Churchill v Premier of Mpumalanga and Another (889/2019) [2021] ZASCA 16; [2021] 2 All SA 323 (SCA); (2021) 42 ILJ 978 (SCA); [2021] 6 BLLR 539 (SCA); 2021 (4) SA 422 (SCA) (4 March 2021)

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Churchill v Premier of Mpumalanga and Another (889/2019) [2021] ZASCA 16; [2021] 2 All SA 323 (SCA); (2021) 42 ILJ 978 (SCA); [2021] 6 BLLR 539 (SCA); 2021 (4) SA 422 (SCA) (4 March 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 889/2019
In
the matter between:
CATHERINE
MAY CHURCHILL

APPELLANT
and
THE
PREMIER OF MPUMALANGA
FIRST RESPONDENT
DIRECTOR-GENERAL:
OFFICE OF THE
PREMIER
OF MPUMALANGA
SECOND RESPONDENT
Neutral
citation:
Churchill
v Premier, Mpumalanga
(889/2019)
[2021] ZASCA 16
(4 March 2021)
Coram:
PONNAN, WALLIS and SALDULKER JJA and CARELSE and KGOELE AJJA
Heard
:
19 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives
by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to
be 09h45 on 4 March 2021
Summary:
Compensation for Occupational Injuries and Diseases Act 130 of
1993 (COIDA) – plaintiff mistreated and injured in the course

of a protest by trade union members on premises where she was
employed – whether her injuries an accident as defined in s 1

of COIDA – whether accident arising out of and in the course of
her employment – whether liability of employer excluded
by s 35
of COIDA.
ORDER
On
appeal from:
Mpumalanga Division of the High Court, Mbombela
(Roelofse AJ, sitting as court of first instance):
Judgment
reported
sub nom Churchill v Premier Mpumalanga and Another
2020
(2) SA 309
(MN):
1
The appeal is upheld with costs, such costs to include those
consequent
upon the employment of two counsel.
2
The order of the high court is set aside and replaced with the
following
order:
'(a)
The special plea is dismissed.
(b)
It is declared that the First Defendant is liable to compensate the
Plaintiff for
such damages as may be agreed or proved arising out of
the injuries suffered by her in the course of the protest at the
offices
of the First Defendant on 5 April 2017.
(c)
The matter is remitted to the high court for the determination of the
nature and extent
of any and all such injuries and the quantum of
damages to which she is entitled in consequence thereof.
(d)
The First Defendant is to pay the costs of the action up to
23 May 2019, being
the date of judgment in the high court.'
JUDGMENT
Wallis
JA (Ponnan and Saldulker JJA and Carelse and Kgoele AJJA
concurring)
[1]
On 5 April 2017 the appellant, Ms Catherine
Churchill, went to work as usual at the offices of the first
respondent, the Premier
of Mpumalanga (the Premier), where she was
employed as the Chief Director: Policy and Research. During the
morning, protest action
over labour issues, organised by a trade
union, the National Education, Health and Allied Workers' Union
(NEHAWU), occurred at
the premises and in the building where she
worked. She became caught up with the protestors, was assaulted and
mistreated by them
and eventually evicted from the premises in a
manner that was humiliating and degrading. An agreed medical report
reflects that
she suffered some physical injuries, in the form of
bruises, scratches and a swollen foot. More importantly, she was
shocked and
humiliated and suffered psychiatric injury
[1]
that has left her with PTSD (Post Traumatic Stress Disorder) of
significant intensity. She tried to return to work, but alleges
that
she found the situation intolerable and was compelled to resign at
the end of June 2017.
[2]
Ms Churchill sued the Premier and the Director-General
in the
office of the premier (the D-G), the first and second respondents
respectively, alleging that her treatment by the protestors,

including the assaults, was occasioned by their negligence. She
contended that they took no steps, or alternatively inadequate
steps,
to ensure the safety of their employees in the workplace. Had they
taken reasonable or adequate steps to do so she claimed
that the
assault on her would have been avoided. Her claim amounts to nearly
R7.5 million for past and future medical treatment,
general
damages and past and future loss of income. The bulk of this is
compensation for loss of income calculated up to her date
of
retirement on the basis that she will be unable to work again.
[3]
The Premier and the DG raised a special plea, contending
that her
claim constituted an occupational injury for which she was entitled
to compensation in terms of the Compensation for Occupational

Injuries and Diseases Act 130 or 1993 (COIDA) and was therefore
excluded by s 35(1) of COIDA. On the merits they denied the

existence of any legal duty and the fact of negligence. They denied
that they were vicariously liable for the behaviour of the

protestors. At the trial the parties agreed that the judge (Roelofse
AJ) should determine the merits of her claim, leaving the
quantum to
be dealt with separately. He upheld the special plea and concluded
that there was no need to consider the remaining
defences on the
merits, whilst saying that he would have rejected them. The appeal is
with his leave.
The
ambit of the appeal
[4]
The heads of argument before this court dealt only with
the special
plea and not negligence or vicarious liability. We asked appellant's
counsel at the outset what order should be made
if the appeal
succeeded. It emerged from the discussion that there was confusion
about the ambit of the appeal. Appellant's counsel
took the view that
the high court's judgment disposed of all issues of liability other
than the special plea and therefore, if
the appeal succeeded, a
suitable declaratory order should be made in regard to liability.
Respondents' counsel contended that the
appeal was limited to the
special plea and indicated that if it was upheld the case should be
remitted to the high court to determine
the issues of negligence and
vicarious liability.
[5]
An examination of the record showed the respondents'
approach to be
incorrect. Before the trial started the judge noted that the parties
had agreed to separate the merits from issues
of quantum and enquired
whether the special plea could be determined on the basis of the
agreed facts. Counsel for the respondents,
who was counsel before us,
said this was not possible, because if the court rejected the special
plea the remainder of the merits
would need to be determined. He
added that whether the plaintiff's injuries arose out of her
employment could best be determined
in the context of all the
happenings on the day in question. The judge then made an order that
the case would proceed on the merits,
with the issue of damages and
quantum to stand over until there had been a final resolution of the
merits.
[6]
The confusion over the ambit of the appeal appears to
have arisen
because the judgment does not deal in any detail with the issues of
negligence and vicarious liability arising if the
special plea was
dismissed. After upholding the special plea, the judge said:
'There
is accordingly no need to consider the defendants’ other
defences. However, I need to say this and no more. Having
regard to
the evidential material before me as set out earlier in this
judgment, the defendants’ delictual defence would
have come to
naught.'
This
was an undesirable way in which to dispose of these matters given the
distinct possibility that the decision on the special
plea would
prompt an appeal to this court. But it is clear that, had he taken a
different view of the special plea, the plaintiff's
claim would have
succeeded. He should have given his reasons for that conclusion,
notwithstanding his view on the merits of the
special plea.
[7]
Thus all the issues in respect of the merits were resolved.
The
parties had closed their cases on the merits and the trial on those
issues was finished. No further evidence could be led on
the merits
unless the trial was reopened. The plaintiff's claim was dismissed
without qualification. Leave to appeal was sought
and granted against
the whole order. The notice of appeal asked not only that the special
plea be dismissed, but that judgment
on the merits be granted in
favour of the plaintiff. The judge had expressed his view on the
remaining issues, albeit without reasons.
The respondents were
entitled to resist the appeal by arguing that whatever the fate of
the special plea, neither negligence nor
vicarious liability for the
actions of the protestors had been established. They did not do so
and counsel did not seek an opportunity
to supplement his argument in
this regard.
[8]
In the circumstances the appeal proceeded on the basis
that, if the
appeal in relation to the special plea succeeded, a suitable
declaration should be made in regard to the liability
of the Premier
to compensate Ms Churchill for her damages and remitting the matter
to the high court for the determination of the
quantum of such
damages if the amount thereof cannot be settled by agreement.
The
law on the application of COIDA
[9]
There is little point in yet again traversing the
background and history of workmen's compensation statutes leading up
to COIDA.
Statutes, pre-dating the Union of South Africa in 1910,
derived from English statutes, provided for workers to be compensated
for
injuries or illness suffered in the course of their work. The
history was traced by the Constitutional Court in
Mankayi.
[2]
The language of the relevant sections has remained largely unaltered
over time and there are numerous cases dealing with whether

particular injuries or illnesses fell within or outside the scope of
the statute. Where an employee is entitled to compensation
under
COIDA any right of action against their employer is excluded by s
35(1). The constitutionality of that provision has been
upheld.
[3]
[10]
The right to compensation is established under s 22(1) of the Act,
which provides
that:
‘
If
an employee meets with an accident resulting in his disablement or
death such employee or the dependants of such employee shall,
subject
to the provisions of this Act, be entitled to the benefits provided
for and prescribed in this Act.’
The
key word is ‘accident’, which is defined as meaning:
‘
.
. . an accident arising out of and in the course of an employee’s
employment and resulting in a personal injury, illness
or the death
of the employee’.
The
exclusionary provision in s 35(1), which is headed ‘Substitution
of compensation for other legal remedies’ reads
as follows:
‘
No
action shall lie by an employee or any dependant of an employee for
the recovery of damages in respect of any occupational injury
or
disease resulting in the disablement or death of such employee
against such employee’s employer and no liability for
compensation on the part of such employer shall arise save under the
provisions of this Act in respect of such disablement or death.’
[11]
The fact that there are separate definitions of
'occupational disease' and 'occupational injury' shows that the word
'occupational'
qualifies both injury and disease in s 35.
Occupational illnesses are specified in some detail in Schedule 3 of
COIDA.
[4]
An occupational injury is defined as:
'A
personal injury sustained as a result of an accident.'
An
occupational injury is therefore directly connected to the accident
in which it was sustained. Presumably it was thought that
'disease'
and 'illness' were equivalent, so that in the case of an occupational
illness the requirement that it arise from an accident
is maintained.
Fortunately, that is not a drafting puzzle that needs to be solved in
this case.
[12]
Were Ms Churchill's injuries sustained in an
accident as defined in COIDA? There are three elements to the
definition of an accident,
namely (a) an accident; (b) arising out of
and in the course of an employee’s employment; and (c)
resulting in a personal
injury, illness or the death of the employee.
The duplication of the word 'accident' derives from historic usage in
earlier statutes,
both here and overseas. Longstanding authority
shows that in the context of COIDA it bears a broader meaning than
‘an unexpected
or usual event or happening that is external to
the [employee]’.
[5]
[13]
In
Nicosia v WCC
[6]
Roper J traced the developments in English law from the time when the
equivalent English statute provided that ‘accident’
was
an accident resulting in personal injury. The cases originally
said
[7]
that it was used in:
‘
The
popular and ordinary sense of the word as denoting an unlooked-for
mishap or an untoward event which is not expected or designed’.
However,
no doubt moved by a desire to assist workers to secure compensation,
even where there was no negligence on the part of
their employer, or
where any claim they might have would have been defeated by the
operation of the 'last opportunity' rule:
'…
courts have strained to come to the rescue of particularly
impecunious individuals and held them entitled to claim compensation

from a fund established for that purpose.'
[8]
This
benevolent approach to the meaning of an accident and personal injury
led courts in England to extend the concept of an accident
to include
illness derived from an accident.
[9]
In addition they held that while an accident is frequently something
external to the employee – such as an explosion or a
fall from
a ladder – it included internal injuries occasioned by
performing the work of the employee, for example, a slipped
disc when
lifting something at work. Roper J cited the following passage from
the speech of Lord Lindley in
Fenton v
Thorley
:
‘
Speaking
generally, but with reference to legal liabilities, an accident means
any unintended and unexpected occurrence which produces
hurt or loss.
But it is often used to denote any unintended and unexpected loss or
hurt apart from its cause; and if the cause
is not known the loss or
hurt itself would certainly be called an accident. The word
‘accident’ is also often used
to denote both the cause
and the effect, no attempt being made to discriminate between them.’
[14]
The resulting position is that almost anything which unexpectedly
causes an injury
to, or illness or death of, an employee falls within
the concept of an accident. The result is that the focus of the cases
is less
on the first element of an accident, because almost anything
unexpected can be an accident, but on whether the accident arose out

of and in the course of the employee’s employment. The two
expressions are not coterminous so that an accident may arise
in the
course of, but not out of, the employee's employment. It is not
necessary to consider whether the reverse is also true.
Two judgments
of this court set out the broad approach to be adopted to these
expressions.
[15]
The first,
Khoza
,
[10]
arose when a 19 year old police constable, playing with his service
revolver in the back of a police van, in the presence of another

constable and five arrestees, fired a shot and hit his colleague.
[11]
An action similar to the present one was met with a similar plea.
[12]
The court held that the requirement that the accident occurred 'in
the course of' the employee's duties was satisfied if it occurred

while the employee was engaged in their basic duties and
responsibilities. That element was satisfied because both policemen
were
on duty and responsible for arresting and holding in safe
custody the other people in the van.
[16]
The more problematic element was whether
Constable Khoza's injuries arose out of his employment. In the
following passage,
[13]
the majority judgment by Rumpff JA emphasised that this required a
causal connection between the employee’s service and the

accident
'
When
this undefined connection is viewed in the light of the purpose and
inclusive scope of Act 30 of 1941, it must in my view be
found that
the causal connection between accident and service
in
general
is
fully satisfied when the accident occurs at the place where the
workman is executing his duties.' (My translation and emphasis.)
The
nature and extent of the causal connection is not defined in the Act.
Rumpff JA held that, given the statutory purpose,
there would in
general be a causal connection between the accident and the person's
employment if the accident occurred at the
place where the employee
was performing their duties. On that basis the court held that
constable Khoza was shot in an accident
arising out of his employment
and his claim was dismissed.
[17]
The judgment was careful to point out that it was
no more than a generalisation to say that a causal connection would
ordinarily
be established if the accident occurred at the employee's
place of work. Whilst it was unnecessary to attempt to identify the
exceptions,
nonetheless the following was said:
[14]
'It
is in any event clear that this causal connection for the purposes of
the Act would among other things disappear if the accident
was of
such a nature that the workman would have suffered the injuries even
though he was at a place other than the one his work
demanded, or if
the workman by his own act severed the existing connection between
his service and the accident,
or where the workman was
deliberately injured by another person and the motive for the assault
had no connection with the working
duties of the workman.
' (My
translation and emphasis.)
[18]
Formulating a single test to determine whether an
injury arose out of the injured party's employment is neither
feasible nor desirable.
The majority judgment in
Khoza
made it clear that mere presence at the
workplace would not suffice, although in general the fact that the
accident occurred at
the injured person's place of employment pointed
to it having arisen out of their employment. Nor is foreseeability of
the risk
definitive. Even an entirely unforeseen and unforeseeable
event may arise out of employment.
[15]
Williamson JA made this point in his concurring judgment saying
that:
[16]
‘
The
decision is in essence in each case one of fact related only to the
particular facts in issue. The enquiry on the particular
issue is
whether it was the actual fact that he was in the course of his
employment that brought the workman within the range or
zone of the
hazard giving rise to the action causing injury. If it was, the
action arose ‘out of the employment’ …’
The
fact that the course of employment brought the worker into the zone
of the hazard may be a necessary condition of the injury
arising out
of the employment but, as the subsequent decision of this court
demonstrated, it is not a sufficient condition.
[17]
[19]
In
MEC v DN
,
[18]
a doctor on night duty, walking along a passage between two wards,
was assaulted by an intruder, who hit her with a brick and raped
her.
Her claim for damages against the MEC, on the basis that, through
negligence, inadequate security precautions had been taken,
was met
with a plea based on s 35(1) of COIDA. The plea was dismissed and
Navsa ADP said:
[19]
'‘.
. . the question that might rightly be asked is whether the act
causing the injury was a risk incidental to the employment.
There is
of course, as pointed out in numerous authorities, no bright-line
test. Each case must be dealt with on its own facts.
I
am unable to see how a rape perpetrated by an outsider on a doctor –
a paediatrician in training – on duty at a hospital
arises out
of the doctor’s employment. I cannot conceive of the risk of
rape being incidental to such employment.'
[20]
The plaintiff in that case was at her place of employment and about
her duties at
the time of the assault. Her employment had brought her
within the zone of the hazard giving rise to her injuries. That
pointed
to her injury arising out of her employment. But when the
question was asked whether the risk was incidental to her employment,

the answer was an emphatic 'No'. The only safe approach is to examine
closely the facts of each case in order to decide whether
the
person's injuries arose out of their employment. The closer the link
between the injury sustained and the performance of the
ordinary
duties of the employee, the more likely it will be that they were
sustained out of their employment. The further removed
from those
duties, and the less the likelihood that those duties will bring the
employee into a situation where such injuries might
be sustained, the
less likely that they arose out of their employment. In the case of
Ms Churchill, it is common cause that her
injuries were sustained in
the course of her employment. The only issue is whether they arose
out of her employment.
The
facts
[21]
These were fully canvassed in the judgment of the high court and
again in the heads
of argument. There is no dispute of any
significance regarding them. Ms Churchill went to work that day and
was attending to her
duties. NEHAWU had called upon its members to
demonstrate over certain labour-related issues. The demonstration
should have taken
place at a point outside the complex where the
offices of the Premier were situated. However, some of the
participants in the demonstration
were employed in the building where
Ms Churchill worked and by using their access cards about twenty or
thirty of them obtained
access to the foyer, which is on the upper
ground floor. Ms Churchill encountered them when she was returning
with a colleague
to her office on the lower ground floor from a
meeting on the upper ground floor.
[22]
After Ms Churchill returned to her office, her assistant, Ms Ngwambe,
indicated that
she was afraid of the protest. She was told that she
would be able to lock up and go home after Ms Churchill had taken a
document
across the passage to Ms Mabaso's office. While Ms Churchill
was in Ms Mabaso's office, three demonstrators, including the

branch secretary of NEHAWU, entered the office, asked who was there,
and left without an answer. Ms Churchill followed them to
return to
her office and discovered that it was locked. In frustration she
swore and a man in the passage asked her what she had
said. She
apologised and tried to explain, but this individual regarded the
expletive as being directed at the demonstrators and
shouted at her
demanding to know on what basis she had sworn at them. He repeatedly
shouted at her saying: 'Who are you to call
us an ****?' and 'How
dare you swear at us?' This caused Ms Churchill to retreat to Ms
Mabaso's office. The man followed and
shouted at her: 'We're coming
for you!'
[23]
Ms Mabaso and Ms Mahlalela were also in the office when another
official, Mr Bellim,
came there and said that they should leave and
work from home. He left to go back to his own office, but returned
almost immediately
as he saw fifteen or twenty protestors marching
along the lower ground floor towards Ms Mabaso's office. He entered
the office
and tried to hold the door closed against the protestors,
but to no avail. Ms Churchill tried to hide behind the door and
telephoned her husband telling him she was not safe and asking him to
come and fetch her. The protestors found her behind the door
and one
of them tried to take her cell phone. He also tried to pick her up
with his arms around her. In the confusion Ms Mahlalela
managed to
slip out of the office and phone both the D-G's office and the
security office for help, but no assistance was forthcoming.
[24]
Two other men joined the man trying to lift Ms Churchill. Together
they lifted her
above their heads, carried her out of the office and
up two flights of stairs to the upper ground floor. Mr Bellim shouted
at the
men to put her down, but they disregarded him and three other
men blocked him from going to her aid. She was carried up the stairs

pleading to be put down, but there was no response and she heard
someone calling her 'a piece of white s**t'. Mr Bellim heard one
of
the protestors say: 'This mlungu is not with us.'
[25]
Once the men had carried Ms Churchill to the foyer she
was put down in
the middle of the crowd of protestors and her shoes
removed. People in the crowd pushed, shoved and punched her, while
jeering
and shouting 'Voetsek' and 'Get out'. One of her shoes was
thrown at her and she was chased out of the building and left to make

her way to the entrance where her husband had arrived to collect her.
He had heard everything, because she had kept her cellphone
on
throughout the incident. From the time she first encountered the
protestors as she was making her way back to her office until
she was
collected by her husband about three quarters of an hour had passed.
Discussion
[26]
Did this incident arise out of Ms Churchill's employment so that her
injuries, both
physical and psychiatric, were sustained in an
accident for the purposes of COIDA? It was accepted that because it
happened at
her place of employment and while she was going about her
duties it arose in the course of her employment. Did it arise out of
her employment? In other words, was it sufficiently closely connected
to her employment to have arisen from it? The fact that it
occurred
in her workplace when she was going about her duties is undoubtedly a
factor that connected it to her employment. In that
sense her
employment brought her within the zone of risk, but that is merely
where the enquiry commences. Was the risk also incidental
to her
employment?
[27]
The respondents argued that the risk was foreseeable, because
it is a regrettable
reality that protest action and industrial action
can sometimes lead to incidents where people are pushed, shoved or
attacked in
a more aggressive fashion. They referred to a previous
protest in 2016, where women members of the bargaining group who had
remained
at their posts were forcibly removed from their work
stations. It was agreed that the employees not engaged in the protest
were
wary of intimidation by the protestors and realised that because
feelings were running strong the protest might turn 'unpeaceful',

that is, violent, with a risk of physical injury to those employees.
[28]
It is not apparent to me why the possibility of protests or
industrial action turning
violent and resulting in assaults on
non-participating employees, means that the assaults are risks
incidental to the employment
of those assaulted. The wider
implications of this were explored with counsel. They appear to be
far-reaching. Take the case of
a non-striking employee who crossed a
picket line to work and was condemned as a scab by the strikers.
Would an aggravated assault
aimed at persuading them to desist arise
from their employment? Would it make a difference if the assault was
an act of revenge
after the strike ended? Neither situation seems to
me to be closely connected to the performance of their duties as an
employee.
To adopt the language used in
Khoza
in describing an
instance where the assault would not arise out of the employee's
employment, such an assault has no connection
with the working duties
of the employee. It is connected to their employment, but not to
their duties in that employment.
[29]
Another example debated in argument was the conduct of disgruntled
participants in
a service delivery protest, who broke into the
Premier's office building demanding to present a petition to the
Premier in person
and, on being rebuffed, took out their anger on the
most senior employee present. That would be similar to the situation
in this
case, save that the perpetrators would not be employees
engaged in protest action. It is hard to accept that such a situation
would
arise out of the injured person's employment. The only causal
connection would be that the employee had the misfortune to be
attending
at their place of work when the incident occurred. The
assault and the resultant injuries would have no connection, direct
or indirect,
with their duties in terms of their contract of
employment. Yet there appears to be no basis for distinguishing it
from the same
events in the course of a protest by workers.
[30]
The statutory compensation scheme was established, and
employers granted immunity
from claims by their employees, to provide
compensation for workplace injuries and illnesses, whether due to
misfortune, the fault
of a co-employee, or the employer's or
employee's fault. Compensation is payable irrespective of whether
direct or vicarious liability
would otherwise rest on the employer.
The requirements that the accident occur in the course of and arise
out of the injured party's
employment circumscribe the liability of
the compensation fund established in terms of s 15 of COIDA. The
purpose of the fund
is to compensate for occupational injuries and
disease. While long-standing authority dictates that social
legislation of this
type is given a generous construction, it is not
directed at providing compensation and exempting employers from
liability for
injuries and diseases that are only tenuously and
tangentially connected to the duties of the employee. Had that been
the purpose
the legislation could simply provide for compensation for
all and any injuries or illnesses sustained when at work, or when
working.
[31]
The respondents also relied on the agreed fact that
non-participants in the
protest, including the plaintiff, 'formed
part of the staff that were responsible for either formulating or
implementing labour
related issues of employment against which NEHAWU
was opposed'. However, there was no evidence that Ms Churchill
had any direct
involvement in labour issues in her position as Chief
Director Policy and Research in the office of the Premier. Beyond a
speculative
suggestion that she was possibly a member of staff
involved in efforts by the office of the Premier to reconfigure
regional services
in the province that might possibly lead to job
losses, no link was suggested between her duties as an employee and
the issue in
regard to which the protest action had been called. She
was not responsible for the formulation of employment policy. Given
that
the respondents must have been fully aware of Ms Churchill's
duties and would have been in a position to deal in detail with her

involvement in these labour issues, if in truth her work was closely
connected to them, it is safe to say that any connection must
have
been entirely peripheral.
[32]
What is more, the incident was unrelated to the subject matter of the
protest, much
less to Ms Churchill's work. After her meeting, she had
walked through, or past, the group of protestors in the foyer without
incident.
When she was initially in Ms Mabaso's office and three
of the protestors, including the branch secretary of the union, came

in and asked who was there, they did not say or do anything in
respect of Ms Churchill. The incident arose because of the

unfortunate fact that, when she returned to her office and found it
locked, she swore and this was taken amiss by one individual
who
thought it was directed at him and the protestors. Everything that
happened after that was triggered by that incident, which
had no
connection at all with either the protest or Ms Churchill's
employment.
[33]
There are of course jobs the nature of which
gives rise to a risk of assault by co-workers, outsiders or criminals
arising from
the performance of the worker's ordinary duties.
Security personnel come to mind in that regard. Assaults sometimes
occur in the
context of employment and may arise from it, as in the
case of the trammer in
McQueen
[20]
assaulted by a miner after he tried to pull him to work at a
different point in the mine. But assault on a co-worker is treated
in
many, if not most, workplaces as a serious disciplinary offence that
may lead to dismissal. It is not something that ordinarily
arises
from a person's employment. Where the assault occurs in the
workplace, but as a result of something external to the workplace
and
the duties of the person assaulted, it is difficult to see on what
basis it can be said to arise out of their employment. That
is why,
when a policeman was shot and killed at the police station by another
policeman, whom he had taunted about a relationship
he was conducting
with the latter's wife, it was held that this did not arise from his
employment.
[21]
[34]
Cases where employees have been
assaulted by criminals while on duty stand on a different
footing.
[22]
But being assaulted as a consequence of something one says being
misconstrued and offence being taken, is not ordinarily incidental
to
employment.
[23]
The fact that the place where that occurred was the workplace, and
the perpetrator or perpetrators of the assault were co-employees,

does not alter that. In the present case the assault took on racial
and gendered overtones. The respondents' counsel was asked
whether it
would have made a difference to the argument if the assault on Ms
Churchill had become overtly sexual. Other than saying
that every
case depends on its own facts, there was no answer, but the nature
and severity of the assault and the extent of the
incursion upon the
dignity and bodily integrity of the victim, cannot be the factors
that determine whether it arose out of their
employment. As held in
MEC v DN
it is
difficult to see on what basis, as a general proposition, attacks on
a person's dignity and bodily integrity are incidental
to their
employment. In simple language they are not things that 'go with the
job'.
[35]
Emphasis was also placed on the fact that the
protestors were protesting about workplace issues in support of
colleagues in the
social development area. But this falls into the
very error identified in
MEC v DN
[24]
of using the motive of the perpetrator to establish the requisite
connection between the incident and the duties of the injured
party.
[36]
It is necessary to repeat what has oft been said before in
these cases, namely
that there is no bright line test and the enquiry
is always whether the statutory requirement that the accident arose
out of the
person's employment, as well as in the course of that
employment, is satisfied. The court must analyse the facts closely to
determine
whether on balance the accident arose out of the person's
employment. And in the last resort an employer seeking to rely on
s 35
to avoid liability bears the onus of satisfying the court
that the accident arose out of the claimant's employment. In this
case
the only connection between the incident and Ms Churchill's
employment was that she was at work at the time. The incident bore no

relation to her duties and was the result of misplaced anger directed
at her because of a misunderstanding. She was not assaulted
because
of the position she held, or because of anything she had done in
carrying out her duties, or for any reason related to
the protest
action that took place that day. She was assaulted because one
individual mistakenly thought she had sworn at him and
he, together
with others, responded by assaulting and humiliating her. In my
opinion her injuries did not arise out of her employment.
[37]
The appeal must therefore succeed. I have adapted the following order
slightly from
that suggested by counsel for the plaintiff.
1
The appeal is upheld with costs, such costs to include those
consequent
upon the employment of two counsel.
2
The order of the high court is set aside and replaced with the
following
order:
'(a)
The special plea is dismissed.
(b)
It is declared that the First Defendant is liable to compensate the
Plaintiff for
such damages as may be agreed or proved arising out of
the injuries suffered by her in the course of the protest at the
offices
of the First Defendant on 5 April 2017.
(c)
The matter is remitted to the high court for the determination of the
nature and extent
of any and all such injuries and the quantum of
damages to which she is entitled in consequence thereof.
(d)
The First Defendant is to pay the costs of the action up to
23 May 2019, being
the date of judgment in the high court.'
_________________________
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For
appellant:  T J Bruinders SC (with him J L Basson)
Instructed
by: Du Toit-Smuts & Partners, Mbombela;
Phatshoane
Henney Attorneys, Bloemfontein
For
respondent:
H van Eeden SC (with him T Mathopo and B Manning)
Instructed
by:  Adendorff Theron Inc, Mbombela;
Lovius
Block Attorneys, Bloemfontein.
[1]
A psychiatric injury is no different from a physical injury having
outward manifestations in the body of the claimant.
Bester
v Commercial Union Versekeringsmaatskappy van SA Beperk Bpk
1973 (1) SA 769
(A);
Barnard
v Santam Beperk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA);
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA);
Komape
and Others v Minister of Basic Education
[2019]
ZASCA 192
;
2020 (2) SA 347
(SCA) paras 25-32.
[2]
Mankayi v AngloGold
Ashanti Ltd
[2011]
ZACC 3
;
2011 (3) SA 237
(CC) paras 41-58.
[3]
Jooste v Score Supermarket
Trading (Pty) Ltd (Minister of Labour Intervening)
[1998] ZACC 18; 1999 (2) SA 1
(CC).
[4]
Some of the illnesses described in Schedule 3, for example, those in
items 1.2 and 2.3, might in the past have been regarded
as injuries.
[5]
Air France v Saks
[1985] USSC 42
;
470
US 392
(1985) a decision on the meaning of ‘accident’ in
the Montreal Convention of 1999.
[6]
Nicosia v Workmens’
Compensation Commission
1954
(3) SA 897
(T) at 900D-902C.
[7]
Fenton v J Thorley &
Co Limited
1903
AC 443
at 448.
[8]
MEC for Health, Free State
v DN
(
MEC
v DN)
[2014] ZASCA
167
;
2015 (1) SA 182
(SCA) para 33.
[9]
Brintons Limited v Turvey
1905 AC 230
(Anthrax);
Innes
v Kynoch
1919 AC
765
(Streptococcus). COIDA deals with this separately.
[10]
Minister of Justice v
Khoza
1966
(1) SA 410 (A).
[11]
The judgment treated this as an accident arising from a show of
bravado on the young man's part. The facts as set out in
Khoza
v Minister of Police
1965 (4) SA 286
(W) at
287A-E suggest that it was more than that and they provide an
insight into the pervasive racism within the police force
at the
time.
[12]
Under s 7 of the Workmen's Compensation Act 30 of 1941, which
was in terms the same as s 35(1) of COIDA. Constable
Khoza was
faced with a dilemma in that he had not given notice of his claim as
required by s 32 of the Police Act 32 of
1958. He was required
to do so if the claim arose from anything done in terms of that Act.
His claim against the Minister depended
on his being able to show
that the constable who shot him was acting in the course and scope
of his employment, but not under
the Police Act. Additionally, he
had to show that his own injuries did not arise out of his
employment. This meant that he had
to thread an almost indiscernible
path between these apparently mutually inconsistent contentions.
[13]
Khoza
at 417D-F,
where Rumpff JA said:
'
Wanneer
hierdie onomskrewe verband gesien word in die lig van die doel en
ingrypende omvang van Wet 30 van 1941, moet dit m.i.
bevind word dat
die kousale verband tussen ongeval en diens
in
die algemeen
voldoende geskep word wanneer die ongeval plaasvind op die plek waar
die werksman by die uitvoering van sy diens is.'
[14]
At 417F-I: '
Dis
in elk geval duidelik dat hierdie kousale verband vir doeleindes van
die Wet sou verdwyn, onder andere, indien die ongeval
van so 'n aard
is dat die werksman die beserings sou opgedoen het al was hy op 'n
ander plek as wat sy diens sou vereis het of
wanneer die werksman
deur sy eie
handeling
die plaaslike verband tussen diens en ongeval uitskakel of
wanneer
die werksman opsetlik beseer word deur 'n ander persoon en die
motief van die aanranding geen verband hou met die werksaamhede
van
die werksman nie.
'
[15]
Instances drawn from the English cases are the wall of an adjacent
building collapsing on to the building in which the claimant
was
working and causing her injuries (
Thom (or
Simpson) v Sinclair
[1917] AC 127)
and the
fireman standing at the entrance to his engine who was struck by a
pellet fired not at him, but at the engine (
Powell
v Great Western Railway Co
[1940] 1 All ER
87 (CA)).
[16]
Khoza
op cit fn 10 at
419H-I.
[17]
The problem in treating it as such is illustrated by the decision in
Ex parte Workmen's Compensation Commissioner:
In re Manthe
1979 (4) SA 812
(E) at
817E-818F.
[18]
Op cit fn 8.
[19]
Ibid, paras 31-32.
[20]
McQueen v Village Deep GM Co Ltd
1914
TPD 344.
[21]
Twalo v Minister of Safety and Security
[2009] 2 All SA 491 (E).
[22]
The injuries of a cashier or messenger carrying money or valuables
for deposit at a bank, or carrying the weekly wages to a payment

point on a building site, who is assaulted and injured by robbers
arise out of their employment.
Nisbet v Rayne
and Burn
[1910] 2 KB 689
cited in
MEC
v DN
para 29.
[23]
The position in the case of an immediate physical response to an
insult in the workplace, especially if the insult had arisen
out of
a work-related incident, might be different.
[24]
Op cit, fn 8, para 31.