Mankayi v AngloGold Ashanti Ltd (CCT 40/10) [2011] ZACC 3; 2011 (5) BCLR 453 (CC) ; 2011 (3) SA 237 (CC) ; [2011] 6 BLLR 527 (CC) ; (2011) 32 ILJ 545 (CC) (3 March 2011)

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Mankayi v AngloGold Ashanti Ltd (CCT 40/10) [2011] ZACC 3; 2011 (5) BCLR 453 (CC) ; 2011 (3) SA 237 (CC) ; [2011] 6 BLLR 527 (CC) ; (2011) 32 ILJ 545 (CC) (3 March 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 40/10
[2011] ZACC 3
In the matter between:
THEMBEKILE MANKAYI
….............................................................................
Applicant
and
ANGLOGOLD ASHANTI LIMITED
…...........................................................
Respondent
Heard on : 17 August 2010
Decided on : 3 March 2011
JUDGMENT
KHAMPEPE
J:
Introduction
The
issue to be decided is whether section 35(1)
1
of the Compensation for Occupational Injuries and Diseases Act
2
(COIDA) extinguishes the common law right of mineworkers to recover
damages for occupational injury or disease from negligent
mine
owners notwithstanding that they are not entitled to claim
compensation under COIDA but only under the Occupational Diseases

in Mines and Works Act
3
(ODIMWA). Both the South Gauteng High Court
4
(High Court) and the Supreme Court of Appeal
5
interpreted section 35(1) of COIDA as extinguishing the
mineworkers’ common law claim and extending the protection

against common law liability to mine owners. Mr Thembekile Mankayi
(Mr Mankayi) attacks these findings on the basis that, because
he
is precluded by section 100(2) of ODIMWA from claiming compensation
under COIDA, section 35(1) of COIDA does not apply to
him.
Factual background
The
applicant is Mr Mankayi, who is currently unemployed. In 2006, Mr
Mankayi instituted an action for delictual damages against
the
respondent mining company, AngloGold Ashanti Limited (AngloGold).
In his particulars of claim, Mr Mankayi asserted that
he was
employed by AngloGold as an underground mineworker during the
period January 1979 to September 1995. He stated that
during his
employment, AngloGold negligently exposed him to harmful dusts and
gases as a result of which he contracted diseases
in the form of
tuberculosis and chronic obstructive airways which have rendered
him unable to work as a mineworker or in any
other occupation. As a
result, he claimed damages in the sum of about R2,6 million. This
comprised past and future loss of
earnings of R738 147, 14,
future medical expenses of R1 374 600 and general damages
of R500 000.
The
basis of his claim is that AngloGold owed him a legal duty arising
under both common law and statute to provide a safe and
healthy
environment in which to work. In breach of this duty, AngloGold
failed to apply appropriate and effective control measures.
Mr
Mankayi averred that AngloGold and its predecessors
6
were the owners of a “controlled mine”
7
as contemplated in Chapter II of ODIMWA. He performed “risk
work” as defined in section 13
8
and contracted “compensatable diseases”
9
as defined in ODIMWA. After being certified in 2004 as suffering
from a compensatable disease, he received compensation of
R16 320
under ODIMWA from the Compensation Commissioner.
10
The thrust of Mr Mankayi’s case is that in terms of section
100(2) of ODIMWA he is entitled to and did receive compensation

under ODIMWA, but is not precluded from suing the mine at common
law. Given that section 100(2) barred him from claiming benefits

under COIDA, he contends that the prohibition in section 35(1) of
COIDA does not apply to him. There is no provision in ODIMWA

excluding a common law claim. Section 100(2) of ODIMWA reads:
“
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 . . . or any other
law.”
11
AngloGold
excepted to the particulars of claim as lacking averments necessary
to sustain a cause of action. It contended that,
because Mr Mankayi
is an “employee”
12
and AngloGold an “employer”
13
under COIDA, section 35(1) presents a statutory bar to Mr Mankayi’s
claim. Because of the form in which AngloGold’s
challenge to
Mr Mankayi’s claim is cast, the Court is required to assume
that the facts set out in his particulars of
claim are true. The
question is whether, on those assumed facts, he has a claim in law.
Main issues
The
main issues that arise for consideration are whether:
[6.1] the word “employee” in section 35(1) of COIDA
includes employees covered by ODIMWA, notwithstanding that they
are
barred from claiming benefits under COIDA; and
[6.2] the abrogation of the common law right of action envisaged by
section 35(1) of COIDA applies to Mr Mankayi.
Preliminary issues
Before
considering the main issues, it is necessary to deal with two
preliminary questions. The first is whether condonation
for the
late submission of Mr Mankayi’s written argument should be
granted and the second is whether leave to appeal
should be
granted.
Should condonation be granted?
The
test for the grant of condonation is whether the interests of
justice permit. Factors relevant to this inquiry include,
but are
not limited to, the extent and cause of the delay, the prejudice to
the opposing litigant, the reasonableness of the
explanation, the
importance of the issues to be decided and the prospects of
success.
14
The inquiry entails weighing each factor against the others and
determining where the interests of justice ultimately lie.
Mr
Mankayi’s written submissions were filed six days late.
15
Mr Spoor, who appeared on his behalf, has ascribed his failure to
lodge the written submissions timeously to lack of funds.
AngloGold
does not oppose the application for condonation. There is, in my
view, a satisfactory explanation for the delay.
The delay was
minimal and there was no prejudice to AngloGold. The issues raised
in the application for leave are important
and it cannot be said
that the application has no prospects of success. In these
circumstances, it is in the interests of justice
to grant
condonation.
Should the application for leave to appeal be granted?
It
is axiomatic that leave to appeal will be granted by this Court
only if the application raises a constitutional matter and
only if
it is in the interests of justice to grant it.
16
The
key question whether the threshold requirement for jurisdiction has
been satisfied in an application for leave is dependent
upon the
constitutional character of the issue. This Court has recognised
that, in a system of constitutional supremacy, it
is inappropriate
to construe the concept of what is a “constitutional matter”
narrowly.
17
The
decisions of this Court reveal that a constitutional matter has
been held to be raised where the matter involves the following:
“
. .
. (a) the interpretation, application or upholding of the
Constitution itself . . . ; (b) the development of (or the failure

to develop) the common law in accordance with the spirit, purport
and objects of the Bill of Rights; (c) a statute that conflicts
with
a requirement or restriction imposed by the Constitution; (d) the
interpretation of a statute in accordance with the spirit,
purport
and objects of the Bill of Rights (or the failure to do so); (e) the
erroneous interpretation or application of legislation
that has been
enacted to give effect to a constitutional right or in compliance
with the Legislature’s constitutional responsibilities;
or (f)
executive or administrative action that conflicts with a requirement
or restriction imposed by the Constitution.”
18
(Footnotes omitted.)
By
contrast, this Court has refused to entertain appeals that seek to
challenge only factual findings
19
or incorrect application of the law by the lower courts.
20
Does this matter raise a constitutional issue?
The
issue that the High Court was required to decide was whether
section 35(1) of COIDA extinguishes the common law claim of
an
employee who is not entitled to claim for compensation under COIDA
but only under ODIMWA. If AngloGold’s contention
is correct
then this provision extinguishes Mr Mankayi’s common law
right to sue it for negligence. This issue ineluctably
implicates
the right to freedom and security of a person as enshrined in
section 12 of the Constitution. The right in section
12(1)(c)
confers on everyone the right to be free from all forms of violence
from either public or private sources. This section
states that:
“
Everyone
has the right to freedom and security of the person, which includes
the right—
. . .
(c) to be free from all forms
of violence from either public or private sources.”
In
Law Society of South Africa and Others v Minister for Transport
and Another
21
(
Law Society
), this Court held that the abolition by the
legislature of the common law claim to sue a driver of a motor
vehicle for negligent
injury implicated the right enshrined in
section 12(1)(c) and had to pass muster under the limitations
provision of the Bill
of Rights.
22
This same constitutional right finds expression in the legislation
that seeks to regulate the safety of the mining industry,
the
Mine
Health and Safety Act 29 of 1996
and the regulations prescribed
thereunder. Were the exception to be sound – in other words,
were Mr Mankayi’s common
law claim to be extinguished –
section 12(1)(c)
would likewise be implicated.
The
protection of the right to the security of the person may be
claimed by any person and must be respected by public and private

entities alike. Neither counsel addressed specific argument on
whether the alleged extinction of a common law right infringed
upon
section 12(1)(c).
Despite the absence of pointed argument on this
issue, in my view the question whether this Court entertains
jurisdiction to
decide a case does not depend on counsels’
approach. What is evident is that the right to security of the
person is engaged
whenever a person is subjected to some form of
injury deriving from either a public or a private source. This is
because the
common law right to claim damages for the negligent
infliction of bodily harm constitutes an effective remedy required
by section
38 of the Constitution in order to protect and give
effect to the section 12(1)(c) right, as in
Law Society.
In
Fose v Minister of Safety and Security
,
23
this Court recognised that “appropriate relief” may
entail any relief that is required to protect and enforce the

Constitution, and that an order for payment of damages qualifies as
appropriate relief for purposes of section 38.
Delictual
remedies protecting constitutional rights may thus constitute
appropriate relief for purposes of section 38 of the
Constitution.
In
this matter, section 100(2) of ODIMWA precludes Mr Mankayi from
claiming compensation under COIDA.
24
If section 35(1) of COIDA removes Mr Mankayi’s common law
right to claim compensation for negligence, employees in his

position, who are not entitled to claim compensation under COIDA
(and who are entitled to claim seemingly paltry and inadequate

compensation only under ODIMWA),
25
would be left without an effective remedy to rectify the harm
caused by the negligence of their employers. By abolishing the

common law right to claim damages, the legislature would have
deprived the victim of an appropriate and effective remedy.
Counsel
for AngloGold conceded during oral argument, correctly so in my
view, that the proper interpretation of a statute that
is alleged
to extinguish a common law right of action that gives effect to a
constitutional right raises a constitutional issue.
It is common
cause that, on the approach that found favour with the High Court
and the Supreme Court of Appeal, section 35(1)
of COIDA has this
effect. I would add that AngloGold, in its papers, rightly conceded
that the application for leave raised
a constitutional matter. A
constitutional matter thus arises for consideration.
Is it in the interests of justice for this Court to hear the
matter?
The
question whether it is in the interests of justice to hear the
matter depends on many factors. These include, but are not
limited
to, the importance of the issues raised in the intended appeal and
the prospects of success. AngloGold opposes the
application for
leave to appeal on the basis that it is not in the interests of
justice to grant leave because the application
has no prospects of
success. I am unpersuaded by this argument.
It
is in the interests of justice that an authoritative interpretation
be given to a statutory provision that is claimed to
curtail an
employee’s common law right to recover compensation for the
harm suffered in consequence of an employer’s
negligence.
This is particularly so where the employee is not entitled to claim
the benefits under that statute and can only
claim seemingly paltry
benefits under a different statute. The importance of determining
this issue manifestly goes beyond
the parties to the present
application.
The
effect of the construction of section 35(1) of COIDA adopted by the
Supreme Court of Appeal is to extinguish the common
law right of
employees even when they are not entitled to benefits under COIDA.
There are prospects that an interpretation
that preserves these
rights may be preferred.
As
far as I have been able to establish, there are no reported cases
that deal with the aspect of the interpretation of section
35(1) at
issue in this case. This is the first case involving the
interpretation of a statute that is claimed to extinguish
a common
law remedy available to mineworkers given that section 100(2) of
ODIMWA bars them from claiming compensation under
COIDA. As the
history of this country painfully reminds us, mineworkers, African
mineworkers in particular, have contributed
enormously to this
country’s economic wealth and prosperity, at great cost to
themselves and to their health.
26
The impugned legislation affects many vulnerable members of
society. The determination of this issue is therefore significant

and would give certainty to the all- important question of the
interpretation of section 35(1) of COIDA, not only to Mr Mankayi,

but also to others similarly situated. For these reasons, I find
that it is in the interests of justice to decide this application.
Merits of the appeal
What
remains is to determine whether the construction of section 35(1)
of COIDA, adopted by the Supreme Court of Appeal and
supported by
AngloGold in this Court, is correct. This will require us to
ascertain the proper meaning of section 35(1). Before
embarking
upon this inquiry, it is necessary firstly to set out the
legislative history and then the findings of the courts
below.
Legislative history
South
African legislation on compensation for occupational diseases has
been developed along two parallel lines to provide for
two
different categories of workers. One is concerned primarily with
the interests of mineworkers, namely ODIMWA and its antecedent

legislation, whilst the other, COIDA and its antecedent
legislation, relates to the interests of all workers in industry

including commerce and services.
27
Mining legislation (ODIMWA and its predecessors)
The
legislative response to the deleterious diseases contracted by
mineworkers commenced with the Miners’ Phthisis Allowances

Act of 1911 (1911 Act).
28
This Act was the first milestone in the field of statutorily
enforceable compensation for mining-specific occupational diseases

and set the tone for future legislation. The 1911 Act created a
Miners’ Phthisis Fund, to which mine owners contributed,
to
compensate mineworkers suffering from miners’ phthisis and
related diseases. A board was appointed to administer the
fund.
29
The board was entrusted with the power to grant an allowance, in
its own discretion, to the affected mineworker or to any persons

dependent on him for maintenance.
30
The
Miners’ Phthisis Act of 1912
31
(1912 Act) succeeded the 1911 Act. The 1912 Act established both
the Miners’ Phthisis Compensation Fund and the Miners’

Phthisis Insurance Fund.
32
In terms of the 1912 Act, a board was appointed by the Minister and
it was responsible for the administration of the funds.
33
Parliament contributed to the Compensation Fund, while the
Insurance Fund was financed by levies contributed by employers.
34
The
1912 Act was amended by the Miners’ Phthisis Act of 1914.
35
In terms of this Act, a board was again entrusted with the
responsibility for distributing compensatory awards to mineworkers

and dependants.
36
The
Miners’ Phthisis Act of 1914 was succeeded by the Miners’
Phthisis Act of 1916
37
(1916 Act). It repealed parts of the 1912 Act and the whole of the
Miners’ Phthisis Act of 1914.
38
The 1916 Act provided for payment of compensation to a mineworker
who had contracted miners’ phthisis.
39
The miner had to make a prescribed claim and satisfy the board that
he was suffering from miners’ phthisis and that he
had been
employed underground for at least two years.
The
Miners’ Phthisis Acts Consolidation Act of 1925
40
consolidated and amended the laws relating to miners’
phthisis. This Act was in turn repealed by the Silicosis Act of

1946 (Silicosis Act).
41
In terms of the Silicosis Act, a silicosis board was established.
42
Two funds were established, the Scheduled Mines Compensation and
Outstanding Liabilities Fund (Fund A) and the Registered Mines

Compensation and Outstanding Liabilities Fund (Fund B).
43
Section
33 of the Silicosis Act empowered the board to collect a levy from
all owners of scheduled mines and registered mines,
to enable the
board to meet the liabilities payable out of Funds A and B, in
terms of this Act. Section 96 obliged the State
to contribute
towards Fund B in respect of “miners and Native labourers who
were suffering from silicosis or from tuberculosis
. . . .”
Section
84 of the Silicosis Act provided for the board to reduce, by any
fraction not exceeding one-third, monthly allowances
or pensions
payable to persons who were also entitled to pensions under the
Workmen’s Compensation Act of 1941
44
(1941 Act).
The
Pneumoconiosis Act of 1956
45
(1956 Act) superseded the Silicosis Act. The Pneumoconiosis
Certification Committee was established.
46
It was empowered to determine, by reference to reports on the
results of medical or other examination and other information

available to it, whether any person who worked in a dusty
atmosphere at a controlled mine was suffering from pneumoconiosis

or tuberculosis.
47
Where the person was suffering only from pneumoconiosis, the
Committee was to determine the stage of the disease.
48
The Controlled Mines Compensation Fund was established and was
financed by funds levied from owners of controlled mines to
provide
compensation.
49
The
1956 Act was superseded by the Pneumoconiosis Compensation Act of
1962 (1962 Act).
50
It introduced a number of institutions that were directed at
administering the 1962 Act. These were the Miners’ Medical

Bureau,
51
the Miners’ Certification Committee,
52
the Pneumoconiosis Risk Committee,
53
and the General Council for Pneumoconiosis Compensation.
54
It also established the appointment of the Pneumoconiosis
Compensation Commissioner.
55
Notably, section 19 provided that “[n]o person (other than a
Bantu person) shall perform work in a dusty atmosphere at
a
controlled mine, unless he holds a current initial or other
certificate of fitness . . . .”
56
In terms of the 1962 Act, “[e]very mine which was a
controlled mine of group A and B in terms of the 1956 Act became
a
controlled mine under this Act.
57
Section
108 of the 1962 Act provided for the establishment of the
Pneumoconiosis Compensation Fund which was credited with all
the
assets and debited with all liabilities devolving upon the council
as read with section 61(1).
ODIMWA
In
1973, ODIMWA repealed previous legislation and consolidated the law
relating to the payment of compensation in respect of
certain
diseases contracted by persons employed in mines and works.
58
Section
39(1) provides for the establishment of a Medical Certification
Committee for Occupational Diseases, which considers
reports from
medical practitioners in respect of a mineworker who works in a
controlled mine,
59
and is found to be suffering from a compensatable disease.
60
Section
61(1) provides for the establishment of a Mines and Works
Compensation Fund which is controlled and managed by a

commissioner. Owners of a controlled mine or works are required to
pay a prescribed levy for the benefit of the Compensation Fund
for
each shift worked by an employee.
61
Section
78(1) provides for the benefits to be awarded by the commissioner
.
Section 99(1) provides that no compensation shall be payable
to persons who have contracted diseases that are attributed
exclusively
to work other than work at a mine or works. Section 94
provides for compensation to be paid by the commissioner to the
mineworker
who contracted compensatable diseases. Section 100(2)
prohibits compensation to a person who has received or is still
receiving
full compensation under the 1941 Act. Its object is to
prevent double compensation (“double-dipping”) in
respect
of diseases covered by both these pieces of legislation.
ODIMWA
was amended in 1993 by the Occupational Diseases in Mines and Works
Amendment Act (ODIMWA Amendment Act).
62
The ODIMWA Amendment Act removed all the offending racial
characterisations and differentiations in ODIMWA. Section 36A

provides for the payment, by the owner of a controlled mine or a
controlled work, of legitimate and proven costs incurred by or
on
behalf of the employee in his or her service in respect of medical
expenses necessitated by the disease.
Compensation legislation (COIDA and its predecessors)
This
line of compensation legislation commenced with the Workmen’s
Compensation Act of 1907 (1907 Act).
63
The purpose of the 1907 Act was to provide for and regulate the
liability of employers to make compensation for personal injuries

to workmen.
64
Section
17 of the 1907 Act provided that if an employee met an accident
that resulted in permanent disability, in addition to
compensation
under the 1907 Act, he retained a right of action for damages
against the employer. Notably, section 32(1) and
(2) expressly
preserved an employee’s right to institute a common law claim
against the employer. However, the workman
had to elect whether to
claim under common law or in terms of the Act.
The
Workmen’s Compensation Act of
1914 Act
65
(1914 Act) followed. It consolidated, amended and extended the law
with regard to compensation for injuries suffered by workmen
in the
course of their employment or for death resulting from such
injuries.
66
Section
1 of the 1914 Act provided for the liability of the employer to
compensate a workman who met an accident that resulted
in
incapacity or death. Section 1(c) allowed employees to elect
between compensation in terms of the 1914 Act and compensation

under the common law. The employer and the workman could agree on
an amount to be paid by the employer as compensation in respect
of
the permanent partial incapacity or permanent total incapacity of
the workman resulting from that injury.
67
The
1914 Act also expressly preserved a workman’s 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 . . . .”
68
It was amended by the Workmen’s Compensation (Industrial
Diseases) Act of 1917
69
(1917 Act).
The
purpose of the 1917 Act was to amend the 1914 Act to provide
compensation for industrial diseases, including cyanide rash,
lead
poisoning or its sequelae and mercury poisoning or its sequelae.
70
Section 1 of the 1917 Act provided for the entitlement of a workman
to claim compensation if it appeared from a certificate
granted by
a medical practitioner that he is suffering from a scheduled
disease causing incapacity or where the disease is
due to the
nature of his work. Section 6 of the 1917 Act provided that nothing
in this Act shall affect the rights of a workman
to recover
compensation in respect of a disease, other than a scheduled
disease, in the contracting of that disease is a personal
injury
caused by accident within the meaning of the principal Act.
The
1917 Act was repealed by the Workmen’s Compensation Act of
1934
71
(1934 Act). The purpose of the 1934 Act was to consolidate, amend
and extend the law with respect to compensation for disablement

caused by accidents to or industrial diseases contracted by workmen
in the course of their employment, or for death resulting
from such
accidents or diseases.
72
Sections 13(1) and 14 provided for a workman to submit to the
employer information about the accident and for the employer
if so
satisfied to admit liability in writing and thereafter require the
workman to submit himself to a medical practitioner
of the
employer’s choice for examination.
In
terms of the 1934 Act, a workman and an employer could, after the
injury in respect of which the claim for compensation had
arisen,
agree in writing as to the compensation to be paid by the
employer.
73
The compensation paid in the case of permanent disablement,
including permanent injury or serious disfigurement, was according

to the degree of disablement of the workman.
74
The dependants of the workman could obtain a determined amount if
the workman died as a result of an injury or an accident.
75
Section
4(2) of the 1934 Act provided that no liability for compensation
shall arise save under and in accordance with the provisions
of the
Act in respect of any such injury. This was significant since it
was the first time the common law right of an employee
was
extinguished. Section 5 of the 1934 Act provided for increased
compensation in instances where the employer was negligent
and a
magistrate had the power to determine the additional compensation,
in an amount deemed “equitable.” Diseases
compensatable
under this Act were: cyanide rash, lead poisoning or its sequelae,
mercury poisoning or its sequelae, and ankylostomiasis.
76
The
1941 Act repealed the
1934 Act.
77
The purpose of the Act was to amend and consolidate the laws
relating to compensation for disablement caused by accidents to
or
industrial diseases contracted by workmen in the course of their
employment, or for death resulting from such accidents
and
diseases.
78
Section 7(a) and (b) provided that:
“
From
and after the fixed date:
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
no liability for consideration
on the part of such employer shall arise save under the provisions
of this Act in respect of
any such disablement or death.”
79
Section
27(1) provided that:
“
If
after the fixed date an accident happens to a workman resulting in
his disablement or death, such workman shall be entitled
to
compensation in accordance with the provisions of this Act . . . .”
Section
50 of the 1941 Act provided for the submission of a written notice
by or on behalf of a workman to the employer, as
soon as reasonably
possible, after the accident. Section 51 provided for the reporting
of the incident by the employer to the
commissioner.
Section
43(1) provided for increased compensation in cases where:
“
. .
. a workman meets with an accident which is due: (a) to the
negligence— (i) of his employer; or (ii) of a person entrusted

by such employer with the management, or in charge of the business
or any branch or department thereof . . . .”
Diseases compensatable under this Act included silicosis.
80
The
1941 Act was repealed in 1993 by COIDA.
81
COIDA
This
Act follows the same pattern as the 1934 and the 1941 Acts. Its
purpose is to provide for compensation for disablement
caused by
occupational injuries or diseases sustained or contracted by
employees in the course of their employment, or for
death resulting
from such injuries or diseases, and to provide for matters
connected therewith.
82
Section 10 provides for the establishment of the Compensation
Board. Section 15(1) provides for the establishment of a
Compensation
Fund which will be funded, inter alia
,
by
contributions levied from employers.
83
Section 22(1) provides for the compensation to be payable to an
employee who meets with an accident that caused his disablement
or
death if the accident has arisen out of or in the course of his
employment.
As
already indicated, section 35(1) bars damage claims against
employers and limits compensation to that payable under COIDA.
Section
56(1) provides for increased compensation. This applies if the
employee meets with an accident or contracts an occupational

disease, which is due to, amongst others, the negligence of the
employer or an employee charged by the employer with the management

or control of the business. Section 67(1)
84
provides for the calculation of compensation for a disease. This
may be based on earnings at the time of the commencement of
the
disease.
It
is against this background that I now turn to consider the findings
made in the High Court and the Supreme Court of Appeal
about the
interpretation of section 35(1) of COIDA.
High Court proceedings
The
High Court held that Mr Mankayi’s common law claim against
AngloGold was barred by the clear wording of section 35(1)
of
COIDA. It reasoned that because there was no limitation in the
language used by the Legislature, there was no basis for

restricting its provisions to injuries or diseases dealt with in
COIDA.
85
It found that the express words would be applied to “any
occupational injury or disease no matter how arising.”
86
The High Court also found that 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
87
and that the legislature intended section 35(1) to apply to claims
covered by ODIMWA, because the ODIMWA Amendment Act was
enacted
after COIDA without any amendment of section 35(1) or of ODIMWA.
88
The
High Court found, concerning the interrelation between COIDA and
ODIMWA, that the maxim that a general enactment does not
derogate
from a special provision
89
is of no application because section 35(1) is manifestly clear and
unambiguous in its general application.
90
The
High Court further found that section 39(2) of the Constitution
does not assist the interpretation advanced by Mr Mankayi,
because
that construction would be unduly strained. It found that its
interpretation of section 35(1) of COIDA does not infringe
upon the
right of access to courts protected by section 34 of the
Constitution.
91
In relation to the equality protections in section 9, it found
that:
“
Clearly
there is no class of persons against whom there has been unfair
discrimination. If there is discrimination it relates
to the
benefits the various claimants can claim. The scale of benefits has
not been challenged.”
92
Supreme Court of Appeal
The
findings of the Supreme Court of Appeal and its approach broadly
accord with those of the High Court. The main judgment
was
delivered by Malan JA, in which, Heher and Leach JJA concurred.
Harms DP set out his reasons for dismissing the appeal
separately,
while Cloete JA delivered a separate judgment, concurring with both
Malan JA and Harms DP, underscoring the conclusions
in the main
judgment.
The
Supreme Court of Appeal held that an “employee” in
section 35(1) is one who falls within the definition of “employee”

in section 1 of COIDA; the employee’s action for the recovery
of damages in respect of an occupational injury or disease

resulting in disablement or death is extinguished. The Court
further held that the provision does not require the employee
whose
common law claim is barred to be entitled to receive compensation
under COIDA.
It
found that the ambit of COIDA does not exclude employees employed
at controlled mines or works and noted that, “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.”
93
The Supreme Court of Appeal noted further that section 100(1) of
ODIMWA, which precludes a person who has or is still receiving
full
benefits under COIDA from being entitled to benefits under ODIMWA,
recognises the possibility that mine employees may
be entitled to
compensation under COIDA.
94
It
found that there was a “delicate relationship” between
the statutes. Section 100(2) of ODIMWA sets out the interrelation

between COIDA and ODIMWA. It further held that “[j]ust as
their precursors, they comprise one system of compensation
and
should be interpreted as such.”
95
(Footnote omitted.) It held that these two Acts “must be
harmonized” for together they cover the entire field of

compensation for damages arising from injury or diseases contracted
at work, with ODIMWA providing for injuries and diseases
in mines
and COIDA being more of a general application.
96
The
Supreme Court of Appeal also found that the exclusion of liability
in section 35(1) of COIDA is not limited to employees
who are
eligible to claim under COIDA. It further held that it would be
irrational for the protection against the common law
liability of
employers not to extend to mine owners, since historically both
COIDA and ODIMWA compensation funds are funded
by levies
contributed by employers whether under COIDA or ODIMWA.
97
In enacting COIDA and ODIMWA, the legislature thus intended section
35(1) of COIDA to apply to all employees, including those
with
claims under ODIMWA.
98
It
held that if an employee contracts a disease at a controlled mine,
which is compensatable under both COIDA and ODIMWA, by
virtue of
section 100(2) of ODIMWA, that employee is obliged to claim
compensation under ODIMWA. It also held that 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”
99
of the employee and therefore the claim of Mr Mankayi is excluded
by section 35(1) of COIDA. It further held that any other

construction would be “unduly strained.”
100
Does COIDA apply to those covered by section 100(2) of ODIMWA?
Mr
Mankayi conceded that “employee” in terms of section 1
of COIDA is broad enough to include him. This is plainly
so, he
argued, since a mine employee who suffers injury or illness that is
not compensatable under ODIMWA has a COIDA claim.
His essential
submission was that the exclusionary and extinguishing effect of
section 35(1) applies only to employees who
have a claim for
compensation under COIDA in respect of the occupational disease
concerned. AngloGold argued that, on plain
reading, section 35(1)
excludes the employee’s common law right of action against
the employer when that claim arises
in respect of any occupational
disease causing disablement or death, including
ODIMWA-compensatable diseases. Both parties
urged that their
interpretation is the one required by section 39(2) of the
Constitution. AngloGold adopts the reasoning and
the interpretation
favoured by the Supreme Court of Appeal. In my view, that
interpretation cannot be sustained.
The plain meaning of section 35(1) of COIDA
While
language cannot always have a perspicuous meaning, the elementary
rule and starting point in an interpretive exercise
entails a
determination of the plain meaning of words in the relevant
statutory provision to be construed.
101
In
doing so, caution must not be thrown to the wind, because words can
never attain precision since they are as intrinsically
dynamic as
they are inexact. T. S. Eliot in
Burnt Norton
eloquently
stated:
“
. . .
Words strain,
Crack and sometimes break,
under the burden,
Under the tension, slip, slide,
perish,
Decay with imprecision, will
not stay in place,
Will not stay still . . . .”
102
With
this caution in mind, I, like the High Court and Supreme Court of
Appeal before me, accept that the meaning of the word
“employee”
in section 1 of COIDA covers employees like Mr Mankayi who are
entitled to claim for occupational diseases
under COIDA and who may
become entitled to claim benefits for compensatable diseases under
ODIMWA. I also accept that various
provisions indicate that COIDA
also applies to employees in “controlled mines and works.”
The definitions of the
words “employee” and “employer”
respectively do not expressly exclude employees who could have a
claim
for compensation under ODIMWA.
ODIMWA
provides statutory compensation for designated “compensatable
diseases” contracted at “controlled mines”
and
“works.” Apart from occupational injuries, COIDA also
provides for statutory compensation in respect of a number
of
listed occupational diseases
103
contracted by employees in the course of their employment and
resulting in disablement or death. The diseases that constitute

“compensatable diseases” under ODIMWA overlap with the
diseases that constitute occupational diseases under COIDA.
In the
case of Mr Mankayi, the disease which he has contracted could fall
within both COIDA and ODIMWA, but section 100(2)
of ODIMWA
precludes him from claiming under COIDA. For the disablement set
out in his particulars of claim he is confined to
his ODIMWA
remedy, and is not entitled to a COIDA claim.
It
was argued on behalf of AngloGold that, given this lack of any
coherent distinction between ODIMWA and COIDA diseases, a
failure
to apply section 35(1) of COIDA to exclude all employees’
common law claims would mean that the legislation created
a wholly
irrational distinction between the two sets of statutory
compensation systems. Counsel further urged that an interpretation

of section 35(1) of COIDA, which excludes from its ambit diseases
compensatable under ODIMWA, would result in an entirely casuistic

distinction between: (i) cases in which an employee working in the
mining industry enjoys the right to claim damages at common
law for
incapacity resulting from the contraction of a listed disease; and
(ii) cases where an employee employed outside the
mining industry
would not. Counsel submitted that this is unlikely to have been the
intention of the legislature and that this
is not a result the
legislature would have intended.
This
contention reflects the observation in the judgment of Harms DP to
the effect that, if Mr Mankayi’s argument is correct,
it
would mean that his employment at the mine was divisible. Harms DP
stated:
“
. .
. 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.”
104
I
accept that the word “employee” in section 35(1) has
the same meaning as it bears in the definition. However,
it seems
plain that both the definition and section 35(1) refer to
“employees” that are covered by COIDA and cannot
refer
to employees who cannot benefit under that legislation. Indeed, the
definition of employee was widened to ensure that
a larger category
of employees would benefit from COIDA. So section 1 defines the
categories of employees who, as COIDA demonstrates,
would benefit
from its provisions. The definition cannot be said to refer to
employees that do not benefit from the provisions
of COIDA. The way
to avoid confusing interpretational consequences is to imagine, in
the first place, the existence of COIDA
without ODIMWA. No one
would have suggested that the definition in COIDA was intended to
embrace workers who would not or could
not benefit from COIDA. I
therefore proceed on the basis that the definition and section
35(1) refers to employees who have
the potential to benefit from
COIDA. The next issue relates to the impact of section 100(2) of on
the definition of “employee”
and the use of that word
in section 35(1).
In
my view, the respondent’s approach insufficiently estimates
the impact of section 100(1) and (2) of ODIMWA. These provisions

expressly insulate or separate those employees who are entitled to
benefit under the compensation provisions of ODIMWA from
those
entitled to benefit under COIDA. The two compensation schemes are
contiguous, but separate. Whilst section 100(1) of
ODIMWA precludes
“double-dipping” on the part of employees who qualify
for compensation because of having contracted
a disease that is
listed under both ODIMWA and COIDA, section 100(2) of ODIMWA goes
further, and specifically precludes employees
with claims in
respect of compensatable diseases under ODIMWA from claiming any
COIDA benefits in respect of the same disease.
It is difficult to
see how section 100(2), while removing employees from COIDA
compensation, could at the same time render
section 35(1)
applicable to them. The Supreme Court of Appeal tries to resolve
this conundrum on the basis that COIDA is the
principal Act, which
sets out the generally applicable provisions, while ODIMWA deals
with special circumstances without diminishing
those principles,
and that the limitation contained in section 35(1) is of general
application.
105
In
my view, this is no answer. First, section 100(2) of expressly
removes the employee concerned from COIDA benefits in respect
of
the disease concerned. It is difficult to see how a general
principle can apply to a person who has, in relation to a

particular claim, been removed from the ambit of legislation said
to contain the general principle. Second, the two Acts deal
with
different things in very different ways, as I show below. The third
reason relates to the clear wording of section 35(1)
of COIDA.
The
comparison between ODIMWA and COIDA compensation is aimed at
illustrating the fact that a person compensated under COIDA
for an
occupational disease is in a much better position than another
person suffering from the same disease but who is compensated
under
ODIMWA for a compensatable disease. I first deal with the relevant
provisions of COIDA, followed by the ODIMWA provisions,
before
making the comparison.
An
employee who suffers from an occupational disease is entitled to
compensation in terms of Chapter VII of COIDA which is headed

“Occupational diseases”.
106
However, this Chapter does not exclusively concern itself with the
mechanism for compensation, but sets out general principles.

Section 65(6) of COIDA provides that the sections of COIDA
regarding an accident apply “
mutatis mutandis
”
to any occupational disease in relation to which there is a right
to compensation in terms of COIDA.
107
It is therefore necessary to revert to Chapter VI of COIDA which is
concerned with compensation for accidents. I will however
use the
term “occupational disease” as used in Chapter VII.
Employees
who suffer occupational diseases are not compensated in respect of
the disease itself, but for temporary total disablement,
temporary
partial disablement and permanent disablement.
An
employee who incurs temporary total disablement as from 1 April
2010
108
would be entitled to receive up to 75% of her monthly earnings
subject to a maximum of R16 400 and a minimum of R2 100 per
month.
109
The employer must pay this amount for the first three months of
disability after which the Fund or the mutual association concerned

takes over.
110
The employee is entitled to 75% of monthly earnings for a maximum
period of 24 months,
111
but this period may be extended in certain circumstances.
112
It is particularly relevant to the ODIMWA comparison, which is made
later, that an employee who receives 75% of monthly earnings
for 24
months will in effect receive a total of one and a half times her
annual earnings and will return to work after that.
Employees
who suffer permanent disability for the purposes of COIDA as a
result of an occupational disease are in a much better
position
than the ones restricted to ODIMWA compensation. They are
compensated depending on the degree of their disability.
I give two
examples:
Employees
who have permanent disability of 30% are entitled to a lump sum of
15 times their monthly salary, that is to say one
and a quarter
times their annual salary subject, as at 1 April 2010, to a minimum
lump sum of R45 800 and a maximum of R183
400.
113
I may repeat here that, by contrast, Mr Mankayi, who was diagnosed
as suffering from a compensatable disease which rendered
him
completely unemployable, received a total of R16 320 under ODIMWA
as calculated in 2005. Under COIDA he would have received
R24 480
if he had been found to have been permanently disabled to a degree
of 30% in 2005.
Employees
who suffer a 100% permanent disability are entitled to a monthly
pension of 75% of their monthly salaries, subject,
as at 1 April
2010, to a minimum monthly pension of R2 300 and a maximum of R16
400.
114
Mr Mankayi would have received a minimum monthly pension of R1 224
under COIDA from 2005 and would by now have received
in excess of
R70 000 if he had been found to have been permanently disabled in
2005. There is also a provision for the payment
of a lump sum to
this category of employee in certain circumstances.
115
The
dependant of an employee who dies as a result of an occupational
disease would essentially receive in effect a lump sum
of twice the
monthly pension (a minimum of R4 600 as at 1 April 2010).
116
The dependants would secondly benefit from a monthly pension of 40%
of the amount that would have been payable to the employee
had the
employee been 100% permanently disabled.
117
Thirdly, the Director-General has to pay the employee’s
funeral costs subject to a maximum of R12 300 as at 1 April 2010.
118
Moreover,
if the employer was negligent, the employee would receive more
money and could in fact be compensated for her total
financial
loss.
119
This concludes the overview of COIDA benefits in respect of
occupational diseases.
I
now turn to ODIMWA to the extent that it relates to COIDA. I
emphasise that ODIMWA becomes applicable when an occupational

disease is classified as a “compensatable disease.” One
would have expected the benefits under ODIMWA to be more
or less
the same or somewhat more than under COIDA, but the opposite is the
case. Except for a person suffering from tuberculosis
who is
entitled to 75% of his monthly earnings when ill,
120
the only benefits payable to a person who is suffering from a
compensatable disease contracted as a result of risk work is
a lump
sum which amounts to approximately one and one third of his annual
salary
121
if that employee suffers from a compensatable disease in the first
degree, and about three times his annual salary
122
if the compensatable disease is in the second degree.
123
There
is no provision for payment of funeral expenses, or any lump sum or
pension for dependants. The statute does however provide
that the
dependants of a person who died of a compensatable disease would
receive the lump sum that would have been payable
to that person
had he not died.
124
In other words, where the person suffering from a compensatable
disease has been paid the lump sum, the dependants get nothing
even
if they are children. To make matters worse, the person who finds
himself afflicted with a compensatable disease merely
because of
legislative classification, has no right to claim additional
damages even if the employer was negligent, a right
that is
preserved for employees who suffer occupational diseases.
All
this is contained in legislation at issue in the exception. The
Supreme Court of Appeal therefore erred in concluding that
it is
not possible to compare the two provisions on exception.
125
The differences between the compensatory regimes of COIDA and
ODIMWA are quite apparent. A person whose disease is certified
as a
compensatable disease loses all the benefits of COIDA and receives
much less under ODIMWA. The purpose is obviously to
reduce the
burden on the COIDA fund by converting an occupational disease into
a compensatable disease. This means that the
person benefits to a
considerably lesser degree from another fund to which the employer
makes a contribution and a much smaller
contribution at that,
because of the smaller benefits payable. The saving to the employer
arising out of the redefinition of
the disease amounts to a
reduction in the contribution to the COIDA fund, which exceeds the
amounts to be paid to facilitate
the lesser compensation under
ODIMWA. It must be emphasised that an employee who has a claim
under ODIMWA has to be excluded.
The drastic reduction in his
compensation is obligatory. It is therefore no surprise that ODIMWA
is silent on the issue of
common law liability.
The
third reason relates to the plain language of section 35(1). It is
necessary to pay close attention to its provisions. Before
I embark
upon this analysis, it is necessary to set out its provisions.
Section
35(1) of COIDA provides:
“
Substitution
of compensation for other legal remedies
.
. .
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.”
What
is striking in this provision is that there is no reference at all
to ODIMWA, notwithstanding that COIDA was enacted more
than twenty
years after ODIMWA. Had the legislature intended for ODIMWA to
entitle employees to be covered under COIDA, it
would have been
easy for it to have included references to ODIMWA, but it has not
done so.
It
is, of course, important to be attentive to the precise language of
the provision. What section 35(1) does, in one extended
sentence,
is two interrelated things. Firstly, it expunges the common law
claims of employees against the employer and, secondly,
it limits
an employer’s liability to pay compensation save for under
the Act. It expressly mentions that “no liability
for
compensation on the part of such employer shall arise save under
the provisions of this Act . . . .” It limits the
employer’s
liability to pay compensation to liability under COIDA alone. That,
in my view, is an indication that both
parts of the provision apply
only to those employees covered by “the provisions of this
Act”; namely, COIDA.
But
AngloGold would have us hold, as the Supreme Court of Appeal did,
that the first part of section 35(1), namely the expungement
of
common law claims, also applies to those who have been stripped of
compensation under COIDA and who have been awarded inferior

compensation under ODIMWA instead. Such a reading requires that two
parts of section 35(1) be severed from each other, the
first part
applying only to the expungement of an employee’s right to
claim damages, and the second part applying only
to employers who
are liable to pay compensation under COIDA itself.
This,
in my respectful view, is to apply wholly unnecessary force to the
plain language of section 35(1). That language, in
my reading,
indicates clearly that it was directed only at and intended to
cover only COIDA entitled employees.
It
is correct, as the Supreme Court of Appeal found, that section
35(1) of COIDA deals with substantially the same aspects as
section
4 of the 1934 Act and section 7 of the 1941 Act.
The
Supreme Court of Appeal found that just as under the 1941 Act,
where it was held that employees’ common law right
to claim
for general damages was excluded notwithstanding that the 1941 Act
did not provide compensation for general damages;
so too section
35(1) of COIDA does not require that the employee must be entitled
to receive compensation under COIDA for the
expungement of a claim
under the common law to take effect. It found that the words in the
text were clear, the ambit of “employee”
untrammelled,
and that the effect of the provision could not be overridden by the
words used in the heading.
126
In reaching this conclusion, the Supreme Court of Appeal placed
reliance on
Pettersen v Irvin and Johnson Ltd
127
(
Pettersen
).
Pettersen
involved the question of
whether section 7 of the Workmen’s Compensation Act of 1941
precluded an action against the
employer for general damages that
fell outside the scope of this Act and in respect of which no
compensation could be recovered
against the Workmen’s
Compensation Commissioner. The court held that:
“
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.”
128
In
my view, the guidance to be obtained from
Pettersen
is
limited. That decision found that an employee who was entitled to
workmen’s compensation was not entitled, in addition,
to sue
his or her employer for general damages, and that the expungement
of the common law action applied even though the statute
did not
provide the employee with compensation in general damages. The
decision did not entail that the claim of an employee,
whose
disease was not compensatable at all under the statute, was
expunged. That is the question this case raises, and in my
view
Pettersen
is not useful in answering it.
Some
care must be taken when locating COIDA and ODIMWA in the context of
the legislation that preceded them. It deserves emphasis
that
section 7 of the 1941 Act operated concurrently with the Silicosis
Act of 1946 and the Pneumoconiosis Compensation Act
of 1962. There
were no provisions in any of these mining statutes that prohibited
“double-dipping” and went on
to preclude claimants from
claiming benefits in respect of the diseases covered by the
1941
Act.
129
The express proscription against “double-dipping” was
an ODIMWA innovation.
As
far as the heading of section 35(1) of COIDA is concerned, the
Supreme Court of Appeal found that because the words in the
text of
the provision are clear, the words used in the heading do not
override them. In reaching this finding, it sought reliance
on
Turffontein Estates Ltd v Mining Commissioner, Johannesburg
130
(
Turffontein
). In my view, it is not possible to lay down
any general rule as to the weight that the heading of a section
attaches in a
given statute. I defer to the observation of Innes CJ
in
Turffontein
that:
“
Where
the intention of the lawgiver as expressed in any particular clause
is quite clear, it cannot be overridden by the words
of a heading.
But where the intention is doubtful, whether doubt arises from
ambiguity in the section itself or from other consideration,
then
the heading may become of importance. The weight to be given must
necessarily vary with the circumstances of each case.”
131
If
the language of section 35(1) is unclear, this Court would be
entitled to have regard to the heading to determine its meaning.

However, in my view the language is clear, even without the
heading. Section 35(1) substitutes COIDA compensation for other

legal remedies and no more. Neither this provision nor any other in
the relevant statute refers to compensation under ODIMWA.
It is in
my view plainly intended to bar the common law claims of only those
employees who have COIDA claims.
ODIMWA
and its antecedent legislation are entirely silent about the
exclusion or otherwise of an employee’s common law
right to
claim delictual damages against an employer arising from
contracting diseases at the workplace. On the reading endorsed
by
the Supreme Court of Appeal, upon the enactment of COIDA in 1993,
twenty years after the enactment of ODIMWA, section 35(1)
suddenly,
silently – and, I would add, obliquely – expunged the
ODIMWA-entitled employee’s common law claim.
This seems to me
a most improbable consequence, and nothing in the wording of
section 35(1) lends sustenance to it. To import
ODIMWA compensation
into this provision is not only extraneous and cumbersome, but
constitutes an unjustified imposition on
the wording.
There
is a further compelling reason why section 35(1) cannot bear the
meaning for which AngloGold contends. It is the cluster
of
provisions within which section 35(1) is located. Chapter I of
COIDA deals with interpretation of the Act, and consists
only of
section 1. Chapter II (sections 2-14) deals with the administration
of the Act. Chapter III (sections 15-21) sets up
the Compensation
Fund and the Reserve Fund. The provisions of Chapter IV (sections
22-37) expressly regulate the manner with
which compensation
obtained under the provisions of COIDA is to be dealt. It is plain
from Chapter IV as a whole that its provisions
deal solely with
occupational injuries and diseases compensatable under COIDA. None
of the provisions in this entire Chapter
deal with ODIMWA
compensation, or with ODIMWA-compensatable diseases.
Almost
all the detailed provisions in Chapter IV of COIDA deal with the
impact COIDA compensation has on common law remedies.
All these
provisions deal only with COIDA compensation. These include the
following sections:
[104.1] In terms of section 31, where the employer is individually
liable for payment of compensation the Director-General may
order
that it deposit sufficient securities to cover its liabilities “in
terms of this Act.”
132
[104.2] Section 32 prohibits compensation to be amongst others ceded
or pledged, capable of attachment or any form of execution
under
judgment or order of a court of law and to be set off against any
debt of the person entitled to the compensation.
133
[104.3] In terms of section 33, a cession of any right to benefits
“in terms of this Act” is void.
134
[104.4] In terms of section 34, compensation “in terms of this
Act” owing to the death of an employee does not form
part of
his or her estate.
135
[104.5] In terms of section 37, any person who issues threats
directed at depriving an employee of benefits “in terms of

this Act” shall be guilty of an offence.
136
Plainly,
none of these provisions can be made to stretch to cover ODIMWA
employees as well. In short it would be strange indeed
if, in the
midst of a group of provisions plainly regulating COIDA
compensation alone, section 35(1) inexplicably regulated
something
beyond COIDA compensation. That would apply unnecessary force not
merely to the words of section 35(1) itself, but
to the context in
which the provision finds itself.
And
it is notable that the legislature has, to the extent it deemed
necessary, legislated comparable provisions in ODIMWA so
as to
regulate how compensation obtained under ODIMWA must be dealt with.
Thus, section 131 of ODIMWA precludes cession and
attachment of
compensation and further protects against insolvency. This
provision of ODIMWA makes it absurd to suggest that
section 32 of
COIDA – which contains comparable provisions prohibiting
cession, attachment and set-off – applies
to ODIMWA
compensation. The same applies to the other provisions of Chapter
IV of COIDA. Why then should section 35(1) suddenly
reach out to
clasp ODIMWA compensation in its grasp? Nothing in its wording
suggests that it should, and the statutory setting
incontrovertibly
indicates that it should not.
This
is more so when one takes account of the enhanced compensation for
which section 56 of COIDA provides where an employee
contracts an
occupational disease due to the negligence of the employer or other
specified categories of related persons. ODIMWA
has no comparable
provision. This leaves those entitled only to ODIMWA compensation
at a severe disadvantage. The argument
that section 35(1) must be
interpreted to exclude mineworkers’ common law claims so as
to create a just and sensible
parity in the two statutes’
compensation systems is thus without merit.
Although
there are provisions in ODIMWA and COIDA that interlock, the two
statutes remain distinct. AngloGold urged that, since

ODIMWA-compensatable diseases fall within COIDA’s definition
of disease, section 35(1) should be held to expunge the
common law
claims of all those with ODIMWA claims, even though they have no
COIDA claims. This cannot be. The golden thread
that runs
throughout ODIMWA and its antecedent legislation is that they
address and limit the impact and spread of infectious
diseases
contracted in mines. It is not anomalous or surprising that
mineworkers are treated separately. Nor is the conclusion

surprising that the legislation deals distinctly with their claims
to compensation.
The
reason for the special statutory treatment is historical. These
diseases have been treated distinctly because they merited
distinct
treatment. They exacted their toll on not only the health of
mineworkers and their families, but have posed and continue
to pose
a danger to the health and welfare of the public. To this extent,
the two Acts dealt with the payment of compensation
for diseases
contracted by a mineworker arising from the hazardous conditions in
mines. Our singular history of mining, with
the massive
contribution of this sector to the country’s wealth and the
corresponding massive toll on mineworkers’
health, justifies
the distinct treatment. This history also explains why section
35(1) does not apply to mineworkers with compensatable
diseases
under ODIMWA.
ODIMWA
makes special provision for a category of employment that
historically has played an exceptional role in our country.
ODIMWA
provides for the particular risks and dangers associated with
mining, which still employs a significant portion of the
country’s
workforce.
Given
the singular risks of mining, and its unique historical role in our
country’s wealth, there is nothing irrational
in preserving
employees’ common law claims against their employers in
respect of ODIMWA-compensatable diseases.
For
these reasons the appeal must, in my view, succeed.
Conclusion
In
my view, section 35(1) must be read in the context of the other
provisions of COIDA. The “employee” referred
to in
section 35(1) whose common law claim is expunged is limited to an
“employee” who has a claim for compensation
under
COIDA, in respect of occupational diseases mentioned in COIDA. It
is this “employee” that section 35(1) of
COIDA excludes
from instituting a claim for the recovery of damages against the
employer for occupational diseases resulting
in disablement or
death. The expungement does not extend to an “employee”
who is not entitled to claim compensation
in respect of
“occupational diseases” under COIDA.
The
corollary is that section 35(1) does not cover an “employee”
who qualifies for compensation in respect of “compensatable

diseases” under ODIMWA. The exclusion of liability in section
35(1) is therefore limited to “employees” who
are
entitled to compensation in respect of “occupational
diseases” under COIDA. The exception should therefore
have
been dismissed
.
Costs
Mr
Mankayi has been successful in vindicating his rights in this Court
and AngloGold should pay his costs in this Court, in
the Supreme
Court of Appeal and in the High Court.
137
Order
The
following order is made:
(1) Condonation is granted.
(2) Leave to appeal is granted.
(3) The appeal is upheld.
(4) The order of the Supreme Court of Appeal is set aside.
(5) The exception is dismissed.
(6) The respondent is ordered to pay the applicant’s costs in
the High Court, in the Supreme Court of Appeal and in this
Court,
including the costs of two counsel.
Ngcobo
CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J,
Nkabinde J, Skweyiya J and Yacoob J
concur in the judgment of
Khampepe J.
FRONEMAN J:
I
respectfully concur in the judgment of Khampepe J, except that my
reasons for granting leave and hearing the appeal are slightly

different to hers. In my respectful view the mere fact that the
present case concerns the interpretation of a statute is sufficient

to bring it within this Court’s jurisdiction.
In
terms of the provisions of section 39(2) of the Constitution,
138
a court must, when interpreting any legislation, promote the
spirit, purport and objects of the Bill of Rights. This
constitutional
injunction makes it impossible to interpret any
legislation other than through the prism of the Bill of Rights.
Statutory interpretation
is thus inevitably a constitutional
matter. It is a legal issue which necessarily involves the
evaluation of social and policy
choices reflected in legislation.
It
is not, however, too difficult to imagine a situation where, after
interpreting legislation in accordance with section 39(2)
for Bill
of Rights compatibility, the result that it yields is one that is
‘neutral’ as far as that compatibility
is concerned, in
the sense that the interpretation given to it does not offend any
provisions or values of the Constitution.
This ‘neutrality’,
however, always remains constitutionally permitted neutrality.
Purely by virtue of this, the
jurisdictional requirement in terms
of section 167(3) of the Constitution
139
would be satisfied in an application for leave to appeal a
particular interpretation of legislation to this Court. But it is

difficult to see why it would be in the interests of justice for
this Court to hear that kind of appeal if there is nothing

plausibly suggestive of anything other than a constitutionally
permitted ‘neutral’ interpretation of the legislation.
What
is thus required from an applicant who seeks leave to appeal to
this Court is the plausible assertion of some constitutional
value
or right which is implicated in the case, something beyond ‘mere’
constitutionality in the sense of it being
a question of law and
constitutional interpretation, and that it is in the interests of
justice to hear the matter because
there are reasonable prospects
that the Supreme Court of Appeal erred in not giving proper effect
to that value or right. And
that is the case here. The
interpretation given to section 35(1) of the Compensation for
Occupational Injuries and Diseases
Act
140
(COIDA) in the High Court and Supreme Court of Appeal has the
effect of abolishing a common law right which protected and
provided an appropriate remedy to the fundamental right to freedom
and security of the person in terms of section 12(1) of the

Constitution.
I
thus agree with Khampepe J that leave to appeal should be granted
because it is in the interests of justice to do so, but
I would
merely include the factors dealt with by her in paragraphs [14] to
[19] of her judgment under the ‘interests
of justice’
discussion, and not as part of whether a constitutional issue has
been raised.
It
is with considerable hesitation and respect that I also suggest
that general consideration should be given to whether the
time has
not arrived to shift the question of whether to grant leave to
appeal in matters where questions of law are involved,
more to a
debate on what kind of constitutional matters this Court should
hear, rather than on whether these issues of law
are constitutional
matters in the jurisdictional sense.
In
Pharmaceutical Manufacturers Association of SA and Another: In
re Ex Parte President of the Republic of South Africa and Others
141
this Court unequivocally stated:
“
There
is only one system of law. It is shaped by the Constitution which is
the supreme law, and all law, including the common
law, derives its
force from the Constitution and is subject to constitutional
control.”
There
is an impossible tension between asserting the fundamental
supremacy of the Constitution as the plenary source of all
law, and
nevertheless attempting to conceive of an area of the law that
operates independently of the Constitution. The perceived
necessity
for the attempt to do so arises from the provisions in the
Constitution that provide that this Court “is the
highest
court in all constitutional matters”
142
and that the Supreme Court of Appeal “is the highest court of
appeal except in constitutional matters”.
143
The suggestion advanced in this judgment is to acknowledge frankly
that this jurisdictional tension cannot be overcome by conceptual

separation of certain areas of the law from the Constitution, but
rather on a practical and functional arrangement based on
a shared
constitutional endeavour between all courts. The shift would mean
moving the debate in relation to appeals to this
Court on legal
questions from “what is a constitutional matter” to,
“which constitutional matters will this
Court hear”.
This
Court has, in
S v Boesak
144
and
Fraser v ABSA Bank Ltd (National Director of Public
Prosecutions as Amicus Curiae
),
145
set out non-exhaustive instances of what constitutes constitutional
matters over which this Court exercises jurisdiction. It
seems to
me that, having regard to the acceptance of the Constitution as the
plenary source of all our law, it would not be
in conflict with
Boesak
and
Fraser
to state that all questions of law
are constitutional matters over which this Court may exercise
jurisdiction. Reviewing only
findings of fact are not.
146
Of course this statement does not exclude potentially difficult
issues of when a matter is one of law, or of fact, or a mixed

question of fact and law, but at least it is a kind of
conceptualisation that our law is familiar with.
147
Certain matters traditionally regarded as matters of fact may
however no longer be regarded as matters of fact, because they

involve the evaluation of social and policy choices,
148
or are inextricably linked to legislation which seeks to give
expression to fundamental rights in the Bill of Rights.
149
Acknowledging
that all questions or issues of law are indeed constitutional
matters does not in my view offend the wording of
sections
167(3)(b) or 168(3) of the Constitution. As importantly, it does
not deny the very important role that other courts,
and
particularly the Supreme Court of Appeal, have to play in the
shared constitutional enterprise of shaping our legal and
societal
landscape to conform to the fundamental values of the Constitution.
It has the advantage, I would venture to suggest,
of transforming a
potential or perceived jurisdictional rivalry into a pragmatic and
functional search for an approach which
would ensure relatively
secure roles for different courts in order best to give effect to
this shared constitutional commitment.
150
As can be seen from this matter, generally speaking, it would only
be in the interests of justice to hear a constitutional
matter if
the legal issue at stake involves a plausibly contested vision of
the content or reach of constitutional values or
rights.
For the Applicant: Mr Richard Spoor from Richard Spoor Attorneys.
For the Respondent: Advocate CDA Loxton SC, DM Antrobus SC with
Advocate Cockrell
instructed by Brink Cohen Le Roux Inc.
1
Section
35(1) states:
“
Substitution
of compensation for other legal remedies
.
. .
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.”
2
Act
130 of
1993
.
3
Act
78 of 1973.
4
Thembekile
Mankayi v AngloGold Ashanti Limited
,
Case No. 06/22312, South Gauteng High Court, Johannesburg,
26 June 2008, unreported.
5
Thembekile
Mankayi v AngloGold Ashanti Ltd
[2010]
3All SA 606
(SCA);
2010 (5) SA 137
(SCA).
6
The
respondent was, on its date of incorporation in 1944, called Vaal
Reefs Exploration and Mining Company Limited. On or about
30 March
1998 its name changed to AngloGold Limited and on or about 26 April
2004 its name was again changed to AngloGold Ashanti
Limited.
7
Section
1 of ODIMWA provides:
“
. . . ‘controlled mine’
means a mine which is a controlled mine in terms of section 9 or
which has been declared a
controlled mine under section 10. . . .”
8
Section
13 of ODIMWA reads:
“
(1) The Minister may by notice in the
Gazette
declare to be risk work any particular work
or all work performed in or at or in connection with any mine or
works or part of
a mine or works, or at a particular place or under
particular circumstances in or at or in connection with any mine or
works.
. . .
(7) For the purpose of determining whether a person is
entitled to a benefit in respect of tuberculosis, or for the purpose
of
determining the amounts which shall be levied from the owners of
controlled mines or controlled works under this Act, a shift during

which a person was required to perform risk work for a period of not
less than fifteen minutes in the course of or in connection
with the
performance of his normal duties or in pursuance of an instruction
issued by a person who has the authority to issue
such an
instruction, shall be deemed to be a shift during which risk work
was performed at or in connection with a controlled
mine or a
controlled works and shall be so recorded by the owner of the mine
or works in question.”
9
Section
1 of ODIMWA provides that “
compensatable”
disease
means:
“
(a) pneumoconiosis;
(b) the joint condition of pneumoconiosis and
tuberculosis;
(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”.
10
Section
94 of ODIMWA deals with the
payment
of,
and interest on, benefits awarded and provides:
“
(1) Subject to the provisions
of subsection (2), the commissioner shall pay a one-sum benefit
awarded under this Act, in a single
payment.
(2) The commissioner shall, at the request in writing
of a beneficiary, pay a one-sum benefit referred to in
subsection (1)
or any portion thereof as elected by the
beneficiary, in such monthly or three monthly instalments as may be
determined from
time to time by the beneficiary in question.
(3) The commissioner may pay any pension or any
instalment of a one-sum benefit awarded under the previous Act or
this Act——
(a) to the beneficiary himself or herself; or
(b) in part to the beneficiary and in part to his
dependants; or
(c) in full to his dependants; or
(d) for the benefit of the beneficiary or his
dependants, to any other person or any institution, organization or
Government Department;
or
(e) in part to the beneficiary and in part, for the
benefit of the beneficiary or his dependants, in accordance with
paragraph
(d).
(4) The commissioner shall add interest to any one-sum
benefit or any other amount awarded under the previous Act or this
Act,
or to the balance of any such benefit or amount, as the case
may be, at a rate determined from time to time by the commissioner

after consultation with the advisory committee, as from the first
day of the month following the month in which such benefit
or amount
was awarded until the last day of the month preceding the month in
which such benefit or amount or the final instalment
thereof was
paid: Provided that no interest shall be paid on any amount which
has remained in the possession of the commissioner
for less than
thirty days.”
11
Section
100(2) of ODIMWA refers to the Workmen’s Compensation Act 30
of 1941, which COIDA replaced.
12
In
terms of section 1 of COIDA, “employee” means:
“…
a person who has
entered into or works under a contract of service or of
apprenticeship or learnership, with an employer, whether
the
contract is express or implied, oral or in writing, and whether the
remuneration is calculated by time or by work done, or
is in cash or
in kind, and includes—
a
casual employee employed for the purpose of the employer’s
business;
a
director or member of a body corporate who has entered into a
contract of service or of apprenticeship or learnership with
the
body corporate, in so far as he acts within the scope of his
employment in terms of such contract;
a
person provided by a labour broker against payment to a client for
the rendering of a service or the performance of work,
and for
which service or work such person is paid by the labour broker;
in
the case of a deceased employee, his dependants, and in the case of
an employee who is a person under disability, a curator
acting on
behalf of that employee;
but does not include—
a
person, including a person in the employ of the State, performing
military service or undergoing training referred to in the
Defence
Act, 1957 (Act No. 44 of 1957), and who is not a member of the
Permanent Force of the South African Defence Force;
a
member of the Permanent Force of the South African Defence Force
while on ‘service in defence of the Republic’
as
defined in section 1 of the Defence Act, 1957;
a
member of the South African Police Force while employed in terms of
section 7 of the Police Act, 1958 (Act No. 7 of 1958),
on ‘service
in defence of the Republic’ as defined in section 1 of the
Defence Act, 1957;
a
person who contracts for the carrying out of work and himself
engages other persons to perform such work;
a domestic employee employed as such in a private
household”.
13
In
terms of section 1 of COIDA, “employer” means:
“
. . . any person, including
the State, who employs an employee, and includes—
any
person controlling the business of an employer;
if
the services of an employee are lent or let or temporarily made
available to some other person by his employer, such employer
for
such period as the employee works for that other person;
a labour broker who against payment provides a person
to a client for the rendering of a service or the performance of
work, and
for which service or work such person is paid by the
labour broker.”
14
Glenister
v President of the Republic of South Africa and Others
[2008] ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2)
BCLR 136
(CC) at para 8;
Van Wyk v
Unitas Hospital and Another (Open Democracy Advice Centre as
Amicus
Curiae
)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20;
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para
3.
15
In
terms of the directions of this Court issued on 17 May 2010, the
applicant was required to lodge his written submissions by
28 June
2010. He filed them on 7 July 2010.
16
See
Ingledew v Financial Services Board: In re Financial Services
Board v Van der Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 13
;
Armbruster and Another v Minister of
Finance and Others
[2007] ZACC 17
;
2007 (6) SA 550
(CC);
2007 (12) BCLR 1283
(CC) at para 24;
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa, and Another
[2004]
ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19
;
and
S v Boesak
[2000]
ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at paras 10-2.
17
Fraser
v ABSA Bank Ltd (National Director of Public Prosecutions as
Amicus
Curiae
)
[2006]
ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at para 37.
18
Id
at para 38.
19
See
S v Boesak
above n 16 at para 15 where the Court held that a
challenge to a decision of the Supreme Court of Appeal, on the sole
basis that
it was wrong on the facts, is not a constitutional issue.
20
See
Phoebus
Apollo Aviation CC v Minister of Safety and
Security
[2002] ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC) at para 9 and
Van der Walt v Metcash Trading Ltd
[2002]
ZACC 4
;
2002 (4) SA 317
(CC);
2002 (5) BCLR 454
(CC). The
Court
declined jurisdiction on the basis that it has no power to overturn
lower court judgments where the ordinary law is simply incorrectly

applied.
21
[2010]
ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC).
22
Id
at paras 75-8.
23
[1997]
ZACC 6
;
1997 (3) SA 786
(CC); 1997 (7) BCLR (CC)
851 at para 60 (section 38 of the Constitution is equivalent to
section 7 of the Interim Constitution).
24
The
provisions of section 100(2) are set out at [4] above. See also
section 100(1) of ODIMWA which provides as follows:
“
No person shall be entitled
to benefits under this Act in respect of any disease for which he
has received or is still receiving
full benefits under the Workmen’s
Compensation Act, 1941 (Act No. 30 of 1941).”
25
Section
56(1) of COIDA provides for the possibility of increased
compensation where the injury sustained or disease contracted
is due
to the negligence of the employer. ODIMWA has no comparable
provision.
26
See
Marks “The Silent Scourge? Silicosis, respiratory disease and
gold-mining in South Africa” (2006) 32
Journal of Ethnic
and Migration Studies
569, also available at
http://wiserweb.wits.ac.za/PDF%20Files/international%20-%20marks.PDF
,
accessed on Wednesday 5 January 2010.
27
“
Report
of the
Commission
of Inquiry into Compensation for Occupational Diseases in the
Republic of South Africa” Department of Minerals and Energy

Affairs at 3.
28
Act
34 of 1911.
29
Section
1 of the
1911 Act.
30
Section
3 of the
1911 Act.
31
Act
19 of 1912.
32
Section
4, 8 and 9 of the
1912 Act.
33
Id.
34
See
sections 7 and 9 of the 1912 Act.
35
Act
29 of 1914.
36
See
sections 5-6 of the
Miners’ Phthisis Act of 1914
.
37
Act
44 of 1916.
38
Section
43 of the
1916 Act.
39
Section
8 of the 1916 Act.
40
Act
35 of
1925.
41
Act
47
of 1946.
42
See
section 2 of the Silicosis Act.
43
See
sections 30-1 of the Silicosis Act.
44
Act
30 of
1941.
45
Act
57
of 1956.
46
Section
8 of the
1956 Act.
47
Section
9 of the
1956 Act.
48
Section
9(1) of the
1956 Act.
49
Section
55(1) of the
1956 Act.
50
Act
64 of 1962.
51
Section
2 of the 1962 Act.
52
Section
7 of the
1962 Act.
53
Section
64
of the 1962 Act
.
54
Section
48 of the
1962 Act.
55
Section
46 of the
1962 Act.
56
“
Bantu”
was a derogatory term used by the State to describe
members
of groups of indigenous people of central and Southern Africa.
57
Section
43 of the
1962 Act.
58
See
the long title of ODIMWA.
59
Section
39(2) of ODIMWA.
60
Section
45 of ODIMWA.
61
Section
62(1) of ODIMWA.
62
Act
208 of 1993.
63
Act
36 of 1907.
64
See
the long title of the
1907 Act.
65
Act
25 of 1914.
66
See
the long title of the
1914 Act.
67
Section
32 of the
1914 Act.
68
Section
1(b) of the 1914 Act.
69
Act
13 of 1917.
70
See
long title of the 1917 Act. See also the Schedule of the
1917 Act.
71
Act
59 of 1934, see Schedule 3 of the
1934 Act.
72
See
the long title of the
1934 Act.
73
Section
15(1) of the 1934 Act.
74
Section
48 of the
1934 Act.
75
Section
49 of the
1934 Act.
76
Schedule
2 of the
1934 Act.
77
Section
109 of the
1941 Act.
78
See
the long title of the
1941 Act.
79
The
provisions of this section encapsulate the same aspects as section
35(1) of COIDA.
80
See
Schedule 2 of the
1941 Act.
81
See
Schedule 1 of COIDA.
82
See
the long title of COIDA.
83
Section
15(2)(c) of COIDA.
84
Section
67(1) of COIDA reads:
“
. . . Compensation for a
disease referred to in section 65(1) shall be calculated on the
basis of the earnings of the employee
calculated
mutatis
mutandis
in
accordance with the provisions of section 63 and the disablement of
the employee at the time of the commencement of the disease
or such
earlier date as the Director-General may determine, if it is proved
to his satisfaction that the employee was suffering
from the disease
at an earlier date, whichever earnings are more favourable to the
employee.”
85
See
above n 4 a
t para 41.
86
Id.
87
Id
at para 42.
88
Id
at para 43.
89
This
maxim is rendered in Latin as
generalia specialibus non derogant
.
90
A
bove
n 4 at paras 46-9.
91
Id
at paras 51 and 62.
92
Id
at para 56.
93
See
above n 5 at para 31.
94
Id.
95
Id
at para 32.
96
Id
at para 33.
97
Id
at para 38.
98
Id.
99
Id
at para 36.
100
Id.
101
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) at para 58.
102
Eliot
Burnt Norton
Part V as quoted by Devenish
Interpretation
of Statutes
(Juta & Co, Cape Town
1992) at 3.
103
Section
1 of COIDA defines “occupational disease” as any disease
contemplated in section 65(1)(a) or (b). Section
65(1)(a) refers to
Schedule 3 of COIDA. Schedule 3 lists occupational disease to
include, inter alia, the following respiratory
diseases:
Pneumoconiosis-fibrosis of the parenchyma of the lung
caused by fibrogenic dust;
Pleural thickening caused by asbestos dust exposure;
Silicotuberculosis;
Bronchopulmonary diseases caused by hard-metal dust;
Bronchopulmonary diseases caused by cotton, flax, hemp
or sisal dusts (byssinosis);and
Chronic obstructive pulmonary diseases.
104
See
above n 5 at para 60.
105
See
above n 5 at para 59.
106
Sections
65-70 of COIDA.
107
Set
out in section 65(1) read with Schedule 3 of COIDA.
108
The
maximum and minimum amounts claimable are changed from time to time,
but other details remain the same, for example see GN
304/GG
33118/20100421.
109
Section
47(1) and (2) of COIDA read with item 1 of Schedule 4.
110
Section
47(3)(b) of COIDA.
111
Section
47(5) of COIDA.
112
Section
48(2) of COIDA.
113
Item
2 of Schedule 4 of COIDA.
114
Section
49(1) of COIDA read with item 4 of Schedule 4.
115
Section
52 of COIDA.
116
Section
54(1)(a) of COIDA read with item 6 of Schedule 4.
117
Section
54(1)(b) of COIDA read with item 7 of Schedule 4.
118
S
ection
54(2) of COIDA read with item 10 of Schedule 4.
119
Section
56(4)(b) of COIDA.
120
See
section 80(1) of ODIMWA.
121
See
section 80(2)(a) of ODIMWA, which provides for 1.31 of an annual
salary.
122
See
section 80(2)(b)(i) of ODIMWA, which provides for precisely 2.917 of
an annual salary.
123
Section
80(2)(b)(i) of ODIMWA.
124
Section
80(4) of ODIMWA.
125
See
above n 5 at para 37.
126
See
paras [63-8] above.
127
Above
n 5 at paras 28-9 (citing
Pettersen v
Irvin and Johnson Ltd.
1963 (3) SA 255
(C)).
128
Above
n 127
Pettersen
at
256H and 257A.
129
As
explained in para [32] above, section 84 of the 1946 Silicosis Act
provided for a reduction in the pension of those who had
received
compensation under the 1
941 Act.
130
1917
AD 419
at 431, see above n 5 at para 29.
131
Id.
132
Section
31 provides for:
“
Security for payment of
compensation and cost of medical aid by employers individually
liable.
—
(1) The Director-General may order an employer
individually liable to deposit such securities as in the opinion of
the Director-General
are sufficient to cover the liabilities of the
employer in terms of this Act.
(2) If an employer has deposited with the
Director-General any such security and thereafter fails to meet in
full his liabilities
in terms of this Act, the Director-General may
apply such security to pay those liabilities, and he may deposit any
unused balance
in the compensation fund and apply it for the payment
of future liabilities of that employer in terms of this Act.”
133
Section
32 provides for:
“
Compensation may not be
alienated or reduced.—
(1) Notwithstanding anything to the contrary in any
other law contained, compensation shall not—
(a) be ceded or pledged;
(b) be capable of attachment or any form of execution
under a judgment or order of a court of law;
(c) . . .
(d) be set off against any debt of the person entitled
to the compensation.
(2) Notwithstanding subsection (1), the
Director-General or the mutual association concerned, as the case
may be, may pay compensation
payable to an employee in whole or in
part to the employer to the extent to which such employer has made
payments to the employee
in respect of disablement arising out of an
occupational injury or disease.”
134
Section
33 provides for:
“
Cession or relinquishment
of benefits void.—
Any provision of an agreement existing at the
commencement of this Act or concluded thereafter in terms of which
an employee cedes
or purports to cede or relinquishes or purports to
relinquish any right to benefits in terms of this Act, shall be
void.”
135
Section
34 provides for:
“
Compensation not to form
part of deceased employee’s estate
.—
Compensation in terms of this Act owing to the death of
an employee shall not form part of his estate.”
136
Section
37 provides for:
“
Threats and compulsion.—
Any person who threatens an employee or in any manner
compels or influences an employee to do something resulting in or
directed
at the deprivation of that employee’s right to
benefits in terms of this Act, shall be guilty of an offence.”
137
Biowatch
Trust v Registrar Genetic Resources and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 28.
138
Section
39(2) states:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
139
Section
167(3) states:
“
The Constitutional Court—
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues
connected with decisions on constitutional matters; and
(c) makes the final decision whether a matter is a
constitutional matter or whether an issue is connected with a
decision on a
constitutional matter.”
140
130
of 1993.
141
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 44.
142
Section
167(3)(a).
143
Section
168(3).
144
[2000]
ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at paras 10-5.
145
[2006]
ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at paras
35-47.
146
Boesak
above n 7 at para 15.
147
Compare
for example
Magmoed v Janse van Rensburg and Others
[1992] ZASCA 208
;
1993 (1)
SA 777
(AD) 806H-809G.
148
Compare
K v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6)
SA 419
(CC);
2005 (9) BCLR 835
(CC) at para 32.
149
For
example
National Education Health and Allied Workers Union v
University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC). See also
Camps Bay Ratepayers and
Residents Association and Another v Harrison and Another
[2010]
ZACC 19
;
2011 (2) BCLR 121
(CC) at para 51 and
Rail Commuters
Action Group and Others v Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at
paras 51-2.
150
F
Michelman “The Rule of Law, Legality and the Supremacy of the
Constitution” in S Woolman, T Roux and M Bishop
CONLAWSA
at
11-33.