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[2015] ZACC 26
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Minister of Defence and Military Veterans v Thomas (CCT168/14) [2015] ZACC 26; 2016 (1) SA 103 (CC); (2015) 36 ILJ 2751 (CC); 2015 (10) BCLR 1172 (CC) (25 August 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 168/14
In
the matter between:
MINISTER
OF DEFENCE AND MILITARY
VETERANS
Applicant
and
LIESL-LENORE
THOMAS
Respondent
Neutral
citation:
Minister
of Defence and Military Veterans v Thomas
[2015]
ZACC 26
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ
and Tshiqi
AJ
Judgments:
Froneman J (unanimous)
Heard
on:
19 May 2015
Decided
on:
25 August 2015
Summary:
Compensation for Occupational Injuries
and Diseases Act
130 of 1993 —
Section 35(1) — “State” as a single employer —
right to bodily integrity and security
of person underlies common law
claim for workplace damages
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Western Cape High Court, Cape Town):
1.
Leave to appeal is granted.
2.
The appeal is dismissed with costs, including the costs of two
counsel.
JUDGMENT
FRONEMAN
J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ
and Tshiqi AJ
concurring):
[1]
The
respondent (Dr Thomas) is a medical doctor employed by the Western
Cape Provincial Government (provincial government) in its
health
department. She was injured in an accident while on secondment
to a military hospital under the control of the applicant,
the
Minister of Defence and Military Veterans (Minister). Legislation
in the form of the
Compensation
for Occupational Injuries and Diseases Act,
[1]
(Compensation Act or Act) governs the compensation she may claim
arising from injuries suffered while at work.
[2]
Compensation
under the Act may come in two guises. The first is for
prescribed benefits payable under the Act for occupational
injuries
sustained as a result of a work accident (occupational injury
benefits).
[2]
It is payable irrespective of any negligence on the part of the
employer. The second is for damages, beyond those benefits,
that were caused by a third party at the workplace (workplace
damages). This is an ordinary delictual claim, dependent on
proof of wrongful and negligent conduct by the third party. In
contrast, the common law delictual claim against an employer
for
workplace damages is precluded.
Background
[3]
On 28 May 2009, Dr Thomas was
working as a medical registrar at the 2 Military Hospital in
Wynberg, Cape Town (hospital), where
she fell down eight stairs in a
stairwell of the hospital. At the time of her fall, Dr Thomas
had been seconded to work at
the hospital, which was under the
control of the Minister as the appropriate representative of national
government. As a
result of the fall, she sustained injuries to
her right ankle, knees, left wrist and thighs and alleged that she
had suffered emotional
shock.
Litigation
history
High
Court
[4]
Dr Thomas instituted a claim for
delictual damages in the Western Cape High Court, Cape Town (High
Court) against the Minister,
alternatively, against the company
responsible for providing the hygiene services at the hospital,
Greystone Trading 389 CC t/a
Pronto Kleen Cleaning Service, as well
as against both parties jointly and severally.
[5]
Dr Thomas also lodged a claim
against the provincial government under the Compensation Act for
occupational injury benefits. There
is no dispute that she is
entitled to those benefits under the Act. In addition, though,
she also claimed delictual workplace
damages from the Minister –
as a third party – for the alleged negligence of its employees
at the hospital where she
worked on secondment. The Minister
lodged a special plea in which it resisted the workplace damages
claim, arguing that Dr Thomas
is precluded from claiming against
them in terms of section 35(1) of the Act. Section 35(1),
entitled
“
Substitution of
compensation for other legal remedies”,
provides:
“
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.”
[6]
The Minister argued that for the
purposes of determining who her employer under the Compensation Act
is, it matters not whether
it is the provincial or national
government. Both are arms of government, albeit at different
spheres, and hence her employer
is the overall entity representing
government at all spheres, namely the State.
[7]
That is the essential issue before
us. Who is Dr Thomas’s employer: the State as a single
employer, or its individual
components, in this case the provincial
government?
[8]
The High Court upheld the Minister’s
special plea and dismissed Dr Thomas’s claim with costs.
It held that Dr Thomas was an employee of
the State as represented by the South African Government as a single
entity, although
at the provincial level. It found that the
State could not simply be equated with the “national
government”,
or for that matter a provincial government, but
was rather the composite of all three political spheres of
government.
Supreme
Court of Appeal
[9]
Leave
to appeal was granted to the Supreme Court of Appeal. The
Supreme Court of Appeal overturned the High Court order.
[3]
It dismissed the special plea and remitted the matter to the
High Court for trial to determine the merits of Dr Thomas’s
workplace damages claim against the Minister. In addition, it
found that the provincial government was an “employer
individually liable” under the Compensation Act, with
particular reliance on the provisions of sections 39(2), 84(1) and
88(1) of the Act. The Supreme Court of Appeal therefore did not
regard “the State” or Government as her employer,
but
rather the head of the particular provincial government department,
as reflected in Dr Thomas’s employment contract.
In
this Court
Leave
to appeal
[10]
The
Minister now seeks leave to appeal against the decision of the
Supreme Court of Appeal. Leave must be granted. The
interpretation of the Compensation Act raises constitutional issues
of national importance. Dr Thomas’s claim involves
her
fundamental right to security of her person,
[4]
and the interpretation of the relevant provisions of the Compensation
Act “must promote the spirit, purport and objects of
the Bill
of Rights”.
[5]
It is in the interests of justice to obtain clarity on the
responsibility between the different spheres of government under
the
Act for workplace damages claims.
Issue
[11]
The parties’ contentions
followed the different perspectives of the High Court and Supreme
Court of Appeal judgments.
As stated
earlier, the main issue is this: who is Dr Thomas’s employer –
the State as a single employer, or its individual
components, in this
case the provincial government?
Minister’s
submissions
[12]
The
Minister relied on the Constitution’s provisions relating to
the operation of the three spheres of government and its
provisions
in relation to the employment of public service employees. These
provisions, she argued, supported her contention
of a single entity,
the State, operating at three different levels: national, provincial
and local. Reference in the Compensation
Act to the State must
be understood to mean this single entity. The other provisions
in the Act referring to the three individual
levels of government
should be understood as necessary practical arrangements to
efficiently administer the compensation scheme
under the Act insofar
as it applies to the vast state administration at different levels of
government. The Minister sought
support in other statutes
[6]
where the State is regarded as a single employer.
[7]
Dr
Thomas’s submissions
[13]
Dr Thomas submitted that the
Constitution’s provisions are inconclusive. She relied on
Supreme Court of Appeal authority
to the effect that there is no
general legal definition or conception of “the State” and
that its meaning should be
determined in the appropriate context of a
particular statute’s objects and purpose. Seen in its
particular context,
the provisions of the Compensation Act –
specifically sections 39(2), 81 and 84 – clearly identified the
three spheres
of government as employers individually liable for
compensation, not the State as a single entity comprising them.
Dr Thomas
also contended that if, however, the statute is capable of
two different interpretations, then the interpretation that is least
restrictive of her rights must be preferred.
[14]
In
terms of the Constitution, “government is constituted as
national, provincial and local spheres of government which are
distinctive, interdependent and interrelated”.
[8]
Further, “[a]n organ of state involved in an
intergovernmental dispute must make every reasonable effort to settle
the dispute by means of mechanisms and procedures provided for that
purpose, and must exhaust all other remedies before it approaches
a
court to resolve the dispute”.
[9]
[15]
The
Constitution also provides for a public service within public
administration which must function and be structured in terms
of
national legislation.
[10]
Provincial governments “are responsible for the recruitment,
appointment, promotion, transfer and dismissal of members
of the
public service in their administrations within a framework of uniform
norms and standards applying to the public service.”
[11]
Municipal councils may “employ personnel that are
necessary for the effective performance of its functions.”
[12]
[16]
These
provisions do not expressly provide that for all purposes the three
different spheres of government must be regarded as one
entity. If
this were so, section 84(1)(a)(i) of the Act would have read
differently.
[13]
This Court has held that within its constitutional sphere of
competence, each sphere of government reigns supreme.
[14]
And litigation, albeit as a last resort, between organs of
state within these spheres of government is competent.
[15]
Both provincial and local government may employ people in their
respective spheres.
[16]
It was argued that there was significance in the different
wording in this regard: “employ” for municipal councils,
but merely “appointment” for provincial governments. I
do not think so. Appointing someone to work is not
different
from employing someone.
[17]
The
provisions of the national legislation as required by the
Constitution, namely the Public Service Act are also not decisive.
The Supreme Court of Appeal relied on some of its provisions in
support of its finding that the State is not a single employer
for
the purposes of the Compensation Act,
[17]
but in argument the Minister referred to others that point the other
way.
[18]
[18]
There is nothing in the Constitution
and the legislative framework mandated by it that compels a
conclusion that, for the purposes
of interpreting the Compensation
Act, there is a general constitutional principle that the State must
be regarded as a single employer
for all employees working in the
three different spheres of government.
[19]
It
is true that in some other statutes
[19]
the State appears to be treated as a single entity. In
Holeni
,
[20]
the Supreme Court of Appeal held:
“
The
State as a concept does not have a universal meaning. Its
precise meaning always depends on the context within which it
is
used. Courts have consistently refused to accord it any
inherent characteristics and have relied, in any particular case,
on
practical considerations to determine its scope. In a plethora
of legislation no consistency in meaning has been maintained.”
[21]
[20]
It
is, as a general rule, not permissible to use the meanings attributed
to words in other statutes as determinative in the interpretation
of
a different statute.
[22]
Where Parliament has defined a word used in a statute, it is
taken as an indication that Parliament contemplated a special
meaning
assigned to the word and not an ordinary meaning.
[23]
But if the other statutes traverse the same terrain they might be
relevant if the meaning of “employer” in them
in effect
also determines the meaning of “employer” in the
Compensation Act. Whether that is the case depends
on their
respective subject matter.
[24]
[21]
The
Minister’s defence, to the effect that it is not liable for a
civil claim by Dr Thomas, is squarely based on section 35(1)
of the
Act.
[25]
This section forbids the recovery of damages in respect of
occupational injuries by employees and their dependants from an
employer. The section protects employers from civil claims and
confines their liability for damages to claims lodged in terms
of the
Act only. For the defence based on this section to succeed
here, it must be established that National Government was
the
employer of Dr Thomas when she suffered occupational injuries.
[22]
The determination of the issue
whether National Government was an employer envisaged in section
35(1) takes us to the meaning assigned
to the word “employer”
by the Act. In the Act “employer” is defined to
mean—
“
any
person, including the State, who employs an employee, and includes—
(a)
any person controlling the business of an employer;
(b)
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;
(c)
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.”
[26]
[23]
What emerges from the language of
the definition is that the word “employer” is used in the
Act in a sense wider than
its ordinary meaning. But what is
significant is the fact that the Act identifies the action that
qualifies one as an employer.
The definition states that a
person who employs another person is an employer. It further
tells us that employer includes
the State when it employs a public
servant. The scope of the word “employer” under the
Act extends further to
include the person who controls the business
of an employer, and a labour broker who pays the salary of a worker
offered to a third
party for specific services.
[24]
In contrast, where the employer
seconds an employee to a third party or allows the employee to work
for another person for a limited
period, the person to whom an
employee is seconded does not become an employer in the eyes of the
Act. The definition specifically
states that throughout the
secondment, the person who originally employed the worker continues
to be her employer. When applying
this part of the definition
to the present matter, it means the Western Cape provincial
government, which employed Dr Thomas
within the State, remained
her employer during her secondment to the Department of Defence and
Military Veterans.
[25]
The Public Service Act is
instructive in determining who employed Dr Thomas. Section
9 of this Act provides that persons
are appointed to a state
department by an executive authority. The term “executive
authority” is in turn defined
to mean, in the case of a
provincial department, the Member of the Executive Council
responsible for a particular department.
Therefore, in terms of
the Public Service Act, the power to appoint Dr Thomas vested in the
Provincial Minister for Health in the
Western Cape Province. In
his representative capacity, the Provincial Minister (MEC) became her
employer, and continued to
be her employer even when she was seconded
to the Department of Defence and Military Veterans.
[26]
The argument by the Minister is more
nuanced. Her counsel argued that since the Provincial
Department of Health that employed
Dr Thomas is part of the same
State to which the National Department of Defence and Military
Veterans belongs, this Court should
hold that the Minister cannot be
liable for the claim made by Dr Thomas. Counsel urged us
to construe the word “State”
in the definition as
reference to government in its provincial and national spheres, and
not the local sphere. The logical
consequence of this
contention is this: if the Western Cape Provincial Minister for
Health was insulated from liability by section
35(1), all parts of
the State, including the national Minister, are also exempt from
liability by reason of being part of a singular
entity, the State.
[27]
This argument is not consistent with
the structure of our Constitution which establishes a government
consisting of three spheres,
namely, national, provincial and local.
The Constitution also acknowledges that, from time to time, disputes
will arise between
these spheres and when that happens, certain
procedures must be followed in an attempt to resolve the dispute,
before courts of
law can be approached. By accepting that
disputes will sometimes reach the courts, the Constitution affirms
that each sphere
is separate from the others, even though they are
interdependent and interrelated. The Constitution provides for
the devolution
of power between these spheres and barring concurrent
competencies, each sphere enjoys the exclusive exercise of power
allocated
to it.
[28]
The construction advanced by the
Minister is also at odds with the Public Service Act which identifies
various functionaries as
the appointing authority of officials in
different State departments at both provincial and national spheres.
That interpretation
is, in addition, not in line with the other
provisions of the Act set out below.
[29]
An
employee is entitled to claim occupational injury benefits under the
Compensation Act for occupational injuries sustained in
an accident
arising from her employment. This is not a claim for damages
under the common law, but for specified benefits
under the Act. This
is not dependent on proof of any negligence on the part of the
employer.
[27]
An employee may have a workplace damages claim against a third
party, not the employer, if the occupational injury was caused
in
circumstances where the third party is liable for damages.
[28]
[30]
The
procedure for claiming occupational injury benefits is set out in
Chapter V of the Act.
[29]
Briefly, it works like this. The employee must give
notice of the accident to her employer;
[30]
the employer must then give notice of the accident to the
Director-General;
[31]
the Director-General investigates the accident;
[32]
and, after formal requirements relating to the claim are complied
with,
[33]
the Director-General considers and adjudicates the claim.
[34]
The determination and calculation of the claim is done in
accordance with Chapter VI of the Act.
[35]
[31]
Although
the procedure for making the claim is directed at the
Director General, and he decides and adjudicates the claim,
the
liability for payment of the claim only rests on the Director-General
in those instances where employers have to pay assessments
which form
part of the Compensation Fund.
[36]
In the case of an “employer individually liable”,
the payment has to be made by the “employer individually
liable”.
[37]
In terms of the definition of an “employer individually
liable”, it is “an employer who in terms of section
84(1)(a) is exempt from paying assessments to the compensation fund”.
To sum up: the Director-General has to make payment
of the
claim from the Compensation Fund in cases where employers are obliged
to pay assessments into the Compensation Fund. Employers
who
are not obliged to make payment of assessments into that fund have to
pay the compensation themselves.
[32]
In
terms of section 84(1), no assessments need to be paid in respect of
employees who are employed in the national and provincial
spheres of
government, including Parliament and provincial legislatures; local
authorities and municipalities with exemptions under
certain Acts;
and employers who are fully insured for potential liability in terms
of the Compensation Act with a mutual association.
[38]
[33]
Even
though these “employers individually liable” need not pay
assessments, they are liable to pay the Director-General
administration fees as he deems equitable, as well as contributions
to losses that may have occurred from payments out of the
Compensation Fund.
[39]
These provisions do not, however, impose any liability on the
Director-General for payment of claims against “employers
individually liable”.
[40]
[34]
In addition to the definition of
“employers individually liable” in section 84(1),
the Supreme Court of Appeal
relied on section 39(2) of the Act:
“
For
the purposes of subsection (1) an employer referred to in section
84(1)(a)(i) means, in the case of—
(a)
the national and provincial spheres of government, the respective
heads of departments
referred to in section 7(3) of the Public
Service Act, 1994 (Proclamation No. 103 of 1994);
(b)
Parliament, the Secretary to Parliament;
(c)
a provincial legislature, the Secretary of the provincial legislature
in question.”
[35]
The Minister submitted that the
Supreme Court of Appeal’s reliance on these sections was
misplaced. The provisions of
section 39(2) of the Act are
expressly subject to “the purposes of subsection (1)”,
which deals with the procedural
requirement of giving notice of an
accident. Similarly, section 84(1) is part of chapter IX
of the Act, which deals
with the obligations of employers. Section
84 deals with exemption from assessments under the Act and has little
or nothing
to do with the individual liability of the entities
mentioned in the section. Both these provisions are perfectly
compatible
with an interpretation of the State as a single employer,
because they merely provide for practical means to process claims on
behalf of the vast state administration in its many forms. This
interpretation, it was argued, would also give proper meaning
to the
reference “the State” in the definition of “employer”,
which the interpretation favoured by the
Supreme Court of Appeal
fails to do.
[36]
The Minister also contended that
section 39(2) of the Compensation Act is significant for two further
reasons. First, it establishes
the link between the Public
Service Act and the Compensation Act. Second, it follows the
Public Service Act in identifying
the various employers within the
State.
[37]
There is merit in this argument. It
might be countered by regarding the inclusion of “the State”
in the definition
of “employer” as merely qualifying “any
person”, as the State is not considered to be a natural or
juristic
“person” for definitional purposes. It
could merely be an all-encapsulating term for the individual
components
of the State and to avoid listing each government
department or sphere of government in the definition. Section
39(2) of
the Act provides that in the case of both the national and
provincial spheres, employers referred to in section 84(1) are the
respective
heads of departments. This is an indication that the
Compensation Act does not regard the State as a single employer
entity.
[38]
These
considerations show how the approach in this judgment differs from
that of the Supreme Court of Appeal. The textual
and contextual
arguments counter each other and do not provide sufficient grounds
for choosing one reasonable interpretation above
the other. The
balance must be tilted by looking at which interpretation will best
“promote the spirit, purport and
objects of the Bill of
Rights”.
[41]
In
Bato
Star
,
[42]
this Court held:
“
Indeed,
every court ‘must promote the spirit, purport and objects of
the Bill of Rights’ when interpreting any legislation.
That is the command of section 39(2). Implicit in this command
are two propositions: first, the interpretation that is placed
upon a
statute must, where possible, be one that would advance at least an
identifiable value enshrined in the Bill of Rights;
and second, the
statute must be reasonably capable of such interpretation. This
flows from the fact that the Bill of Rights
‘is a cornerstone
of [our constitutional] democracy.’ It ‘affirms the
democratic values of human dignity,
equality and freedom.’”
(Footnotes omitted.)
[39]
At
stake is Dr Thomas’s fundamental right to bodily integrity and
security of her person, a right that underlies her common
law claim
for workplace damages.
[43]
The interpretation advocated for by the Minister precludes a
further delictual claim and is thus more restrictive of Dr Thomas’s
rights. On that score the Supreme Court of Appeal’s
interpretation must be favoured and, therefore, upheld. To
deprive her of her full common law entitlement would, in these
circumstances, not be justified.
[40]
The appeal must thus be dismissed.
Order
[41]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed with costs, including the costs of two
counsel.
For
the Applicant:
For
the Respondent:
M
Albertus SC, R Jaga and G Quixley
instructed
by the State Attorney
M
van Heerden SC and S Wagener
instructed by
Sohn and Wood Attorneys
[1]
130 of
1993.
[2]
Section
1 of the Act defines “occupational injury” to mean “a
personal injury sustained as a result of an accident”
and
“accident” to mean “an accident arising out of and
in the course of an employee’s employment and
resulting in a
personal injury”.
[3]
Thomas
v Minister of Defence and Military Veterans
[2014] ZASCA 109
;
2015 (1) SA 253
(SCA) (Supreme Court of Appeal
judgment).
[4]
See
Mankayi
v
Anglogold Ashanti
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC)
(
Mankayi
)
at paras 13-8.
[5]
Section
39(2) of the Constitution.
[6]
The
Minister argued that regard may be given to the construction of the
words “the State” and “employer”
as
contemplated in other statutes. In particular,
sections
157(2)(b) and 158(1)(h) of the Labour Relations Act
66
of 1995 show the State acts as a singular employer, performing its
functions through various departments. Further, the
Basic
Conditions of Employment Act 75 of 1997
defines an employee to
include someone who works for the State. The Government
Employees Pension Law, 1996 defines the
employer as the relevant
government department for purposes of the management, collection and
payment of the pension fund contributions,
and the government is
also considered as the employer for purposes of that law.
[7]
The
Minister also sought to advance an alternative argument that, for
the purposes of the Compensation Act, the State does not
consist of
three spheres of government but rather only two spheres, namely
national and provincial government. This argument
is based on
sections 160(1)(d), 196(4)(f) and 197 of the Constitution read with
section 8 of the Public Service Act 103 of 1994
(Public Service
Act).
[8]
Section
40(1).
[9]
Section
41(3).
[10]
Section
197(1).
[11]
Section
197(4). Dr Thomas’s appointment letter indicates that
the Western Cape Department of Health temporarily appointed
her.
[12]
Section
160(1)(d).
[13]
Section
84(1) of the Compensation Act reads as follows:
“
No
assessment in favour of the compensation fund shall be payable in
respect of employees—
(a)
in the employ of—
(i)
the national and provincial spheres of government, including
Parliament and provincial legislatures”.
[14]
Maccsand
(Pty) Ltd v City of Cape Town and Others
[2012] ZACC 7
;
2012 (4) SA 181
(CC);
2012 (7) BCLR 690
(CC) at para
47 and
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
[2010] ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC) at para
42.
[15]
See
above n 9. See also
Head
of Department, Department of Education, Free State Province v Welkom
High School and Others
[2013] ZACC 25
;
2014 (2) SA 228
(CC);
2013 (9) BCLR 989
(CC) at para
162.
[16]
In
Premier,
Western Cape v President of the Republic of South Africa
[1999] ZACC 2
;
1999 (3) SA 657(CC)
;
1999 (4) BCLR 383(CC)
at para
91, this Court found:
“
Functionaries
in the provincial administration of the public service are appointed
by the provincial government, are answerable
to it, and can be
promoted, transferred or discharged by it. The right of the
Premier and Executive Council to coordinate
the functions of the
provincial administration and its departments has been preserved.
”
[17]
Supreme
Court of Appeal judgment at paras 20-1 and 25.
[18]
Sections
5(5)(b), 38(2)(b)(i) and 40 of the Public Service Act.
[19]
See
above n 6.
[20]
Holeni
v Land and Agricultural Development Bank of South Africa
[2009]
ZASCA 9
;
2009 (4) SA 437
(SCA) (
Holeni
).
[21]
Id at
para 11.
[22]
In
Greater
Johannesburg Transitional Metropolitan Council v Eskom
[1999]
ZASCA 95
; 2000 (1) SA 866 at para 20, the
Supreme Court of Appeal stated, “[i]n Edgar
Craies
on Statute Law
7 ed it is pointed out that in construing a word in an Act caution
is necessary in adopting the meaning ascribed to the same
word in
other Acts. The reason is obvious but that is not to say that in an
appropriate case regard cannot be had to a common
construction
placed on the same word in other statutes.”
[23]
In
Hoban
v ABSA Bank Ltd t/a United Bank and Others
[1999] ZASCA 12
;
1999 (2) SA 1036
(
Hoban
)
at para 18, the Supreme Court of Appeal cited with approval
Canca
v Mount Frere Municipality
1984
(2) SA 830
(TkSC)
at 832 B-G
which
found:
“
The
principle which emerges is that the statutory definition should
prevail unless it appears that the Legislature intended otherwise
and, in deciding whether the Legislature so intended, the Court has
generally asked itself whether the application of the statutory
definition would result in such injustice or incongruity or
absurdity as to lead to the conclusion that the Legislature could
never have intended the statutory definition to apply.”
And
in
Hoban
at para 20, the Supreme Court of Appeal continued:
“
‘
Context’
includes the entire enactment in which the word or words in
contention appear. . . The moment one has
to analyse
context in order to determine whether a meaning is to be given which
differs from the defined meaning one is immediately
engaged in
ascertaining legislative intention. One remains so engaged
until the interpretation process is concluded. It
is only
concluded when legislative intention is established.
”
[24]
Where
the subject matter is not closely related, a search outside the
scope of the particular statue will not be of much assistance.
In fact, such an external search may lead to a court assigning a
meaning other than the one intended by Parliament. The
two
statutes that come closest to the subject matter of the Compensation
Act are the Labour Relations Act and the State Liability
Act 20 of
1957. It has been held that, for the purposes of the
application of certain provisions of the Labour Relations
Act, the
State, as a single entity, must be regarded as an employer of
employees working in any sphere of government. The
State
Liability Act provides that, for the purposes of state liability,
both the national and provincial governments fall under
the auspices
of the State. It does not refer to employers or employees but
talks of delictual liability arising from acts
committed by servants
of the State in the course and scope of their authority as such.
Both
these statutes deal with employers and employees. But not for
the same purpose as the Compensation Act. The Labour
Relations
Act deals with fair labour practices in the workplace between
employers and employees, but it does not purport to cover
occupational injury benefits and workplace damages. The State
Liability Act sets the requirements for the delictual liability
of
the State, but does not purport to set out who may lay the claims
for workplace damages. These statutes do not determine
the
meaning of employer for the same purpose as the Compensation Act.
[25]
See
above at [5].
[26]
Section
1 of the Compensation Act.
[27]
See
above at [5]. See also Section 22 of the Act which states:
“
(1)
If an employee meets with an accident resulting in his disablement
or death
such
employee or the dependants
of such employee shall, subject
to the
provisions of this Act, be entitled to the benefits provided for and
prescribed in this Act.
(2)
No periodical payments shall be made in respect of
temporary
total disablement or temporary partial disablement which lasts for
three days or less.
(3)
(a) If an accident is attributable to
the serious and wilful misconduct of the employee, no
compensation
shall be payable in terms of this Act, unless
—
(i)
the accident results in serious disablement; or
(ii)
the employee dies in consequence thereof leaving a dependant wholly
financially dependent upon him.”
(b)
Notwithstanding paragraph (a) the Director General may, and the
employer individually liable or mutual association concerned, as the
case may be, shall,
if ordered thereto by
the Director
General, pay the cost
of medical aid or such portion thereof as the
Director
General may determine.
(4)
For the purposes of this Act an accident shall be deemed to have
arisen out of and in the course of the employment of an employee
notwithstanding that the employee was at the time of the accident
acting contrary to any law applicable to his employment or to any
order by or on behalf of his employer, or that he was acting
without
any order of his employer, if the employee was, in the opinion of
the Director
General, so acting for the
purposes of or in the interests of or in connection with the
business of his employer.
(5)
For the purposes of this Act the conveyance of an employee free
of
charge to or from his place of employment for the purposes of his
employment by means of a vehicle driven by the employer
himself or
one of his employees and specially provided by his employer for the
purpose of such conveyance, shall be deemed to
take place in the
course of such employee’s employment.
”
[28]
Section
36.
[29]
Sections
38-46.
[30]
Section
38.
[31]
Section
39.
[32]
Section
40.
[33]
Sections
41-3 and 46.
[34]
Section
45.
[35]
Sections
47-64.
[36]
Section
29, read with sections 15, 83 and 86.
[37]
Section
29 reads as follows:
“
If
an employee is entitled to compensation in terms of this Act, the
Director General or the employer individually liable or the
mutual
association concerned, as the case may be, shall be liable for the
payment of such compensation.”
[38]
Section
84(1) states:
“
No
assessment in favour of the compensation fund shall be payable in
respect of employees—
(a)
in the employ of—
(i)
the national and provincial spheres of government, including
Parliament and provincial legislatures;
(ii)
a local authority which has obtained a certificate of exemption
in
terms of section 70(1)(a)(ii) of the Workmen's
Compensation Act and has notified the Director-General in writing
within 30 days after the commencement of this Act that it desires to
continue with the arrangements according to the said certificate
of
exemption;
(iii)
a municipality contemplated in section 10B of the Local Government
Transition Act, 1993 (Act No. 209 of 1993), to which exemption has
been granted in terms of subsection 2;
(b)
whose employer has with the approval of the Director-General
obtained
from a mutual association a policy of insurance for the
full extent of his potential liability in terms of this Act to all
employees
employed by him, for so long as he maintains
such policy in force.”
[39]
Section
88(1) and (2).
[40]
Section
29, quoted above at n 37.
[41]
Section
39(2) of the Constitution provides:
“
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.”
[42]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para
72. See also
SATAWU
and Others v Moloto and Another NNO
[2012]
ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(CC) at para 20
and
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 21.
[43]
Mankayi
above
n 4 at para 15.