Debswana accuser loses appeal
Spira Tlhankane | Tuesday November 3, 2015 14:23
The appellant, Patrick Mokokwe, worked as an operator for Debswana Diamond Company from 1976 until retirement in 2010. In 2009 Mokokwe claimed to have sustained a back injury while in the course of duty but the employer resisted this claim.
An internal inquiry conducted by Debswana Diamond Company found that the appellant failed to report any injury as required by the employer’s procedures. The appellant expressed his dissatisfaction with the inquiry’s findings. Initially in 1999, a doctor who examined him diagnosed that he had a festering bone disease.
Upon retirement in 2010, Mokokwe sought compensation under the worker’s compensation but his case was processed three years later. After the commissioner for workers’ compensation assessed his case, he wrote a letter to Mokokwe through his attorneys indicating that his claim could not be processed because Debswana denied that the injury was acquired during duty.
Mokokwe grew frustrated and launched the case before the High Court seeking the respondent to submit completed forms reporting injury, alongside the applicant’s earnings to the commissioner so that computation of compensation could take place. He wanted the High Court to recognise that he was injured during the course of employment and as a result, now suffers from an occupational disease. The High Court dismissed the case with costs.
Mokokwe was not satisfied with the High Court’s verdict and further took the matter to the court of appeal bringing the disputed question of whether he (the appellant) had a right of compensation.
Giving judgement, Justice Isaac Lesetedi said such questions stood to be determined by the commissioner and could not be determined by way of declarators issued by the court.
“For that reason it was improper for the appellant to seek those reliefs in the court,” he said.
Lesetedi said it was incongruent that an employer who denies liability on the grounds that the employee’s injury or disease was not sustained or acquired during the course of employment should be obliged to make a report of what it denies took place.
“What remains of the appellant’s claim should not have brought this litigation about, the appeal stands to be dismissed,” he said.
Lesetedi however said as a directive for the ongoing forward of the appellant’s claim, the commissioner is directed to the appropriate law discussed in the judgement and for the claim to be considered by the commissioner in terms of the act.
“As the application was ill-conceived and the appeal was on issues that were intended to support such application, the appeal must fail,” he said.
Lesetedi said losing the appeal is not Mokokwe’s end claim and he still stands to be referred back to the commissioner for consideration. He said because the appellant have been represented through legal aid, no order of costs is appropriate.