THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 326/2020
In the matter between:

DEPARTMENT OF LABOUR:
THE COMPENSATION COMMISSIONER

APPELLANT

and

ROEBEL STEPHANUS BOTHA

RESPONDENT

Neutral citation: Department of Labour: The Compensation Commissioner v
Botha (Case no 326/2020) [2022] ZASCA 38 (04 April 2022)
Coram:
PETSE DP and SCHIPPERS, NICHOLLS and CARELSE JJA and
MEYER AJA
Heard:
17 February 2022
Delivered:  This judgment was handed down electronically by circulation to the
parties’ legal representatives via email. It has been published on the Supreme
Court of Appeal website and released to SAFLII. The date and time for hand-
down is deemed to be at 12h00 on 04 April 2022.

Summary: Labour law – Compensation for Occupational Injuries and Diseases
Act 130 of 1993 – whether injury on duty resulted in disablement – extent of
permanent disablement and compensation payable – remittal to tribunal for
determination.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: North Gauteng Division of the High Court, Pretoria (Leso AJ
and Baqwa J, sitting as court of appeal):
The appeal and the cross-appeal succeed in part.
The order of the court a quo is set aside and replaced with the following
order:
‘(a)
The decision of the Tribunal is set aside and it is declared that the
appellant is entitled to compensation as envisaged in s 22(1) of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993, as
amended (COIDA).
(b)
This matter is remitted to a Tribunal constituted in terms of s 91(3)
of COIDA for a decision on the appellant’s degree of disablement as a
result of the accident on 26 January 1998.
(c)
The Tribunal shall finalise this matter within six (6) months of the
date of this order, including a calculation of the amount of compensation
payable to the respondent.
(d)
The respondent shall pay the costs of the appeal, which costs shall
include the costs of two counsel, where so employed.
The appellant shall pay the costs of the appeal and cross-appeal, which
costs shall include the costs of two counsel.

________________________________________________________________
JUDGMENT
________________________________________________________________

Nicholls JA (Petse DP and Schippers and Carelse AJJA and Meyer AJA
concurring):
[1] This appeal concerns a claim in terms of the COIDA by a claimant who
was injured while on duty, 24 years ago. COIDA was introduced as social
legislation to provide for compensation for disablement or death caused by
occupational injuries or diseases sustained or contracted by employees in the
course of their employment.1 It is a system of no-fault compensation which
relieves the employee of having to prove negligence, simultaneously relieving the
employer, on payment of contributions to the Compensation Fund, of the
eventuality of an expensive damages claim. COIDA has ‘a significant impact on
the sensitive and intricate relationship amongst employers, employees and society
at large’.2

[2] The appellant, the Compensation Commissioner (the Commissioner), has
appealed against a judgment of the North Gauteng Division of the High Court,
Pretoria (Leso AJ with Baqwa J concurring) (the high court), sitting as a court of
appeal, in terms of s 91(5) of COIDA. The high court reversed the decision of a
Tribunal, set up in terms of s 91(3) of COIDA, not to award any compensation to
Mr Roebel Stephanus Botha (Mr Botha), the respondent. It granted an order
setting aside the decision of the Tribunal and declaring Mr Botha to be 60%
permanently disabled. The Commissioner was ordered to calculate the amount
owing to Mr Botha within 30 days of the order. No order was made as to costs.

1 Preamble to COIDA.
2 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC); 1999 (2)
BCLR 139 (CC) para 9.

[3] Mr Botha filed a cross-appeal against the high court’s order that he was
60% permanently disabled, and the costs order. He contended that although
correct in upholding his appeal, the high court erred in determining that he was
60% permanently disabled. He contends that he is 100% permanently disabled
and should not, in any event, have been deprived of his costs as he was
substantially successful. Special leave to appeal was granted by this Court in two
separate applications, in respect of the appeal as well as the cross-appeal.

[4] Mr Botha’s right to compensation arises out of s 22(1) of COIDA, which
provides that ‘[i]f an employee meets with an accident resulting in his
disablement or death such employee or the dependants of such employee shall,
subject to the provisions of this Act, be entitled to the benefits provided for and
prescribed in this Act’. The jurisdictional requirements for compensation under s
22(1) are as follows: (i) the person must be an employee as defined in COIDA;
(ii) she or he must have been injured, contracted a disease, or died in an accident
as defined in COIDA; (iii) the accident must have occurred in the course and
scope of the employment; and (iv) the accident must have been the cause of the
injury and resultant disablement suffered by the employee.

[5] It is common cause that most of the requirements of s 22 have been met. It
is not disputed that Mr Botha was an employee as defined in COIDA. Nor is it
disputed that he injured himself in an accident whilst on duty. It is not contended
that Mr Botha is excluded on any administrative grounds of non-compliance with
the provisions of COIDA. Importantly, it is not disputed that he is permanently
disabled and has been unfit to work since the accident. Mr Botha is therefore
entitled to compensation in terms of s 22 of COIDA, if he can show that the
accident resulted in his disablement.

[6] The central issue in this appeal is whether there is a causal connection
between the accident that occurred whilst Mr Botha was on duty and the
permanent disability which he, admittedly, suffers. What gives rise to this inquiry
is the Tribunal’s finding that, in light of Mr Botha’s pre-existing medical
conditions at the time of the accident, the medical evidence does not show that
Mr Botha’s permanent disablement was caused by the injury he suffered on duty.

[7] On 26 January 1998, a police motor vehicle in which Mr Botha was a
passenger, collided with a mini-bus taxi while giving chase to a suspect. As a
result of the collision he suffered a whiplash injury and muscle spasms. He
resumed work the following day, 27 January 1998, and on the same day was
treated by Dr Griesel, who found him unfit to work.

[8] In order to contextualise the extent of the injury he suffered on 26 January
1998, it is necessary to delve into Mr Botha’s medical history. This is complicated
by a dearth of medical evidence documenting exactly what occurred, and the date
thereof. From the limited records, the following can be gleaned:
(a)
In 1995 or 1996 (according to both a psychologist’s report and an
occupational therapist’s report dated in May 2012), Mr Botha suffered a neck
injury while training for the South African Police Service specialised police
reaction force. He was in severe pain and reported the injury to the training
instructor, but did not lodge a claim with the Commissioner in respect of this
incident. The consequences were severe – he began losing balance, experienced
weakness in his legs, headaches, frequent urination, and stiffness in both hands.
He was diagnosed as having had a spinal stroke.
(b)
On 3 November 1997, a letter from a neurosurgeon, Dr Daan de Klerk,
states that Mr Botha has an ‘interesting history . . . the left leg is weakening. He
is becoming cripple, but no pain’. The MRI is reported to have shown that there
was a gross disc prolapse at C5-6 and degeneration at L4-5 vertebrae. The greatest

problem was ‘his extremely narrow canal and serious compression of the cord
and the MR already reflect[ed] central changes in the chord’.
(c)
On 4 November 1997, Mr Botha underwent his first spinal fusion. Dr de
Klerk noted the presence of ‘massive osteophytes’ as well as ‘midline pressure’.
According to the occupational therapist Mr Botha complained that he was
allowed only one month off work. This meant that he returned to duty without
having properly recuperated.
(d)
Less than 3 months later, on 26 January 1998, the motor vehicle collision,
which is the subject of this claim, occurred. It is not clear exactly what Mr Botha’s
state of health was at this time. Dr Griesel, who saw him the following day, found
him unfit to work due to ‘whiplash injury (soft tissue), muscle spasms: neck,
shoulders, arms and L leg’. This finding was confirmed by Dr Griesel in other
medical reports in terms of COIDA during 1998.
(e)
In March 1998, only two months after the accident, Mr Botha underwent
his second cervical spine fusion operation.
(f)
A follow up examination with Dr de Klerk on 21 January 1999 records that
Mr Botha had stabilised, but his foot remained a problem.
(g)
On 22 September 1999, he consulted a neurologist, Dr Bhagwan, who
reported that Mr Botha indicated that he had ‘a 2 year history of numbness in the
upper limbs precipitated by abducting his shoulders. He is presently walking with
the aid of one elbow crutch and this he has been doing since 26 January 1998. He
also experiences a burning sensation in his lower back and has spasms in the right
lower limb and right upper limb’. He was assessed as having ‘left C5/6
myeloradiculopathy’ and ‘severe hypercholesterolaemia’. As the date of the
injury on duty is incorrectly recorded as being on 27 January 1998, it is not clear
if Mr Botha was using the crutch before the motor vehicle collision or afterwards.
(h)
On 22 March 2000, Dr Griesel completed a medical report in terms of
COIDA in which he concluded that Mr Botha was permanently incapacitated and
his condition had not stabilised.

(i)
There are no available medical records from 2000 until 2011 when it is
recorded that Mr Botha had undergone three ankle fusion procedures and the
excision of the coccyx.
(j)
On 31 January 2011, Dr Rossouw completed a medical report in terms of
COIDA in which he found Mr Botha 80% physically impaired and 50%
intellectually impaired. A follow up report by Dr Rossouw on 18 October 2011
concluded that he had 80% loss of function, 30% psychological loss, and 60%
whole body impairment; he would never work again; his condition had not
stabilised and was progressive; and he may require further corrective surgery.
Reference was made to triple arthrodesis on the left ankle and excision of the
coccyx.
(k)
On 15 May 2012 and 20 May 2012 respectively, Dale Davidson, a clinical
psychologist, and Ms P Naidu, an occupational therapist, provided reports setting
out Mr Botha’s disability in their respective fields. The extensive report of Ms
Naidu provided a detailed overview of his disability and concluded that as a result
of the injury at work and the subsequent surgeries his disabilities were of a
permanent nature.
(l)
On 7 August 2012, Dr Rossouw found that Mr Botha was permanently
unfit for work and that his condition would progressively deteriorate – the issue
was not loss of movement but loss of strength.
(m)
The final medical report in terms of COIDA was that of Dr Basson, dated
15 August 2013, wherein he certified that the injuries were the result of the
accident and found that Mr Botha’s condition had not stabilised and that he was
unfit for work. He also noted the anatomical defects as being on the neck and the
ankle, with a loss of movement.

[9] Despite the above, and contrary to the findings in the medical reports, the
Commissioner wrote to Mr Botha on 31 January 2014 refusing an award for
compensation on the basis that Dr Rossouw had found that he suffered no

permanent disability as a result of the accident. However, this was factually
incorrect, as Dr Rossouw had stated in his report that Mr Botha was permanently
incapacitated.

[10] The refusal prompted Mr Botha to lodge an objection in terms of s 91(3)
of COIDA. The Tribunal set up in terms of COIDA dismissed the objection. The
reasons provided were that Mr Botha had a pre-existing injury to the neck which
had resulted in a C4-C6 cervical fusion. The whiplash injury sustained in the
motor vehicle accident had aggravated the pre-existing injury, which led to
another fusion in exactly the same place. Reference was made to a report by
Dr Basson on 22 September 1999 (this was clearly meant to refer to
Dr Bhagwan’s report dated 28 September 1999), in which it was recorded that
Mr Botha had been on crutches for a two-year period prior to the consultation. As
Mr Botha consulted with Dr Bhagwan on 22 September 1999, this period must
have commenced in 1997 before the injury on duty took place on
26 January 1998, so reasoned the Tribunal. In addition, Mr Botha had had surgery
to his left ankle in 1999, which was unsuccessful, as well as three operations in
2011. There was no medical report which linked the arthrodesis of the left ankle
and big toes and the C5-6 myeloradiculopathy to the on-duty motor vehicle
accident. The tribunal concluded, in light of the above, that Mr Botha was unable
to rebut the conclusion of the Commissioner that he suffered from pre-existing
‘degenerative spon[d]ylotic changes with end plate osteophytosis and disc space
narrowing throughout his lumbar spine’.

[11] The high court set aside the Tribunal’s decision and declared that Mr Botha
was 60% permanently disabled. It ordered the Commissioner to calculate the
amount payable to Mr Botha within 30 days. No reasons were given by the high
court for its finding of 60% permanent disablement.

[12] On appeal to this Court, it was argued by counsel for the Commissioner
that, in light of his previous health problems, Mr Botha had not shown that the
injury he suffered in the accident on 26 January 1998 resulted in his permanent
disablement. Put differently, Mr Botha had failed to prove on a balance of
probabilities that the cause of his permanent disablement was the injury he
sustained on duty. It was correctly, and very fairly, conceded by counsel for the
Commissioner that the appropriate and equitable course of action would be to
refer Mr Botha for a further medical examination. The purpose would be to
consider whether the accident on duty aggravated his pre-existing medical
condition to the extent that it rendered him permanently disabled.

[13] The first inquiry is whether any causal link has been established. In
Basson v Ongevallekommissaris,3 an employee with a pre-existing back injury
had an accident while on duty. Concerning the causal connection between the
injury and the disablement, the court held that it was not required that the injury
suffered by the employee should be exclusively as a result of the accident. It was
sufficient that it be a ‘contributing factor’ to the injury. The court therefore held
that the Commissioner would still be liable if the pre-existing condition was
exacerbated by the accident, rendering the employee incapacitated, in that but for
the accident, the employee would not have suffered the injury presently
complained of.

[14] On the facts before this Court, it is clear that the whiplash injury
exacerbated the pre-existing injuries. Drs Griesel, Rossouw and Basson all
certified, in the medical reports submitted in terms of COIDA, that they were
satisfied that the injury had been caused by the accident. The tribunal itself found
that the ‘whiplash injury aggravated the pre-existing neck injury and affected the

3 Basson v Ongevallekommissaris [2000] 1 All SA 67 (C).

fusion on levels C4-C6’. A causal link has thus been established between the
injury suffered on duty and the permanent disablement of Mr Botha.

[15] This leads to the second inquiry, which is to what extent the pre-existing
injury contributed to his permanent disablement. This is impossible to establish
on the medical records before this Court. What is however apparent from the
evidence is that Mr Botha has suffered permanent disablement. This has had a
devastating impact on his quality of life and there is no doubt that he should be
compensated for this. The question is the extent of his disablement and how his
previous medical history impacted on his permanent disablement.

[16] Compensation for permanent disablement is regulated by s 49 of COIDA,
which provides:
‘(1)(a) Compensation for permanent disablement shall be calculated on the basis set out in
items 2, 3, 4 and 5 of Schedule 4 subject to the minimum and maximum amounts.
(2)(a) If an employee has sustained an injury set out in Schedule 2, he shall for the purposes of
this Act be deemed to be permanently disabled to the degree set out in the second column of
the said Schedule.
(b) If an employee has sustained an injury or serious mutilation not mentioned in Schedule 2
which leads to permanent disablement, the Director-General shall determine such percentage
of disablement in respect thereof as in his opinion will not lead to a result contrary to the
guidelines of Schedule 2.
(c) If an injury or serious mutilation contemplated in paragraph (a) or (b) has unusually serious
consequences for an employee as a result of the special nature of the employee’s occupation,
the Director-General may determine such higher percentage as he or she deems equitable.’

[17] Counsel for Mr Botha argued that in terms of the deeming provisions of
s 49(2)(a) read with Schedule 2 of COIDA, Mr Botha is 100% disabled. That
section deems as permanently disabled, to the degree set out in Schedule 2, an
employee who has sustained an injury identified therein. The severity of the

injury is determined with reference to Schedule 2, which then attributes a
percentage of disability as a result of the injury. Schedule 2 lists the injuries in
the first column and the percentage of permanent disability allocated to each
injury in the second column. The injuries primarily relate to the loss of a body
part, such as a limb, toe, finger, eye, and loss of sight or hearing. In addition, the
Schedule provides for 100% permanent disability for certain injuries, such as total
paralysis. It is the sixth item in the first column on which counsel for Mr Botha
relies. This provides that if an employee suffers any injury not listed in the
Schedule which leads to permanent total disablement, she or he will be deemed
to be 100% disabled. It is on this basis that it is contended that Mr Botha is 100%
disabled. Given his incapacity, it is argued, the high court misdirected itself, with
reference to Schedule 2, by declaring Mr Botha to be 60% disabled.

[18] This argument is devoid of merit. It is inconceivable that any injury not
listed in Schedule 2 should attract an award of 100% permanent disablement,
irrespective of the nature of the injury. There are countless injuries which an
employee may suffer in the workplace which are not listed in the Schedule. As
pointed out by this Court,4 almost anything which unexpectedly causes illness,
injury to, or death of, an employee falls within the concept of an accident. Should
an injury, which is not listed in Schedule 2, befall an employee as a result of such
an accident, this does not axiomatically mean that he or she is 100% disabled.
The extent of the disability must be determined in light of the facts of the specific
case and according to medical evidence.

[19] Further, this argument ignores s 49(2)(b), which grants the Director-
General a discretion to determine a percentage of permanent disablement for a
serious injury not provided for in Schedule 2. The section specifically states that

4 Churchill v Premier, Mpumalanga and another [2021] ZASCA 16; [2021] 2 All SA 323 (SCA); [2021] 6 BLLR
539 (SCA); 2021 (4) SA 422 (SCA) para 14.

the result should not be contrary to the guidelines set out in Schedule 2. In
applying these guidelines, courts have cautioned against applying a mechanical
approach to Schedule 2.5 It should also be borne in mind that the schedules are
no more than a set of administrative guidelines issued by the Director-General to
assist decision-makers exercising powers in term of COIDA.6 Where the injuries
have not been listed in Schedule 2 it has not been the approach of the courts to
invoke the deeming provision. Rather, Schedule 2 has been used as a guideline in
determining what is fair and reasonable compensation once the extent and nature
of the permanent disablement has been established by the relevant medical
experts.7

[20] In the particular circumstances of this case and in the absence of any
evidence to that effect, there is no option but for the Commissioner to obtain
further medical reports, detailing the extent to which the pre-existing injuries
were the cause of Mr Botha’s current permanent disablement. Once these have
been procured the Tribunal should determine the compensation payable with the
benefit of proper medical evidence. In coming to its decision, the Tribunal should
bear in mind that employees should be assisted as far as possible and any
interpretation should be to the benefit of the employee.8

[21] Cognisant that Mr Botha was injured 24 years ago, and submitted his claim
for compensation in August 1998, strict time limits are to be imposed on the
Tribunal to make its determination. The delays in finalising his claim are

5 Healy v Compensation Commissioner and Another 2010 (2) SA 470 (E) paras 19 and 21.
6 Ibid para 2 where the court held that a knee injury not included in Schedule 2 rendered the employee 45%
permanently disabled as opposed to the 18% determined by the Tribunal.
7 Odayar v Compensation Commissioner 2006 (6) SA 202 (N); (2006) 27 ILJ 1477 (N); Urquhart v Compensation
Commissioner [2005] ZAECHC 32; [2006] All SA 80 (E); [2006] 1 BLLR 96 (E); Compensation Commissioner
v Georgia Badenhorst [2022] ZAECHC 1 (E); Pretorius v The Compensation Commissioner and Another [2007]
ZAFSHC 128 (FB); J L v Rand Mutual Assurance [2019] ZAGPJHC 392 (GJ).
8 Davis v Workmen’s Compensation Commissioner 1995 (3) SA 689 (C) 694F-G; Urquhart v Compensation
Commissioner [2006] 2 All SA 80 (E); 2006 (1) SA 75 (E) 84A-C; Pretorius v The Compensation Commissioner
and Another [2007] ZAFSHC 128 (FB) para 15.

unreasonable, egregious and unexplained. There is no reason why medical reports
setting out as accurately as possible the extent to which the accident on duty
contributed to Mr Botha’s permanent disablement, should not be obtained within
six months. Should Mr Botha require his own medical report, this too should be
obtained within the six-month period. I can see no reason why the latter should
not be at the Commissioner’s expense, in view of the fact that it relates to an
injury on duty.

[22] As to costs, it was conceded by counsel for the Commissioner that the
Biowatch principle should apply and, indeed, that the only reason for the remittal
is because the Tribunal erred in the first place when it decided that no
compensation whatsoever was payable. This being the case, there is no reason
why Mr Botha should be out of pocket, especially taking into account the
unconscionable delay in finalising his claim. Both parties employed two counsel
and accepted that any costs award should reflect this.

[23] To the extent that condonation was sought by both parties for the late filing
of the cross-appeal and the heads of argument respectively, it is hereby granted.

[24] In the result I make the following order:
The appeal and the cross-appeal succeed in part.
The order of the court a quo is set aside and replaced with the following
order:
‘(a)
The decision of the Tribunal is set aside and it is declared that the
appellant is entitled to compensation as envisaged in s 22(1) of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993, as
amended (COIDA).

(b)
This matter is remitted to a Tribunal constituted in terms of s 91(3)
of COIDA for a decision on the appellant’s degree of disablement as a
result of the accident on 26 January 1998.
(c)
The Tribunal shall finalise this matter within six (6) months of the
date of this order, including a calculation of the amount of compensation
payable to the respondent.
(d)
The respondent shall pay the costs of the appeal, which costs shall
include the costs of two counsel, where so employed.’
The appellant shall pay the costs of the appeal and cross-appeal, which
costs shall include the costs of two counsel.

____________________
C H NICHOLLS
JUDGE OF APPEAL

APPEARANCES

For appellant:
M Sikhakhane SC (with him, S Nhantsi)

(Heads of argument drawn by Z Z Matabese SC, with him S
Nhantsi)
Instructed by:
The State Attorney, Pretoria

The State Attorney, Bloemfontein

For respondent:
T P Krüger SC (with him, H Worthington)
Instructed by:
Gildenhuys Malatji Incorporated, Pretoria

Honey Attorneys, 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:

04 April 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
Department of Labour: The Compensation Commissioner v Botha (326/2020) [2021] ZASCA 38 (04 April 2022)
The Supreme Court of Appeal (SCA) today upheld an appeal and cross-appeal in part, thus setting aside the order
of the court a quo and remitting the matter to a Tribunal set up in terms of s 91(3) of Compensation for
Occupational Injuries and Diseases Act 130 of 1993, as amended (COIDA). The appellant was ordered to pay the
costs of the appeal, in accordance with the Biowatch principle.

The appellant, the Compensation Commissioner (the Commissioner), appealed against a judgment of the North
Gauteng Division of the High Court, Pretoria (Leso AJ and Baqwa J) (the high court), sitting as a court of appeal,
in terms of s 91(5) of COIDA. The high court reversed the decision of a tribunal, set up in terms of s 91(3) of
COIDA, not to award any compensation to the respondent. It granted an order setting aside the decision of the
tribunal and declaring the respondent, who was the appellant in the high court, to be 60% permanently disabled.
The appellant, the respondent in the high court, was ordered to calculate the amount owing to the respondent
within 30 days of the order. No order was made as to costs. The respondent filed a cross-appeal against the high
court’s order, contending that although correct in upholding his appeal, the high court erred in determining that
he was 60% permanently disabled. He contended that he was 100% permanently disabled and should not have
been deprived of his costs, as he was substantially successful.

The central issue in the appeal was whether there was a causal connection between the accident that occurred
whilst the respondent was on duty and the permanent disability which he, admittedly, suffered. The SCA found
that the first inquiry was whether any causal link had been established between the injury suffered on duty and
the permanent disablement of the respondent. On the facts, it was clear that the whiplash injury exacerbated the
pre-existing injuries. The doctors who examined the respondent all certified that they were satisfied that the injury
had been caused by the accident. The tribunal itself found that the whiplash injury aggravated a pre-existing neck
injury. A causal link had thus been established.

The second inquiry was to what extent the pre-existing injury contributed to the respondent’s current status. The
SCA found that that was impossible to establish on the medical records before the court. What was however
apparent from the evidence was that the respondent had suffered permanent disablement. The question then was
the extent of the respondent’s disablement and how his previous medical history impacted on his present
disablement.

The SCA held that the respondent was to obtain medical reports which detail the extent to which the pre-existing
injuries caused the respondent’s current permanent disablement. Once these had been procured, the SCA held, the
matter should be remitted to the tribunal for determination of the compensation payable with the benefit of proper
medical evidence. The SCA held further that strict time limits were to be imposed on the tribunal to make its
determination within six months.
~~~~ends~~~~