Don’t Waste KZN 1 (Pty) Ltd and Others v Compensation Fund and Others (Appeal) (A378/2023) [2025] ZAGPPHC 525 (2 June 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No. A 378/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
2 June 2025
SIGNATURE:
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In
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DON’T
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FIRST
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DON’T
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SECOND
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DON’T
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THIRD
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DON’T
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FOURTH
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DON’T
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FIFTH
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DON’T
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SIXTH
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DON’T
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SEVENTH
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DON’T
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EIGHTH
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DON’T
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NINTH
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DON’T
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TENTH
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DON’T
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ELEVENTH
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and
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THE
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FIRST
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THE
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SECOND
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MINISTER
TW
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THIRD
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DEPUTY
BOITUMELO
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FOURTH
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THE
OF
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FIFTH
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LE
GRANGE AJ (KHUMALO J (Ms) et MILLAR J CONCURRING)
INTRODUCTION
[1]
The
central issue in this appeal is the question whether the provisions
of the Compensation for Occupational Injuries and Diseases
Act[1]
(COIDA), and more specifically section 91 thereof, constitute an
internal remedy, as envisaged in section 7(2)(a) of the Promotion
of
Administrative Justice Act[2]
(PAJA).
This is a matter where the dispute relates to a decision taken to
classify the appellants in terms of COIDA.
[2]
In this regard, the court of first instance
found that it does, and that the court has no jurisdiction to
entertain the appellants’
review of the impugned decision. The
relevant portion of the judgment reads as follows:
‘[26]
Failure to initiate and or to initiate and failure to prosecute does
not extinguish the
existence of a remedy.
[27]
Sect 91 of COIDA is found in chapter X under heading legal procedures
and states
that any person who is affected by a decision of the
Director General may within a prescribed time lodge an application
with the
Commissioner. A decision to classify according to assessment
tariffs is such a decision. Applying parity of reason, a person
affected
by such a decision may raise an objection to such
classification and as a consequence request such classification to be
reconsidered.
If with success a reclassification results. The
decision to classify remains the prerogative of the Respondents.
…
[31]
Any internal remedy means just that, any, and thus does not exclude
the procedures
of sec 91. In flows that the 2-12 applicants must, as
the First Applicant attempted, first have exhausted the internal
remedy of
sec 91 or perhaps more aptly in this case, having regard to
the facts and duration, on application clearly set out exceptional
circumstances in terms of sec 7(2)(c) upon which a Court could have
exempted them from compliance in the interest of justice.’
[3]
The court a
quo granted the appellants leave to
appeal this finding.
COIDA
[4]
The sections relevant to this matter
provide that:
‘83
Assessment of employer
(1)
Subject to the provisions of this section, an
employer shall be assessed or provisionally assessed by the
Director-General according to a tariff of assessment calculated on
the basis of such percentage of the annual earning of his, her
or its
employees as the Director-General with due regard to the requirements
of the compensation fund for the year of assessment
may deem
necessary.
.
. .
91
Objections and
appeal against decisions of Director-General
(1)
Any person affected by a decision of the Director-General or a trade
union or employer’s organization
of which that person was a member at
the relevant time may, within 180 days after such decision, lodge an
objection against that
decision with the commissioner in the
prescribed manner.
(2)(a)
An objection lodged in terms of this section shall be considered and
decided by the presiding officer assisted by two assessors
designated
by him, of whom one shall be an assessor representing employees and
one an assessor representing employers.
(b)
If the presiding officer considers it expedient,
he may, notwithstanding paragraph (a), call in the assistance
of a
medical assessor.” [Empasis
added]
[5]
It is correct that section 83 bestows the
power to assess or provisionally assess upon the Director-General, as
the court of first
instance found, but the act together with the
Industry Classifications, Classes, Subclasses and Assessment
Tariffs/Classification
list/Table of Assessment Rates (TAR),
and the facts should however further be
considered.
[6]
It
is common cause that the business or operation, in which the
appellants are engaged, is not specifically mentioned in the TAR,
for
which reason, the
Commissioner invoked
clause 4 thereof. To this end the
respondents (collectively referred to as the Fund)
themselves stated[3]:
“9.16
The [Commissioner] has invoked the above provision, which gives him
the discretion, in classifying
the [appellants]. It should be noted
that the Industry Classification document does not specifically
refers to the employers or
business carrying out the activities
similar to those of the [1st
to 11th
appellants].
9.17
The nearest classification available that the Compensation Fund could
allocate the [1st to 11th appellants] is 1201.”
[7]
Clause 4 of the TAR provides, in relevant
part, that:
“If
the business or operations, in which an employer is engaged, is not
specifically mentioned in the Table of Assessment Rates the
Commissioner may apply such assessment rate to the employer’s
business or operations as he may under the circumstances consider
equitable…”
[8]
Form the above it is clear that the duty to
assess or provisionally assess, according to a tariff, lies with the
Director-General,
however if the business activity is not
specifically mentioned in the TAR, the duty to “apply
such assessment rate to the employer’s business or operations
as he may under the circumstances consider equitable”
befalls
the Commissioner.
[9]
Two aspects emerge from the above: (i)
Since section 91 only provides for an internal remedy against the
Director-General’s decisions,
and since COIDA does not provide for a
similar remedy against a decision of the Commissioner, that in my
view disposes of the main
issue, that the court a
quo should have entertained the matter
at least on this basis; and (ii) It is not sought of the Commissioner
to classify a business
into a specific classification, where no such
classification exists. The Commissioner is to consider the risk of
the business and
apply an assessment rate to the employer which is
fair and equitable. In the premises the classification in such an
instance is
ancillary and what is more important is that the
assessment rate should be equitable.
180
DAYS LIMITATION PROVISION IN PAJA
[10]
In limine,
the Fund objected to the review, being brought in terms of the
provisions of PAJA, on the basis that it was brought beyond the
180
days as provided for in section 7(1) of PAJA.
[11]
The chronological facts, relating hereto,
is common cause and as follows:
[12]
Don’t
Waste Shared Services (Pty) Ltd (Shared Services) and the appellants
(collectively referred to as Don’t Waste Group)
was initially
classified under sub-classification 1711.[4]
[13]
Following
a re-assessment application and a physical visit and valuation by the
Fund’s inspectors, the Commissioner on 28
February 2020
reclassified the Don’t Waste Group under sub-classification 1201.[5]
[14]
It is the Fund’s submission that the
appellants had to apply for the rescission of this decision by no
later than 180 days
from this latter date.
[15]
However,
on 1 March 2020, Don’t Waste Group sent a letter to the
Commissioner stating that the re-classification was incorrect,
requested its intervention, and proposed a meeting. Don’t Waste
Group were of the view that Shared Services should, due to
its
administrative business managing the group, be re-classified as under
2210[6] and the appellants
(whose employees actively sorted the waste) under 1960[7]
– which is the classification given to their ‘direct
competition, in the same industry, which is similarly responsible
for
the sorting of waste’, an allegation which was not denied by
the Fund. The latter classification which makes sense as
it has a
lesser risk and hence a lesser assessment tariff attached to it, to
which I will return.
[16]
Following 8 months of silence from the
Fund, and various complaints by Shared Services that its business
suffer damages due to this
lack of response, they on 20 July 2021,
lodged a completely new re-assessment application.
[17]
Due to a further lack of proper response,
notwithstanding frequent follow-ups, the Commissioner ultimately, a
year later, on 11
March 2022 requested further documents, which were
provided on 4 April 2022 together with a completely new re-assessment
application.
[18]
On 11 April 2022, the Commissioner informed
Don’t Waste Group that the matter is escalated to the relevant
department and
a response should be awaited within 21 working days.
[19]
Due to the Fund’s failure to respond,
Don’t Waste Group filed motion proceedings on 23 August 2022.
[20]
Part A of the application was instituted on
an urgent basis during that month, the primary purpose being to
compel the Fund to decide
regarding the reclassification of the Don’t
Waste Group, i.e. to either allow or to disallow their
re-classification as prayed
for in the Notice of Motion.
[21]
This relief was achieved on 8 September
2022 when the Fund, in a letter addressed by the State Attorney,
communicated that they
had made the decision to:
[21.1]
allow the reclassification of Shared Services as sub-classification
2210
under CLASS XXII; and
[21.2]
disallow the reclassification of the appellants as sub-classification
1960
as sought in the Notice of Motion.
[22]
By entertaining a new re-classification
application (dated 4 April 2022) and by making the above decision
consequent to this new
re-classification application, the Fund opened
the door for the appellants to have this
latter decision(s) be reviewed and set aside, the 180 days
effectively being reset (to the date of this decision) and in this
instance of no consequence.
[23]
For this reason, the point in
limine stands to be dismissed.
IMPUGNED
DECISION
[24]
According to the appellants, their
“businesses involves the sorting
of waste (of which approximately 3% thereof consists of the sorting
of glass) at the premises of
their various clients, whereafter the
removal of the waste is outsourced to third parties. This is a
function that should usually
be fulfilled by the local Municipality.
Accordingly the business of the Second to Twelfth Applicants should
fall squarely within
sub-classification 1960, which is described in
the Classification List as “property managing, including service
flats, township
and/or estate managing in connection with which the
functions of a local authority are not carried out and no
agricultural operations
are carried on (any agricultural operations
carried on are subject to the rates for Class I), the business of
advertising agent
(including bill posting) and/or contractor;
commercial artist and/or designer; enquiry and/or collecting agent;
labour recruiting
agent; messenger agency.”
[25]
As stated above, on or about 25 February
2020 the Commissioner made the administrative decision to classify
Don’t Waste Group
under CLASS XII and more specifically under
sub-classification 1201, which is described in the TAR as follows:
“GLASS,
BRICK, TILES, CONCRETE, etc.
…
1201
Leaded lights manufacturing; glazing; bevelling and/or silvering,
including the business of a glass merchant”.
[26]
The appellants are of the view that this
classification is irrational as their respective business operations
and the risks associated
with their business activities
(the nature of which is not disputed) clearly did not fall within the
scope of this patently incorrect classification
and more importantly
that the assessment rates is not associated with the risk of the
subclass and hence equitable. For this reason,
they filed a new
application for re-classification which ultimately culminated in the
review before this Court.
[27]
Considering whether the appellants’
business should have been classified as ‘manufacturing’
or ‘glass merchants’
the Fund’s own investigation
into the nature of the appellants’ business becomes relevant.
[28]
In this regard, the Fund’s
investigators on 21 February 2020 stated, in relevant part, as
follows:
“2.
DISCUSSION
2.1
Don’t Waste Pty Ltd consists of 12 branches in which one branch
named [Shared Services]
is the head office responsible for the admin
work for all other 11 branches …
The
nature of the business performed on the sites is waste sorting
(papers, plastic, glasses and cans) at the back area of premises
of
the client refer to attached (page 14), then collection is outsourced
to service providers (Waste Group, Remade recycling, Lothlorion
wastepaper, Ace of waste cc and Skip waste) as agreements attached.
3.
RECOMMENDATION:
3.1
We suggested that subclass 1550[8]
(0.53%) to be applied as from start to all mentioned above reference
numbers for Don’t Waste PTY LTD.”
[Emphasis
added.]
[29]
Considering the above, the classification
of, or the application of the assessment rates to, the applicants as
similar to ‘manufacturers’
or ‘merchants’ as
well as the investigators’ own recommendation to classify them
as ‘trade and commerce’,
is simply wrong as it nowhere
indicated that manufacturing or selling (especially glass) took place
– acts which would substantially
increase the risk to any
employee.
[30]
In argument the Fund’s counsel
correctly conceded that the appellants do not manufacture, buy or
sell the waste and never
becomes owner thereof. The appellants simply
sort waste into different categories of paper, plastic, glasses and
cans, similar
to, or an extension of, a hotel employee who takes out
the waste and sort it before it is collected by the waste removals.
[31]
It is further evident from the
investigator’s report that the applicants do ßßnot
bring anything onto site or remove anything for site –
something which would also increase the risk – and that the
sorting is done at the back of the premises of the client.
[32]
What is further lacking in the Fund’s
papers is their reasons why the respondents’ decisionmakers
decided to astray
from their own inspectors’ or the inspector’s
reasons why they made the recommendation they did, which makes the
decision
arbitrary and even more irrational.
[33]
In the premises, I find that the impugned
decision to be arbitrary and not to be rationally connected to the
information before
the Commissioner.
[34]
I further find that to the extent that the
Commissioner classified the appellants it be wrong in law as the
Commissioner is not
to classify but to apply the equitable assessment
rate, and at the most regard for practical reasons a specific
classification.
FURTHER
AND/OR ALTERNATIVE RELIEF
[35]
Save to seek the review and the setting
aside of impugned decision, the appellants, in the second part of
Part B of the notice of
motion, request the Court to regard this
matter as exceptional and to substitute, by virtue of section
8(1)(c)(ii)(aa) of PAJA,
the decision the Commissioner by classifying
them under sub-classification 1960.
[36]
Whether there are indeed exceptional
circumstances, the following must be considered:
[37]
The Fund in their papers persist that their
classification of the appellants is correct and that there is no need
for the Court
to interfere. They also blamed the appellants own
failure to clarify that they do not transport the waste which was the
cause for
the first erroneous classification.
[38]
The Fund alleged that: “[t]he
classification is always made on the information provided by the
employees themselves although the Compensation Fund may visit
the
employer premises for investigation and certainty.”
The allegation is correct, however, the Fund themselves, after
obtaining their investigative report, failed to follow its
recommendation,
and more important failed to explain why they did
so. In argument before this Court, it however became
evident by concession
that the classification (under 1201) is
palpably wrong.
[39]
I find that: (i) the lack of the Fund’s
proper response, which spans over a 4 year period; and more
importantly (ii) the Fund’s
persistence with a clear and
irrational decision in their papers; (iii) the investigator’s
wrong recommendation based upon
its own information; and (iv) the
fact that there is more than enough facts before court, the most
important of which is the nature
of the respondents’ business
which remains undisputed, that this matter is exceptional, which
warrant this Court’s
intervention to the extent that the
Commissioner’s decision must be substituted.
[40]
Considering that the risk under which the
hotel employee conducts waste sorting, which is similar to what the
appellants’
employees do, this Court can with certainty find
that the assessment rate applicable to the former would be equitable
to the latter.
[41]
Regarding costs, I find no reason why the
costs should not follow suit albeit on scale C, due to the
complexities of the arguments.
ORDER
[42]
In the circumstances, I propose the
following order:
[40.1]
THAT the appeal is upheld.
[40.2]
THAT the second respondent’s decision to classify the
appellants under
sub-classification 1201 is reviewed and set aside
and substituted by the follow:
“The
assessment rates associated with sub-classification 1960 of the
Industry Classifications, Classes, Subclasses
and Assessment Tariffs is to be applied to each and
every of the appellants from 28 January 2020”.
[40.3]
THAT the respondents are ordered to apply the assessment rates
associated
with sub-classification 1960 to each and every appellant;
and where practically necessary to regard the appellants as
classified
in terms of sub-classification 1960.
[40.4]
THAT the first and second respondents are ordered to, within 10 days
of this
order, provide each of the appellants with an assessment,
reflecting those amounts due to the first respondent as from 28
February
2020 in terms of the above assessment rate, for the purpose
of enabling the appellants to make payment of any amount that may
still
be due to the first respondent in terms of the above
assessment.
[40.5]
THAT the first and second respondents are ordered to reverse any and
all
such charges and penalties that may have been levied against the
applicants since 28 February 2020, as a result of their failure
to
correctly reclassify the appellants as set out above.
[40.6]
THAT the first and second respondents are ordered to, immediately
upon payment
by the applicants of any outstanding amount due in terms
of the aforementioned assessment, issue the appellants with the
necessary
Letters of Good Standing, provided all other prescribed
requirement have been complied with.
[40.7]
THAT the first and second respondents are ordered to pay the costs of
the
appeal, jointly and severally, to include the costs of counsel on
Scale C.
A.J.
LE GRANGE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
AGREE AND IT IS SO ORDERED
NV
KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
AGREE,
A
MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
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HEARD
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17
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JUDGMENT
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2
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COUNSEL
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ADV.
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INSTRUCTED
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COX
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REFERENCE:
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MS.
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COUNSEL
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ADV.
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INSTRUCTED
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OFFICE
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REFERENCE:
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MR.
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[3]
Bundle
p 213 paras 9.16 and 9.17.
[4]
CLASS
XVII, AIR, ROAD TRANSPORT HAULIERS, etc., Sub-class 1711, The
business of carriage, transport or sanitary service contractors;
strewing of fertilizer as a business.
[5]
CLASS
XII, GLASS, BRICK, TILES, CONCRETE, etc., Sub-class 1201, Leaded
lights manufacturing; glazing; beveling and/or silvering,
including
the business of a glass merchant.
[6]
CLASS
XXII, PROFESSIONAL SERVICES, etc., Sub-class 2210, The business of
accountant; auditor; advocate; attorney; conveyancer;
notary; law
agent; quantity surveyor, editing and journalistic work provided no
printing and/or publishing, other than distribution
through the
post, is undertaken; press agency; typing and roneo work as a
separate business; and other profession not otherwise
stated.
[7]
CLASS
XIX, PERSONAL SERVICES, HOTELS, FLATS, etc., Sub-class 1960,
Property managing, including service flats, township and/or
estate
managing in connection with which the functions of a local authority
are not carried out and no agricultural operations
are carried on
(any agricultural operation carried on are subject to the rates for
Class I), the business of the advertising
agent (including bill
posting) and/or contractor; commercial artist and/or designer;
enquiry and/or collecting agent; labor recruiting
agent; messenger
agency.
[8]
CLASS
XV, TRADE, COMMERCE, etc., Subclass 1550, The business of general
retail dealer; chemist or herbalist; photographer; photographic
appliance dealer; tobacconist; bookseller and/or stationer; type
writer agent including office equipment shops, commercial traveler
and/or manufacturer representative; whole sale leather merchant;
wholesale soft furnishing merchant; wholesale merchant (not
otherwise stated); hide, skin and wool merchant or broker, paper
merchant not undertaking any manufacturing operations; tea,
coffee
or sugar merchant; with no roasting operations; feather dealer or
maker of feather dusters; rubber merchant; tyre or motor
accessory
dealer.
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