IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2024-080008
In the matter between:
BERNADINE WARNE First Plaintiff (Respondent)
KEDIBONE MASHIGO Second Plaintiff
TEBOGO MAAKE Third Plaintiff
BESSY MAYINDI Fourth Plaintiff
SELINA SEKGOBELA Fifth Plaintiff
MOKGADI OLGA SELOWA Sixth Plaintiff
and
PALABORA MINING COMPANY First Defendant (Excipient)
MINISTER OF MINERAL RESOURCES & ENERGY Second Defendant
THE DIRECTOR-GENERAL OF MINERAL
RESOURCES & ENERGY Third Defendant
THE DEPARTMENT OF MINERAL RESOURCES Fourth Defendant
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
8 August 2025 …………………………….
Date Signature
Page 2 of 8
JUDGMENT – 8 AUGUST 2025
WILLIAMS, AJ
[1] The six Respondents (as Plaintiffs in the action under the instant Case
Number) have claimed for loss of support, as well as damages for
“psychological trauma and emotional damage ” that they allegedly suffer as a
result of their beloved breadwinners ’ tragic death by fire in the Excipient’s
Palabora Mine . They also include claims on behalf of the deceased for
“painful death” and for “pain and suffering before death”.
[2] The First Defendant (“the excipient”) raises two grounds of exception against
the Particulars of Claim, both allege there is no cause of action.
[3] I accept for purposes of the exception, that the Excipient was grossly negligent
and caused the tragic death of the six employees.
FIRST GROUND OF EXCEPTION:
[4] The Excipient contends that the Respondents can only claim under the
Compensation for Occupational Injuries and Diseases Act, 130 of 1993
(“COIDA”).
[5] Section 35(1) of COIDA bars an action by an employee or by his or her
dependant against the employer, 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
Page 3 of 8
provisions of this Act in respect of such disablement or death” .
(My underlining.)
[6] When read with the definitions in section 1 of the Act, an employer has
protection under COIDA if a death was suffered as a result of an accident
which arose out of and in the course of the employee’s employment . Put
differently, if the accident arose out of and in the course of the employee’s
employment, the exclusionary provision in section 35(1) of the Act would
apply. I quote the full section for the sake of clarity. It is not necessary to
quote the definitions, since that is traversed in the authorities referred to
hereunder:
“35(1) No actions still 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”. (My underlining.)
[7] At the time of their tragic death, the six mineworkers were on duty at the mine.
The risk of injury or death caused by an underground fire, was incidental to
their employment as underground miners. The very nature of their work took
them into a hazardous zone. 1 Hence the very statutory dictates re fire
prevention prevailed (which the respondents allege were breached).
1 Churchill v Premier, Mpumalanga 2021 (4) SA 422 (SCA) at [14] to [20].
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[8] In Churchill2, cited below, the on-duty injured employee was assaulted by an
outsider, who was participating in protest action outside her workplace. The
only connection between the assault and the employment was that the
employee was at work at the time. The assault by the outsider was because of
a misunderstanding. The perpetrator thought the employee had insulted him .
She had done anything wrong in her work. Moreover, the employee was not
assaulted for any reason related to the protest.
[9] The Supreme Court held that her injuries did not arise out of the employment.
The same reasoning was follow ed in Lumka Twalo v Minister of Safety &
Security & Another (317/05) quoted by the respondents . There the
intentional shooting of one police colleague by another, was also held not to be
a death arising from an accident under COIDA , despite them both being on
duty. Such unexpected behaviour is not an incidental risk to being a
policeman.
[10] The facts in Churchill and in Lumka Twalo are thus on a different footing to
the facts in the instant matter. As alluded above, the Plaintiffs’ Particulars of
Claim here support the conclusion that the deceased mineworkers died from
an accident directly related to their work – an accident there where and whilst
they do their daily work. T he failed duty to maintain the fire -retardant systems
alleged in the Particulars of Claim , is the legislation aimed to protect them
from, inter alia, death by fire.
2 See fn 1 above.
Page 5 of 8
[11] I have read the Nicosia and Khoza cases referred to by the Respondent. If
anything, these cases confirm my conclusion . These cases were correctly
decided on very different facts to those in this matter.
[12] As for the reliance of rights enshrined in the Constitution, it is trite that direct
reliance is not permissible. It would be for a higher court, presumably the
Constitutional Court, to conclude that section 35 is to mean something else
than what it clearly says (because it offends a right enshrined in the Bill of
Rights).
[13] Compensation under COIDA is automatic and requires no proof of fault. It is
limited compensation, but there is provision for additional compensation when
the employer was negligent. It is trite that the Scheme is calculated to benefit
both employees and their dependants on the one hand, and employers on the
other (who should not be wiped out to the detriment of other employees ,
because of a single accident).
[14] Mankayi v Anglogold 3 is distinguishable. If anything, it confirms my view (at
para 101), that section 35 of COIDA passes constitutional muster. This must
be so if one takes into account that section 56 of COIDA allows for an
application under COIDA for additional compensation if the employer was
negligent.
[15] The first ground of exception must thus be upheld.
3 2011 (3) SA 237 CC.
Page 6 of 8
SECOND GROUND OF EXCEPTION - PRESCRIPTION:
[16] Upholding the first exception is destructive of the Respondents’ case. But if I
am wrong, here is my finding on the second ground of exception. I have read
Habib v Ethekwini Municipalit y.4 It states that notionally prescription can be
raised by way of exception (i.e. it is not irregular to do so, but that when
evaluated, it will usually fail, because no Plaintiff pleads when prescription
began or ran out).
[17] I respectfully differ. Extinctive prescription under the Prescription Act, 68 of
1969 (“the Prescription Act”) should not be raised, nor decided by way of
exception. Since there is no Rule 30 proceedings to declare here that the
second exception is irregular, I will say no more – but it is clear that raising
prescription by way of exception is an abortive endeavour.
[18] Here the 3-year period provided for in section 11 of the Prescription Act has,
on the face of it , expired, before the Respondents sued. T he difficulty for the
Excipient is this: It is trite that the party raising prescription must plead
prescription and prove when prescription commenced to run. That can only be
done in a Plea, to which a Plaintiff may replicate. No Plaintiff volunteers when
prescription started to run. That date of the event is often not the
commencement date.
[19] The Excipient here assumes, for purposes of its exception, that the date of the
fire is when prescription began to run . But, it is always open to the
4 2020 (1) SA 580 KZD.
Page 7 of 8
respondents as Plaintiffs, to contend otherwise. The deaths may not all have
occurred on that very day. A lso, there may be, as there is here, minor
claimants against whom prescription have never run.
[20] Any one or more of the Respondents may also contend that they or anyone of
them laboured under a disability recognised in the Prescription Act , which
precluded them having the requisite knowledge of their claim . Be it that they
were mentally precluded , or otherwise misled about the existence of their
respective claims. The Prescription Act does not allow prescription to run if a
Defendant keeps a Plaintiff in the dark.
[21] In the result the second ground of exception falls to be dismissed. It does not
mean that, if and when the Excipient pleads, it cannot then plead prescription.
RESPONDENTS’ APPLICATION FOR “CONDONATION”:
[22] After the Excipient raised prescription by way of exception, the Respondents
launched an application for “condonation”. It is contended that the alleged
failure to sue timeously, should be “condoned”.
[23] The Prescription Act does not allow for such condonation.
[24] The reasons advanced for “condonation” is that Respondents had the wool
pulled over their eyes . The Excipient they say, kept them in the dark, while
purporting to help the dependants/families. They will in due course allege in a
replication that prescription did not run. (This demonstrates my point re the
undesirability of assessing the issue of prescription by way of exception.)
[25] The application for “condonation” falls to be dismissed.
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[26] I order as follows:
22.1. The first exception is upheld, with costs.
22.2. The second exception is dismissed, with costs.
22.3. The application for condonation is dismissed, with costs.
22.4. The cost in each instance is on Scale C, such costs to include the costs
of counsel and, when employed, the costs of two counsel.
_________________
J O WILLIAMS AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date heard : 5 August 2025
Date of judgment : 8 August 2025
Representation for the Plaintiffs: Adv D J Sibuyi
Representation for the excipient/
first Defendant: Adv D J Joubert SC
Adv G V R Fouché
Instructed by Edward Nathan Sonnenbergs
Inc.
Representation for second to
fourth Defendants: None. The respondents abide.