Mankayi v Anglogold Ashanti Ltd (126/2009) [2010] ZASCA 46; 2010 (5) SA 137 (SCA) ; [2010] 3 All SA 606 (SCA) ; (2010) 31 ILJ 1065 (SCA) ; [2011] 5 BLLR 417 (SCA) (31 March 2010)

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Mankayi v Anglogold Ashanti Ltd (126/2009) [2010] ZASCA 46; 2010 (5) SA 137 (SCA) ; [2010] 3 All SA 606 (SCA) ; (2010) 31 ILJ 1065 (SCA) ; [2011] 5 BLLR 417 (SCA) (31 March 2010)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 126/2009
In the matter between:
THEMBEKILE MANKAYI

Appellant
and
ANGLOGOLD ASHANTI LTD

Respondent
Neutral
citation:
Mankayi
v Anglogold Ashanti
(126/2009)
[2010] ZASCA 46
(31 March 2010)
Coram:
HARMS
DP and CLOETE, HEHER, MALAN and LEACH JJA
Heard:
4
March 2010
Delivered: 31 March
2010
Summary:
Section
100(2) of Occupational Diseases in Mines and Works Act 78 of 1973 –
whether common-law claim for damages of employee entitled
to benefits
under this Act against employer for negligence excluded by s 35(1) of
Compensation for Occupational Injuries and Diseases
Act 130 of 1993.
____________________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court (Johannesburg) (Joffe J sitting as court of first
instance):
The appeal is dismissed.
JUDGMENT
MALAN JA (Heher and Leach
JJA concurring):
[1] This is an appeal
with the leave of Joffe J in the Johannesburg High Court against his
judgment upholding an exception against
the appellant’s particulars
of claim. The appellant who was employed as a mine worker by the
respondent sought payment from the
respondent, a public company
engaged in mining operations, for damages amounting to some R2,6
million with interest and costs based
on the latter’s alleged
breach of a duty of care owed to him.
[2] The appellant alleged
in his particulars of claim that he was employed by the respondent as
a mine worker underground during the
period January 1979 to September
1995 and was as such exposed to harmful dusts and gases, including
silica dust, at his workplace
and in the work environment. As a
consequence of this exposure, he alleged that he contracted an
occupational disease or diseases
in the form of silicosis, pulmonary
tuberculosis and obstructive airways disease resulting in his
suffering adverse physical and
mental consequences, having a reduced
life expectancy and being unable to work whether as a mine worker or
otherwise. His claim is
framed in delict and includes amounts claimed
on account of his past and future loss of earnings, future medical
expenses as well
as general damages. The basis of the appellant’s
claim is that the respondent owed him a duty of care arising under
both the common
law and statute to provide a safe and healthy
environment in which to work. He averred that the respondent, in
breach of this duty,
and when it was aware or ought reasonably to
have been aware that he would be exposed to harm, failed to apply
appropriate and effective
control measures. Each of the mines he
worked in was a ‘controlled mine’ as contemplated in Chapter 11
of the Occupational Diseases
in Mines and Works Act 78 of 1973
(‘ODIMWA’) and the respondent was and is deemed to be the ‘owner’
of those mines. The work
he performed was ‘risk work’ as defined
in s 13 of ODIMWA and the diseases he contracted ‘compensatable
diseases’ as defined
in ODIMWA. He was certified in terms of s
48(1) as suffering from a compensatable disease and received
compensation from the Compensation
Commissioner in terms of s 94 of
ODIMWA in the amount of R16 320. He alleged that he was precluded by
s 100(2) of ODIMWA from receiving
any benefits in terms of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993
(‘COIDA’) and that by reason
of his exclusion from the benefits
payable in terms of COIDA, he was not an ‘employee’ as
contemplated in s 35 of COIDA and accordingly
not precluded by that
section from bringing the action against the respondent.
[3] The respondent
excepted to the particulars of claim as lacking averments necessary
to sustain a cause of action. The essence of
the exception is that
the appellant is defined as an ‘employee’ and the respondent as
an ‘employer’ by COIDA and that s 35(1)
of COIDA barred the
appellant’s claim. Section 35(1) reads:
‘
Substitution of
compensation for other legal remedies
(1) 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.’
Section 35 (1) must be
read with s 100(2) of ODIMWA which bars a person entitled to its
benefits from claiming any benefit under COIDA.
The latter section
provides:
‘
Notwithstanding
anything in any other law contained, no person who has a claim to
benefits under this Act in respect of a compensatable
disease as
defined in this Act, on the ground that such person is or was
employed at a controlled mine or a controlled works, shall
be
entitled, in respect of such disease, to benefits under [COIDA], or
any other law.’
[4] The learned judge in
the court a quo held that the appellant’s common-law claim against
the respondent was excluded by the clear
wording of s 35(1) of COIDA.
The central theme of the judgment is that because there was no
limitation in the language of the subsection
there was no reason to
restrict its provisions to injuries and diseases dealt with in COIDA.
The express words of s 35(1) applied
to any occupational injury or
disease ‘no matter how arising’. COIDA, he said, was intended to
apply also to employees employed
at mines. It would be irrational to
protect employers from common-law liability in return for funding the
statutory compensation
scheme under COIDA but not under ODIMWA.
ODIMWA was amended after COIDA had been enacted by the Occupational
Diseases in Mines and
Works Amendment Act 208 of 1993 with the
imposition of liability on the owners of mines for the medical costs
of employees without
any amendment to s 35(1) of COIDA or to ODIMWA.
Hence, he said, it had to be assumed that it was intended that this
provision would
be applicable to claims by employees under ODIMWA.
Both statutes had to be construed in a manner so as to be consonant
and inter-dependent.
Because he found the legislative intention
apparent from s 35(1) to be manifestly clear and unambiguous the
maxim
generalia
specialibus non derogant
relied upon by the appellant had no application. Nor did s 39(2) of
the Constitution entitle him to adopt the construction of s 35(1)
of
COIDA advanced by the appellant because such an interpretation would
be ‘unduly strained’. He did not regard his construction
of s
35(1) as being in conflict with s 9 of the Constitution: inasmuch as
there was no identifiable class of persons unfairly discriminated
against. If there is discrimination it relates to the benefits the
claimants may claim under the two enactments. The scale of benefits,
however, was not challenged.
M
iners’
phthisis
[5] The history of the
legislative response to miners’ phthisis commenced, after
unification, with the Miners’ Phthisis Act
34 of
1911. This enactment set the pattern of future legislation by
providing for the creation of a compensation fund or funds to
which
mine owners contributed and which was to be used to compensate miners
suffering from miner’s phthisis and related diseases
and their
dependants. The Act established a fund ‘consisting of all moneys
appropriated by parliament for the purpose of and of
an amount, not
less than the sum so appropriated, to be levied by the board in
manner prescribed by regulation from the owners of
mines in the Union
wherein the mineral dust produced by mining operations is of such a
nature as to cause miners’ phthisis’ (s
2(1)). The board created
was authorized to grant allowances
‘
to
persons who are or have been employed in the mines … and who shall
be wholly or partially incapacitated by the disease known
as miners’
phthisis …’ (ss 1, 2 and 3).
1
The Miners’ Phthisis Act 19 of 1912 followed. It established the
Miners’ Phthisis Compensation Fund and provided for contributions
to the fund by employers and a specified single payment by the Union
Government. A further fund, the Miners’ Phthisis Insurance
Fund,
was funded by contributions made by employers. A person claiming
benefits arising from miners’ phthisis (ie ‘silicosis
of the
lungs’) had to satisfy the board that he had been employed
underground on any of the listed mines (s 16). This Act was amended
by the Miners Phthisis Amendment Act 29 of 1914. The Miners’
Phthisis Act 44 of 1916 supplemented the 1911 Act and provided for
relief and assistance of (and the grant of benefits by the statutory
Miners’ Phthisis Board to) persons employed in mines who suffered
from miners’ phthisis or other lung diseases contracted during
underground work (s 21).
[6] The comprehensive
Miners’ Phthisis Consolidation Act
35 of
1925 replaced the earlier legislation but was itself repealed by the
Silicosis Act 47 of 1946. The latter enactment made provision
for the
establishment of two funds, the Scheduled Mines Compensation and
Outstanding Liabilities Fund and the Registered Mines Compensation
and Outstanding Liabilities Fund (ss 30 and 31). Benefits were paid
from these funds by the Silicosis Board (ss 2 and 94) to miners
and
‘native’ labourers. The Board had to ‘levy from all owners of
scheduled mines and from all owners of registered mines such
sums of
money as the Board, in its opinion, is likely to need to meet the
liabilities payable in terms of this Act’ out of the
funds (s
33(1)). The state, in addition, contributed to enable the last
mentioned fund to meet its obligations for the payment of
benefits in
respect of miners and ‘native’ labourers ‘who are or were
suffering from silicosis or from tuberculosis as well
as silicosis
and whose employment in dusty occupations’ before the commencement
of the Act caused or contributed to the said disease
or diseases (s
96 and ss 71 ff). The benefits payable under this legislation were in
respect of ‘silicosis’, ie ‘any form of
pneumoconiosis due to
the inhalation of mineral dust’ (ss 1(1) and 59 to 61) and
‘tuberculosis’, ie ‘tuberculosis of the
respiratory organs’
(ss 1(1) and 62) and for a combination of the two diseases (s 63). A
‘dusty occupation’ was defined as,
inter alia, ‘any mining
operation performed by a person, in the service of another person,
while he is working below the natural
surface of the earth, or any
duty performed at a mine below the natural surface of the earth by a
servant of the State, or any mining
operation performed by a person
in the service of another person on or above the natural surface of
the earth at a place where rock,
stone, ore or any mineral is
ordinarily reduced in size or classified by any dust-producing
process . . .’ (s 1(1)). The costs
of the increased benefits
payable under the Silicosis Act were to be defrayed from the profits
of the scheduled mines (s 95). The
Silicosis Act operated
concurrently with the Workmen’s Compensation Act of 1941. Section
84 of the Silicosis Act provided:
‘
When a miner or a
dependent of a deceased miner who is entitled to a monthly allowance
or to a pension, is also entitled to a pension
under the Workmen’s
Compensation Act, 1941 (Act No. 30 of 1941), the Board may (after
consulting with the Workmen’s Compensation
Commissioner . . .) . .
. reduce the amount of the said monthly allowance or the first
mentioned pension (whether before awarding
it or after having allowed
it) by a fraction thereof not exceeding one third.’
[7] The Silicosis Act of
1946 was succeeded by the Pneumoconiosis Act
56 of
1956. A Pneumoconiosis Certification Committee was established (s 8)
which was empowered to certify whether a person was suffering
from
pneumoconiosis and tuberculosis and to certify the relevant stage of
the disease (s 9). Restrictions were placed on the employment
of
persons in a dusty atmosphere (s 15), and provision was made for the
declaration of certain mines as ‘controlled mines’ (s
54) in
which work in a dusty atmosphere was prohibited without a prior
medical examination and the issuing of a certificate of fitness
(s
15). The Controlled Mines Compensation Fund (s 55) was funded by
levies on owners of controlled mines (s 56). Provision was made
for
the payment of benefits to persons suffering from pneumoconiosis and
tuberculosis and their dependants (ss 75 ff, 83-7, 90 ff:
a
distinction was drawn between benefits payable to ‘miners’,
‘coloured labourers’ and ‘native labourers’).
[8] The Pneumoconiosis
Compensation Act 64 of 1962 replaced the 1956 Act. It provided for
the establishment of a hierarchy of institutions
administering the
Act such as the Miners’ Medical Bureau (s 3), the Miners’
Certification Committee (s 7), the appointment of
the Pneumoconiosis
Compensation Commissioner (s 46) as well as the General Council for
Pneumoconiosis Compensation (s 48) and the
Pneumoconiosis Risk
Committee (s 64). It imposed restrictions on the employment of
persons in a dusty atmosphere (ss 18 and 19);
regulated the
examination of miners and the issue of certificates of fitness (ss 20
to 42); and provided for the declaration of mines
as ‘controlled
mines’ (ss 43 and 44) and the estimation of the pneumoconiosis risk
at controlled mines and notification thereof
(ss 66 to 68). The Act
provided for the payment of pensions and other benefits to miners,
‘coloured labourers’ (ss 71 ff) and
‘Bantu’ labourers (s 79
ff) suffering from pneumoconiosis or tuberculosis from the
Pneumoconiosis Compensation Fund (s 108) which
was funded by levies
paid by the owners of controlled mines (s 119).
2
Provision was also made for compensation payable to the dependants of
the miners and labourers who had passed away. Section 97(4)
provided
that where a ‘miner’ or a ‘coloured labourer’ or a dependant
received a monthly allowance or pension and was also
entitled to a
pension under the Workmen’s Compensation Act 30 of 1941,
3
the council
‘
may after consultation
with the Workmen’s Compensation Commissioner . . . reduce the
amount of the said monthly allowance or the
firstmentioned pension,
whether by awarding it or after having awarded it, by any fraction
thereof not exceeding one-third.’
[9] None of the above
legislation relating to pneumoconiosis or miners’ phthisis referred
to excluded, or even mentioned, the employee’s
right to proceed at
common law against his or her employer for damages arising from the
contracting of these diseases at the workplace.
This absence of any
specific reference to a miner’s common-law claim for damages
against his employer also occurs in ODIMWA.
ODIMWA
[10] ODIMWA repealed
previous legislation and consolidated the law relating to
compensation for certain diseases contracted by persons
employed in
mines and works (s 136(1)). It continued the pattern established in
the earlier legislative measures referred to: ‘owners’
of
‘controlled mines’ are required to pay a prescribed levy to the
Compensation Commissioner for Occupational Diseases for the
benefit
of the compensation fund established by ODIMWA (s 62(1)). It provides
for the payment of compensation in relation to compensatable
diseases
contracted by persons performing ‘risk work’ in mines and works.
The Minister of National Health and Welfare is empowered
by s 13 to
declare any particular type of work performed at any mine or works to
be ‘risk work’, and may do so if satisfied that
any person
performing the work in question is exposed to dust of which the
composition and concentration are such that it is harmful
or
potentially harmful (s 13(2)). A mine at which risk work is being
performed must be declared a ‘controlled mine’ (s 10 and
see also
s 9). It established a committee called the Medical Certification
Committee for Occupational Diseases which considers reports
from
medical practitioners in respect of persons found to be suffering
from a ‘compensatable disease’, and determines the presence,
nature and degree of the compensatable disease (ss 44 and 46). The
Mines and Works Compensation Fund is controlled and managed by
the
Commissioner (s 61). The owner of a controlled mine (or works) is
required to pay a prescribed levy for the benefit of the compensation
fund in respect of each shift worked by any person at the particular
mine while performing risk work (s 62). When the Committee
determines that a person is suffering from a compensatable disease
which he or she contracted as a result of risk work at or in
connection
with a controlled mine, the Commissioner must award to him
or her a one-sum benefit calculated in accordance with a formula
which
takes into account the person’s earnings (ss 80(2) and see ss
80A and 80B).
[11] A ‘compensatable
disease’ is defined as
‘
(a) pneumoconiosis;
(b) the joint condition
of pneumoconiosis and tuberculosis;
4
(c) tuberculosis which,
in the opinion of the certification committee, was contracted while
the person concerned was performing risk
work, or with which the
person concerned was in the opinion of the certification committee
already affected at any time within the
twelve months immediately
following the date on which that person performed such work for the
last time;
(d) permanent obstruction
of the airways which, in the opinion of the certification committee,
is attributable to the performance
of risk work;
(e) any other permanent
disease of the cardio-respiratory organs which in the opinion of the
certification committee is attributable
to the performance of risk
work; or
(eA) progressive systemic
sclerosis which, in the opinion of the certification committee, is
attributable to the performance of risk
work; or
(f) any other disease
which the Minister, acting on the advice of a committee consisting of
the director and not fewer than three
other medical practitioners
designated by the Minister, has, subject to the provisions of
subsection (2), by notice in the
Gazette
declared to be a compensatable disease and which, in the opinion of
the certification committee, is attributable to the performance
of
risk work at a mine or works’.
[12] Section 100 of
ODIMWA is headed ‘No person entitled to benefits from more than one
source in respect of same disease’ and
provides:
‘
(1)  No
person shall be entitled to benefits under this Act in respect of any
disease for which he or she has received or
is still receiving full
benefits under the Workmen’s Compensation Act, 1941 (Act No. 30
of 1941).
(2)  Notwithstanding
anything in any other law contained, no person who has a claim to
benefits under this Act in respect
of a compensatable disease as
defined in this Act, on the ground that such person is or was
employed at a controlled mine or a controlled
works, shall be
entitled, in respect of such disease, to benefits under the Workmen’s
Compensation Act, 1941 (Act No. 30 of
1941), or any other law.’
The reference to the
Workmen’s Compensation Act 30 of 1941 must be understood to be a
reference to COIDA,
5
and the mention of ‘any other law’ as a reference to other
statute law, excluding the common law.
6
[13] In January 1994
ODIMWA was amended by the Occupational Diseases in Mines and Works
Amendment Act 208 of 1993.
7
The amending Act did away with all the provisions of ODIMWA which
differentiated between persons on the grounds of sex or population
group and added other provisions relating, inter alia, to the issuing
of certificates of fitness and the extent and determination
of
benefits payable under the Act. A new s 36A dealing with medical
expenses was inserted providing for the liability of the owner
of a
mine or controlled works to pay the reasonable costs incurred by or
on behalf of a person in his service in respect of medical
aid
necessitated by such disease for a period not exceeding two years
from the date of commencement of the disease.
8
COIDA came into operation on 1 March 1994 without any amendment of
ODIMWA.
Workmen’s compensation
legislation
[14] The liability of an
employer for injuries suffered by a workman arising from and in the
course of his or her employment underwent
considerable change during
the last century. The Transvaal Workmen’s Compensation Act 36 of
1907 expressly preserved a workman’s
common-law right to institute
proceedings against his or her employer for damages arising from
personal injury (s 32(1)). However,
the workman had to make an
election whether to claim compensation from the employer as
calculated in terms of the Act or to proceed
at common law. After
making an election, the workman was debarred from proceeding on the
other cause of action (s 32(2)). Liability
to pay compensation was
imposed on the employer by the Act (s 3) which contained a formula
for its calculation (ss 7 and 17).
[15] A similar approach
was followed in the Workmen’s Compensation Act
25 of
1914. Section 1 imposed liability on the employer to pay compensation
for personal injury resulting in incapacity or death caused
by an
‘accident’. However, s 1(1)(b) expressly preserved the workman’s
common-law right to claim damages ‘if such accident
was caused by
an act or default of the employer or of some person for whose act or
default the employer is responsible . . . ’.
9
The workman had to elect which remedy to pursue. By electing to
enforce either his common-law rights or his statutory claim to
compensation
he became debarred from pursuing the other. Where a
workman met with an accident resulting in injury or death in, at or
about any
mine or works while being trained or engaged in first aid,
ambulance or rescue work the injury or death was deemed to have
arisen
out of and in the course of his work (s 1(2)). The Workmen’s
Compensation (Industrial Diseases) Act 13 of 1917 amended the 1914
Act to provide for compensation also for the industrial diseases
listed in the Schedule, viz cyanide rash, lead and mercury poisoning
(s 1). Prior to its enactment compensation was limited to personal
injury caused by the accident.
[16] The Workmen’s
Compensation Act 59 of 1934 provided for a system of compensation to
be paid by the employer in respect of the
disablement or death of a
workman if an accident arising out of and in the course of employment
happened to him or her (s 2(1)).
Fault on the part of the employer
was no requirement for liability but, in return, the workman lost his
or her common-law remedies
against the employer. Section 4 provided:
‘
(1) No action at
common law shall lie by a workman or any dependant of a workman
against such workman’s employer or the principal
as defined … to
recover any damages for and in respect of any injury resulting in the
disablement or death of such workman caused
by any accident happening
after the commencement of this Act; and any claim for damages shall
be determined under and in accordance
with this Act.
(2) No liability for
compensation shall arise save under and in accordance with the
provisions of this Act in respect of any such
injury.’
Chapter V dealt with
industrial diseases and specifically with compensation in respect of
‘scheduled diseases’. Section 60 imposed
liability for
compensation on the employer to a workman or his or her dependants
where the workman was suffering from a scheduled
disease causing
disablement or where his or her death was caused by such disease and
the disease was due to the nature of the workman’s
employment as if
his or her disablement or death had been caused by an accident. The
diseases were specified in the Second Schedule
as cyanide rash, lead
poisoning or its sequelae, mercury poisoning or its sequelae and
ankylostomiasis (hookworm). The employer’s
liability was limited
to the payment of compensation as determined by the Act. However, s 5
provided for the payment of increased
compensation where the accident
was due to the employer’s negligence. Moreover, s 46 provided that
if the accident arose in circumstances
creating a legal liability in
a third party to pay damages, the workman was entitled to take
proceedings against both the third party
for damages and against the
employer for compensation.
[17] The Workmen‘s
Compensation Act 30 of 1941,
replacing
the 1934 Act, introduced a new system of compensation by the
establishment of a compensation fund to which employers contributed
and from which workmen were to be compensated. The scheme of the Act
included an indemnity for the employer against any common-law
claim
the employee may have had against him (s 7). Section 27 provided that
‘if an accident happened to a workman resulting in
his disablement
or death, the workman shall be entitled to benefits under this Act’.
An ‘accident’ was described as ‘an accident
arising out of and
in the course of a workmen’s employment and resulting in a personal
injury’ (s 2). An ‘accident fund’
was established (s 64)
consisting, inter alia, of contributions by employers based on the
total amount of the wages of the workmen
employed by them (ss 68 ff)
which became liable for the payment of compensation unless the
employer was ‘individually liable’
for payment (s 37). Section 7
provided:
‘
(a) no action at law
shall lie by a workman or any dependant of a workman against such
workman’s employer to recover any damages
in respect of an injury
due to accident resulting in the disablement or the death of such
workman; and
(b) no liability for
compensation on the part of such employer shall arise save under the
provisions of this Act in respect of any
such disablement or death.’
[18] Chapter X dealt with
compensation for ‘industrial diseases’ and followed the pattern
of the
1934 Act.
10
Section 89 provided:
‘
Where it is proved to
the satisfaction of the commissioner . . . that the workman is
suffering from a scheduled disease due to the
nature of his
occupation and is thereby disabled for employment, or that the death
of the workman was caused by such disease, the
workman shall be
entitled to compensation as if such disablement or death had been
caused by an accident, and the provisions of this
Act shall, subject
to the provisions of this Chapter, mutatis mutandis apply . . . ’.
The ‘scheduled
diseases’ referred to in the Second Schedule originally included
ankylostomiasis (hookworm) arising from the occupation
of ‘mining
carried on underground’ in workmen other than ‘Asiatics’ or
‘natives’; arsenical poisoning; benzene poisoning;
dermatitis due
to dust; halogen poisoning; lead poisoning; pathological
manifestations due to radium or X-rays and ‘silicosis’
due to the
’excavation of works’. The Second Schedule was, however, often
amended
11
and in 1952,
12
the occupation relating to ‘silicosis’ was changed from
‘excavation works’ to
‘
Any occupation (not
being a “dusty occupation” as defined in section one of the
Silicosis Act, 1946) in which workmen are exposed
to the inhalation
of silicon dioxide’.
In 1959 the Second
Schedule was amended again by the insertion of the words ‘asbestosis
or other fibrosis of the lungs caused by
mineral dust’ after the
word ‘silicosis’ and the description of the related occupation
changed to
‘
any occupation (other
than in a “dusty atmosphere” as defined in the Pneumoconiosis
Act, 1956), in which workmen are exposed to
the inhalation of silica
dust, asbestos dust or other mineral dust.’
A ‘dusty occupation’
was defined in the Silicosis Act 46 of 1946 as ‘any mining
operation performed by a person . . . while
he is working below the
natural surface of the earth, or any duty performed at a mine below
the natural surface of the earth by a
servant of the State, or any
mining operation performed by a person . . . on or above the natural
surface of the earth at a place
where rock, stone, ore or any mineral
is ordinarily reduced in size or classified by any dust-producing
process . . . ‘.
13
COIDA
[19] COIDA came into
operation on 1 March 1994. It repeals the Workmen’s Compensation
Act 30 of 1941 (s 100(1)) and provides for
the compensation for
employees injured in accidents that arose out of and in the course of
their employment or who contracted occupational
diseases. A
compensation fund was established (s 15) to which employers are
required to contribute (s 87) and from which compensation
and other
benefits are paid to employees (s 16). The compensation fund is
funded by assessments paid by employers and calculated
by the
Director-General on a percentage of the annual earnings of employees
of employers carrying on business in the Republic. The
other income
of the compensation fund consists of interest on investments, amounts
transferred from the reserve fund, and contributions
paid by
employers individually liable and by mutual associations (ss 15, 80,
82, 86 and 88). Assessments payable by employers are
determined by
two principal factors: the remuneration of the employees and the
class of industry in which the employer operates.
An employer’s
assessment is based on an annual statement of earnings that all
employers must submit to the commissioner. Earnings
must be
calculated in terms of s 63 of COIDA and the commissioner may
prescribe a maximum amount on which the assessment must be
calculated
(s 83(8)). The commissioner determines the amounts payable according
to a tariff of assessment. This is done on the basis
of a percentage
of the annual earnings of the employees of an employer with regard to
the requirements of the compensation fund for
the year of assessment
(s 83(1)). The class of industries covered is divided into 23 classes
with 102 sub-classes and the assessment
rates vary according to the
class.
14
Assessments may also be made by the commissioner on any other basis
deemed equitable (s 83(2)(a)). There are detailed provisions
for the
calculation of compensation payable based principally on the earnings
of the claimant and the degree of injury or disablement
(ss 53, 63
and 67). Pensions are increased annually to keep track of inflation
(s 57). Special provision is made for the calculation
of compensation
payable to employees under the age of 26 and those undergoing
training who have been permanently disabled by an occupational
disease or injury: their compensation is calculated on the basis of
the earnings a recently qualified person with five more years’
experience than the employee or of the earnings of a 26 year old
person with five more years experience than the employee (s 51).
[20] COIDA allows
employees to obtain limited compensation from a fund to which
employers are obliged to contribute. The Act ‘supplants
the
essentially individualistic common-law position, typically
represented by civil claims of a plaintiff employee against a
negligent
defendant employer, by a system which is intended to and
does enable employees to obtain limited compensation from a fund to
which
the employers are obliged to contribute.’
15
[21] Section 35(1) of
COIDA abolished an employee’s common-law right to claim damages
from the employer. Section 36 regulates and
preserves an employee’s
rights against a third party who may incur liability to the employee.
Of significance is s 56(1) which
provides that if a person has met
with an accident or contracted an occupational disease owing to his
or her employer’s negligence,
the employee may apply to the
commissioner to receive ‘increased compensation in addition the
compensation normally payable in
terms of this Act’. The amount of
additional compensation is determined by the Director-General in an
amount deemed equitable but
which may not exceed the amount of
pecuniary loss the claimant has or will suffer (s 56(4)).
16
Where increased compensation is payable in terms of s 56, the
negligent employer may be assessed at a higher tariff than the tariff
for the assessment of employers in a like business (ss 56(7) and
85(2)).
[22] Where an employee
meets with an accident resulting in his or her disablement or death
(s 22(1))
17
or contracts an occupational disease (s 65), he or she is entitled to
the benefits provided for by COIDA. Section 65 deals with
compensation
payable for occupational diseases:
‘
(1) Subject to the
provisions of this Chapter, an employee shall be entitled to the
compensation provided for and prescribed in this
Act if it is proved
to the satisfaction of the Director-General -
(a) that the employee has
contracted a disease mentioned in the first column of Schedule 3 and
that such disease has arisen out of
and in the course of his or her
employment; or
(b) that the employee has
contracted a disease other than a disease contemplated in paragraph
(a) and that such disease has arisen
out of and in the course of his
or her employment.’
An ‘occupational
disease’ is defined as ‘any disease contemplated in section
65(1)(a) or (b)’. The diseases referred to by
the appellant in his
particulars of claim are ‘silicosis, pulmonary tuberculosis and
obstructive airways disease’. As pointed
out in paragraph 2 above,
he alleged that his exposure to harmful dusts and gases, including
silica dust, in the workplace during
his period of employment
contributed materially to his developing pulmonary tuberculosis and
silicosis and to his contracting obstructive
airways disease. These
diseases are either ‘occupational diseases’ under s 65(1)(a) read
with the first column of Schedule 3
that arose out of and in the
course of the appellant’s employment or, they are diseases under s
65(1)(b), namely ‘diseases’
other than those contemplated by s
65(1)(a) that arose out of and in the course of the appellant’s
employment. The intention of
the legislature was clearly to cast the
ambit of an employee’s entitlement to compensation as widely as
possible. Section 65(1)(b)
makes this clear.
Interpreting section
35(1) of COIDA
[23] This appeal concerns
the proper interpretation of s 35(1). It was contended on behalf of
the appellant that s 35(1) did not contain
a general ouster of
liability and that it did not apply to persons who did not fall
within the definition of ‘employee’ or who
did not qualify for
compensation under COIDA. The submission was that persons having
claims under ODIMWA had no claims under COIDA
and could therefore not
be regarded as ‘employees’ falling under the compensatory scheme
of COIDA. Section 100(2) of ODIMWA,
it must be recalled, excludes a
person who has a claim under its provisions from any entitlement to
the benefits under COIDA. Section
35(1) of COIDA is headed
‘Substitution of compensation for other remedies’. This, it was
submitted, gave some indication of the
legislature’s intention to
extinguish only the common-law claims of those employees who qualify
for compensation under COIDA. The
use of words such as ‘occupational
injury’, ‘occupational disease’, ‘disablement’ and
‘compensation’ in the subsection
pointed to that conclusion. In
developing the argument, Mr Marcus, who appeared for the appellant,
called for an interpretation to
‘promote the spirit, purport and
objects of the Bill of Rights’ as required by s 39(2) of the
Constitution. A court, of course,
must interpret legislation in this
manner.
18
Moreover, it must ‘prefer interpretations that fall within
constitutional bounds over those that do not’.
19
A court must therefore ascertain whether it is reasonably possible to
interpret the legislation in a manner that conforms to the
Constitution, ie ‘by protecting the rights therein protected.’
20
It was submitted that three constitutional rights of the appellant
were involved, ie the right to equality (s 9), the right of access
to
the courts (s 34) and the right to property (s 25).
21
[24] In formulating the
constitutional approach to interpretation in
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor Distributors
(Pty) Ltd & others v Smit NO & others
22
Langa DP added:
‘
Limits must, however,
be placed on the application of this principle. On the one hand, it
is the duty of a judicial officer to interpret
legislation in
conformity with the Constitution so far as this is reasonably
possible. On the other hand, the Legislature is under
a duty to pass
legislation that is reasonably clear and precise, enabling citizens
and officials to understand what is expected of
them. A balance will
often have to be struck as to how this tension is to be resolved when
considering the constitutionality of legislation.
There will be
occasions when a judicial officer will find that the legislation,
though open to a meaning which would be unconstitutional,
is
reasonably capable of being read “in conformity with the
Constitution”. Such an interpretation should not, however, be
unduly
strained.’
[25] Interpretation seeks
to give effect to the object or purpose of legislation. It involves
an inquiry into the intention of the
legislature. It is concerned
with the meaning of words without imposing a view of what the policy
or object of the legislation is
or should be.
23
In
Dadoo
Ltd & others v Krugersdorp Municipal Council
24
Innes CJ said:
‘
Speaking generally,
every statute embodies some policy or is designed to carry out some
object. When the language employed admits
of doubt, it falls to be
interpreted by the Court according to recognized rules of
construction, paying regard, in the first place,
to the ordinary
meaning of the words used, but departing from such meaning under
certain circumstances, if satisfied that such departure
would give
effect to the policy and object contemplated. I do not pause to
discuss the question of the extent to which a departure
from the
ordinary meaning of the language is justified, because the
construction of the statutory clauses before us is not in
controversy.
They are plain and unambiguous. But there must, of
course, be a limit to such departure. A Judge has authority to
interpret, but
not to legislate, and he cannot do violence to the
language of the lawgiver by placing upon it a meaning of which it is
not reasonably
capable, in order to give effect to what he may think
to be the policy or object of the particular measure.’
It is therefore with the
meaning of the words of s 35(1) that I am concerned.
[26] Section 35(1)
follows the same pattern as s 4 of the 1934
25
and s 7 of the 1941
26
Workmen’s Compensation Acts. Although it does not contain two
sub-paragraphs as the earlier legislation did, it deals with the
same
two aspects. The first part of s 35(1) (‘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 …’) corresponds with s 4(1) of the 1934 Act and s 7(a)
of the 1941 Act. It extinguishes the employee’s common-law
rights
against the employer. The second part (‘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’)
corresponds with s 4(2) of the 1934 Act and s 7(b) of
the 1941 Act.
Under the 1934 Act, the employer’s liability was limited to the
payment of compensation as calculated under that
enactment. Under the
1941 Act, compensation was payable from the compensation fund and an
employer was liable to pay compensation
only under limited
circumstances. This is also the position under COIDA. Compensation is
payable by the Director-General from the
compensation fund but only
in a few instances by the employer, eg where the employer is an
‘employer individually liable’.
27
[27] In support of its
construction of s 35(1) that only persons having claims under COIDA
could be regarded as ‘employees’ the
appellant relied on
Small
v Goldreich Buildings Ltd and Reid & Knuckey (Pty) Ltd
.
28
This case concerned s 45(1) of the 1934 Workmen’s Compensation Act
which deemed the main contractor, the ‘principal’, to be
the
employer of workmen of a sub-contractor ‘unless and until such
[sub]contractor is … in possession of a policy of insurance
or
indemnity’. Section 4 of the 1934 Act also excluded the liability
of a ‘principal as defined’ in s 45. Section 45, however,
contained no definition (‘omskrywing’) of ‘principal’ and
Schreiner J held that, because the sub-contractor was in possession
of a policy of insurance, the main contractor did not fall within
that description.
29
This judgment provides no support for the appellant’s
construction.
Mphosi
v Central Board for Co-Operative Insurance Ltd
30
was
also referred to. The court stated that the word ‘damages’ in s 7
of the 1941 Workmen’s Compensation Act was unqualified
and ‘must
necessarily refer to all damages suffered in respect of such an
injury as is described in that passage.’
31
The court added that the words ‘resulting in the disablement or
the death of such workman’ were included
‘
to tie up with the
provisions of sec. 27 … which sets out the circumstances in which a
workman is entitled to compensation under
the Act, in order to limit
the operation of sec. 7(a) to the recovery of damages in respect of
an injury which is compensable under
the Act. If the words in
question were omitted from sec. 7 the result could be that a workman
might be deprived of his common law
action for damages also in
respect of an injury which, though due to an “accident”, did not
result in the disablement of the
workman, and was therefore not
compensable under the Act’.
32
The point is that, had
those words been omitted, other claims by the employee against the
employer might also have been excluded by
s 7(a) of the 1941 Act.
This case is no authority for the proposition that a workman had to
have an enforceable claim for compensation
under the 1941 Act before
s 7(a) became applicable. There is hardly any other way to formulate
the substitution of remedies than
in the manner set out in s 35(1) of
COIDA or s 7 of the repealed 1941 Act.
[28]
Pettersen
v Irvin & Johnson Ltd
33
is of more relevance. It concerned the question whether s 7 of the
1941 Workmen’s Compensation Act ‘precludes an action against
the
employer for general damages, i.e. for damages which have been held
to fall outside the scope of this Act and in respect of which
no
compensation can be recovered against the Workmen’s Compensation
Commissioner’. The court stated:
34
‘
The words employed by
the Legislature are of the widest connotation. The words “no action
shall lie” and the words “to recover
any damages” are as widely
framed as they could be. The “damages” must of course be in
respect of an injury, which must be
due to an accident that in turn
results in disablement or death.’
This means that an
employee’s common-law claim for general damages was excluded by s 7
even though the 1941 Workmen’s Compensation
Act did not provide for
compensation for such damages.
35
[29] The same reasoning
applies to s 35(1) of COIDA. The employee’s action for the
‘recovery of damages in respect of an occupational
injury or
disease resulting in the disablement or death’ of the employee is
extinguished. The subsection does not require that
the employee must
be entitled to receive compensation under COIDA. It refers to an
action for the recovery of damages which is abrogated.
This right is
qualified with reference to ‘an occupational injury or disease’
and to ‘disablement’ and ‘death’. Section
35(1) uses the
words and expressions occurring in COIDA. However, it does not follow
that it is implied that the employee must also
be entitled to
compensation under COIDA. Nor does the word ‘substitution’ used
in the heading of the section lead to the conclusion
that the
employee must be entitled to compensation under COIDA: where the
words in the text of the provision are clear, they cannot
be
overridden by the words used in the heading.
36
[30] The remedies
provided for by COIDA relate to an ‘employee’ and his or her
dependants (s 1 sv ‘employee’). ODIMWA, on
the other hand, deals
with a variety of matters including the control of mines (Chapter 1);
the inspection of mines and the determination
of risk (Chapter 2);
the medical examination of miners and their certification (Chapters 3
and 4); and the compensation fund and
compensation payable (Chapters
5 ff). Its benefits are payable not to an ‘employee’ as such but
rather to a person performing
‘risk work’ and his or her
dependants (eg ss 13(7), 62(1), 80(1), 80(2), 80A and 99). The
‘concept of ‘risk work’ replaced
that of work performed in a
‘dusty atmosphere’ used in previous legislation.
37
Although there are persons entitled to benefits other than
employees under ODIMWA, it obviously also applies to employees (s 16
and cf ss 23; 36 A, B and C; 80A).
[31] COIDA has a wider
ambit of application than the repealed Workmen’s Compensation Act
of 1941. This is so because it expands
the definition of ‘employee’
in s 1 to include also ‘casual workers’ and removes the earnings
limit of R 55 068 per annum
provided for in s 3(2)(b) of the 1941
Act. Employees employed at ‘controlled mines’ or ‘works’ are
not excluded from the
ambit of COIDA.
38
This is clear from the reference in s 25(b) to an employee being
engaged in ‘his employer’s mine’. Section 25(c) deals with
an
employee being engaged with the consent of his or her employer in any
of the emergency services referred to ‘or other emergency
service
on any mine, works or premises other than his employer’s’. COIDA
thus applies to both employees normally employed on
a mine but
engaged in emergency services on a mine other than their employer’s,
and to employees engaged in emergency services
in or about the
employer’s mine. Moreover, s 56(1)(d) refers to an engineer
appointed under the regulations made under the Minerals
Act 50 of
1991, showing an intention to include mine employees within the ambit
of COIDA. The same conclusion can be drawn from s
81(4) of COIDA that
refers to a health and safety representative elected under the
Mine
Health and Safety Act 29 of 1996
which applies to mines only.
Section
100(1)
of ODIMWA itself recognises the possibility of mine employees
being entitled to compensation under COIDA. It reads:
‘
No person shall be
entitled to benefits under this Act in respect of any disease for
which he or she has received or is still receiving
full benefits
under [COIDA].’
Section 99(3) of ODIMWA
also envisages that compensation may be claimable by mine employees
under COIDA. It provides:
‘
When the certification
committee has found that any person is suffering from a compensatable
disease which, in the opinion of that
committee, is attributable
partly but not mainly to work at a mine or works, the commissioner
may in his discretion award to or in
respect of such person who is
not in receipt of full benefits in respect of that disease under the
Workmen’s Compensation Act,
1941 (Act No. 30 of 1941), or any
other law, benefits not exceeding one-half of the benefits provided
for in this Act.’
[32] The delicate
relationship between COIDA and ODIMWA is regulated by s 100(2) of
ODIMWA:
‘
Notwithstanding
anything in any other law contained, no person who has a claim to
benefits under this Act in respect of a compensatable
disease as
defined in this Act, on the ground that such person is or was
employed at a controlled mine or a controlled works, shall
be
entitled, in respect of such disease, to benefits under [COIDA], or
any other law.’
This section precludes a
person entitled to benefits under ODIMWA from receiving compensation
under COIDA only in respect of a
‘
compensatable
disease’ as defined in ODIMWA. It does not affect any other claim
to compensation an employee such as a mine employee
may have in other
respects under COIDA. In other words, s 35(1) of COIDA abrogates an
employee’s common-law claim against his or
her employer in respect
of an ‘occupational disease’ even where the claim for
compensation is required by s 100(2) of ODIMWA
to be lodged under
ODIMWA. Where two enactments are not repugnant to each other, they
should be construed as forming one system and
as re-enforcing one
another.
39
The interrelation between ODIMWA and COIDA is apparent from s 100(2)
of ODIMWA. Just as their precursors,
40
they comprise one system of compensation and should be interpreted as
such.
[33] The two acts must be
harmonized. Together they cover the whole field of compensation for
damages arising from injury or diseases
contracted at work, with
ODIMWA providing for injuries and diseases in a specific area and
COIDA being of more general application.
Judging from the words of s
35(1) of COIDA it is unlikely that the legislature intended to have
different policies to apply to employer’s
liability under the two
enactments. The exclusion of liability in s 35(1) of COIDA is thus
not limited to employees with claims under
COIDA. It would be
irrational not to extend the protection against the common-law
liability of employers also to the owners of mines.
Historically all
employers, whether under COIDA or ODIMWA, fund the compensation funds
under the two enactments.
41
It follows that the legislature in enacting COIDA and ODIMWA intended
s 35(1) to apply also to employees with claims under ODIMWA.
The
court a quo was thus correct in holding that ‘there is no rational
basis for protecting the employer from common law liability
in return
for funding statutory compensation for diseases contracted by mine
employees in COIDA but not in ODIMWA.’
[34] There is another
reason why the uniform application of s 35(1) of COIDA to all
employees is called for. In terms of s 69 of COIDA
the Minister of
Labour may amend Schedule 3, also with retrospective effect, in
respect of both the description of the diseases and
the work
involved. Under ODIMWA the Minister of National Health and Welfare
may in terms of paragraph (f) of the definition of ‘compensatable
disease’ in s 1 declare a disease to be a compensatable disease.
However, he may make no such declaration in respect of a disease
which is compensable under COIDA except after consultation with the
Minister of Labour (s 1(2)(b) of ODIMWA). If the appellant’s
interpretation of s 35(1) is correct the effect of such a declaration
could be that an employer’s common-law liability could depend
on
not the terms of the statute but on a ministerial decision. A uniform
application of s 35(1) of COIDA to all employees would prevent
this
result.
[35] It was submitted on
behalf of the appellant that s 100(2) of ODIMWA removed a person from
consideration under COIDA where his
or her claim might otherwise be
brought under both COIDA and ODIMWA, thereby enforcing the
exclusivity of the regimes under the two
enactments to prevent double
compensation. By doing so, ODIMWA provided for benefits to all
persons falling within its ambit. The
benefits under ODIMWA, it was
submitted, may be supplemented by a common-law claim for damages.
42
COIDA, it was contended, is a regime of statutory compensation that
includes enhanced statutory compensation on showing that the
employer
had been negligent
43
with a concomitant exclusion of a common-law claim.
[36] I do not agree. All
employees falling within the ambit of COIDA are entitled to its
benefits. An employee who contracted a disease
at a controlled mine
or controlled works which qualifies both as a ‘compensatable
disease’ and as an ‘occupational disease’
is, by virtue of s
100(2) of ODIMWA, obliged to claim compensation under ODIMWA. It was
suggested that persons having a claim under
ODIMWA but not under
COIDA could not be regarded as ‘employees’ under COIDA. This
submission, however, would entail reading into
the text of s 35(1)
words qualifying the ‘employee’ to the effect that the employee
must have a valid claim under COIDA or words
excluding ‘employees’
with claims under ODIMWA. The suggested construction offends the
plain wording of s 35(1) which excludes
an employer’s liability
where the prescribed circumstances are present without regard to
whether or not the employee has a valid
claim under either of the two
Acts. A person qualifies as an ‘employee’ within the meaning of s
35(1) if he or she complies with
the requirements of the definition
in s 1 of COIDA. When the 1941 Workmen’s Compensation Act was
considered,
44
it was pointed out that the Second Schedule was amended in 1952 and
1959 to exclude from the occupation in respect of ‘silicosis’
any
occupation other than a ‘dusty occupation’ or one in a ‘dusty
atmosphere’ as defined in the 1946 Silicosis Act and the
1956
Pneumoconiosis Act respectively. The implication is that a person
employed in that way was a ‘workman’ as defined in the
1941
Workmen’s Compensation Act. COIDA defines an ‘employee’ in very
much the same, although expanded, terms. Persons employed
at mines
are comprehended within the definition of ‘employee’.
45
Whereas the scheduled diseases under the 1941 Workmen’s
Compensation Act in the context of this case referred only to
‘silicosis’,
the occupational diseases scheduled under COIDA
includes those referred to in the appellant’s particulars of claim
and, in any
event, include occupational diseases other than the
scheduled ones which ‘has arisen out of and in the course of [the
employee’s]
employment’ (s 65(1)(b)).
46
Section 35(1) of COIDA extinguishes all common-law claims for damages
‘in respect of any occupational injury or diseases resulting
in the
disablement or death’ of the employee. It follows that the claim of
the appellant is excluded by s 35(1) of COIDA. Any other
interpretation would be ‘unduly strained’.
Presumption against harsh
consequence
[37] It was suggested on
behalf of the appellant that s 35(1) of COIDA be construed in a
manner avoiding hardship on the part of the
appellant and those in a
similar position. In particular, reference was made to s 56 of COIDA
which makes provision for increased
claims by an employee where the
occupational injury or disease was caused by the negligence of, for
example, the employer. ODIMWA
has no such provision. In addition, it
was submitted that COIDA provided for the calculation of more
generous benefits payable to
the employee than does ODIMWA. Whether
this is so is not a matter that can be determined on exception.
47
The appellant or a person in his or her class that falls under the
provisions of ODIMWA can neither claim under COIDA nor pursue
his or
her common-law remedy against the employer. The appellant relies on a
series of presumptions calling for a construction that
would avoid
hardship.
48
[38] There are two
relevant presumptions, ‘namely that the legislature does not intend
that which is harsh, unjust or unreasonable;
and that in case of
doubt, the most beneficial interpretation should be adopted’.
49
The policy of COIDA, it was also said, is to assist employees as far
as possible, and it should ‘not be interpreted restrictively
so as
to prejudice a workman if it is capable of being interpreted in a
manner more favourable to him.’
50
However, this does not mean that ‘other well-recognised canons of
construction should be disregarded in the search for the
Legislature’s
intention. They must be accorded due weight and,
ultimately, may be decisive.’
51
The common law may be altered expressly or by implication.
52
To my mind, the clear provisions of s 35(1) of COIDA show that there
is an intention to alter the common law and to make inroads
into
existing rights: its plain meaning is that it bars claims by all
employees as defined, including those with claims under ODIMWA.
It
could well be that the provisions of s 35(1) of COIDA affect the
appellant harshly. But it would be equally unfair or ‘harsh’
to
require mines to pay levies to a compensation fund without receiving
some of protection against delictual claims by employees.
It would be
particularly ‘harsh’ where such protection is extended under
COIDA to all employers other than the owners of controlled
mines and
works for the identical diseases.
Generalia specialibus non
derogant
[39] It is a general
principle that where a later statute is irreconcilable with an
earlier one, the latter must be regarded as having
been impliedly
repealed.
53
However, the position may be different where the later statute is
general, and the earlier one special.
54
In such a case the earlier special statute remains in force. This
presumption of construction is referred to as
generalia
specialibus non derogant
,
and it was contended that the appellant’s interpretation of s 35(1)
of COIDA accorded with it. But the maxim does not always find
application ‘and the cardinal question is whether the Legislature
intended that its later general Act should alter its own earlier
special enactment . . . ’.
55
It was submitted that because s 35(1) of COIDA did not repeal s
100(2) of ODIMWA expressly it could not be construed as repealing
or
amending the latter section implicitly so that it remained
applicable. Section 100(2) of ODIMWA, however, does not give an
employee
a common-law right to claim damages from his employer. The
question is not whether s 35(1) of COIDA impliedly repealed s 100(2)
of
ODIMWA but whether s 35(1) of COIDA abrogated the common-law cause
of action of employees who have a claim under ODIMWA.
[40] As I have said, the
provisions of ODIMWA apply not specifically to ‘employees’ but to
those persons performing ‘risk work’
in mines. COIDA is of more
general application applying to all ‘employees’. Section 35(1) of
COIDA was intended to protect all
employers against common-law
liability. In this sense it was ‘meant to cover, without exception,
the whole field or subject to
which it relates’ refuting the
presumption created by the maxim
generalia
specialibus non derogant
.
56
EQUALITY
[41] It was contended
that if the respondent’s construction of s 35(1) of COIDA were to
be accepted it would violate the appellant’s
right to equality. The
appellant relied on an arbitrary differentiation in contravention of
s 9(1). It follows that the appellant
must show that the respondent’s
construction of s 35(1) of COIDA gives rise to differentiation that
is not rationally connected
to a legitimate governmental purpose. The
appellant relies on two forms of differentiation. The first is
between those employees
who give up their common-law claim but who
may receive increased compensation if their disease was caused by
their employer’s negligence
(ie those employees entitled to
compensation under COIDA) and those employees who give up their
common-law claim but may not receive
increased compensation even if
the disease was caused by their employer’s negligence (ie those
employees entitled to compensation
under ODIMWA). The second is
between those employees who give up their common-law claims in
exchange for the benefits provided for
by COIDA and those employees
who give up their common-law claims but must settle for the inferior
benefits provided for by ODIMWA.
57
Whether a particular measure constitutes unfair discrimination must
be determined by a consideration of the principles set out in
Harksen
v Lane NO & others
.
58
[42] However, the scope
of rationality review is narrow. As Yacoob J said in
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
:
59
‘
It is clear that the
only purpose of rationality review is an inquiry into whether the
differentiation is arbitrary or irrational,
or manifests naked
preference and it is irrelevant to this inquiry whether the scheme
chosen by the Legislature could be improved
in one respect or
another. Whether an employee ought to have retained the common-law
right to claim damages, either over and above
or as an alternative to
the advantages conferred by [COIDA], represents a highly debatable,
controversial and complex matter of policy.
It involves a policy
choice which the Legislature and not a court must make. The
contention represents an invitation to this Court
to make a policy
choice under the guise of rationality review; an invitation which is
firmly declined. The Legislature clearly considered
that it was
appropriate to grant to employees certain benefits not available at
common law. The scheme is financed through contributions
from
employers. No doubt for these reasons the employee’s common-law
right against an employer is excluded. Section 35(1) . . .
is
therefore logically and rationally connected to the legitimate
purpose of [COIDA].’
[43] The law
differentiates between employees who have claims under COIDA and
persons, including employees, who have claims under
ODIMWA. The
question is whether this form of differentiation is rationally
connected to a legitimate governmental purpose. If such
a connection
exists there is no arbitrary differentiation for the purposes of s
9(1) of the Constitution. In the circumstances of
this case such a
connection exists. The legislature adopted the view that there should
be two statutory schemes that are separately
funded and administered
to provide different compensation for the different claimants. The
existence of two historical schemes of
compensation is a legitimate
governmental purpose and the two enactments are rationally connected
to this purpose. The question is
not whether it is rational for
employees who have claims under COIDA to forsake their common-law
claims against the employers but
irrational for others with claims
under ODIMWA to do so. The question of rationality is directed at the
legislature. The legislature
has resolved that persons engaged in
risk work on controlled mines are required to claim under ODIMWA
rather than under COIDA in
circumstances where concurrent claims
would otherwise exist. This is not an arbitrary differentiation. To
hold otherwise would lead
to arbitrary differentiation between
employers in the mining industry. Some employers would be protected
against common-law claims
falling under COIDA but not where they fall
under ODIMWA. There can be no rational basis for protecting employers
from common-law
liability in return for funding the statutory
compensation scheme for miners under COIDA but not under ODIMWA.
[44] The appellant
submitted that to single out those performing risk work underground
on controlled mines and who, as a result of
having done so, acquired
an occupational lung disease, is patently unfair. It was submitted
that to single out this ‘already vulnerable
group’ and limiting
their claims for compensation would impair their fundamental human
dignity. The appellant’s particulars of
claim contain no allegation
to the effect that the benefits under ODIMWA are inferior to those
claimable under COIDA and it is not
possible to venture into this
question in these proceedings on exception. The different levels of
compensation are the result of
the differentiation between claimants
who have claims under COIDA and those with claims under ODIMWA. If
there are unequal benefits
payable the discrimination complained of
would be remedied by an equalization of those benefits under the two
schemes.
Access to court
[45] It was submitted
that the interpretation of s 35(1) of COIDA by the court a quo
limited the right of access to court under s
34 of the Constitution
60
by preventing those with claims under ODIMWA from pursuing a claim
that would otherwise have existed. This contention is directed
at the
substantive rules of law and not at the right of access in terms of s
34 of the Constitution. In
Montgomery
v Daniels
61
it was stated with reference to a no-fault statute which restricted a
victim’s right to claim for non-patrimonial loss that the
section
(article 18) ‘denies no one access to the courts; it merely alters
the substantive law, partially eliminating the right
of an automobile
accident victim to judicial recovery for injuries suffered.’
Retrospectivity of COIDA
[46] The appellant filed
supplementary heads of argument raising a legal issue that was not
dealt with by the court a quo. The appellant
had amended his
particulars of claim in order to meet the respondent’s exception by
pleading specifically, as I have said, that
‘[b]y reason of the
Plaintiff’s exclusion from the benefits payable in terms of
[COIDA], the Plaintiff is not an employee as
contemplated in section
35 of the Act. Accordingly the Plaintiff is not precluded by section
35 from bringing the action against
the Defendant.’ This was the
issue that had to be determined and not the point now raised that
COIDA by implication operated with
retrospective effect. The argument
was that s 35 provided a defence to the respondent only if it
operated retrospectively. COIDA
came into force on 1 March 1994.
Since the greater part of the period when the appellant was employed
(January 1997 to September
1995) was before 1 March 1994, it was
contended that there was a reasonable prospect that the appellant
would prove facts establishing
that his cause of action arose prior
to COIDA’s coming into force. For that reason it was argued that
the exception had to be dismissed:
it was not possible before
evidence is led to determine whether s 35 is applicable and, if it
does apply, it would only be for the
limited period from 1 March
1994, when the legislation came into force, to 11 September 1995,
when the appellant was dismissed.
[47] It is clear that
COIDA is not a retrospective statute in the strong sense,
62
ie ‘retroactive’, ‘where an Act provides that from a past date
the new law shall be deemed to have been in operation’.
63
This is not the issue. The question to be posed is rather whether s
35 of COIDA was intended to interfere prospectively with rights
that
existed on the day it came into force.
64
It seems to me that COIDA is a statute that ‘operates forwards, but
it looks backwards in that it attaches new consequences for
the
future to an event that took place before the statute was enacted.’
65
Section 35 was intended to interfere prospectively with rights that
existed on the day it commenced operation. It does not distinguish
between common-law causes of action arising before and after 1 March
1994. It ousts all claims for damages and operates so as to
interfere
with rights that may have existed at its commencement date. For these
reasons the issue raised by the appellant in his
supplementary heads
of argument must fail.
[48] The parties are in
agreement that no order as to costs need to be made. I concur in the
separate judgments of Harms DP and Cloete
JA. Accordingly the
following order is made:
The appeal is dismissed.
_____________________
F R MALAN
JUDGE OF APPEAL
HARMS DP:
[49] This appeal deals
with the question whether a mineworker who contracted miners’
phthisis during the course of his employment
is entitled to claim
damages from his employer, the mine. The judgment of Malan JA deals
in detail with all the submissions presented
to us, including the
history of the legislation concerned and many rules of
interpretation, and also the impact of the Constitution
on
interpretation. Little of this has had any significant impact on the
ratio of his judgment with which I concur. What follows does
not add
or detract from what Malan JA has said but contains a more direct
approach to the matter.
[50] The plaintiff seeks
damages from the defendant. The plaintiff was an employee (referred
to in the past as a workman) and the
defendant (the mine) his
employer. During the course of his employment, the plaintiff
contracted occupational diseases which, for
the sake of ease, I shall
refer to as miners’ phthisis. He is as a result unemployable and
has suffered damages. He alleges that
the occupational diseases were
caused by the mine’s breach of its common-law duty of care to have
provided him with a safe and
healthy work environment, and also
breach of a number of statutory duties of care relating to work
conditions at mines.
[51] Section 35(1) of the
Compensation for Occupational Diseases Act 130 of 1993 (COIDA), on
its plain wording, excludes the type
of relief sought by the
plaintiff. It reads:
‘
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.’
[52] In order to avoid
the effect of the provision and in an attempt to meet an exception
raised by the mine, the plaintiff amended
his particulars of claim
and alleged that he had not been an ‘employee’ for purposes of
COIDA of the mine. The plaintiff justified
the allegation that he was
not an employee falling under COIDA on the following basis: he was
employed at a mine by the defendant;
he contracted a ‘compensatable
disease’ as defined in the Occupational Diseases in Mines and Works
Act 78 of 1973 (ODIMWA); he
received compensation under ODIMWA; he
was therefore not entitled to compensation under COIDA; and,
consequently, he was not an ‘employee’
within the meaning of
COIDA.
66
[53] The plaintiff’s
case is based on a misconception, which became apparent during
argument, namely that a person’s status as
employee depends on the
nature of the occupational disease he contracts during the course of
his employment. An employee is, according
to the introductory part of
the definition of ‘employee’ in COIDA, ‘a person who has
entered into or works under a contract
of service . . . with an
employer’. An employee is not divisible and the definition is not
related to the nature of the injury
or disease but depends on the
contract. The misconception becomes apparent if regard is had to the
interaction between COIDA and
ODIMWA.
[54] COIDA entitles an
employee to compensation for occupational injuries and occupational
diseases. ‘Employee’ as defined includes
employees at all mines.
This means that mines, as employers, have to contribute to the COIDA
fund. If an employee working at a mine
sustains an occupational
injury, the employee is entitled to the prescribed compensation under
COIDA.
67
And, importantly, the employee is not entitled to recover damages
from the employer because of s 35(1).
[55] The same applies if
an employee at a mine contracts an occupational disease: the employee
is entitled to compensation under COIDA
and is subject to the
limitation under s 35(1). Section 65(1) of COIDA divides occupational
diseases into two classes. The one class
consists of the diseases
listed in Schedule 3. If an employee contracts one of these, there is
a presumption that the disease arose
out of and in the course of his
employment (s 66), which means that the employee is entitled to
compensation under COIDA. The second
class is open-ended: it includes
any disease that has arisen out of and in the course of employment of
the employee (s 65(1)(b)).
This class differs from the Schedule 3
class because, if contracted, the presumption does not apply and the
employee has to satisfy
the Compensation Commissioner that the
disease arose out of and in the course of employment before the
employee can become entitled
to compensation. To summarize: COIDA
covers all occupational injuries suffered and diseases contracted by
all employees employed
by mines.
[56] ODIMWA is different
in scope but this does not affect any of the principles set out. It
recognises that certain works at controlled
mines and works (see the
wide definitions of ‘mine’ and ‘works’ in s 1) may cause a
small number of high risk occupational
diseases, primarily miners’
phthisis. Because of the increased risk these employers have to carry
certain medical costs and provide
medical aid (s 36, 36A and 36B),
and have to contribute (in addition to their contributions under
COIDA) to another compensation
fund, the Mines and Works Compensation
Fund, to compensate employees who contract one of these
‘compensatable’ diseases (sections
60 and 61).
[57] Because ODIMWA’s
benefits are limited to the defined compensatable diseases, OIMWA
does not cover most occupational diseases
contracted by miners. It
also does not cover any occupational injuries sustained at mines and
works as defined. As mentioned, the
employee has to look to COIDA in
those circumstances.
[58] To prevent double
compensation, sections 99 and 100 of ODIMWA provide inter alia that
(a) an employee is not
entitled to any benefit under ODIMWA in respect of any compensatable
disease which is attributable exclusively
to work other than work at
a mine or works (as defined);
(b) if an employee
suffers from a compensatable disease, which is attributable partly
but not mainly to work at a mine or works, the
Compensation
Commissioner for Occupational Diseases may in his discretion award to
such person, who is not in receipt of full benefits
in respect of
that disease under COIDA, benefits not exceeding one-half of the
benefits provided for under ODIMWA;
(c) a person is not
entitled to benefits under ODIMWA in respect of any disease for which
he has received or is still receiving ‘full
benefits’ under
COIDA; and
(d) a person who has a
claim to benefits under ODIMWA in respect of a compensatable disease
is not entitled, in respect of such disease,
to benefits under COIDA.
[59] It follows from this
brief analysis that COIDA is the principal Act which sets out the
generally applicable provisions. ODIMWA
deals with special
circumstances without affecting those principles. The limitation
contained in s 35(1) of COIDA is therefore of
general application.
[60] I revert to the
misconception referred to above. The effect of the plaintiff’s
argument is that his employment at the mine
was divisible: he was an
employee for purposes of occupational injuries and most occupational
diseases under COIDA but in relation
to compensatable diseases he was
an employee under ODIMWA. Apart from the fact that this result is
illogical, it flies in the face
of the clear wording and purpose and
structure of the two statutes, and it avails not to have regard to
diverse rules of interpretation
or to add oblique references to the
Constitution.
[61] I should in
conclusion add some comments. The plaintiff made it clear that he was
not attacking the constitutionality of any
of these Acts in these
proceedings. The discrimination complaint was based on the submission
that the benefits under ODIMWA were
less than under COIDA but I
gained the impression that counsel did not press the point because
the alleged discrimination does not
appear from the Acts themselves
but if present may be due to problems in the regulations. In any
event, the plaintiff did not plead
facts on which a comparison could
have been made.
_____________________
L T C HARMS
DEPUTY PRESIDENT
CLOETE JA:
[62] I have had the
advantage of reading the judgments of my colleagues Malan JA and
Harms DP. I respectfully agree with both. However,
because of the
importance of this matter, I wish to deal in my own words with one of
the principal arguments advanced on behalf of
the appellant in the
heads of argument filed in this court. Before doing so, it would be
convenient to quote s 35(1) of COIDA,
68
together with the heading to that section:
'Substitution of
compensation for other legal remedies
(1) 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.'
[63] The submission on
behalf of the appellant was that the key to interpreting s 35(1) is
the word 'compensation' in the heading
which is defined in s 1, the
relevant part of the definition reading: '"Compensation"
means compensation in terms of this
Act . . ..' Therefore, went the
submission, as the appellant is not entitled to compensation under
COIDA (but only under ODIMWA),
69
he is not bound by what counsel termed the 'legislative bargain'
contained in s 35(1) and compensation under COIDA is not substituted
for his right to claim compensation at common law.
[64] The fallacy in this
submission is that s 35(1) is clear in its meaning and 'Where the
intention of the lawgiver as expressed
in any particular clause is
quite clear, then it cannot be overwritten by the words of a
heading.'
70
The section must be read as containing two discrete provisions
(previously contained in separate paragraphs in s 7 of the Workmen's
Compensation Act 30 of 1941)
71
conjoined by the word 'and' in the middle of the section. Although
both deal with occupational injury or disease resulting in
disablement
or death of an employee, they are not opposite sides of
the same coin. The first provision, which is in wide and general
terms, excludes
an action at common law against an employer for
damages. The second provision excludes all liability on the part of
an employer to
pay compensation (not damages), 'save under the
provisions of this Act'; and an employer is liable to pay
compensation under COIDA
eg where it is an employer individually
liable under s 84(1)(a) and where in terms of s 73(1) it is obliged
to pay the reasonable
costs incurred by an employee in respect of
medical aid. (Payment of the cost of medical aid is, in terms,
included in the definition
of 'compensation' in s 1.)
[65] The provisions of
ODIMWA are therefore not excluded by s 35(1) of COIDA, inasmuch as
ODIMWA confers no right to damages on an
employee, nor does it place
any obligation on an employer to pay compensation ─ the employee is
compensated from one of the two
funds established in terms of that
statute. There is no conflict between the two Acts: although ODIMWA
confers a right to benefits
on inter alios persons who fall within
the definition of 'employees' under COIDA, ODIMWA (in s 100(2))
72
excludes the right to obtain compensation under COIDA if and to the
extent that there is a right to compensation under ODIMWA.
_____________________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For Appellant: Gilbert
Marcus SC
Alan Dodson
Adrian Friedman
Instructed
by:
Abrahams Kiewitz
Attorneys
Cape Town
C/o Honey Attorneys
Bloemfontein
For Respondent: Chris
Loxton SC
Mark Antrobus SC
Alfred Cockrell
Instructed
by:
Brink Cohen Le Roux
Inc
Johannesburg
c/o Claude Reid
Bloemfontein
1
See the
Report
of the Commission of Inquiry into Compensation for Occupational
Diseases in the Republic of South Africa
(1981)
electronic copy by David W Stanton RP 100/81.
2
‘Pneumoconiosis’ was defined as a ‘permanent disease of the
cardio-respiratory organs . . . which has been caused by the
inhalation of mineral dust’ (s 1(xliii). ‘Tuberculosis’ was
described as ‘tuberculosis of the cardio-respiratory organs,
or
sequelae thereof . . .’ (s 1(lvi)) and ‘mineral dust’ as ‘dust
derived from any mineral, including coal and soil, in
the course of
mining operations’ (s 1(xxxvi)).
3
See
also s 101.
4
‘Tuberculosis’
is defined as
‘tuberculosis
of the cardio-respiratory organs of a person who has worked at least
200 shifts in circumstances amounting to a
risk and where silica
dust or any other injurious dust was present, or any sequelae,
complication or manifestation thereof, but
does not include inactive
or calcified foci’.
5
Section
12(1) of the Interpretation Act 33 of 1957.
6
Section
2 of the Interpretation Act 33 of 1957 and see
R
v Detody
1926 AD 198
at 201; S I E van Tonder, N P Badenhorst, C H J
Volschenk and J N Wepener
L
C Steyn Die Uitleg van Wette
(1981)
5 ed p 154.
7
GG
15449, 28 January 1994.
8
Section
36A(1) of ODIMWA was amended again in 2002 without any amendment of
COIDA.
9
Cf s
22(5) of the Native Labour Regulation Act 15 of 1911 which provided:
‘Nothing in this section shall be taken to debar any native
labourer from claiming compensation under his rights at common law
or under law relating to the payment of workmen’s compensation
in
force within the Union or any part thereof: Provided that if
compensation has been recovered by a native labourer or dependent
under this section no action shall lie against the employer for the
recovery of damages or compensation in respect of the same
accident.’
10
Para
16 above.
11
See
eg RG 147
GG
4644, 29 June 1951 inserting ‘anthrax’; RG 90
GG
229, 27 April 1962 inserting ‘benzene’; RG 98
GG
3856, 13 April 1973 inserting ‘Byssinosis’.
12
RG
63
GG
4817, 3 April 1952.
13
A ‘dusty atmosphere’ was defined in the Pneumoconiosis Act 57 of
1956 as a ‘place where dust occurs or is produced which
causes or
is likely to cause pneumoconiosis in persons employed in mining
operations therein or thereat, if such place is (a) below
the
natural surface of the earth; or (b) a place on or above the natural
surface of the earth – (i) where rock or stone or any
mineral is
ordinarily reduced in size or classified or moved or handled by any
dust producing process …’. See also s 1(xxi)
of the
Pneumoconiosis Compensation Act 64 of 1962 and paras 7 to 8 above.
14
M
P Olivier, N Smit and E R Kalula (eds)
Social Security; A Legal Analysis
(2003) p 468.
15
Jooste
v Score Supermarket Trading (Pty) Ltd
1999
(2) SA 1
(CC) para 15.
16
In
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
intervening)
1999 (2) SA 1
(CC) para 14 the effect of COIDA was summarised: ‘
An
employee who is disabled in the course of employment has the right
to claim pecuniary loss only through an administrative process
which
requires a Compensation Commissioner to adjudicate upon the claim
and to determine the precise amount to which that employee
is
entitled. The procedure provides for speedy adjudication and for
payment of the amount due out of a fund established by the
Compensation Act to which the employer is obliged to contribute on
pain of criminal sanction. Payment of compensation is not dependent
on the employer’s negligence or ability to pay, nor is the amount
susceptible to reduction by reason of the employee’s contributory
negligence. The amount of compensation may be increased if the
employer or co-employee were negligent but not beyond the extent
of
the claimant’s actual pecuniary loss. An employee who is
dissatisfied with an award of the Commissioner has recourse to a
Court of law which is, however, bound by the provisions of the
Compensation Act. That then is the context in which section 35(1)
deprives the employee of the right to a common-law claim for
damages.’
17
Section 22(1): ‘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.’
An
‘accident’ is defined as '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’.
18
Phumelela
Gaming and Leisure Ltd v Gründlingh & others
[2006] ZACC 6
;
2007 (6) SA 350
(CC) para 27;
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor
Distributors (Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) para 21;
Fraser v ABSA Bank Ltd (National Director of Public Prosecutions as
Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC) para 47;
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC) para 49.
19
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor
Distributors (Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) para 24.
20
Govender
v Minister of Safety and Security
2001
(4) SA 273
(SCA) para 11.
21
The
right to property identified is the appellant’s common-law claim
against his employer. See
Logan
v Zimmerman Brush Co
455
US 422
;
Hewlett
v Minister of Finance & another
1982
(1) SA 490
(ZSC) at 494B-E and 497H-498E;
Pressos
Compania Naviera SA v Belgium
[1995] ECHR 47
;
(1995)
21 EHRR 301
para 31.
22
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 23 and 24. See further
De
Beer NO v North-Central Local Council and South-Central Local
Council & others (Umhlatuzana Civic Association Intervening)
[2001] ZACC 9
;
2002
(1) SA 429
(CC) para 11;
National
Director of Public Prosecutions & another v Mohamed NO &
others
[2002] ZACC 9
;
2002
(4) SA 843
(CC) para 33;
Lawyers
for Human Rights & another v Minister of Home Affairs &
another
[2004] ZACC 12
;
2004
(4) SA 125
(CC) para 31.
23
Standard
Bank Investment Corporation v Competition Commission
Ltd v
Competition Commission and Others; Liberty Life Association of
Africa Ltd v Competition Commission and Others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) para 16. In
Poswa
v MEC for Economic Affairs, Environment and Tourism, Eastern Cape
2001 (3) SA 582
(SCA) para 9 Schutz JA stated: ‘The difficulty,
which faces any argument which claims better knowledge of what the
legislature
intended than what the legislature itself appears to
have had in mind when it expressed itself as it did, is to establish
with
reasonable precision what the unexpressed intention contended
for, was.’
24
1920 AD 530
at 543 cited with approval in
Standard
Bank Investment Corporation v Competition Commission
Ltd v
Competition Commission and Others; Liberty Life Association of
Africa Ltd v Competition Commission and Others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) para 16.
25
Para
16 above.
26
Para
17 above.
27
See
s 1: an ‘employer individually liable’ is ‘an employer who in
terms of section 84(1)(a) is exempt from paying assessments
to the
compensation fund’. Further ss 29, 54(2), 61, 72, 73, 78.
(‘Compensation’ is defined in s 1 of COIDA to include, where
applicable, ‘medical aid or payment of the cost of such medical
aid’). Cf
Rand
Mutual Assurance Company Ltd v Road Accident Fund
[2008] ZASCA 114
;
2008
(6) SA 511
(SCA) paras 4 ff.
28
1943
WLD 101.
29
At
109-110.
30
1974
(4) SA 633
(A).
31
At
643G-H.
32
At
643H-644A. See para 17 above.
33
1963 (3) SA 255
(C) at 256G-7A.
34
At
256H-257A.
35
See
Mphosi
v Central Board for Co-Operative Insurance
1974 (4) SA 633
(A) at 642-4;
Mlomzale
v Mizpah Boerdery (Pty) Ltd
1997
(1) SA 790
(C) at 793I-J.
36
Turffontein
Estates Ltd v Mining Commissioner, Johannesburg
1917 AD 419
at 431 and see Steyn above p 147-8.
37
See paras 6 and 7 above.
38
Para
7 above.
39
Petz
Products v Commercial Electrical Contractors
1990 (4) SA 196
(C) at 204H-I;
R
v Maseti & others
1958
(4) SA 52
(E) at 53H;
Nkabinde
v Nkabinde and Nkabinde
1944
WLD 112
at 122;
Johannesburg
City Council v Makaya
1945 AD 252
at 257 and 259;
Chotabhai
v Union Government & another
1911
AD 13
and see Steyn
above
p 153
188 ff.
40
See
paras 6, 8 and 12 above.
41
See
paras 5, 6, 7, 8, 10, 17 and 19 above.
42
Indeed in the 1981
Report
of the Commission of Inquiry into Compensation for Occupational
Diseases in the Republic of South Africa
it
was said: ‘2.4.1.15 The Occupational Diseases [in Mines and Works]
Act [78 of 1973] contains no provision comparable to section
43 of
the Compensation Act. Since the common law remains applicable until
it is amended or set aside by legislation, and since
the
Occupational Diseases Act contains no such provision, no worker is
denied the right to recover full indemnification from the
employer
under the common law in appropriate circumstances. The Occupational
Diseases Act therefore has no real shortcoming in
this regard,
except in so far as it, unlike the Compensation Act, contains no
provision for a shorter and less complicated procedure
for enforcing
the law.’ For the reasons set out in this judgment this view is
not correct.
43
Section 56 of COIDA.
44
See
para 18 above.
45
Para
31 above.
46
Para
22 above.
47
See
s 49 of COIDA read with Schedule 4; s 80 of ODIMWA in regard to
permanent disability. Further s 47(1) of COIDA read with Schedule
4
in regard to temporary disability; s 54(2) of COIDA read with
Schedule 4 in regard to funeral expenses. The method of compensation
provided for by ODIMWA is set out in s 80. Section 36A, B and C of
ODIMWA, however, contains special provisions regarding the payment
of medical expenses of persons suffering from compensatable diseases
mine owners. A comparison of the benefits can only be made
after
evidence quantifying them has been led.
48
Veldsman
v Director of Public Prosecutions, Witwatersrand Local Division
2007 (3) SA 210
(CC) para 26. Further
Barlow
& Jones Ltd v Elephant Trading Co
1905
TS 637
at 648;
Transvaal Investment Co Ltd v Springs Municipality
1922
AD 337
at 347;
Rossouw
v Sachs
1964
(2) SA 551
(A) at 562C-E;
Pan
American World Airways Incorporated v SA Fire and Accident Insurance
Co Ltd
1965
(3) SA 150
(A) at 164C-D;
Government of the Islamic Republic of Iran v Berends
1998
(4) SA 107
(Nm) at 118J–119C;
Arenstein v Secretary for Justice
1970
(4) SA 273
(T) at 281A-E;
Yarram
Trading CC t/a Tijuana Spur v ABSA Bank Ltd
2007 (2) SA 570
(SCA) para 14.
49
Government
of the Islamic Republic of Iran v Berends
1998
(4) SA 107
(Nm) at 118J–119C;
Principal
Immigration Officer v Bhula
1931 AD 323
at 336-7 and see Steyn p 101 ff.
50
Davis
v Workmen’s Compensation Commissioner
1995
(3) SA 689
(C) at 694F-G and see
Workmen’s
Compensation Commissioner v Van Zyl
[1996] ZASCA 19
;
1996
(3) SA 757
(A) at 764F-G;
Workmen’s Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997
(4) SA 418
(SCA) at 424D-F.
51
Workmen’s
Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997
(4) SA 418
(SCA) at 424E-F.
52
Yarram
Trading CC t/a Tijuana Spur v ABSA Bank Ltd
2007 (2) SA 570
(SCA) para 14;
Casserly
v Stubbs
1916
TPD 310
at 312 and cf
Pan
American World Airways Incorporated v SA Fire and Accident Insurance
Co Ltd
1965 (3) SA 150
(A) at 164C-D.
53
Steyn
p 188 ff.
54
Khumalo
v Director-General of Co-Operation and Development & others
[1990] ZASCA 118
;
1991 (1) SA 158
(A) at 163B-D.
55
Khumalo
v Director-General of Co-Operation and Development & others
[1990] ZASCA 118
;
1991
(1) SA 158
(A) at 163D-E;
S
v Mseleku
1968
(2) SA 704
(N) at 707C-E. See
Sasol
Synthetic Fuels (Pty) Ltd & others v Lambert & others
2002
(2) SA 21
(SCA) paras 17 and 18;
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) paras 101 and 102.
56
Khumalo
v Director-General of Co-Operation and Development and Others
[1990] ZASCA 118
;
1991
(1) SA 158
(A) at 163D-E;
New
Modderfontein Gold Mining Company v Transvaal Provincial
Administration
1919
AD 367
at 397. Cf
Principal
Immigration Officer v Bhula
1931
AD 323
at 336.
57
Section
9 of the Constitution provides: ‘(1) Everyone is equal before the
law and has the right to equal protection and benefit
of the law.
(2) Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality,
legislative and
other measures designed to protect and advance persons, or
categories of persons, disadvantaged by unfair discrimination
may be
taken. (3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including
race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth. (4) No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination. (5)
Discrimination
on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination is
fair.’ Section
9(3) is the equivalent of s 8(2) of the interim
Constitution.
58
[1997] ZACC 12
;
1998
(1) SA 300
(CC) para 53 with reference to s 8 of the interim
Constitution. See
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
1999
(2) SA 1
(CC) para 11;
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA 1
(CC) paras 58-64;
President
of the Republic of South Africa v Hugo
1997
(4) SA 1
(CC) para 41.
59
1999
(2) SA 1
(CC) para 17. See also
S
v Lawrence; S v Negal; S v Solberg
1997
(4) SA 1176
(CC) paras 41-46;
New
National Party of South Africa v Government of the Republic of South
Africa & others
[1999] ZACC 5
;
1999 (3) SA 191
(CC) paras 24-25.
60
Section
34 provides: ‘Everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair
public
hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.’
61
340
NE 2d 444
at 456.
62
Cf
s
100(3) of COIDA.
63
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission & others
1999
(4) SA 1
(SCA) para 13 and see para 14. See
Adampol
(Pty) Ltd v Administrator Transvaal
1989
(3) SA 800
(A) at 811D-E;
National
Director of Public Prosecutions v Carolus
2000
(1) SA 1127
(SCA) paras 34-35;
Workmen’s
Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997
(4) SA 418
(SCA) at 423F-H
.
64
See the distinction drawn in
Adampol
(Pty) Ltd v Administrator Transvaal
1989 (3) SA 800
(A) at 811D-E and 812E-H;
National
Director of Public Prosecutions v Carolus
2000
(1) SA 1127
(SCA) paras 34-35;
Transnet
Ltd v Ngcezula
[1994] ZASCA 192
;
1995
(3) SA 538
(A) at 548I-549B;
Workmen’s
Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997
(4) SA 418
(SCA) at 423G-H.
65
Cited in
National
Director of Public Prosecutions v Carolus
2000
(1) SA 1127
(SCA) para 34.
66
COIDA is of a later date than ODIMWA but it merely replaced and in
most respects re-enacted the Workmen’s Compensation Act 30
of
1941, which was the main Act dealing with occupational diseases and
injuries. References in ODIMWA to the 1941 Act must, because
of the
repeal, be read as references to COIDA.
67
For an example:
Rand
Mutual Assurance Co Ltd v Road Accident Fund
[2008] ZASCA 114
;
2008 (6) SA 511
(SCA).
68
Compensation
for Occupational Injuries and Diseases Act 130 0f 1933.
69
Occupational
Diseases in Mines and Works Act 78 of 1973.
70
Per
Innes CJ in
Turffontein
Estates Ltd v Mining Commissioner, Johannesburg
1917 AD 419
at 431.
71
Quoted
by Malan JA in para 17 above.
72
Quoted
by Malan JA in para 32 above.