
‘a. The application succeeds with costs, including the costs of two counsel
where so employed.
b. An order issues in accordance with Prayer 1 of the notice of motion.’
2    In the second appeal under SCA case no 1175/2021
2.1
The appeal is dismissed with costs, including the costs of two counsel
where so employed.
2.2
The cross-appeal is dismissed with costs, including the costs of two
counsel where so employed.
2.3
The State Attorney shall not be entitled to recover from its clients the fees
and expenses of more than one senior and one junior counsel.
3     The costs occasioned by the postponement of the matter on 5 September
2022 shall be costs in the appeals.

________________________________________________________________
JUDGMENT
________________________________________________________________
Daffue AJA (Ponnan, Van der Merwe and Mothle JJA and Goosen AJA
concurring)

Introduction
[1] Before us are two related appeals. Foundational to each is a settlement
agreement reached between the parties on 31 July 2009 (the settlement
agreement) and, by consent, made an order of court by Makhafola AJ on that day.
That order has come to be described in the litigation as the 75-day order. In the
first matter, the high court (per Teffo J) held that the settlement agreement, and
by extension the 75-day order, was ‘intended to regulate the future relationship
between the parties’. In the second, a specially constituted court (per Fourie, Mali
and Makhoba JJ), sitting as a court of first instance, took the view that Teffo J
was ‘clearly wrong’. We are accordingly required to resolve that difference of
opinion.

[2] In June 2009, Compensation Solutions (Pty) Ltd (CompSol), a private
company that conducts the business of factoring the accounts of medical service
providers (MSP’s), brought an application in the Gauteng Division of the High
Court, Pretoria (the high court) under case no 35047/2009 against the
Compensation Commissioner (the Commissioner), the Director-General of the
Department of Labour (the DG) and the Minister of Labour (the Minister) as first,
second and third respondents respectively (collectively referred to as the State
parties). That matter was settled and pursuant to the settlement agreement the 75-
day order issued.

The two judgments on appeal to this Court
[3] Under case no 30147/2018, the State parties inter alia sought a declaratory
order that the 75-day order was ‘specifically meant and intended to settle the
issues and claims that were the subject matter of litigation between the parties as
on [31 July 2009, incorrectly referred to as 2 June 2009 in the notice of motion]
and upon which [Makhafola AJ] was called upon to adjudicate’. On 17 July 2020
the application was dismissed with costs by Teffo J (the first judgment), who also
subsequently dismissed an application for leave to appeal. The appeal by the State
parties, under appeal number 997/2021, against the order of Teffo J is with the
leave of this Court.

[4] In September 2020, the Judge President of the high court constituted a
special court consisting of three judges to sit as a court of first instance to consider
several claims that had been instituted under case numbers 34386/2020 and
34387/2020 by CompSol, as plaintiff, against the Commissioner and the DG, as
defendants. This, because the same legal issues had featured in many other
matters between the same parties. The defendants raised several special pleas,
eight of which eventually came to be considered by the high court as discrete
legal issues, without the need for the hearing of oral evidence.

[5] On 11 August 2021 a unanimous judgment was delivered by the three
judges (the second judgment). The first special plea was upheld. It found, contrary
to the first judgment, that the settlement agreement and 75-day order did not
‘regulate the processing and payment of claims submitted [by CompSol] after
31 July 2009’. The second special plea, dealing with the alleged premature
institution of proceedings on the basis of non-compliance with the so-called
W.CI.20 procedure reflected in the applicable regulations, was dismissed. The
third special plea, pertaining to the alleged prohibition of the cession of medical
claims relied upon by CompSol, suffered the same fate. The fourth special plea

relating to CompSol’s alleged non-compliance with ss 1 and 2 of the State
Liability Act 20 of 1957 was upheld. This issue, against which there is no appeal
and which pertains to whether the Minister should have been joined, will be
returned to shortly. The fifth special plea was abandoned and the full court
dismissed the other special pleas, all of which are irrelevant for purposes of this
appeal.

[6] CompSol applied for leave to appeal against the upholding of the first
special plea, whilst the Commissioner and DG applied for leave to cross-appeal
the dismissal of the second and third special pleas. On 14 September 2021 the
high court granted leave to the parties to appeal and cross-appeal to this Court.
The appeal and cross-appeal are before us under appeal number 1175/2021.

[7] Thereafter, CompSol applied to the President of this Court for the
consolidation of the two appeals. That, however, was to misconceive the position.
No provision exists in the rules either in this Court or the high court for a
consolidation of appeals. What should have been requested, given the common
ground in both appeals and for reasons of convenience, was that both matters be
set down for hearing on the same day before the same panel of judges. That, in
the event, happened.

[8] The Minister did not initially feature as a party in appeal number
1175/2021. Prior to the hearing of the matter, the presiding judge requested the
Registrar to despatch the following note to the parties:
‘Inasmuch as leave was neither sought nor granted to appeal against paragraph 4 of the order
of the Court below:
1. The appellant is required to indicate as a matter of urgency whether there has been:
1.1 compliance with s 2 of the State Liability Act 20 of 1957; and
1.2 the Minister has been joined as a nominal defendant (see Judgment para 105 – record page
280)?

2. If not, whether the appeal can proceed in the absence of (1.1) and (1.2) above?’

[9] In response, the parties asserted that it was not necessary for the Minister
to be joined as a party and that the matter should be heard and finalised in the
Minister’s absence. This view was shaped in part, it would seem, by the erroneous
view that the appeals had been consolidated. However, when the issue was raised
again at the hearing on 5 September 2022 it was conceded that the Minister was
a necessary party. Consequently, both matters had to be postponed to 28
September 2022 for hearing, with directions for the joinder of the Minister. The
Minister thereafter filed an affidavit, with the leave of this Court, to which
CompSol responded. In the affidavit and in oral argument before us, the Minister
supported the position of the Commissioner and the DG.

Relevant factual background leading up to the 75-day order
[10] MSP’s who have provided medical aid to employees are entitled to the
payment of the costs of such medical aid subject to the provisions of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the Act)
and the regulations. Traditionally medical accounts were submitted by individual
MSP’s to the Commissioner in respect of services rendered by them. Compsol
has its principal place of business in Port Elizabeth, from where it conducts, as
mentioned above, the business of factoring medical accounts payable in terms of
the Act. According to the uncontested evidence in the application for declaratory
relief it has approximately 1400 MSP’s as its customers, consisting of some 4 000
individual service providers. It handled, at that time, 45% of all medical accounts
submitted to the Commissioner. In terms of written agreements with these
customers, Compsol purchases the right, title and interest in medical account
claims against the Commissioner at a discount and takes cession thereof to allow
it to submit claims for payment of the medical accounts so factored and to claim
payment of the validated medical accounts for its own account.

[11] CompSol confirmed in its answering affidavit in the application for
declaratory relief that it had experienced inordinate delays with the finalisation
of payment, which caused it to launch the application in 2009. The second
judgment summarised CompSol’s version and, inter alia, stated that as at 18 May
2009, an amount of about R137 million was outstanding and that 5 500 new
claims were submitted weekly.

[12] As mentioned, numerous actions had been instituted by Compsol against
the Commissioner and DG in the high court since the grant of the 75-day order.
In these actions Compsol invariably relied on the 75-day order as a cause of
action.

The issues
[13] Against that background, three issues arise for determination. These are
whether:
(a)
on a proper interpretation, the settlement agreement and the 75-day order
applied only to the medical accounts that formed the subject matter of the
application that served before Makhafola AJ or also to accounts that were to be
submitted by CompSol in the future;
(b)
CompSol had commenced proceedings prematurely in that it did not
comply with the W.CI.20 procedure contained in the applicable regulations
issued under the Act; and
(c)
s 32 of the Act prohibits cession of the MSP’s claims relied upon by
CompSol.
Issue (a) is common to both appeals and, if answered in favour of the State parties,
would necessarily be dispositive of both appeals in their favour. Issues (b) and (c)
form the subject of the cross-appeal by the State parties under appeal number
1175/2021.

The 75-day order
[14] The settlement agreement reads:
‘BY CONSENT, IT IS ORDERED THAT:
The First Respondent [the Compensation Commissioner] shall process all medical
accounts submitted to him in relation to medical aid provided to employees by medical
practitioners, as envisaged in the Compensation for Occupational Injuries and Diseases
Act 130 of 1993 (“the Act”) within a reasonable time from the submission of such
accounts.

In respect of the submission of a medical account relating to a claim which has been
accepted (i.e. the first respondent has accepted liability for the claim), and in respect of
a medical account submitted after such acceptance, a reasonable time for the
First Respondent to process, validate and effect payment of such validated medical
accounts is within 75 days of acceptance of a claim, or where this occurs after the
acceptance of the claim, the date of submission of such accounts. For avoidance of
doubt, it is recorded that in respect of medical accounts submitted before acceptance of
a claim, the 75 days will be calculated from the date of acceptance of the claim.

The First Respondent shall process the backlog of medical accounts referred to in
Annexure JL12, at page 88 of the Record in this application, by 30 October 2009.

The First Respondent shall pay the Applicant [Compensation Solutions (Pty) Ltd]
interest at the current legal rate of interest (being 5.5 per cent per annum) on all
currently outstanding medical accounts to which the letter of demand dated 25 March
2009 (record, pages 88-9) relates, from such date of demand to the date of payment of
each such respective account.

The Applicant will submit a CD to the First Respondent on a fortnightly basis
containing a list of claims, and the First Respondent shall thereupon provide the status
of each claim, and where the claim has been accepted, the date of such acceptance, to
the Applicant within 7 (seven) days of receipt of the CD.

The parties record their mutual commitment to a functional process in relation to claims
and medical accounts submitted by the Applicant, and a good working relationship in
that regard. Accordingly, to resolve any queries, disputes or discrepancies in relation to
medical accounts submitted for payment, the Applicant and the First Respondent (or
his designated representatives) shall meet weekly at the latter’s Port Elizabeth offices.

This agreement shall apply equally to the Second Respondent [the Director General] as
the party principally responsible for compliance with the obligations and performance
of the functions set out in the Act.

The Respondents shall pay the party and party costs of this application, as taxed or
agreed, including the costs of two counsel.

The Respondents consent to this agreement being made an order of court.

The parties accept the above undertakings in settlement of the above application.

This agreement and its contents are confidential to the parties.’

Evaluation of the parties’ submissions pertaining to the law, the facts and
the aforesaid two judgments
Does the 75-day order regulate the processing and payment of medical claims
submitted after 31 July 2009?
[15] CompSol contended that the word ‘submitted’ in the 75-day order does not
refer to the past tense as held in the second judgment, but should be construed to
refer to the past, present and future and therefore to include future claims as well,
especially when the order is read in context. The phrase ‘medical account(s)
submitted’ is found in paragraphs 1, 2 and 6 of the 75-day order. There is a clear
and apparent difference between the wording of paragraphs 1, 2 and 6, on the one
hand and paragraphs 3 and 4, on the other. Paragraph 1 does not take the matter
any further as it merely records that all medical accounts submitted to the

Commissioner must be processed within a reasonable time. The first group of
paragraphs does not deal with the deadline of 30 October 2009 and interest
payable, which is expressly dealt with in paragraphs 3 and 4 in respect of the
claims submitted by 18 March 2009, being the letter of demand dated 25 March
2009. These last mentioned two paragraphs, dealing with the backlog as at
18 March 2009 provide for processing of those claims by 30 October 2009 and
payment of interest thereon. They do not deal with the thousands of medical
accounts submitted since 18 March 2009 until 31 July 2009.

[16] In my view, the differentiation between the two groups of paragraphs
cannot lead to a conclusion that the parties intended to include future claims
submitted after 31 July 2009. In context, the word ‘submitted’ in these paragraphs
points to the past tense and indicates that the parties intended to deal only with
medical accounts submitted before the date of the order, to wit 31 July 2009. It
seems to me that if the parties had future claims in mind, they would have used
words such as ‘medical claims to be submitted’.

[17] The arrangements pertaining to weekly meetings and the submission of
CDs with lists of claims to be forwarded to the Commissioner on a fortnightly
basis do not support the construction advanced by Compsol. Their apparent
purpose was to address the problems experienced by CompSol in respect of
existing claims. It could hardly be construed as imposing an obligation on the DG
to meet with CompSol to regulate the processing of future claims ad infinitum.
The only business-like and sensible construction therefore is that the envisaged
meetings could only relate to claims that were already extant when the settlement
agreement was concluded.

[18] Bearing in mind the thousands of medical accounts submitted since
18 March 2009 until the date of the issuing of the application at the beginning of

June 2009, as well as several thousand further accounts that would have been
submitted in the period from the date of the application to 31 July 2009, I am
satisfied that the 75-day order regulated the backlogged claims as well as all other
medical accounts which had already been submitted by the time that the 75-day
issued, but not any future accounts to be submitted after this date. CompSol
conceded during oral argument that the 75-day order does not explicitly refer to
future claims (namely claims to be submitted after 31 July 2009). It accordingly
had to accept that the order dealt with the subject matter before the court at the
time, unless it contained a tacit term to the contrary. It could not point to such a
term and I find no such tacit term in the 75-day order.

[19] Paragraph 10 of the 75-day order is the final nail in CompSol’s coffin. It
reads as follows, with my emphasis: ‘The parties accept the above undertakings
in settlement of the above application.’ The ‘above’ application could have had
nothing to do with future medical accounts. The purpose was to settle the issues
that were before the court at the time and not beyond. Put otherwise, the
settlement agreement as contained in the 75-day order was backward-looking and
did not deal with medical accounts to be submitted in perpetuity.

[20] Although this finding means that the State parties have been successful in
both appeals, it is nonetheless important to recognise that the parties agreed that
the period of 75 days was a reasonable period for the Commissioner to process,
validate and effect payment of medical accounts. Also, the high court put its
imprimatur on the agreement. It follows that the settlement agreement and 75-day
order will continue to have precedential value to which the parties are bound,
unless a court may find in the future that in the given circumstances of a particular
case the Commissioner should not be held to this period.

Non-compliance with the W.CI.20 procedure and premature actions
[21] The first of the two issues in the cross appeal is the contention by the State
parties that CompSol had instituted the actions prematurely in that it had failed to
comply with the mandatory billing procedure set out in the regulations issued in
terms of the Act. According to them, the so-called W.CI.20 procedure is a
jurisdictional prerequisite and CompSol’s failure to comply therewith constitutes
a bar to proceeding. In the application for declaratory relief CompSol provided
uncontested evidence in its answering affidavit that the billing procedure was
geared for singular accounts only, but that this procedure had, in any event, been
abandoned by the Commissioner with the introduction of the paperless electronic
system called ‘CompEasy’ and before that the ‘Umhleko’ system. Bearing in
mind the test in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1
(Plascon-Evans) pertaining to the adjudication of opposed applications, there is
no reason not to accept this version, especially as the Commissioner did not
respond thereto in its replying affidavit.

[22] The second judgment held that there was no indication that the regulation
pertaining to unpaid medical accounts was intended to regulate and prescribe the
procedure to be followed regarding the institution of legal proceedings and that
the apparent purpose of the procedure was to regulate enquiries to avoid
thousands of telephone calls regarding unpaid accounts. It held that if the
legislature intended to make compliance mandatory and a jurisdictional
requirement for the institution of legal proceedings, that should have been stated
clearly. I agree. There is accordingly no merit in the cross-appeal in respect of the
dismissal of this special plea.

1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Does s 32 prohibit the cession of medical claims?
[23] The remaining issue in the cross-appeal is whether s 32 of the Act prohibits
the cession of medical claims. Section 32(1) reads as follows:
‘Notwithstanding anything to the contrary in any other law contained, compensation shall not-
(a) be ceded or pledged;
(b) be capable of attachment or any form of execution under a judgment or order of a court
of law;
(c) . . .
(d) be set off against any debt of the person entitled to the compensation.’

[24] The argument of the State parties is entirely dependent on the proposition
that the word ‘compensation’ in s 32(1) includes the cost of medical aid. For the
reasons that follow, the proposition is untenable. Section 32 cannot be read in
isolation but with regard to the scheme of the Act as a whole as well as its object
and purpose. The preamble confirms that it is to provide for compensation for
disablement caused by occupational injuries or diseases sustained or contracted
by employees in the course of their employment or for death resulting from such
injuries or diseases; and to provide for matters connected therewith. As I shall
show, the Act draws a clear distinction between compensation and the cost of
medical aid.

[25] The following relevant definitions are contained in s 1:
‘“compensation” means compensation in terms of this Act and, where applicable medical aid
or payment of the cost of such medical aid.’ (Emphasis added.)

‘“medical aid” means medical, surgical or hospital treatment, skilled nursing services, any
remedial treatment approved by the Director-General, the supply and repair of any prosthesis
or any device necessitated by disablement, and ambulance services where, in the opinion of the
Director-General, they were essential.’

[26] The Commissioner is appointed by the Minister to assist the DG in the
performance of the functions set out in s 4 of the Act and the functions of the
Commissioner are set out in s 6A. A Compensation Fund (the Fund) has been
established in terms of s 15, consisting inter alia of assessments paid by
employers. Section 16 stipulates that the Fund shall be under the control of the
DG and its moneys shall be applied inter alia for ‘(a) the payment of
compensation, the cost of medical aid or other pecuniary benefits to or on behalf
of or in respect of employees in terms of this Act where no other person is liable
for such payment;’. (Emphasis added.) The differentiation between compensation
and medical costs is apparent.

[27] Chapter IV deals with compensation for occupational injuries. Section 22,
the first section under Chapter IV, deals with the right of an employee to
compensation in the event of an accident resulting in the employee’s disablement
and in the event of the employee’s death, their dependents shall, subject to the
provisions of the Act, be entitled to the benefits provided for and described in the
Act. Section 31 provides that the DG may hold an employer individually liable
to deposit such security as in the opinion of the DG is sufficient to cover the
liabilities of the employer in terms of the Act. The heading of the section
distinguishes between compensation and the cost of medical aid. It states:
‘[s]ecurity for payment of compensation and cost of medical aid for employers
individually liable’. The same differentiation is found in s 26 entitling the DG to
refuse to pay either the whole or a portion of compensation on the one hand and
on the other to refuse to pay the whole or any portion of the cost of medical aid.

[28] Section 34 stipulates that compensation owing to the death of an employee
shall not form part of their estate. Surely, insofar as the employee does not
personally have to pay for the medical costs incurred, no claim for payment of
medical costs incurred can form part of the estate of the employee. Therefore, the

reference to compensation in this section can only be compensation as determined
and calculated in Chapter VI.

[29] Chapter VI deals with the determination and calculation of compensation
in ss 47 to 64. In terms of these sections, compensation excludes medical aid or
payment of the cost of such medical aid. Compensation for occupational diseases
is dealt with in Chapter VII and again, if this chapter is considered in context,
especially pertaining to the calculation of compensation, there can be no doubt
that medical aid or payment of the cost of medical aid is excluded from
compensation payable as a result of an occupational disease suffered by an
employee.

[30] Chapter VIII deals with medical aid in ss 72 to 79. It includes the
reasonable costs of conveyance as provided for in s 72. Section 73 deals with
reasonable costs incurred by or on behalf of an employee in respect of medical
aid necessitated by an accident or disease. The fees for medical aid shall be
calculated in accordance with a tariff determined by the DG from time to time as
provided for in s 76. Section 77 prohibits contributions by employees towards the
cost of medical aid supplied or to be supplied in terms of the Act.

[31] Importantly, where it is intended that compensation includes the cost of
medical aid, as envisaged in the definition of ‘compensation’, the Act says so
expressly. For example, subsec 36(4) provides that for the purposes of s 36,
compensation includes the cost of medical aid. Subsection 39(10), in turn,
stipulates that for the purposes of subsec 39(8), compensation includes the cost
of medical aid.

[32] I agree with the second judgment that there are three categories of persons
who might be entitled to claim in terms of the Act, to wit employees, their

dependants in the event of their death and MSP’s who provided medical aid. The
central theme of the Act is the payment of compensation to employees and their
dependants, whereas the payment to MSP’s for medical aid rendered deals with
ancillary matters or matters connected therewith as contained in the preamble.
There can be no doubt that the purpose of s 32 is to protect the interests of
employees against themselves in case of their disablement and their dependants
in the case of their death. Employees are also protected against their creditors as
compensation is not capable of attachment or any form of execution.
Furthermore, no set-off is allowed against the debt of a person entitled to
compensation. None of that finds application to MSP’s. Consequently, for the
reasons given, the cross-appeal must fail.

Costs
[33] I referred to the fact that the hearing of the matter had to be postponed on
5 September 2022. There is no reason why those costs, which were reserved,
should not form part of the costs in the appeals.

[34] The judgment cannot be concluded without dealing with the
Commissioner’s decision to appoint five counsel in appeal 1175/2021. When the
matter was called on 5 September 2022, the State parties were represented by
seven counsel in total, a senior and junior in appeal 997/2021 and a senior and
four juniors in appeal 1175/2021. This Court called for an explanation as to why
it was deemed necessary to appoint so many counsel. When the appeal was
eventually heard, the State parties were only represented by two counsel in appeal
1175/2021 and as previously, the two other counsel in appeal 997/2021. Money
that could be made available for the payment of compensation to worthy
claimants was wasted on unnecessary legal costs. There was simply no
explanation as to why that many counsel were briefed. It would accordingly not

be appropriate for the State Attorney to recover from its clients in appeal
1175/2021 the fees and expenses of more than one senior and one junior counsel.

Conclusion
[35] The parties were in agreement that the costs should follow the result. In
conclusion, appeal 997/2021 should be upheld, such costs to include the costs of
two counsel where so employed. Both the main and cross-appeals in appeal
1175/2021 should be dismissed with costs, such costs to include the costs of two
counsel where so employed.

Order
[36] The following order is made:
In the first appeal under SCA case no 997/2021:
4.1
The appeal is upheld with costs, including the costs of two counsel where
so employed.
4.2 The order of the high court is set aside and replaced with the following:
‘a. The application succeeds with costs, including the costs of two counsel
where so employed.
b. An order issues in accordance with Prayer 1 of the notice of motion.’
5    In the second appeal under SCA case no 1175/2021
5.1
The appeal is dismissed with costs, including the costs of two counsel
where so employed.
5.2
The cross-appeal is dismissed with costs, including the costs of two
counsel where so employed.
5.3
The State Attorney shall not be entitled to recover from its clients the fees
and expenses of more than one senior and one junior counsel.
6     The costs occasioned by the postponement of the matter on 5 September
2022 shall be costs in the appeals.

________________________
J P DAFFUE
ACTING JUDGE OF APPEAL

Appearances
For appellants in appeal 997/2021:  S S Maakane SC and A N Tshabalala
Instructed by:
State Attorney, Pretoria

State Attorney, Bloemfontein

For respondent:
P G Robinson SC and C J Welgemoed
Instructed by:
VDT Attorneys, Pretoria
Phatshoane Henney Attorneys,
Bloemfontein

For appellant in appeal 1175/2021
(respondent in cross-appeal):
P G Robinson SC and C J Welgemoed
Instructed by:
VDT Attorneys, Pretoria
Phatshoane Henney Attorneys,
Bloemfontein

For respondents
(appellants in cross-appeal):
J O Williams SC and W N Mothibe
Instructed by:
State Attorney, Pretoria

State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  29 November 2022
Status: Immediate

The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal

The Compensation Commissioner Others v Compensation Commissioner Solutions (Pty) Ltd
(997/2021) and Compensation Commissioner Solutions (Pty) Ltd  v  The Compensation Commissioner
& Others (1175/2021) [2022] ZASCA 165 (29 November 2022)

Today the Supreme Court of Appeal (SCA) handed down a judgment pertaining to two
related appeals. The SCA was faced with two judgments from the high court that came
to different conclusions. The SCA upheld the appeal in the one matter (appeal no
997/2021) with costs and dismissed the appeal in the other (appeal no 1175/2021)
with costs. The cross-appeal in the last-mentioned appeal was dismissed with costs.
The issue common to both appeals was the interpretation of a settlement agreement
which was made an order of court by consent on 31 July 2009. This order had become
known between the parties as the 75-day order. The one high court judgment (the first
judgment) – the subject of appeal no 997/2021 - held that the parties thereto ‘intended
to regulate the future relationship’ between them. In the other judgment (the second
judgment) – the subject of appeal no 1175/2021 - a specially constituted court sitting
as a court of first instance held differently.
Compensation Solutions (Pty) Ltd (CompSol) conducts the business of factoring
accounts of medical service providers (MSP’s) in order to claim in its own name
payment from the Compensation Commissioner (the Commissioner) under the
Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the Act).
During 2009 it experienced inordinate delays in obtaining payment amounting to
millions of rands. It brought an application against the Commissioner, the Director-
General of the Department of Labour and the Minister of Labour (the State parties)
that culminated in a settlement agreement and the 75-day order. A scheme was
devised and encapsulated in the 75-day order in an attempt to solve the problem.
Since then it has instituted numerous actions, relying on the 75-day order as a cause
of action, to claim payment from the Commissioner and the Director-General in terms
of the Act. These actions were defended by the defendants, relying on several special

pleas, but eventually most claims were settled. In the process litigation between the
parties was rife and enormous legal costs have been incurred.
The SCA considered the 75-day order and held that in context the use of the word
‘submitted’ pointed to the past tense and held that the parties intended to deal only
with medical accounts submitted before the date of the order, to wit 31 July 2009. The
only businesslike and sensible construction of the 75-day order is that the
arrangements in respect of weekly meetings and the submission of CD’s with lists of
claims were meant to deal with already extant claims and not claims in future ad
infinitum.  The SCA held although the State parties have been successful in both
appeals, the parties agreed that the period of 75 days was a reasonable period for the
Commissioner to process, validate and effect payment of medical accounts.
Therefore, as the high court put its imprimatur on the agreement, that order will
continue to have precedential value to which the parties are bound until a court may
find in future that in the given circumstances of a particular case the Commissioner
should not be held to this period.
The first issue arising from the cross-appeal is the following: did CompSol commence
proceedings prematurely as it did not comply with the W.CI.20 procedure contained in
the applicable regulations which the State parties submitted was a mandatory and
jurisdictional requirement for the institution of legal proceedings.  The SCA rejected
this argument in agreeing with the second judgment that if the legislature had such
intention, it should have made it clear. It held that the special plea was correctly
dismissed.
The second issue arising from the cross-appeal is whether s 32 of the Act prohibits
the cession of the MSP’s claims relied upon by Compsol. The section stipulates that
compensation shall not be ceded or pledged, may not be attached in execution, or set
off against any debts of the person entitled to the compensation. The SCA considered
the section with regard to the scheme of the Act as a whole and its object and purpose
and held that ‘compensation’ in s 32(1) did not include the cost of medical aid. The
purpose of s 32 was to protect the interests of employees entitled to compensation
under the Act or their dependants in the case of their death. MSP’s did not require
similar protection.
Finally, the SCA commented on the State parties’ decision to appoint seven counsel
in total, five in appeal no 1175/2021 and two in appeal no 997/2021. An explanation
was sought, but the decision could not be explained. The SCA held that the State
Attorney shall not be entitled to recover from its clients the fees and expenses of more
than one senior and one junior counsel in appeal no 1175/2021.

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