SA HC | Granting amendment to particulars of claim against the Compensation Law which prohibits any action by employee for recovery of damages not justified

South Africa High Court, Eastern Cape Local Division, Port Elizabeth: S.M. Mbenenge, JP, granted leave to appeal under Section 17(2)(a) of the Superior Courts Act (10 of 2013) as the judge (Mageza AJ) was no longer readily available.

Mark Prince, the respondent in the present case worked as a machine operator in the applicant’s fabrication factory. One day, while operating one of the applicant’s metal fabrication machines the respondent sustained an injury. Thereafter, the respondent launched action proceedings to recover damages from the applicant.

Counsel for the applicant, B.C. Dyke, SC, contended that in terms of Section 35(1) of the Compensation for Occupation Injuries and Diseases Act (COIDA) (130 of 199), “no action shall lie by the employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee’s employer.”

The Respondent was directed to amend his particulars of claim, which he did but increased the quantum of the claim to Rs 100 000 (against what the appellant contended).

It was further contended by the applicant that the amended particulars of claim lacked averments necessary to sustain a cause of action.

Counsel for the Respondent, D. Khumalo, SC, contended that Sections 35 and 44 of COIDA are inconsistent with employees’ constitutional rights.

The AJ dismissed the action but agreed on the exception raised by the applicant without furnishing any reasons for doing so. The reasons were furnished after one year and four months of the impugned order.

This Court observed that the amendments introduced by the AJ’s order namely, granting the respondent to amend the particulars of claim and pronouncing that costs be in the cause, constituted a substantial and material alteration, not justified by any lawful dispensation.

It is trite law that once a court has duly pronounced a final judgment or order, the matter is res judicata, and it has itself no authority to correct, alter or supplement it. The reason is that it is functus officio; its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

The applicant was granted leave to appeal to the Full Court of this Division against the AJ’s order in so far as it grants the respondent leave to amend the amended particulars of claim and directs that costs be in the cause.[Safintra South Africa (Pty.) Ltd. v. Mark Prince, Case No. 4036 of 2018, decided on 08-10-2019]

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