In a recent decision the Constitutional Court ("CC") overturned the judgment of the Supreme Court of Appeal ("SCA") in the matter between Mr Mankayi and AngloGold Ashanti Limited (AngloGold).

Mr Mankayi instituted an action for damages, in the amount of approximately R2.6m, against AngloGold, during 2006. Mr Mankayi was employed by AngloGold as an underground mineworker during the period January 1979 to September 1995. He claimed that during his employment, AngloGold negligently exposed him to harmful dusts and gases as a result of which he contracted tuberculosis and chronic obstructive airways disease, which rendered him unable to work as a mineworker or in any other occupation. After being certified as suffering from a compensatable disease Mr Mankayi received R16 320.00 from the Compensation Commissioner in terms of the Occupational Diseases in Mines and Works Act ("ODIMWA").

AnlgoGold raised a technical point that Mr Mankayi was barred by the operation of section 35(1) of the Compensation for Occupational Injuries and Diseases Act ("COIDA") from instituting a claim for damages against AngloGold. Section 35(1) of COIDA ("section 35") provides that an employee or any dependant of an employee is precluded from recovering any damages in respect of any occupational injury or disease resulting in the disablement or death of such employee from such employee's employer. Section 35(1) also provides that no liability for compensation shall arise against an employer except under COIDA.

The High Court ("HC"), agreed with AngloGold and dismissed Mr Mankayi's claim. Mr Mankayi appealed the judgment of the HC to the SCA. His appeal was unanimously dismissed. Mr Mankayi then appealed to the CC.

Mr Mankayi argued that, because he is precluded by section 100(2) of ODIMWA ("section 100(2)") from claiming compensation under COIDA, section 35(1) does not apply to him. Section 100(2) provides that no person who has a claim to benefits, under ODIMWA, in respect of a compensatable disease, as defined in ODIMWA, on the ground that such person is or was employed at a controlled mine or a controlled works, shall be entitled, in respect of such disease, to benefits under COIDA, or any other law. The diseases that constitute compensatable diseases under ODIMWA overlap with the diseases that constitute occupational diseases under COIDA.

The CC agreed with Mr Mankayi. In a unanimous judgment, the CC, like the HC and the SCA, accepted 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. It also accepted that various provisions indicate that COIDA also applies to employees in "controlled mines and works" as defined in ODIMWA. The definitions of the words "employee" and "employer" respectively do not expressly exclude employees who could have a claim for compensation under ODIMWA. However, the CC found that both the definition of "employee" and section 35(1) relate to "employees" that are covered by COIDA and does not include employees who cannot benefit under that legislation.

The CC reasoned that section 100(2) goes further than just avoiding "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. It specifically precludes employees with claims in respect of compensatable diseases under ODIMWA from claiming any COIDA benefits in respect of the same disease. The CC found it difficult to see how section 100(2), whilst denying employees compensation in terms of COIDA, could at the same time render section 35(1) applicable to them.

The fact that the benefits under ODIMWA are considerably less than under COIDA was emphasized by the CC. The CC also stated that the risks relating to mining and its unique historical role in South Africa's wealth, makes it rational to preserve employees' common law claims against their employers in respect of ODIMWA compensatable diseases.

The CC concluded that the exclusion under section 35(1) does not extend to an "employee" who is not entitled to claim compensation in respect of "occupational diseases" under COIDA, such as Mr Mankayi. Section 35(1) substitutes COIDA compensation for other legal remedies and nothing more.

The consequence of the judgment is that only employees who are precluded from claiming under COIDA as a result of the wording of section 100(2) may now institute a claim for damages against their employer. The employees will still have the onus of proving their damages and that such damages were caused by the negligence of the employer.

This judgment does not mean that all employees at all mines and works will always have a right to bring claims for damages against their employers in respect of illnesses suffered in the course and scope of their employment.

The application of ODIMWA is limited to certain compensatable diseases such as pneumoconiosis and tuberculosis. Diseases such as tuberculosis, permanent obstruction of the airways, progressive systemic sclerosis and all other permanent diseases of the cardio-respiratory organs are included under ODIMWA only if it is attributable to the performance of risk work as defined under ODIMWA.

The category of employees who fall within the ambit of section 100(2) is limited to those who claim under ODIMWA, on the ground that they were employed at a controlled mine or a controlled works. In respect of tuberculosis ODIMWA deems risk work at any mine or works to be risk work performed at a controlled mine or works. The extent to which employees have to rely on the fact that they were employed at a controlled mine or works in order to be entitled to benefits is further not clear from the wording of ODIMWA. These are issues that may form the basis of future litigation.

Finally, this CC decision may result in legislative changes. It emphasises that the relevant legislation does not achieve parliament's policy decision to exchange employees' common law remedies for the certainty created by a statutory compensation system. It also emphasises the difference in compensation that is being paid to employees suffering from the same occupational diseases. It probably also raises the question whether the compensation that is being paid is sufficient to warrant the policy trade off between the employee's common law remedies and the certainty created by a statutory compensation system.

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