Section 33 of COIDA prevents an employee from relinquishing his rights to benefit in terms of the Act.

M K Murugan (Applicant) brought an application seeking leave to amend his Notice of Motion. The Minister of Labour, Director-General of Labour and Compensation Commissioner (Respondents) contended that as the application had been previously withdrawn, the applicant has no right to seek to amend the Notice of Motion, and the application for an amendment should be dismissed with costs. At issue was whether the former attorney of the applicant had been given authority by the applicant to file an notice of withdrawal. Further at issue was whether section 33 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) prevented the applicant from relinquishing his rights to benefit in terms of the Act.

The Applicant, after being diagnosed with occupational disease, lodged a first claim against Respondent in terms of COIDA which was rejected. He went back to work and subsequently got ill. He lodged a second claim on which was rejected and subsequently upheld on appeal. At a later stage the Applicant was notified by the Respondent that the offer to compensate the Applicant was erroneous as the second claim was a duplicate of the first claim which was already rejected.

The Applicant lodged a review against rejection of his claim to this court. Prior to the hearing, the Applicant was advised by his former attorney and counsel that his case was weak and therefore the application must be removed from the roll to avoid paying costs of the Respondents. The former attorney of the Applicant subsequently filed a notice of withdrawal which was granted. Dissatisfied that his application was not argued, the Applicant approached RSI stating that he believed the matter was simply removed from the opposed role and he did not instruct his former attorney to withdraw application as a whole. The application to amend the original prayers was to seek an order that the Director-General compensate the Applicant at permanent disability sustained in consequence of having contracted an occupational disease.

The Applicant submitted that the second claim was not a duplicate of the first claim since it was based on new medical evidence and new facts in as much as the Applicant returned to work. The Applicant further submitted that former attorney was not given authority to withdraw the application but to merely withdraw the matter from the roll. In addition, the Applicant submitted that section 33 of COIDA prevented the Applicant from relinquishing his rights to benefit in terms of the Act.

The Court accepted these submissions, and held that there was no agreement on the withdrawal of the application between the Applicant and his former attorney, and that it does not see how the Applicant would accept to withdraw the Application if the consequence of that would be to compromise his social security in the form of compensation in terms of COIDA.

Counsel for the Applicant: Richard Spoor