Shoprite has lost a case at the Supreme Court of Appeal over whether a negligence claim filed on behalf of a temporary worker who was brain damaged at work had expired.
The legal case was brought by the insurance firm for the retailer.
In October 2014 a packer working for Smollan, a firm that does work at retail stores, was in a forklift at Checkers Hyper in Edenvale, Johannesburg, packing shelves. In what the judgment described as a “freak accident”, the cage tilted and ejected her and she fell four metres to the floor. The cage then dislodged and hit her on the head leaving her permanently intellectually incapacitated.
The worker has a registered workers’ compensation claim at the department of employment & labour allowing her to receive insurance for injury at work, Shoprite confirmed to Business Day.
Shoprite’s insurer, who it did not identify, has argued the intellectually disabled worker’s curator brought a damages claim of negligence in July 2018, which was too late and the claim had prescribed. This means the claim of debt had expired in terms of the Prescription Act, leaving the worker’s curator without legal remedy.
But the Supreme Court of Appeal upheld the high court’s earlier finding the claim was still valid and had not expired. This does not mean the claim will be paid but allows it to be made and any further legal action to go ahead.
Cecil Tshepo Mafate, a lawyer, became the worker’s curator, due to her incapacity, in February 2017. He lodged a damages claim against Shoprite Holdings as well as her employer Smollan.
Mafate learnt in July 2017 through Shoprite Holdings’ legal response that he had incorrectly filed the claim. He should have filed it against subsidiary Shoprite Group, but it took him until October the following year to refile the claim correctly.
The Supreme Court of Appeal judgment reads: “The curator inexplicably failed — at least from what is before us — to act with expedition and his inaction for more than a year remains unexplained.”
The argument over whether the claim was prescribed, essentially expired, is a technical legal one.
While claims of this nature must be made within three years, the Prescription Act says if a person is a minor or mentally or otherwise impaired and cannot lay a claim, their claim does not prescribe or expire. Instead they have a year to file the claim once they are no longer a minor or facing the impediment or injury.
Shoprite argued that once a curator was appointed for the worker in February 2017, this removed the worker’s inability to file a claim and it had to be filed within a year by February 2018. The curator only filed it correctly in October 2018.
The court, however, examined the question of whether the barrier facing the worker from laying a claim stopped when the curator was appointed. If it did, then the claim would have had to be filed by February 2018
In this instance, the worker “is still afflicted by mental incapacity or disability”, the judgment ruled. It ruled the claim had not expired. It found the fact that a curator existed did not remove the barrier to laying a claim — as she remains injured.
“[Her] impediment would cease to exist only when she recovers from her mental or intellectual disability, disorder or incapacity, hence the dismissal of the appeal.”
It is unclear how the curator came to be appointed three years after the accident.
Shoprite said it had no influence over the case or payment as it had been handed over to its insurance agency.
“Claims of this kind are always registered with Shoprite Checkers’ insurance broker who takes responsibility to process the claim. As soon as a claim is registered with Shoprite Checkers’ insurer and handed over, the insurer becomes legally liable to settle or defend the claim.
“From that point we have no input on how the claim is handled,” Shoprite said.
It was not paying the cost for the court cases.
“The insurer appointed their legal representative and the insurer is liable for their legal fees, not Shoprite Checkers,” the retailer said.
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