REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
CASE NOS. 7/2001 and 8/2001
In the matter between

Sasol Synthetic Fuels (Pty) Ltd

First Appellant
Frans Fakude

Second Appellant
ABC Recruitment (Pty) Ltd

Third Appellant

and

Margaret Elizabeth Lambert

First Respondent
Dalishia Mercedes Lambert

Second Respondent
Denzil Daniël Lambert

Third Respondent
Michelle Luverne Issabell Lambert

Fourth Respondent

Before:
Nienaber, Harms, Olivier, Schutz JJA and Froneman AJA

Heard:
16 November 2001
Delivered:
27 November 2001

Supposed clash between s 36(2) of Occupational Injuries and Diseases Act 130 of 1993 and s 1 of
the Assessment of Damages Act 9 of 1969 – whether compensation must or must not be deducted
from common law damages awarded against tortfeasor who is not the employer – s 36(2) the
successor of s 8(1) of the Workmen’s Compensation Act 30 of 1941 – clash between s 8(1) of 1941
Act and 1969 Act resolved by application of presumption against unexpressed repeal and principle
generalia specialibus non derogant – compensation paid must be deducted – s 36(2) of 1993 Act
merely substantially re-enacts s 8(1) of the 1941 Act.
.

J U D G M E N T

SCHUTZ JA
[1] The issue is whether payments made in terms of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (“the 1993 Act”) to a
widow and dependent children in consequence of the death in a workplace
accident of their husband or father, have to be deducted from their delictual
claims for damages against two defendants.  The contention of the plaintiffs is
that the amounts of compensation which they have received constitute
“pensions”, so that they are not deductible from any award of common law
damages, this because of the operation of the Assessment of Damages Act 9
of 1969 (“the 1969 Act”).  In other words their common law claims for
damages for loss of support are not to be reduced by the amounts of
employees’s compensation received.  The opposed contention of the

defendants is that in terms of the  express provisions of s 36(2) of the 1993
Act (quoted below), compensation received by them must be deducted.  The
facts constituting the background to this issue were agreed in the form of a
stated case for its purpose only.
[2] The plaintiffs are Mrs Lambert, the widow of the late Mr Lambert, and
their three school-going children.  Mr Lambert was working as a welder at the
plant of the first appellant, Sasol Synthetic Fuels (Pty) Ltd (“Sasol”), at
Secunda on 6 March 1994 when he suffered burns that led to his death on 3
April 1994.  Sasol was cited as the first defendant in the delictual claims
based on negligence brought by the plaintiffs in the Transvaal Provincial
Division.  The second defendant (now second appellant) was Mr Frans
Fakude, a process controller in the employ of Sasol.  On the day of the
accident he negligently allowed gas to escape, thus causing the fire which
fatally injured Lambert.  At the time Fakude was acting as Sasol’s employee

and within the course and scope of his duties.  Accordingly Sasol is
vicariously liable with Fakude in delict.
[3] Lambert’s employer was not Sasol but a labour broker, ABC
Recruitment (Pty) Ltd (“ABC”), the third appellant, which was joined as a
third party by the two defendants.  The basis of the joinder was a contractual
indemnification of the defendants by ABC against claims of the sort brought
by the plaintiffs.  ABC has made common cause with the defendants in
contending for the deduction of the compensation received.  (It should be
noticed that ABC is a “third party” in the procedural sense – under Uniform
Rule 13 – whereas the two defendants are “third parties” in a quite different
sense – in the sense of s 36(1) of the 1993 Act – as being persons other than
the employer, who are allegedly liable in delict for the damage suffered by the
employee’s dependants.)

[4] Roux J, a quo, determined the stated case in favour of the plaintiffs,
holding that because of the form in which the compensation was received it
consisted of “pensions” such as were not to be deducted, because of the terms
of the 1969 Act, which forbids the deduction of pension monies from
damages awarded to dependants.  He later  granted leave to appeal to this
Court.
[5] At the time of the deceased’s fatal injury s 36 of the 1993 Act read:

“36.(1)
If an occupational injury or disease in respect of
which compensation is payable, was caused in circumstances resulting in
some person other than the employer of the employee concerned (in this
section referred to as the ‘third party’) being liable for damages in respect of
such injury or disease –
(a)
the employee [which includes a dependant of a deceased
employee]  may claim compensation in terms of this Act
and may also institute action for damages in a court of law
against the third party; and
(b)
the commissioner or the employer by whom compensation
is payable may institute action in a court of law against the
third party for the recovery of compensation that he is
obliged to pay in terms of this Act.

(2) In awarding damages in an action referred to in subsection (1)(a)
the court shall have regard to the amount to which the employee is
entitled in terms of this Act.
(3) In an action referred to in subsection (1)(b) the amount
recoverable shall not exceed the amount of damages, if any, which in
the opinion of the court would have been awarded to the employee but
for this Act.
(4) For the purposes of this section compensation includes the cost
of medical aid already incurred and any amount paid or payable in
terms of section 28, 54(2) or 72(2) and, in the case of a pension, the
capitalized value as determined by the commissioner of the pension,
irrespective of whether a lump sum is at any time paid in lieu of the
whole or a portion of such pension in terms of section 52 or 60, and
periodical payments or allowances, as the case may be.” (Emphasis
supplied.)

Post–1993 amendments to s 36 are confined to the replacement of the
commissioner with the Director-General and an alteration of the wording of s
36(2) – see sections 37 and 13 of Act 61 of 1997.
[6] Compensation payable under this Act in some cases takes the form of a
pension, as is prescribed in the definitions of “compensation” and “pension”

in s 1, and in sections 49, 52, 54, 55 and 60 and the fourth schedule of the
Act.
[7] The relevant parts of the 1969Act reads:

“1.
Insurance moneys, pensions and certain benefits not to be
taken into account in the assessment of damages for loss of support. –
(1) When in any action, the cause of which arose after the
commencement of this Act, damages are assessed for loss of support as
a result of a person’s death, no insurance money, pension or benefit
which has been or will or may be paid as a result of the death, shall be
taken into account.

(2)
For the purposes of subsection (1) –
“benefit” means any payment by a friendly society or trade union for
the relief or maintenance of a member’s dependants;
“insurance money” includes a refund of premiums and any payment of
interest on such premiums;
“pension” includes a refund of contributions and any payment of
interest on such contributions, and also any payment of a gratuity or
other lump sum by a pension or provident fund or by an employer in
respect of a person’s employment.” (Emphasis supplied.)

[8] More narrowly then, the issue in the appeal is raised by the supposed
clash, where “compensation” does take the form of a “pension”, between the

requirement that “the court shall have regard to the amount” of compensation
paid, contained in s 36(2) of the 1993 Act, and the exclusion from deduction of
a “pension” in “any action”, contained in s 1(1) of the 1969Act.  In other
words the clash is said to arise because one Act requires that a pension be
deducted from damages whereas the other Act forbids the deduction.
Although there is this conflict if one has regard only to the word “pension”,
that opposition evanesces if one applies the appropriate rules of statutory
construction and has regard to the different purposes and functions of the two
Acts.  In order to do so it is necessary  to go further back in history.
[9] The immediate predecessor of the 1993 Act was the Workmen’s
Compensation Act 30 of 1941 (“the 1941 Act”), which had a broadly similar
purpose and structure to the 1993 Act.  It was, as the Constitutional Court said
of the later Act, “important social legislation which has a significant impact on
the sensitive and intricate relationship among employers, employees and

society at large” – per Yacoob J in Jooste v Score Supermarket Trading (Pty)
Ltd 1999(2) SA 1 (CC) at 9B.  On the one hand it relieved a workman injured
at his workplace (or his dependants if he died) of the need to prove fault, but at
the same time it limited the compensation receivable and exempted the
employer from liability for common law damages.  However, in s 8(1) (the
forerunner of s 36 of the 1993 Act) it provided that where a person other than
his employer was liable for his injury at common law (the “third party” of
today) he could both claim compensation from the commissioner and sue that
other for damages.  The second proviso to s 8(1)(a) provided that when a court
awarded damages it “. . shall, in estimating the damages, have regard to the
amount which that person will be liable to pay to the commissioner or the
employer concerned under the provisions of paragraph (b)” (emphasis
supplied), which latter corresponds to s 36(1)(b) of the 1993 Act.

[10] It will be observed that the phrase “shall . . . have regard to” is identical
to the one used in s 36(2) of the 1993 Act.  As used in the 1941 Act it has been
the subject of a long line of decisions, among them Maasberg v Springs Mines
Ltd 1944 TPD 1 at 10, 12, Klaas v Union and South West Africa Insurance Co
Ltd 1981(4) SA 562(A) at 580F-581D and Senator Versekeringsmaatskappy
Bpk v Bezuidenhout  1987(2) SA 361(A) at 366G-367B.  Several points
emerge from these decisions.  The first is that the phrase “shall . … have
regard to” is to be interpreted to mean that compensation “shall be deducted
from” damages.  The second is that in a case where a “third party” is involved
the workman may be entitled, in the form of compensation plus damages, to
the amount of his full common law damages, but no more.  The third is that the
“third party” may be liable to the workman and the employer or commissioner
taken together for the full amount of common law damages, but no more.

[11] As in the case of the 1993 Act, “compensation” in the 1941 Act may
take the form of a pension: see eg the definitions of “compensation” and
“pension” in s 2 and sections 39, 40 and 49.
[12] Against that background it seems clear that when s 36 was enacted in
1993 the intention was to maintain in its successor the interpretation that the
courts had placed on s 8 – see Ex parte Minister of Justice: In re R v Bolon
1941 AD 345 at 359.  Mr Pienaar, for the plaintiffs, has sought to persuade us
to the contrary, to persuade us that s 36 has set off on a new and opposite
course.  Thus he contends that it is intended that a workman or his dependants
may recover overall more than common law damages, and that the “third
party” may well be liable overall for more than common law damages.  These
contentions are not only startling in themselves, but they run counter to what
has in the past been held to be the purpose of s 8 of the 1941 Act – all this

without a word in the 1993 statute, aping its predecessor as it does, that such a
departure is intended.
[13] In order to arrive at the desired conclusion Mr Pienaar has advanced
further arguments: The first was that the phrase “shall be taken into account”
is to be given the meaning that a discretion is given to the court.  To do what,
one may ask?  And how is a discretion to be accommodated whilst Mr
Pienaar contends at the same time for the applicability of the 1969 Act, with
its imperative “no . . . pension . . . shall be taken into account”?  Secondly, Mr
Pienaar argues for an interpretation of s 36(2) that will reconcile it with the
1969 Act.  Section 36(2) should be read so that it only applies when the
workman lives, so that compensation is deductible from damages when the
workman is merely injured but not when he is killed.  Words to that effect
should be read into the section.  In my opinion there is absolutely no warrant

for such an intrusive and purposeless interpretation, purposeless that is, unless
for the purpose of  awarding the plaintiffs double compensation.
[14] My conclusion so far is that on a proper construction of s 36(2) of the
1993 Act, seen against the background of the 1941 Act and the cases decided
before 1993, compensation has to be deducted from damages also where it
takes the form of a pension and where the workman is deceased.
[15] Does the 1969 Act affect this conclusion?  In my opinion that statute
has nothing to do with the matter.  That is so because of the rule of statutory
construction referred to by Watermeyer CJ in Kent NO v South African
Railways and Another 1946 AD 398 at 405, that statutes:
“must be read together and the later one must not be so construed as to
repeal the provisions of an earlier one, or to take away rights conferred
by an earlier one unless the later Statute expressly alters the provisions
of the earlier one in that respect or such alteration is a necessary
inference from the terms of the later Statute.  The inference must be a
necessary one and not merely a possible one.”

An ordinance of 1903 had conferred powers of expropriation for railway
purposes on the executive of the Transvaal Colony.  A later ordinance of 1905
dedicated certain land, which included the old Wanderers Ground, for ever
“for purposes of or incidental to the recreation and amusement of the
inhabitants” of Johannesburg.  The expropriation of the Wanderers Ground
for the purpose of extending Park station was challenged on the basis of the
1905 dedication.  The challenge failed because there was no express pro tanto
repeal of the 1903 ordinance and no intention to repeal it could be implied.
The principle in the Kent case was applied again in R v Voss :  R v Weller
1961(2) SA 743(A) at 749 A-C.
[16] Translating this principle to the case before us, again in 1969 there was
no express pro tanto repeal of s 8(1) of the 1941 Act, and there were no
indications, even less compelling indications, of an implied intention to
interfere with the structure set up by the 1941 Act.

[17] A closely related principle, generalia specialibus non derogant
(general words (rules) do not derogate from special ones), leads to the same
result.  The matter is put thus in R v Gwantshu 1931 EDL 29 at 31:
“’When the Legislature has given attention to a separate subject and
made provision for it the presumption is that a subsequent general
enactment is not intended to interfere with the special provision, unless
it manifests that intention very clearly.  Each enactment must be
construed in that respect according to its own subject-matter and its
own terms.  This case is a peculiarly strong one for the application of
the general maxim’ per Lord HOBHOUSE delivering the judgment of
the Privy Council in Barker v Edger ([1898] A.C. at p. 754).  ‘Where
general words in a later Act are capable of reasonable and sensible
application without extending them to subjects specially dealt with by
earlier legislation, that earlier and special legislation is not to be held
indirectly . . . altered . . . merely by force of such general words,
without any indication of a particular intention to do so.’  In such cases
it is presumed to have only general cases in view and not particular
cases which have been already otherwise provided for by the special
Act.  Having already given its attention to the particular subject and
provided for it the Legislature is reasonably presumed not to alter that
special provision by a subsequent general enactment unless that
intention be manifested in explicit language . . . (Maxwell,
Interpretation of Statutes, 7th  ed. 153).”

See also Khumalo v Director-General of Co-operation and Development and
Others 1991(1) SA 158(A) at 164C-165D and Consolidated Employers
Medical Aid Society and Others v Leveton 1999(2) SA 32 (SCA) at 40H-41B.
[18] Section 8 of the 1941 Act was clearly a special provision, contained  in
a special act.  The Act, as I have stated, was a social measure, bringing
benefits to workers in some respects but also curtailing their rights in other
respects.  Not only was compensation calculated according to tariffs, but
under s 7 (corresponding to s 35 of the 1993 Act) the workman was deprived
of his common law right of action against his employer.  Section 8 specially
dealt with the interrelationship of compensation and damages where the
common law remained mainly undisturbed – in respect of the liability of a
“third party.”  The 1969 Act, on the other hand, was a general act.  It was not
concerned with workmen as such, but with the generality of cases in which
dependants had suffered loss due to the death of a breadwinner.  It dealt with

pensions in a general way, however wide the meaning of “pensions” under
that Act might be capable of being.  This is a classic case of generalities not
detracting from what was specifically dealt with elsewhere.  The application
of the old rule generalia non derogant leads to the conclusion, sensible in the
result, that s 8 of the 1941 Act, when contrasted with the 1969 Act, dealt with
different subject matters, so that no question of a clash between them arose.
[19] That being so it is  unnecessary to deal with an alternative argument
advanced on behalf of the appellants, that even if the 1969 Act partially
repealed   the 1941 Act, the effect of the later 1993 Act was to re-instate the
1941 position – lex posterior derogat priori (a later statute abrogates an
earlier one).  The argument would clearly be correct if there had been an
implied repeal in 1969, because the later Act explicitly and specially deals
with the question whether compensation, without qualification of its form,
should be deducted from damages.

[20] For all of these reasons I consider that the question of law should be
answered in favour of the appellants – compensation paid under s 36, even if
it be in the form of a pension, must be deducted from any award of common
law damages made in favour of the plaintiffs.
[21] It follows that I differ  from Roux J both as to his conclusion and his
reasons.  The learned judge relied upon three features of the 1969 Act that he
regarded as important.  First, that the 1969 Act is of general application.
Second, that no provision of the 1993 Act excludes its operation.  Third, the
wide definition of the word “pension”, extending beyond the ordinary
dictionary meaning.  As to the first, it is true that the 1969 Act is of general
application, but it is that very generality when set against the specific
provisions of the 1941 Act, that leads to the conclusion which I have sought
to explain, that the 1969 Act was not intended to affect s 8 of the 1941 Act.
As to the second reason, as I believe I have demonstrated, the fact that the

1993 Act does not in terms exclude the operation of the 1969 Act is
irrelevant.  As to the third reason, it is true that the word “pension” has a wide
meaning, but that is nowhere near enough to found an implied repeal of s 8.
Moreover, the fact that the ordinary dictionary meaning is extended by the
statutory definition does not, because of the terms of that extension, affect the
matter.  The learned judge was further of the view that the cases dealing with
the effect of s 8 (I have mentioned only three of them above – there are more)
were decided as they were, either because they were decided before the 1969
Act came into force, or after 1969 only because the courts concerned had not
had the 1969 Act brought to their attention.  In other words, the cases after
1969 were wrongly decided.  I beg to differ, again for the reason that the
generalities contained in the 1969 Act did not affect the special provisions of
s 8.

[22] Sasol has asked that two counsel be allowed.   In the end the case is a
`relatively straightforward one, but the appellants have already lost in one
court and the principle involved is of undoubted importance.  I would allow
two counsel.
[23] In the result the appeal is allowed with costs, including the costs of two
counsel in the case of Sasol.  The orders made by the court a quo are set aside
and replaced with the following:

1.
It is declared that in terms of s 36(2) of Act 130 of 1993, the
compensation received by the first to fourth plaintiffs in terms of that Act falls
to be deducted from any damages awarded to such plaintiffs.

2.
The first to fourth plaintiffs are ordered to pay the costs of the
trial to date, jointly and severally.

W P SCHUTZ
JUDGE OF APPEAL
CONCUR
NIENABER JA
HARMS JA
OLIVIER JA
FRONEMAN AJA