Justice served for employee who suffered brain injury at work

The Johannesburg High Court has dismissed with costs retail behemoth Shoprite Checkers’ appeal regarding damage claims made by an employee who suffered a brain injury while on the job.

This comes after the country’s largest retailer by market capitalisation, sales, profit, and number of employees and customers delayed the lawsuit for almost 10 years since Nolunga Mkhwanazi’s permanent injury in October 2014.

Mkhwanazi was employed as a packer by Smollan Sales and Marketing, a company that provides retail store merchandising services.

In 2014, Mkhwanazi was working at Checkers Hyper in the Edenvale Meadowdale Mall, and she spent much of the day being raised to heights in a cage that was fastened to a forklift.

She did this so that she could pack products on higher shelves. However, the cage tipped over a few metres above the ground, and Mkhwanazi stumbled and collapsed.

According to the Johannesburg High Court, the cage crashed down and hit her in the head as she lay on the ground, causing her permanent, serious brain damage.

In February 2017, an attorney, Cecil Tshepo Mokopane Mafate, was appointed as a curator to prosecute the damages claim on behalf of Mkhwanazi.

Mafate filed a delictual claim against Shoprite Holdings Limited in the Johannesburg High Court in accordance with his mandate.

Fully owned subsidiary

Shoprite Holdings Limited, however, contended that Shoprite Checkers, the applicant, owned the Checkers Hyper at the Meadowdale Mall in Edenvale in a special plea that raised misjoinder and non-joinder and was submitted in July 2017.

Shoprite Holdings Limited clarified that Shoprite Checkers was a fully owned subsidiary in the special plea.

Mafate retracted the lawsuit against Shoprite Holdings Limited in June 2018, and four months later, he served Shoprite Checkers with the summons.

Shoprite Checkers raised an objection that the claim had been prescribed, which the court discovered through a special plea.

This is based on the argument that a year had passed since Mafate’s appointment as curator, and their claim would not be granted because the prescription time would not have been completed.

Shoprite Checkers and its attorneys claimed that this removed the relevant impediment.

They argued that when Mafate served summons on them, the three-year prescription period, together with the additional period of a year, had lapsed.

In court, Mafate stated that he only found out who the debtor was after Shoprite Holdings Limited had brought up the misjoinder and non-joinder defences.

He further said that acquiring this knowledge at the time that he did was not the result of a failure on his part to exercise reasonable care.

Unacceptably long delay

He further argued that Shoprite Checkers’ contentions do not engage the court’s jurisdiction.

In addition, he argued that it should be denied permission to appeal since hearing the case would not advance justice.

“Shoprite Checkers is a large company with financial might,” said Mafate.

“It has for the past decade used its deep pockets to frustrate the claim of Ms Mkhwanazi, an indigent, mentally incapacitated woman.”

Judge Mbuyiseli Madlanga highlighted that more than seven years have lapsed since litigation for the recovery of damages commenced.

“This is an unacceptably long delay. To make matters worse, the end is far from being in sight because, from this point, the matter is going back to the high court to be litigated on what is still outstanding,” said Madlanga.

“Leave to appeal is granted. The appeal is dismissed with costs.”

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