Brief Summary

Constitutional Law — Constitutional validity — Compensation for Occupational Injuries and Diseases Act — Applicant injured at workplace seeking damages — Respondent's special plea citing section 35(1) of the Act as a bar — Applicant contending section 35(1) violates rights to equality and access to courts under the interim Constitution — High Court finding section 35(1) unconstitutional and referring for confirmation — Constitutional Court determining validity under interim Constitution — Holding that the High Courts's order that Section 35(1) of COIDA is constitutionally invalid cannot be confirmed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned constitutional litigation arising from a special plea in a delictual damages action. The applicant, Susara Elizabeth Magdalena Jooste, instituted an action against her employer, Score Supermarket Trading (Pty) Ltd, claiming damages (including general damages) for injuries sustained at work. The employer raised a special plea relying on section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”), contending that the statute barred any common-law action by an employee against an employer for occupational injury.

The matter originated in the Eastern Cape High Court, where the constitutional validity of section 35(1) was placed in issue. The High Court upheld the constitutional challenge, declared section 35(1) invalid, dismissed the employer’s special plea with costs, and referred the declaration of invalidity to the Constitutional Court for confirmation in terms of the constitutional confirmation procedure.

Before the Constitutional Court, the applicant sought confirmation of the High Court’s order of invalidity. The respondent employer opposed confirmation and also pursued an appeal against the High Court’s order (with condonation granted for procedural non-compliance). Because the constitutional challenge implicated a statute administered by the executive, the Minister of Labour was notified and intervened in the Constitutional Court proceedings, opposing confirmation.

The general subject matter was the constitutionality of COIDA’s statutory trade-off, namely a compensation scheme that provides employees with statutory compensation through an administrative fund while excluding common-law damages claims against employers for workplace injuries.

2. Material Facts

On 27 December 1995, the applicant, while employed by the respondent as a cashier, fell and was injured in the respondent’s supermarket. The applicant attributed the injury to the alleged negligence of one or more employees of the respondent acting within the course and scope of their employment.

On 29 April 1997, after the coming into force of the Constitution of the Republic of South Africa, 1996 on 4 February 1997, the applicant commenced an action in the High Court claiming damages, including general damages, arising from the injury.

The respondent raised a special plea that the claim was barred by section 35(1) of COIDA, which provides that no action lies by an employee for damages in respect of an occupational injury resulting in disablement or death against the employer, and that the employer’s liability arises only under COIDA.

The applicant replicated that section 35(1) was unconstitutional (initially framed with reference to rights in the interim Constitution, and argued in the High Court on the basis that the 1996 Constitution applied). No evidence was led at the hearing of the special plea; the matter proceeded on legal argument and on the parties’ apparent acceptance in the High Court that the 1996 Constitution applied because proceedings were instituted after it came into force.

A significant procedural fact was that no notice of the constitutional challenge had been given to an organ of state responsible for administering the statute. In the Constitutional Court proceedings, the Minister of Labour was afforded an opportunity to intervene because Constitutional Court rule 6(2) had not been complied with in the High Court.

Where the Court distinguished disputed from undisputed factual matters, the record reflects that the key issues were not factual disputes about the fall, injury, or employment relationship, but legal questions regarding the statutory bar and constitutional validity. The Court treated the constitutional questions as capable of determination without evidence, noting in particular the absence of evidence to support any claim of unfair discrimination.

3. Legal Issues

The central legal questions were:

The first was which constitutional text governed the validity enquiry: whether the constitutionality of section 35(1) should be tested against the interim Constitution (in force when the cause of action arose in 1995) or the 1996 Constitution (in force when proceedings were instituted in 1997). The Court treated this as a question of law concerning the temporal application of constitutional rights to a statutory validity challenge.

The second was whether section 35(1) infringed the right to equality in sections 8(1) and 8(2) of the interim Constitution, given that it differentiates between employees (who are barred from suing their employers at common law for occupational injury) and non-employees (who are not subject to this bar). This required an assessment of whether the differentiation lacked a rational relationship to a legitimate governmental purpose, and (if rational) whether it amounted to unfair discrimination. This aspect involved the application of constitutional equality doctrine to a legislative scheme, and in particular the structured approach to equality review where differentiation is not based on a listed ground.

The third was whether section 35(1) infringed the right of access to courts (section 22 of the interim Constitution) and the right to fair labour practices (section 27(1) of the interim Constitution). Although pleaded, these grounds were not pursued in argument before the Constitutional Court, and were dealt with briefly as matters of law.

Finally, there was an ancillary procedural issue regarding the consequences of the High Court making an order of invalidity without notice to the relevant organ of state, and the appropriateness of confirmation in those circumstances. This was treated as a matter of procedural propriety and institutional practice rather than a merits-based constitutional determination.

4. Court’s Reasoning

Applicable constitutional text

The Court accepted that the High Court had power under the 1996 Constitution to make findings of constitutional invalidity in proceedings instituted after the 1996 Constitution came into force. However, it emphasised that the substantive constitutionality of a statutory provision is “ordinarily” determined by the constitutional provisions in force when the cause of action arose. Because the applicant was injured in December 1995, the interim Constitution governed the substantive enquiry into validity.

The Court nonetheless noted that this choice of constitutional text created no practical difficulty in the present matter because it considered there to be no material difference between the relevant equality protections in section 8 of the interim Constitution and section 9 of the 1996 Constitution for purposes of the analysis.

Joinder and notice to the state

The Court stressed that it is undesirable for a court to declare a statute invalid without affording the relevant organ of state an opportunity to participate, particularly where the statute constitutes significant social legislation. The Court rejected the applicant’s contention that the Minister of Labour lacked a direct interest. It characterised COIDA as social legislation mediating an “intricate relationship” among employers, employees, and society, and treated section 35(1) as a core component of that legislative balance.

Although the Court indicated it could have declined confirmation solely because the state had not been notified in the High Court, it did not decide the matter on that basis because it could dispose of the case on substantive grounds without prejudice to the state (which had intervened in the Constitutional Court proceedings).

Equality analysis and rationality review

The Court held that the High Court adopted an approach inconsistent with Constitutional Court equality jurisprudence. The Court reaffirmed the structured enquiry for cases where differentiation is alleged to infringe equality, but the differentiation is not based on a listed ground.

It explained that the initial enquiry is whether there is a rational relationship between the differentiation and a legitimate government purpose. If there is no rational relationship, the differentiation breaches section 8(1) of the interim Constitution. If there is such a rational relationship, then the challenge shifts to whether the differentiation amounts to unfair discrimination under section 8(2); ordinarily, unfair discrimination is only considered once rationality is established. If unfair discrimination is shown, the measure must then be justified under the interim Constitution’s limitations clause.

Before the Constitutional Court, the applicant accepted that there was no evidence to support an allegation of unfair discrimination and advanced no substantive contention on unfair discrimination. As a result, the equality challenge effectively turned solely on whether section 35(1) lacked rational connection to a legitimate purpose.

In assessing rationality, the Court emphasised that section 35(1) could not be evaluated in isolation from the statutory scheme. It described COIDA as replacing an “individualistic” common-law model—where an employee must prove employer negligence, risks reduced damages due to contributory negligence, faces potentially expensive litigation, and bears the risk of unrecoverability and adverse costs—by a statutory compensation system providing limited compensation for pecuniary loss through an administrative process, funded by compulsory employer contributions, and payable regardless of fault, without reduction for contributory negligence. The Court highlighted that employees may have recourse to a court against the Commissioner’s award, but that such recourse remains bounded by the statute.

The applicant’s core contention was that section 35(1) benefitted employers and was not necessary to achieve the statute’s purpose of benefitting employees; the applicant contended, in effect, that a negligent employer should be obliged both to contribute to the fund and remain liable in common-law damages. The Court characterised this argument as seeking “the best of both worlds” for employees and as amounting to a disagreement with the legislative policy balance.

The Court explained that rationality review is confined to determining whether differentiation is arbitrary, irrational, or manifests naked preference. It stated that it is irrelevant to rationality whether the legislative scheme could be improved or whether an alternative policy choice might be preferable. It viewed the applicant’s approach as inviting the Court to make a contested policy choice under the guise of rationality review, and declined that invitation.

On the Court’s analysis, the legislature adopted a compensation scheme conferring benefits not available at common law, funded through employer contributions. The exclusion of common-law claims in section 35(1) was treated as logically connected to the legitimate governmental purpose of implementing a comprehensive scheme governing compensation for workplace injuries and diseases. The Court therefore found section 35(1) rationally connected to a legitimate purpose, defeating the equality challenge in the absence of any established unfair discrimination.

The Court additionally observed, in passing, that courts in the United States, Canada, and Germany had upheld similar worker compensation legislation against irrationality/arbitrariness challenges, though this comparative reference was not treated as determinative of the constitutional analysis.

Other constitutional grounds

Although the applicant’s papers raised section 22 (access to courts) and section 27(1) (fair labour practices) of the interim Constitution, these grounds were not pursued in argument.

On section 22, the Court rejected the proposition that the denial of general damages under a statutory scheme constitutes a denial of access to courts. It stated that the statute does not deny access to courts as such; rather, the inability to sue for damages follows from the removal of the underlying common-law cause of action. Section 22 was not understood to require retention of all common-law rights of action.

On section 27(1), the Court noted the absence of evidence establishing unfairness and considered it unnecessary to decide whether section 35(1) constituted a labour practice.

Consequences for the special plea and costs

Because the constitutional challenge failed, it was common cause that the respondent’s special plea should succeed. The Court indicated that, in the posture of an appeal, upholding the special plea and dismissing the claim was a competent outcome.

On costs, the respondent and the Minister of Labour indicated they did not seek costs orders against the applicant in either the High Court or the Constitutional Court, and the Court considered this appropriate and fair.

5. Outcome and Relief

The Constitutional Court refused to confirm the High Court’s order declaring section 35(1) invalid. The appeal succeeded.

The High Court order was set aside and substituted with an order that the defendant’s special plea was upheld, the plaintiff’s claim was dismissed, and there was no order as to costs.

In the Constitutional Court, there was no order as to costs in respect of the confirmation proceedings or the appeal.

Cases Cited

Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC).

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others CCT 7/98, judgment of the Constitutional Court decided on 14 October 1998 (unreported at the time as described in the judgment).

Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC); 1997 (10) BCLR 1337 (CC).

Prinsloo v Van der Linde and Another [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).

President of the Republic of South Africa and Another v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC).

Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).

The National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others CCT 11/98, judgment of the Constitutional Court decided on 9 October 1998 (unreported at the time as described in the judgment).

New York Central Railroad Company v White [1916] USSC 73; (1916) 243 US 188.

Duke Power Company v Carolina Environmental Study Group Inc. (1978) 438 US 59.

King v Williams Industries, Inc. [1984] USCA1 1; 724 F.2D 240 (1st Cir. 1984).

Smith v Gold Inc. 918 F.2D 1361 (8th Cir. 1990).

Reference re Validity of Sections 32 and 34 of the Workers’ Compensation Act, 1983 44 DLR (4th) 501 (1988), confirmed as described in the judgment by the Canadian Supreme Court at 44 DLR (4th) 765 (1988).

BVerfGE 34, 118 (128, 129, 131–132).

Legislation Cited

Compensation for Occupational Injuries and Diseases Act 130 of 1993, including section 35(1) and references within the judgment to sections 2, 4, 15, 22(1), 38–46, 47–64, 56(4), 87, and 91(5).

Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution), including sections 8(1), 8(2), 22, 27(1), and section 33 (limitations).

Constitution of the Republic of South Africa, 1996, including sections 9(1), 9(3), 23(1), 34, 172(2), and 172(2)(d).

Rules of Court Cited

Constitutional Court rule 6(2).

Constitutional Court rule 15(4).

Held

The Constitutional Court did not confirm the High Court’s declaration that section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 was unconstitutional.

It found that, properly analysed under the interim Constitution, the differentiation created by section 35(1) between employees and non-employees was rationally connected to a legitimate governmental purpose, namely the establishment and maintenance of a comprehensive statutory compensation scheme for occupational injuries and diseases. In the absence of evidence or argument establishing unfair discrimination, the equality challenge could not succeed.

As a result, the statutory bar in section 35(1) applied, the employer’s special plea was upheld, and the employee’s common-law damages claim against the employer was dismissed, with no costs orders made in either court.

LEGAL PRINCIPLES

The constitutionality of legislation is ordinarily determined by reference to the substantive constitutional provisions in force when the cause of action arose, even if proceedings are instituted after a new constitutional text comes into effect.

In equality challenges where the differentiation is not based on a listed ground, the first enquiry is rationality: whether the differentiation bears a rational relationship to a legitimate governmental purpose. A failure of rationality renders the measure inconsistent with the equality guarantee (section 8(1) of the interim Constitution). Where rationality is established, the challenger ordinarily bears the burden of showing that the differentiation amounts to unfair discrimination (section 8(2)).

Rationality review is concerned with whether differentiation is arbitrary, irrational, or a naked preference. It is not a vehicle for courts to choose among competing policy options or to evaluate whether legislation could be improved. Disagreement with the policy balance struck by the legislature does not, without more, establish irrationality.

A statutory scheme may lawfully replace common-law remedies with a different compensatory framework, and the removal of a common-law cause of action does not in itself amount to a denial of access to courts where the right removed is the right to bring that particular action, rather than a denial of adjudicative access for justiciable disputes.

Where the constitutionality of legislation is challenged, the relevant organ of state responsible for administration of the law has a direct interest and should be afforded an opportunity to intervene; non-compliance with procedural notice requirements is a serious matter, although it may not be determinative where the merits resolve the dispute.

Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) (CCT15/98) [1998] ZACC 18; 1999 (2) SA 1; 1999 (2) BCLR 139 (27 November 1998)