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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.