Klass Looch Associates

Employer OHS Champion since 1986 

 

Mankayi v Anglogold Ashanti Ltd [2010] (SCA)

(Overturned on appeal to the Constitutional Court. Scroll down)

This is the appeal from the South Gauteng High Court, Johannesburg, against the finding of Joffe J (sitting as a court of first instance) – Ed.

Key Words

Delict – Claim for damages – Employee claiming damages from employer for injury to health caused by workplace conditions

– Social security law – Compensation for Occupational Injuries and Diseases Act 130 of 1993 – Section 35(1) of COIDA provides that no action shall lie by an employee or his dependant 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

– Social security law – Whether common law claim for damages against employer by employee entitled to benefits under Occupational Diseases in Mines and Works Act 78 of 1973 is excluded by section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993

– Statute law and interpretation – Interpretation seeks to give effect to the object or purpose of legislation – Involves an inquiry into the intention of the legislature, and is concerned with the meaning of words without imposing a view of what the policy or object of the legislation is or should be

– Statute law and interpretation – Section 35(1) of COIDA provides that no action shall lie by an employee or his dependant 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

– Words and phrases – "compensatable disease" – Occupational Diseases in Mines and Works Act 78 of 1973 – Lists diseases falling within definition –

Words and phrases – "occupational disease" – Compensation for Occupational Injuries and Diseases Act 130 of 1993 – "occupational disease" defined as "any disease contemplated in section 65(1)(a) or (b)"

Mini Summary

The appellant had been employed by the respondent, as a mine worker. He alleged that during the course of such employment, he was exposed to harmful dusts and gases, including silica dust, at his workplace and in the work environment. As a consequence of this exposure, he alleged that he contracted an occupational disease or diseases in the form of silicosis, pulmonary tuberculosis and obstructive airways disease resulting in his suffering adverse physical and mental consequences, having a reduced life expectancy and being unable to work.

In a delictual action, he claimed damages from the respondent. He contended that the respondent owed him a duty of care arising under both the common law and statute to provide a safe and healthy environment in which to work. He averred that the respondent, in breach of the duty, and when it was aware or ought reasonably to have been aware that he would be exposed to harm, failed to apply appropriate and effective control measures.

As the diseases suffered by the appellant were compensatable diseases in terms of the Occupational Diseases in Mines and Works Act 78 of 1973, the appellant received compensation from the Compensation Commissioner in terms of section 94 of the Act in the amount of R16 320. He alleged that he was precluded by section 100(2) of the Act from receiving any benefits in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA") and that by reason of his exclusion from the benefits payable in terms of COIDA, he was not an employee as contemplated in section 35 of COIDA and accordingly was not precluded by that section from bringing the action against the respondent.

Section 35(1) of COIDA provides that no action shall lie by an employee or his dependant 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. Section 35(1) must be read with section 100(2) of the Occupational Diseases in Mines and Works Act which bars a person entitled to its benefits from claiming any benefit under COIDA.

Held that the Occupational Diseases in Mines and Works Act consolidated the law relating to compensation for certain diseases contracted by persons employed in mines and works. In terms of the system it established, mine owners are required to pay a prescribed levy to the Compensation Commissioner for Occupational Diseases for the benefit of the compensation fund established by the Act. It provides for the payment of compensation in relation to compensatable diseases contracted by persons performing "risk work" in mines and works. A mine at which risk work is being performed must be declared a "controlled mine" (as was the case with the mine at which the appellant had worked).

Section 100 of the Occupational Diseases in Mines and Works Act provides that no person is entitled to benefits from more than one source in respect of the same disease.

The court set out the evolution of legislation relating to workmen's compensation in this country – culminating in COIDA. The regime set up by COIDA was examined. The appeal related to the interpretation of section 35(1) of COIDA. The court pointed out that interpretation seeks to give effect to the object or purpose of legislation. It involves an inquiry into the intention of the legislature. It is concerned with the meaning of words without imposing a view of what the policy or object of the legislation is or should be.

Focusing on the words used in section 35(1), the court ascertained the meaning to be that the employee's action for the recovery of damages in respect of an occupational injury or disease resulting in the disablement or death of the employee applies to all employees. The subsection does not require that the employee must be entitled to receive compensation under COIDA. All employees falling within the ambit of COIDA are entitled to its benefits. An employee who contracted a disease at a controlled mine which qualifies both as a "compensatable disease" and as an "occupational disease" is, by virtue of section 100(2) of the Occupational Diseases in Mines and Works Act, obliged to claim compensation under the latter Act. 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 of the employee. Accordingly, the claim of the appellant was excluded by section 35(1) of COIDA.

The court also found no merit in various supplementary arguments raised by the appellant.

The appeal was dismissed.

MALAN JA

[1]  This is an appeal with the leave of Joffe J in the Johannesburg High Court against his judgment upholding an exception against the appellant's particulars of claim. The appellant, who was employed as a mine worker by the respondent, sought payment from the respondent, a public company engaged in mining operations, for damages amounting to some R2,6 million with interest and costs based on the latter's alleged breach of a duty of care owed to him.

[2]  The appellant alleged in his particulars of claim that he was employed by the respondent as a mine worker underground during the period January 1979 to September 1995 and was as such exposed to harmful dusts and gases, including silica dust, at his workplace and in the work environment. As a consequence of this exposure, he alleged that he contracted an occupational disease or diseases in the form of silicosis, pulmonary tuberculosis and obstructive airways disease resulting in his suffering adverse physical and mental consequences, having a reduced life expectancy and being unable to work whether as a mine worker or otherwise. His claim is framed in delict and includes amounts claimed on account of his past and future loss of earnings, future medical expenses as well as general damages. The basis of the appellant's claim is that the respondent owed him a duty of care arising under both the common law and statute to provide a safe and healthy environment in which to work. He averred that the respondent, in breach of this duty, and when it was aware or ought reasonably to have been aware that he would be exposed to harm, failed to apply appropriate and effective control measures. Each of the mines he worked in was a "controlled mine" as contemplated in Chapter 11 of the Occupational Diseases in Mines & Works Act 78 of 1973 ("ODIMWA") and the respondent was and is deemed to be the "owner" of those mines. The work he performed was "risk work" as defined in section 13 of ODIMWA and the diseases he contracted "compensatable diseases" as defined in ODIMWA. He was certified in terms of section 48(1) as suffering from a compensatable disease and received compensation from the Compensation Commissioner in terms of section 94 of ODIMWA in the amount of R16 320. He alleged that he was precluded by section 100(2) of ODIMWA from receiving any benefits in terms of the Compensation for Occupational Injuries & Diseases Act 130 of 1993 ("COIDA") and that by reason of his exclusion from the benefits payable in terms of COIDA, he was not an "employee" as contemplated in section 35 of COIDA and accordingly not precluded by that section from bringing the action against the respondent.

[3]  The respondent excepted to the particulars of claim as lacking averments necessary to sustain a cause of action. The essence of the exception is that the appellant is defined as an "employee" and the respondent as an "employer" by COIDA and that section 35(1) of COIDA barred the appellant's claim. Section 35(1) reads:

"Substitution of compensation for other legal remedies

(1) 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."

Section 35(1) must be read with section 100(2) of ODIMWA which bars a person entitled to its benefits from claiming any benefit under COIDA. The latter section provides:

"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 [COIDA], or any other law."

[4]  The learned Judge in the court a quo held that the appellant's common-law claim against the respondent was excluded by the clear wording of section 35(1) of COIDA. The central theme of the judgment is that because there was no limitation in the language of the subsection there was no reason to restrict its provisions to injuries and diseases dealt with in COIDA. The express words of section 35(1) applied to any occupational injury or disease "no matter how arising". COIDA, he said, was intended to apply also to employees employed at mines. 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. ODIMWA was amended after COIDA had been enacted by the Occupational Diseases in Mines & Works Amendment Act 208 of 1993 with the imposition of liability on the owners of mines for the medical costs of employees without any amendment to section 35(1) of COIDA or to ODIMWA. Hence, he said, it had to be assumed that it was intended that this provision would be applicable to claims by employees under ODIMWA. Both statutes had to be construed in a manner so as to be consonant and inter-dependent. Because he found the legislative intention apparent from section 35(1) to be manifestly clear and unambiguous the maxim generalia specialibus non derogant relied upon by the appellant had no application. Nor did section 39(2) of the Constitution of the Republic of South Africa, 1996 ("the Constitution") entitle him to adopt the construction of section 35(1) of COIDA advanced by the appellant because such an interpretation would be "unduly strained". He did not regard his construction of section 35(1) as being in conflict with section 9 of the Constitution: inasmuch as there was no identifiable class of persons unfairly discriminated against. If there is discrimination it relates to the benefits the claimants may claim under the two enactments. The scale of benefits, however, was not challenged.

Miners' phthisis

[5]  The history of the legislative response to miners' phthisis commenced, after unification, with the Miners' Phthisis Act 34 of 1911. This enactment set the pattern of future legislation by providing for the creation of a compensation fund or funds to which mine owners contributed and which was to be used to compensate miners suffering from miners' phthisis and related diseases and their dependants. The Act established a fund:

". . . consisting of all moneys appropriated by parliament for the purpose of and of an amount, not less than the sum so appropriated, to be levied by the board in manner prescribed by regulation from the owners of mines in the Union wherein the mineral dust produced by mining operations is of such a nature as to cause miners' phthisis" (section 2(1)).

The board created was authorised to grant allowances:

". . . to persons who are or have been employed in the mines . . . and who shall be wholly or partially incapacitated by the disease known as miners' phthisis . . ." (sections 1, 2 and 3).1

The Miners' Phthisis Act 19 of 1912 followed. It established the Miners' Phthisis Compensation Fund and provided for contributions to the fund by employers and a specified single payment by the Union Government. A further fund, the Miners' Phthisis Insurance Fund, was funded by contributions made by employers. A person claiming benefits arising from miners' phthisis (ie "silicosis of the lungs") had to satisfy the board that he had been employed underground on any of the listed mines (section 16). This Act was amended by the Miners Phthisis Amendment Act 29 of 1914. The Miners' Phthisis Act 44 of 1916 supplemented the 1911 Act and provided for relief and assistance of (and the grant of benefits by the statutory Miners' Phthisis Board to) persons employed in mines who suffered from miners' phthisis or other lung diseases contracted during underground work (section 21).

[6]  The comprehensive Miners' Phthisis Consolidation Act 35 of 1925 replaced the earlier legislation but was itself repealed by the Silicosis Act 47 of 1946. The latter enactment made provision for the establishment of two funds, the Scheduled Mines Compensation and Outstanding Liabilities Fund and the Registered Mines Compensation and Outstanding Liabilities Fund (sections 30 and 31). Benefits were paid from these funds by the Silicosis Board (sections 2 and 94) to miners and "native" labourers. The Board had to "levy from all owners of scheduled mines and from all owners of registered mines such sums of money as the Board, in its opinion, is likely to need to meet the liabilities payable in terms of this Act" out of the funds (section 33(1)). The State, in addition, contributed to enable the last-mentioned fund to meet its obligations for the payment of benefits in respect of miners and "native" labourers "who are or were suffering from silicosis or from tuberculosis as well as silicosis and whose employment in dusty occupations" before the commencement of the Act caused or contributed to the said disease or diseases (section 96 and sections 71ff). The benefits payable under this legislation were in respect of "silicosis", ie "any form of pneumoconiosis due to the inhalation of mineral dust" (sections 1(1) and 59–61) and "tuberculosis", ie "tuberculosis of the respiratory organs" (sections 1(1) and 62) and for a combination of the two diseases (section 63). A "dusty occupation" was defined as, inter alia:

". . . any mining operation performed by a person, in the service of another person, while he is working below the natural surface of the earth, or any duty performed at a mine below the natural surface of the earth by a servant of the State, or any mining operation performed by a person in the service of another person on or above the natural surface of the earth at a place where rock, stone, ore or any mineral is ordinarily reduced in size or classified by any dust-producing process . . ." (section 1(1)).

The costs of the increased benefits payable under the Silicosis Act were to be defrayed from the profits of the scheduled mines (section 95). The Silicosis Act operated concurrently with the Workmen's Compensation Act 30 of 1941. Section 84 of the Silicosis Act provided:

"When a miner or a dependant of a deceased miner who is entitled to a monthly allowance or to a pension, is also entitled to a pension under the Workmen's Compensation Act, 1941 (Act No. 30 of 1941), the Board may (after consulting with the Workmen's Compensation Commissioner . . .) . . . reduce the amount of the said monthly allowance or the first mentioned pension (whether before awarding it or after having allowed it) by a fraction thereof not exceeding one third."

[7]  The Silicosis Act 47 of 1946 was succeeded by the Pneumoconiosis Act 56 of 1956. A Pneumoconiosis Certification Committee was established (section 8) which was empowered to certify whether a person was suffering from pneumoconiosis and tuberculosis and to certify the relevant stage of the disease (section 9). Restrictions were placed on the employment of persons in a dusty atmosphere (section 15), and provision was made for the declaration of certain mines as "controlled mines" (section 54) in which work in a dusty atmosphere was prohibited without a prior medical examination and the issuing of a certificate of fitness (section 15). The Controlled Mines Compensation Fund (section 55) was funded by levies on owners of controlled mines (section 56). Provision was made for the payment of benefits to persons suffering from pneumoconiosis and tuberculosis and their dependants (sections 75ff, 83–7, 90ff: a distinction was drawn between benefits payable to "miners", "coloured labourers" and "native labourers").

[8]  The Pneumoconiosis Compensation Act 64 of 1962 replaced the 1956 Act. It provided for the establishment of a hierarchy of institutions administering the Act such as the Miners' Medical Bureau (section 3), the Miners' Certification Committee (section 7), the appointment of the Pneumoconiosis Compensation Commissioner (section 46) as well as the General Council for Pneumoconiosis Compensation (section 48) and the Pneumoconiosis Risk Committee (section 64). It imposed restrictions on the employment of persons in a dusty atmosphere (sections 18 and 19); regulated the examination of miners and the issue of certificates of fitness (sections 20–42); and provided for the declaration of mines as "controlled mines" (sections 43–44) and the estimation of the pneumoconiosis risk at controlled mines and notification thereof (sections 66–68). The Act provided for the payment of pensions and other benefits to miners, "coloured labourers" (sections 71ff) and "Bantu" labourers (section 79ff) suffering from pneumoconiosis or tuberculosis from the Pneumoconiosis Compensation Fund (section 108) which was funded by levies paid by the owners of controlled mines (section 119).2  Provision was also made for compensation payable to the dependants of the miners and labourers who had passed away. Section 97(4) provided that where a "miner" or a "coloured labourer" or a dependant received a monthly allowance or pension and was also entitled to a pension under the Workmen's Compensation Act 30 of 1941,3  the council:

". . . may after consultation with the Workmen's Compensation Commissioner . . . reduce the amount of the said monthly allowance or the firstmentioned pension, whether by awarding it or after having awarded it, by any fraction thereof not exceeding one-third."

 [9]  None of the above legislation relating to pneumoconiosis or miners' phthisis referred to excluded, or even mentioned, the employee's right to proceed at common law against his or her employer for damages arising from the contracting of these diseases at the workplace. This absence of any specific reference to a miner's common-law claim for damages against his employer also occurs in ODIMWA.

ODIMWA

[10]  ODIMWA repealed previous legislation and consolidated the law relating to compensation for certain diseases contracted by persons employed in mines and works (section 136(1)). It continued the pattern established in the earlier legislative measures referred to: "owners" of "controlled mines" are required to pay a prescribed levy to the Compensation Commissioner for Occupational Diseases for the benefit of the compensation fund established by ODIMWA (section 62(1)). It provides for the payment of compensation in relation to compensatable diseases contracted by persons performing "risk work" in mines and works. The Minister of National Health & Welfare is empowered by section 13 to declare any particular type of work performed at any mine or works to be "risk work", and may do so if satisfied that any person performing the work in question is exposed to dust of which the composition and concentration are such that it is harmful or potentially harmful (section 13(2)). A mine at which risk work is being performed must be declared a "controlled mine" (section 10 and see also section 9). It established a committee called the Medical Certification Committee for Occupational Diseases which considers reports from medical practitioners in respect of persons found to be suffering from a "compensatable disease", and determines the presence, nature and degree of the compensatable disease (sections 44 and 46). The Mines and Works Compensation Fund is controlled and managed by the Commissioner (section 61). The owner of a controlled mine (or works) is required to pay a prescribed levy for the benefit of the compensation fund in respect of each shift worked by any person at the particular mine while performing risk work (section 62). When the Committee determines that a person is suffering from a compensatable disease which he or she contracted as a result of risk work at or in connection with a controlled mine, the Commissioner must award to him or her a one-sum benefit calculated in accordance with a formula which takes into account the person's earnings (sections 80(2) and see sections 80A and 80B).

[11]  A "compensatable disease" is defined as:

"(a) pneumoconiosis;

(b) the joint condition of pneumoconiosis and tuberculosis;4

(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 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."

[12]  Section 100 of ODIMWA is headed "No person entitled to benefits from more than one source in respect of same disease" and provides:

"(1) No person shall be entitled to benefits under this Act in respect of any disease for which he or she has received or is still receiving full benefits under the Workmen's Compensation Act, 1941 (Act No. 30 of 1941).

 (2) 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 (Act No. 30 of 1941), or any other law."

The reference to the Workmen's Compensation Act 30 of 1941 must be understood to be a reference to COIDA,5  and the mention of "any other law" as a reference to other statute law, excluding the common law.6

[13]  In January 1994 ODIMWA was amended by the Occupational Diseases in Mines & Works Amendment Act 208 of 1993.7  The amending Act did away with all the provisions of ODIMWA which differentiated between persons on the grounds of sex or population group and added other provisions relating, inter alia, to the issuing of certificates of fitness and the extent and determination of benefits payable under the Act. A new section 36A dealing with medical expenses was inserted providing for the liability of the owner of a mine or controlled works to pay the reasonable costs incurred by or on behalf of a person in his service in respect of medical aid necessitated by such disease for a period not exceeding two years from the date of commencement of the disease.8  COIDA came into operation on 1 March 1994 without any amendment of ODIMWA.

Workmen's compensation legislation

[14]  The liability of an employer for injuries suffered by a workman arising from and in the course of his or her employment underwent considerable change during the last century. The Transvaal Workmen's Compensation Act 36 of 1907 expressly preserved a workman's common-law right to institute proceedings against his or her employer for damages arising from personal injury (section 32(1)). However, the workman had to make an election whether to claim compensation from the employer as calculated in terms of the Act or to proceed at common law. After making an election, the workman was debarred from proceeding on the other cause of action (section 32(2)). Liability to pay compensation was imposed on the employer by the Act (section 3) which contained a formula for its calculation (sections 7 and 17).

[15]  A similar approach was followed in the Workmen's Compensation Act 25 of 1914. Section 1 imposed liability on the employer to pay compensation for personal injury resulting in incapacity or death caused by an "accident". However, section 1(1)(b) expressly preserved the workman's common-law 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 . . . ".9  The workman had to elect which remedy to pursue. By electing to enforce either his common-law rights or his statutory claim to compensation he became debarred from pursuing the other. Where a workman met with an accident resulting in injury or death in, at or about any mine or works while being trained or engaged in first aid, ambulance or rescue work the injury or death was deemed to have arisen out of and in the course of his work (section 1(2)). The Workmen's Compensation (Industrial Diseases) Act 13 of 1917 amended the 1914 Act to provide for compensation also for the industrial diseases listed in the Schedule, viz cyanide rash, lead and mercury poisoning (section 1). Prior to its enactment compensation was limited to personal injury caused by the accident.

[16]  The Workmen's Compensation Act 59 of 1934 provided for a system of compensation to be paid by the employer in respect of the disablement or death of a workman if an accident arising out of and in the course of employment happened to him or her (section 2(1)). Fault on the part of the employer was no requirement for liability but, in return, the workman lost his or her common-law remedies against the employer. Section 4 provided:

"(1) No action at common law shall lie by a workman or any dependant of a workman against such workman's employer or the principal as defined . . . to recover any damages for and in respect of any injury resulting in the disablement or death of such workman caused by any accident happening after the commencement of this Act; and any claim for damages shall be determined under and in accordance with this Act.

(2) No liability for compensation shall arise save under and in accordance with the provisions of this Act in respect of any such injury."

Chapter V dealt with industrial diseases and specifically with compensation in respect of "scheduled diseases". Section 60 imposed liability for compensation on the employer to a workman or his or her dependants where the workman was suffering from a scheduled disease causing disablement or where his or her death was caused by such disease and the disease was due to the nature of the workman's employment as if his or her disablement or death had been caused by an accident. The diseases were specified in the Second Schedule as cyanide rash, lead poisoning or its sequelae, mercury poisoning or its sequelae and ankylostomiasis (hookworm). The employer's liability was limited to the payment of compensation as determined by the Act. However, section 5 provided for the payment of increased compensation where the accident was due to the employer's negligence. Moreover, section 46 provided that if the accident arose in circumstances creating a legal liability in a third party to pay damages, the workman was entitled to take proceedings against both the third party for damages and against the employer for compensation.

[17]  The Workmen's Compensation Act 30 of 1941, replacing the 1934 Act, introduced a new system of compensation by the establishment of a compensation fund to which employers contributed and from which workmen were to be compensated. The scheme of the Act included an indemnity for the employer against any common-law claim the employee may have had against him (section 7). Section 27 provided that "if an accident happened to a workman resulting in his disablement or death, the workman shall be entitled to benefits under this Act". An "accident" was described as "an accident arising out of and in the course of a workman's employment and resulting in a personal injury" (section 2). An "accident fund" was established (section 64) consisting, inter alia, of contributions by employers based on the total amount of the wages of the workmen employed by them (sections 68ff) which became liable for the payment of compensation unless the employer was "individually liable" for payment (section 37). Section 7 provided:

"(a) 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

(b) no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of any such disablement or death."

[18]  Chapter X dealt with compensation for "industrial diseases" and followed the pattern of the 1934 Act.10  Section 89 provided:

"Where it is proved to the satisfaction of the commissioner . . . that the workman is suffering from a scheduled disease due to the nature of his occupation and is thereby disabled for employment, or that the death of the workman was caused by such disease, the workman shall be entitled to compensation as if such disablement or death had been caused by an accident, and the provisions of this Act shall, subject to the provisions of this Chapter, mutatis mutandis apply . . ."

The "scheduled diseases" referred to in the Second Schedule originally included ankylostomiasis (hookworm) arising from the occupation of "mining carried on underground" in workmen other than "Asiatics" or "natives"; arsenical poisoning; benzene poisoning; dermatitis due to dust; halogen poisoning; lead poisoning; pathological manifestations due to radium or X-rays and "silicosis" due to the "excavation of works". The Second Schedule was, however, often amended11  and in 1952,12  the occupation relating to "silicosis" was changed from "excavation works" to:

"Any occupation (not being a 'dusty occupation' as defined in section one of the Silicosis Act, 1946) in which workmen are exposed to the inhalation of silicon dioxide."

In 1959 the Second Schedule was amended again by the insertion of the words "asbestosis or other fibrosis of the lungs caused by mineral dust" after the word "silicosis" and the description of the related occupation changed to:

". . . any occupation (other than in a 'dusty atmosphere' as defined in the Pneumoconiosis Act, 1956), in which workmen are exposed to the inhalation of silica dust, asbestos dust or other mineral dust."

A "dusty occupation" was defined in the Silicosis Act 46 of 1946 as:

". . . any mining operation performed by a person . . . while he is working below the natural surface of the earth, or any duty performed at a mine below the natural surface of the earth by a servant of the State, or any mining operation performed by a person . . . on or above the natural surface of the earth at a place where rock, stone, ore or any mineral is ordinarily reduced in size or classified by any dust-producing process . . ."13

COIDA

[19]  COIDA came into operation on 1 March 1994. It repeals the Workmen's Compensation Act 30 of 1941 (section 100(1)) and provides for the compensation for employees injured in accidents that arose out of and in the course of their employment or who contracted occupational diseases. A compensation fund was established (section 15) to which employers are required to contribute (section 87) and from which compensation and other benefits are paid to employees (section 16). The compensation fund is funded by assessments paid by employers and calculated by the Director-General on a percentage of the annual earnings of employees of employers carrying on business in the Republic. The other income of the compensation fund consists of interest on investments, amounts transferred from the reserve fund, and contributions paid by employers individually liable and by mutual associations (sections 15, 80, 82, 86 and 88). Assessments payable by employers are determined by two principal factors: the remuneration of the employees and the class of industry in which the employer operates. An employer's assessment is based on an annual statement of earnings that all employers must submit to the commissioner. Earnings must be calculated in terms of section 63 of COIDA and the commissioner may prescribe a maximum amount on which the assessment must be calculated (section 83(8)). The commissioner determines the amounts payable according to a tariff of assessment. This is done on the basis of a percentage of the annual earnings of the employees of an employer with regard to the requirements of the compensation fund for the year of assessment (section 83(1)). The class of industries covered is divided into 23 classes with 102 subclasses and the assessment rates vary according to the class.14  Assessments may also be made by the commissioner on any other basis deemed equitable (section 83(2)(a)). There are detailed provisions for the calculation of compensation payable based principally on the earnings of the claimant and the degree of injury or disablement (sections 53, 63 and 67). Pensions are increased annually to keep track of inflation (section 57). Special provision is made for the calculation of compensation payable to employees under the age of 26 and those undergoing training who have been permanently disabled by an occupational disease or injury: their compensation is calculated on the basis of the earnings a recently qualified person with five more years' experience than the employee or of the earnings of a 26-year-old person with five more years' experience than the employee (section 51).

[20]  COIDA allows employees to obtain limited compensation from a fund to which employers are obliged to contribute. The Act:

". . . supplants the essentially individualistic common-law position, typically represented by civil claims of a plaintiff employee against a negligent defendant employer, by a system which is intended to and does enable employees to obtain limited compensation from a fund to which the employers are obliged to contribute."15

[21]  Section 35(1) of COIDA abolished an employee's common-law right to claim damages from the employer. Section 36 regulates and preserves an employee's rights against a third party who may incur liability to the employee. Of significance is section 56(1) which provides that if a person has met with an accident or contracted an occupational disease owing to his or her employer's negligence, the employee may apply to the commissioner to receive "increased compensation in addition the compensation normally payable in terms of this Act". The amount of additional compensation is determined by the Director-General in an amount deemed equitable but which may not exceed the amount of pecuniary loss the claimant has or will suffer (section 56(4)).16  Where increased compensation is payable in terms of section 56, the negligent employer may be assessed at a higher tariff than the tariff for the assessment of employers in a like business (sections 56(7) and 85(2)).

[22]  Where an employee meets with an accident resulting in his or her disablement or death (section 22(1))17  or contracts an occupational disease (section 65), he or she is entitled to the benefits provided for by COIDA. Section 65 deals with compensation payable for occupational diseases:

"(1) Subject to the provisions of this Chapter, an employee shall be entitled to the compensation provided for and prescribed in this Act if it is proved to the satisfaction of the Director-General –

(a) that the employee has contracted a disease mentioned in the first column of Schedule 3 and that such disease has arisen out of and in the course of his or her employment; or

(b) that the employee has contracted a disease other than a disease contemplated in paragraph (a) and that such disease has arisen out of and in the course of his or her employment."

An "occupational disease" is defined as "any disease contemplated in section 65(1)(a) or (b)". The diseases referred to by the appellant in his particulars of claim are "silicosis, pulmonary tuberculosis and obstructive airways disease". As pointed out in paragraph [2]

above, he alleged that his exposure to harmful dusts and gases, including silica dust, in the workplace during his period of employment contributed materially to his developing pulmonary tuberculosis and silicosis and to his contracting obstructive airways disease. These diseases are either "occupational diseases" under section 65(1)(a) read with the first column of Schedule 3 that arose out of and in the course of the appellant's employment or, they are diseases under section 65(1)(b), namely "diseases" other than those contemplated by section 65(1)(a) that arose out of and in the course of the appellant's employment. The intention of the Legislature was clearly to cast the ambit of an employee's entitlement to compensation as widely as possible. Section 65(1)(b) makes this clear.

Interpreting section 35(1) of COIDA

[23]  This appeal concerns the proper interpretation of section 35(1). It was contended on behalf of the appellant that section 35(1) did not contain a general ouster of liability and that it did not apply to persons who did not fall within the definition of "employee" or who did not qualify for compensation under COIDA. The submission was that persons having claims under ODIMWA had no claims under COIDA and could therefore not be regarded as "employees" falling under the compensatory scheme of COIDA. Section 100(2) of ODIMWA, it must be recalled, excludes a person who has a claim under its provisions from any entitlement to the benefits under COIDA. Section 35(1) of COIDA is headed "Substitution of compensation for other remedies". This, it was submitted, gave some indication of the Legislature's intention to extinguish only the common-law claims of those employees who qualify for compensation under COIDA. The use of words such as "occupational injury", "occupational disease", "disablement" and "compensation" in the subsection pointed to that conclusion. In developing the argument, Mr Marcus, who appeared for the appellant, called for an interpretation to "promote the spirit, purport and objects of the Bill of Rights" as required by section 39(2) of the Constitution. A court, of course, must interpret legislation in this manner.18  Moreover, it must "prefer interpretations that fall within constitutional bounds over those that do not".19  A court must therefore ascertain whether it is reasonably possible to interpret the legislation in a manner that conforms to the Constitution, ie "by protecting the rights therein protected".20  It was submitted that three constitutional rights of the appellant were involved, ie the right to equality (section 9), the right of access to the courts (section 34) and the right to property (section 25).21

[24]  In formulating the constitutional approach to interpretation in Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors (Pty) Ltd & others: In re Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & others22  Langa DP added:

"Limits must, however, be placed on the application of this principle. On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the Legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read 'in conformity with the Constitution'. Such an interpretation should not, however, be unduly strained."

[25]  Interpretation seeks to give effect to the object or purpose of legislation. It involves an inquiry into the intention of the Legislature. It is concerned with the meaning of words without imposing a view of what the policy or object of the legislation is or should be.23  In Dadoo Ltd & others v Krugersdorp Municipal Council24  Innes CJ said:

"Speaking generally, every statute embodies some policy or is designed to carry out some object. When the language employed admits of doubt, it falls to be interpreted by the Court according to recognized rules of construction, paying regard, in the first place, to the ordinary meaning of the words used, but departing from such meaning under certain circumstances, if satisfied that such departure would give effect to the policy and object contemplated. I do not pause to discuss the question of the extent to which a departure from the ordinary meaning of the language is justified, because the construction of the statutory clauses before us is not in controversy. They are plain and unambiguous. But there must, of course, be a limit to such departure. A Judge has authority to interpret, but not to legislate, and he cannot do violence to the language of the lawgiver by placing upon it a meaning of which it is not reasonably capable, in order to give effect to what he may think to be the policy or object of the particular measure."

It is therefore with the meaning of the words of section 35(1) that I am concerned.

[26]  Section 35(1) follows the same pattern as section 4 of the 193425  and section 7 of the 194126  Workmen's Compensation Acts. Although it does not contain two subparagraphs as the earlier legislation did, it deals with the same two aspects. The first part of section 35(1) ("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 . . .") corresponds with section 4(1) of the 1934 Act and section 7(a) of the 1941 Act. It extinguishes the employee's common-law rights against the employer. The second part ("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") corresponds with section 4(2) of the 1934 Act and section 7(b) of the 1941 Act. Under the 1934 Act, the employer's liability was limited to the payment of compensation as calculated under that enactment. Under the 1941 Act, compensation was payable from the compensation fund and an employer was liable to pay compensation only under limited circumstances. This is also the position under COIDA. Compensation is payable by the Director-General from the compensation fund but only in a few instances by the employer, for example where the employer is an "employer individually liable".27

[27]  In support of its construction of section 35(1) that only persons having claims under COIDA could be regarded as "employees" the appellant relied on Small v Goldreich Buildings Ltd and Reid & Knuckey (Pty) Ltd.28  This case concerned section 45(1) of the 1934 Workmen's Compensation Act which deemed the main contractor, the "principal", to be the employer of workmen of a subcontractor "unless and until such [sub]contractor is . . . in possession of a policy of insurance or indemnity". Section 4 of the 1934 Act also excluded the liability of a "principal as defined" in section 45. Section 45, however, contained no definition ("omskrywing") of "principal" and Schreiner J held that, because the subcontractor was in possession of a policy of insurance, the main contractor did not fall within that description.29  This judgment provides no support for the appellant's construction. Mphosi v Central Board for Co-Operative Insurance Ltd30  was also referred to. The court stated that the word "damages" in section 7 of the 1941 Workmen's Compensation Act was unqualified and "must necessarily refer to all damages suffered in respect of such an injury as is described in that passage".31  The court added that the words "resulting in the disablement or the death of such workman" were included:

". . . to tie up with the provisions of sec. 27 . . . which sets out the circumstances in which a workman is entitled to compensation under the Act, in order to limit the operation of sec. 7(a) to the recovery of damages in respect of an injury which is compensable under the Act. If the words in question were omitted from sec. 7 the result could be that a workman might be deprived of his common law action for damages also in respect of an injury which, though due to an 'accident', did not result in the disablement of the workman, and was therefore not compensable under the Act."32

The point is that, had those words been omitted, other claims by the employee against the employer might also have been excluded by section 7(a) of the 1941 Act. This case is no authority for the proposition that a workman had to have an enforceable claim for compensation under the 1941 Act before section 7(a) became applicable. There is hardly any other way to formulate the substitution of remedies than in the manner set out in section 35(1) of COIDA or section 7 of the repealed 1941 Act.

[28]  Pettersen v Irvin & Johnson Ltd33  is of more relevance. It concerned the question whether section 7 of the 1941 Workmen's Compensation Act "precludes an action against the employer for general damages, ie for damages which have been held to fall outside the scope of this Act and in respect of which no compensation can be recovered against the Workmen's Compensation Commissioner". The court stated:34

"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."

This means that an employee's common-law claim for general damages was excluded by section 7 even though the 1941 Workmen's Compensation Act did not provide for compensation for such damages.35

[29]  The same reasoning applies to section 35(1) of COIDA. The employee's action for the "recovery of damages in respect of an occupational injury or disease resulting in the disablement or death" of the employee is extinguished. The subsection does not require that the employee must be entitled to receive compensation under COIDA. It refers to an action for the recovery of damages which is abrogated. This right is qualified with reference to "an occupational injury or disease" and to "disablement" and "death". Section 35(1) uses the words and expressions occurring in COIDA. However, it does not follow that it is implied that the employee must also be entitled to compensation under COIDA. Nor does the word "substitution" used in the heading of the section lead to the conclusion that the employee must be entitled to compensation under COIDA: where the words in the text of the provision are clear, they cannot be overridden by the words used in the heading.36

[30]  The remedies provided for by COIDA relate to an "employee" and his or her dependants (section 1 sv "employee"). ODIMWA, on the other hand, deals with a variety of matters including the control of mines (Chapter 1); the inspection of mines and the determination of risk (Chapter 2); the medical examination of miners and their certification (Chapters 3 and 4); and the compensation fund and compensation payable (Chapters 5ff). Its benefits are payable not to an "employee" as such but rather to a person performing "risk work" and his or her dependants (for example sections 13(7), 62(1), 80(1), 80(2), 80A and 99). The concept of "risk work" replaced that of work performed in a "dusty atmosphere" used in previous legislation.37  Although there are persons entitled to benefits other than employees under ODIMWA, it obviously also applies to employees (section 16 and cf sections 23; 36A, B and C; 80A).

[31]  COIDA has a wider ambit of application than the repealed Workmen's Compensation Act of 1941. This is so because it expands the definition of "employee" in section 1 to include also "casual workers" and removes the earnings limit of R55 068 per annum provided for in section 3(2)(b) of the 1941 Act. Employees employed at "controlled mines" or "works" are not excluded from the ambit of COIDA.38  This is clear from the reference in section 25(b) to an employee being engaged in "his employer's mine". Section 25(c) deals with an employee being engaged with the consent of his or her employer in any of the emergency services referred to "or other emergency service on any mine, works or premises other than his employer's". 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. Moreover, section 56(1)(d) refers to an engineer appointed under the regulations made under the Minerals Act 50 of 1991, showing an intention to include mine employees within the ambit of COIDA. The same conclusion can be drawn from section 81(4) of COIDA that refers to a health and safety representative elected under the Mine Health & Safety Act 29 of 1996 which applies to mines only. Section 100(1) of ODIMWA itself recognises the possibility of mine employees being entitled to compensation under COIDA. It reads:

"No person shall be entitled to benefits under this Act in respect of any disease for which he or she has received or is still receiving full benefits under [COIDA]."

Section 99(3) of ODIMWA also envisages that compensation may be claimable by mine employees under COIDA. It provides:

"When the certification committee has found that any person is suffering from a compensatable disease which, in the opinion of that committee, is attributable partly but not mainly to work at a mine or works, the commissioner may in his discretion award to or in respect of such person who is not in receipt of full benefits in respect of that disease under the Workmen's Compensation Act, 1941 (Act No. 30 of 1941), or any other law, benefits not exceeding one-half of the benefits provided for in this Act."

[32]  The delicate relationship between COIDA and ODIMWA is regulated by section 100(2) of ODIMWA:

"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 [COIDA], or any other law."

This section precludes a person entitled to benefits under ODIMWA from receiving compensation under COIDA only in respect of a "compensatable disease" as defined in ODIMWA. It does not affect any other claim to compensation an employee such as a mine employee may have in other respects under COIDA. In other words, section 35(1) of COIDA abrogates an employee's common-law claim against his or her employer in

respect of an "occupational disease" even where the claim for compensation is required by section 100(2) of ODIMWA to be lodged under ODIMWA. Where two enactments are not repugnant to each other, they should be construed as forming one system and as re-enforcing one another.39  The interrelation between ODIMWA and COIDA is apparent from section 100(2) of ODIMWA. Just as their precursors,40  they comprise one system of compensation and should be interpreted as such.

[33]  The two Acts must be harmonised. Together they cover the whole field of compensation for damages arising from injury or diseases contracted at work, with ODIMWA providing for injuries and diseases in a specific area and COIDA being of more general application. Judging from the words of section 35(1) of COIDA it is unlikely that the Legislature intended to have different policies to apply to employer's liability under the two enactments. The exclusion of liability in section 35(1) of COIDA is thus not limited to employees with claims under COIDA. It would be irrational not to extend the protection against the common-law liability of employers also to the owners of mines. Historically all employers, whether under COIDA or ODIMWA, fund the compensation funds under the two enactments.41  It follows that the Legislature in enacting COIDA and ODIMWA intended section 35(1) to apply also to employees with claims under ODIMWA. The court a quo was thus correct in holding that:

". . . there is no rational basis for protecting the employer from common law liability in return for funding statutory compensation for diseases contracted by mine employees in COIDA but not in ODIMWA."

[34]  There is another reason why the uniform application of section 35(1) of COIDA to all employees is called for. In terms of section 69 of COIDA the Minister of Labour may amend Schedule 3, also with retrospective effect, in respect of both the description of the diseases and the work involved. Under ODIMWA the Minister of National Health & Welfare may in terms of paragraph (f) of the definition of "compensatable disease" in section 1 declare a disease to be a compensatable disease. However, he may make no such declaration in respect of a disease which is compensable under COIDA except after consultation with the Minister of Labour (section 1(2)(b) of ODIMWA). If the appellant's interpretation of section 35(1) is correct the effect of such a declaration could be that an employer's common-law liability could depend on not the terms of the statute but on a ministerial decision. A uniform application of section 35(1) of COIDA to all employees would prevent this result.

[35]  It was submitted on behalf of the appellant that section 100(2) of ODIMWA removed a person from consideration under COIDA where his or her claim might otherwise be brought under both COIDA and ODIMWA, thereby enforcing the exclusivity of the regimes under the two enactments to prevent double compensation. By doing so, ODIMWA provided for benefits to all persons falling within its ambit. The benefits under ODIMWA, it was submitted, may be supplemented by a common-law claim for damages.42  COIDA, it was contended, is a regime of statutory compensation that includes enhanced statutory compensation on showing that the employer had been negligent43  with a concomitant exclusion of a common-law claim.

[36]  I do not agree. All employees falling within the ambit of COIDA are entitled to its benefits. An employee who contracted a disease at a controlled mine or controlled works which qualifies both as a "compensatable disease" and as an "occupational disease" is, by virtue of section 100(2) of ODIMWA, obliged to claim compensation under ODIMWA. It was suggested that persons having a claim under ODIMWA but not under COIDA could not be regarded as "employees" under COIDA. This submission, however, would entail reading into the text of section 35(1) words qualifying the "employee" to the effect that the employee must have a valid claim under COIDA or words excluding "employees" with claims under ODIMWA. The suggested construction offends the plain wording of section 35(1) which excludes an employer's liability where the prescribed circumstances are present without regard to whether or not the employee has a valid claim under either of the two Acts. A person qualifies as an "employee" within the meaning of section 35(1) if he or she complies with the requirements of the definition in section 1 of COIDA. When the 1941 Workmen's Compensation Act was considered,44  it was pointed out that the Second Schedule was amended in 1952 and 1959 to exclude from the occupation in respect of "silicosis" any occupation other than a "dusty occupation" or one in a "dusty atmosphere" as defined in the 1946 Silicosis Act and the 1956 Pneumoconiosis Act respectively. The implication is that a person employed in that way was a "workman" as defined in the 1941 Workmen's Compensation Act. COIDA defines an "employee" in very much the same, although expanded, terms. Persons employed at mines are comprehended within the definition of "employee".45  Whereas the scheduled diseases under the 1941 Workmen's Compensation Act in the context of this case referred only to "silicosis", the occupational diseases scheduled under COIDA include those referred to in the appellant's particulars of claim and, in any event, include occupational diseases other than the scheduled ones which "has arisen out of and in the course of [the employee's] employment" (section 65(1)(b)).46  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" of the employee. It follows that the claim of the appellant is excluded by section 35(1) of COIDA. Any other interpretation would be "unduly strained".

Presumption against harsh consequence

[37]  It was suggested on behalf of the appellant that section 35(1) of COIDA be construed in a manner avoiding hardship on the part of the appellant and those in a similar position. In particular, reference was made to section 56 of COIDA which makes provision for increased claims by an employee where the occupational injury or disease was caused by the negligence of, for example, the employer. ODIMWA has no such provision. In addition, it was submitted that COIDA provided for the calculation of more generous benefits payable to the employee than does ODIMWA. Whether this is so is not a matter that can be determined on exception.47  The appellant or a person in his or her class that falls under the provisions of ODIMWA can neither claim under COIDA nor pursue his or her common-law remedy against the employer. The appellant relies on a series of presumptions calling for a construction that would avoid hardship.48

[38]  There are two relevant presumptions, "namely that the Legislature does not intend that which is harsh, unjust or unreasonable; and that in case of doubt, the most beneficial interpretation should be adopted".49  The policy of COIDA, it was also said, is to assist employees as far as possible, and it should "not be interpreted restrictively so as to prejudice a workman if it is capable of being interpreted in a manner more favourable to him".50  However, this does not mean that:

". . . other well-recognised canons of construction should be disregarded in the search for the Legislature's intention. They must be accorded due weight and, ultimately, may be decisive."51

The common law may be altered expressly or by implication.52  To my mind, the clear provisions of section 35(1) of COIDA show that there is an intention to alter the common law and to make inroads into existing rights: its plain meaning is that it bars claims by all employees as defined, including those with claims under ODIMWA. It could well be that the provisions of section 35(1) of COIDA affect the appellant harshly. But it would be equally unfair or "harsh" to require mines to pay levies to a compensation fund without receiving some protection against delictual claims by employees. It would be particularly "harsh" where such protection is extended under COIDA to all employers other than the owners of controlled mines and works for the identical diseases.

Generalia specialibus non derogant

[39]  It is a general principle that where a later statute is irreconcilable with an earlier one, the latter must be regarded as having been impliedly repealed.53  However, the position may be different where the later statute is general, and the earlier one special.54  In such a case the earlier special statute remains in force. This presumption of construction is referred to as generalia specialibus non derogant, and it was contended that the appellant's interpretation of section 35(1) of COIDA accorded with it. But the maxim does not always find application "and the cardinal question is whether the Legislature intended that its later general Act should alter its own earlier special enactment . . .".55  It was submitted that because section 35(1) of COIDA did not repeal section 100(2) of ODIMWA expressly it could not be construed as repealing or amending the latter section implicitly so that it remained applicable. Section 100(2) of ODIMWA, however, does not give an employee a common-law right to claim damages from his employer. The question is not whether section 35(1) of COIDA impliedly repealed section 100(2) of ODIMWA but whether section 35(1) of COIDA abrogated the common-law cause of action of employees who have a claim under ODIMWA.

[40]  As I have said, the provisions of ODIMWA apply not specifically to "employees" but to those persons performing "risk work" in mines. COIDA is of more general application applying to all "employees". Section 35(1) of COIDA was intended to protect all employers against common-law liability. In this sense it was "meant to cover, without exception, the whole field or subject to which it relates" refuting the presumption created by the maxim generalia specialibus non derogant.56

Equality

[41]  It was contended that if the respondent's construction of section 35(1) of COIDA were to be accepted it would violate the appellant's right to equality. The appellant relied on an arbitrary differentiation in contravention of section 9(1). It follows that the appellant must show that the respondent's construction of section 35(1) of COIDA gives rise to differentiation that is not rationally connected to a legitimate governmental purpose. The appellant relies on two forms of differentiation. The first is between those employees who give up their common-law claim but who may receive increased compensation if their disease was caused by their employer's negligence (ie those employees entitled to compensation under COIDA) and those employees who give up their common-law claim but may not receive increased compensation even if the disease was caused by their employer's negligence (ie those employees entitled to compensation under ODIMWA). The second is between those employees who give up their common-law claims in exchange for the benefits provided for by COIDA and those employees who give up their common-law claims but must settle for the inferior benefits provided for by ODIMWA.57  Whether a particular measure constitutes unfair discrimination must be determined by a consideration of the principles set out in Harksen v Lane NO & others.58

[42]  However, the scope of rationality review is narrow. As Yacoob J said in Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening):59

"It is clear that the only purpose of rationality review is an inquiry into whether the differentiation is arbitrary or irrational, or manifests naked preference and it is irrelevant to this inquiry whether the scheme chosen by the Legislature could be improved in one respect or another. Whether an employee ought to have retained the common-law right to claim damages, either over and above or as an alternative to the advantages conferred by [COIDA], represents a highly debatable, controversial and complex matter of policy. It involves a policy choice which the Legislature and not a court must make. The contention represents an invitation to this Court to make a policy choice under the guise of rationality review; an invitation which is firmly declined. The Legislature clearly considered that it was appropriate to grant to employees certain benefits not available at common law. The scheme is financed through contributions from employers. No doubt for these reasons the employee's common-law right against an employer is excluded. Section 35(1) . . . is therefore logically and rationally connected to the legitimate purpose of [COIDA]."

[43]  The law differentiates between employees who have claims under COIDA and persons, including employees, who have claims under ODIMWA. The question is whether this form of differentiation is rationally connected to a legitimate governmental purpose. If such a connection exists there is no arbitrary differentiation for the purposes of section 9(1) of the Constitution. In the circumstances of this case such a connection exists. The Legislature adopted the view that there should be two statutory schemes that are separately funded and administered to provide different compensation for the different claimants. The existence of two historical schemes of compensation is a legitimate governmental purpose and the two enactments are rationally connected to this purpose. The question is not whether it is rational for employees who have claims under COIDA to forsake their common-law claims against the employers but irrational for others with claims under ODIMWA to do so. The question of rationality is directed at the Legislature. The Legislature has resolved that persons engaged in risk work on controlled mines are required to claim under ODIMWA rather than under COIDA in circumstances where concurrent claims would otherwise exist. This is not an arbitrary differentiation. To hold otherwise would lead to arbitrary differentiation between employers in the mining industry. Some employers would be protected against common-law claims falling under COIDA but not where they fall under ODIMWA. There can be no rational basis for protecting employers from common-law liability in return for funding the statutory compensation scheme for miners under COIDA but not under ODIMWA.

[44]  The appellant submitted that to single out those performing risk work underground on controlled mines and who, as a result of having done so, acquired an occupational lung disease, is patently unfair. It was submitted that to single out this "already vulnerable group" and limiting their claims for compensation would impair their fundamental human dignity. The appellant's particulars of claim contain no allegation to the effect that the benefits under ODIMWA are inferior to those claimable under COIDA and it is not possible to venture into this question in these proceedings on exception. The different levels of compensation are the result of the differentiation between claimants who have claims under COIDA and those with claims under ODIMWA. If there are unequal benefits payable the discrimination complained of would be remedied by an equalisation of those benefits under the two schemes.

Access to court

[45]  It was submitted that the interpretation of section 35(1) of COIDA by the court a quo limited the right of access to court under section 34 of the Constitution60  by preventing those with claims under ODIMWA from pursuing a claim that would otherwise have existed. This contention is directed at the substantive rules of law and not at the right of access in terms of section 34 of the Constitution. In Montgomery v Daniels61  it was stated with reference to a no-fault statute which restricted a victim's right to claim for non-patrimonial loss that the section (article 18):

". . . denies no one access to the courts; it merely alters the substantive law, partially eliminating the right of an automobile accident victim to judicial recovery for injuries suffered."

Retrospectivity of COIDA

[46]  The appellant filed supplementary heads of argument raising a legal issue that was not dealt with by the court a quo. The appellant had amended his particulars of claim in order to meet the respondent's exception by pleading specifically, as I have said, that:

"[b]y reason of the Plaintiff's exclusion from the benefits payable in terms of [COIDA], the Plaintiff is not an employee as contemplated in section 35 of the Act. Accordingly the Plaintiff is not precluded by section 35 from bringing the action against the Defendant."

This was the issue that had to be determined and not the point now raised that COIDA by implication operated with retrospective effect. The argument was that section 35 provided a defence to the respondent only if it operated retrospectively. COIDA came into force on 1 March 1994. Since the greater part of the period when the appellant was employed (January 1997 to September 1995) was before 1 March 1994, it was contended that there was a reasonable prospect that the appellant would prove facts establishing that his cause of action arose prior to COIDA's coming into force. For that reason it was argued that the exception had to be dismissed: it was not possible before evidence is led to determine whether section 35 is applicable and, if it does apply, it would only be for the limited period from 1 March 1994, when the legislation came into force, to 11 September 1995, when the appellant was dismissed.

[47]  It is clear that COIDA is not a retrospective statute in the strong sense,62  ie "retroactive", "where an Act provides that from a past date the new law shall be deemed to have been in operation".63  This is not the issue. The question to be posed is rather whether section 35 of COIDA was intended to interfere prospectively with rights that existed on the day it came into force.64  It seems to me that COIDA is a statute that:

". . . operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted."65

Section 35 was intended to interfere prospectively with rights that existed on the day it commenced operation. It does not distinguish between common-law causes of action arising before and after 1 March 1994. It ousts all claims for damages and operates so as to interfere with rights that may have existed at its commencement date. For these reasons the issue raised by the appellant in his supplementary heads of argument must fail.

[48]  The parties are in agreement that no order as to costs need to be made. I concur in the separate judgments of Harms DP and Cloete JA. Accordingly the following order is made:

The appeal is dismissed.

(Heher and Leach JJA concurred in the judgment of Malan JA.)

HARMS DP

[49]  This appeal deals with the question whether a mineworker who contracted miners' phthisis during the course of his employment is entitled to claim damages from his employer, the mine. The judgment of Malan JA deals in detail with all the submissions presented to us, including the history of the legislation concerned and many rules of interpretation, and also the impact of the Constitution on interpretation. Little of this has had any significant impact on the ratio of his judgment with which I concur. What follows does not add or detract from what Malan JA has said but contains a more direct approach to the matter.

[50]  The plaintiff seeks damages from the defendant. The plaintiff was an employee (referred to in the past as a workman) and the defendant (the mine) his employer. During the course of his employment, the plaintiff contracted occupational diseases which, for the sake of ease, I shall refer to as miners' phthisis. He is as a result unemployable and has suffered damages. He alleges that the occupational diseases were caused by the mine's breach of its common-law duty of care to have provided him with a safe and healthy work environment, and also breach of a number of statutory duties of care relating to work conditions at mines.

[51]  Section 35(1) of the Compensation for Occupational Diseases Act 130 of 1993 ("COIDA"), on its plain wording, excludes the type of relief sought by the plaintiff. It reads:

"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."

[52]  In order to avoid the effect of the provision and in an attempt to meet an exception raised by the mine, the plaintiff amended his particulars of claim and alleged that he had not been an "employee" for purposes of COIDA of the mine. The plaintiff justified the allegation that he was not an employee falling under COIDA on the following basis: he was employed at a mine by the defendant; he contracted a "compensatable disease" as defined in the Occupational Diseases in Mines & Works Act 78 of 1973 ("ODIMWA"); he received compensation under ODIMWA; he was therefore not entitled to compensation under COIDA; and, consequently, he was not an "employee" within the meaning of COIDA.66

[53]  The plaintiff's case is based on a misconception, which became apparent during argument, namely that a person's status as employee depends on the nature of the occupational disease he contracts during the course of his employment. An employee is, according to the introductory part of the definition of "employee" in COIDA, "a person who has entered into or works under a contract of service . . . with an employer". An employee is not divisible and the definition is not related to the nature of the injury or disease but depends on the contract. The misconception becomes apparent if regard is had to the interaction between COIDA and ODIMWA.

[54]  COIDA entitles an employee to compensation for occupational injuries and occupational diseases. "Employee" as defined includes employees at all mines. This means that mines, as employers, have to contribute to the COIDA fund. If an employee working at a mine sustains an occupational injury, the employee is entitled to the prescribed compensation under COIDA.67  And, importantly, the employee is not entitled to recover damages from the employer because of section 35(1).

[55]  The same applies if an employee at a mine contracts an occupational disease: the employee is entitled to compensation under COIDA and is subject to the limitation under section 35(1). Section 65(1) of COIDA divides occupational diseases into two classes. The one class consists of the diseases listed in Schedule 3. If an employee contracts one of these, there is a presumption that the disease arose out of and in the course of his employment (section 66), which means that the employee is entitled to compensation under COIDA. The second class is open-ended: it includes any disease that has arisen out of and in the course of employment of the employee (section 65(1)(b)). This class differs from the Schedule 3 class because, if contracted, the presumption does not apply and the employee has to satisfy the Compensation Commissioner that the disease arose out of and in the course of employment before the employee can become entitled to compensation. To summarise: COIDA covers all occupational injuries suffered and diseases contracted by all employees employed by mines.

[56]  ODIMWA is different in scope but this does not affect any of the principles set out. It recognises that certain works at controlled mines and works (see the wide definitions of "mine" and "works" in section 1) may cause a small number of high risk occupational diseases, primarily miners' phthisis. Because of the increased risk these employers have to carry certain medical costs and provide medical aid (section 36, 36A and 36B), and have to contribute (in addition to their contributions under COIDA) to another compensation fund, the Mines and Works Compensation Fund, to compensate employees who contract one of these "compensatable" diseases (sections 60 and 61).

[57]  Because ODIMWA's benefits are limited to the defined compensatable diseases, OIMWA does not cover most occupational diseases contracted by miners. It also does not cover any occupational injuries sustained at mines and works as defined. As mentioned, the employee has to look to COIDA in those circumstances.

[58]  To prevent double compensation, sections 99 and 100 of ODIMWA provide, inter alia, that:

(a) an employee is not entitled to any benefit under ODIMWA in respect of any compensatable disease which is attributable exclusively to work other than work at a mine or works (as defined);

(b) if an employee suffers from a compensatable disease, which is attributable partly but not mainly to work at a mine or works, the Compensation Commissioner for Occupational Diseases may in his discretion award to such person, who is not in receipt of full benefits in respect of that disease under COIDA, benefits not exceeding one-half of the benefits provided for under ODIMWA;

 (c) a person is not entitled to benefits under ODIMWA in respect of any disease for which he has received or is still receiving "full benefits" under COIDA; and

(d) a person who has a claim to benefits under ODIMWA in respect of a compensatable disease is not entitled, in respect of such disease, to benefits under COIDA.

[59]  It follows from this brief analysis that COIDA is the principal Act which sets out the generally applicable provisions. ODIMWA deals with special circumstances without affecting those principles. The limitation contained in section 35(1) of COIDA is therefore of general application.

[60]  I revert to the misconception referred to above. The effect of the plaintiff's argument is that his employment at the mine was divisible: 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.

[61]  I should in conclusion add some comments. The plaintiff made it clear that he was not attacking the constitutionality of any of these Acts in these proceedings. The discrimination complaint was based on the submission that the benefits under ODIMWA were less than under COIDA but I gained the impression that counsel did not press the point because the alleged discrimination does not appear from the Acts themselves but if present may be due to problems in the regulations. In any event, the plaintiff did not plead facts on which a comparison could have been made.

CLOETE JA

[62]  I have had the advantage of reading the judgments of my colleagues Malan JA and Harms DP. I respectfully agree with both. However, because of the importance of this matter, I wish to deal in my own words with one of the principal arguments advanced on behalf of the appellant in the heads of argument filed in this Court. Before doing so, it would be convenient to quote section 35(1) of COIDA,68  together with the heading to that section:

"Substitution of compensation for other legal remedies

(1) 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."

[63]  The submission on behalf of the appellant was that the key to interpreting section 35(1) is the word "compensation" in the heading which is defined in section 1, the relevant part of the definition reading:

"'Compensation' means compensation in terms of this Act . . ."

Therefore, went the submission, as the appellant is not entitled to compensation under COIDA (but only under ODIMWA),69  he is not bound by what counsel termed the "legislative bargain" contained in section 35(1) and compensation under COIDA is not substituted for his right to claim compensation at common law.

[64]  The fallacy in this submission is that section 35(1) is clear in its meaning and:

"Where the intention of the lawgiver as expressed in any particular clause is quite clear, then it cannot be overwritten by the words of a heading."70

The section must be read as containing two discrete provisions (previously contained in separate paragraphs in section 7 of the Workmen's Compensation Act 30 of 1941) conjoined by the word "and" in the middle of the section. Although both deal with occupational injury or disease resulting in disablement or death of an employee, they are not opposite sides of the same coin. The first provision, which is in wide and general terms, excludes an action at common law against an employer for damages. The second provision excludes all liability on the part of an employer to pay compensation (not damages), "save under the provisions of this Act"; and an employer is liable to pay compensation under COIDA, for example where it is an employer individually liable under section 84(1)(a) and where in terms of section 73(1) it is obliged to pay the reasonable costs incurred by an employee in respect of medical aid. (Payment of the cost of medical aid is, in terms, included in the definition of "compensation" in section 1.)

[65]  The provisions of ODIMWA are therefore not excluded by section 35(1) of COIDA, inasmuch as ODIMWA confers no right to damages on an employee, nor does it place any obligation on an employer to pay compensation – the employee is compensated from one of the two funds established in terms of that statute. There is no conflict between the two Acts: although ODIMWA confers a right to benefits on inter alios persons who fall within the definition of "employees" under COIDA, ODIMWA (in section 100(2))72  excludes the right to obtain compensation under COIDA if and to the extent that there is a right to compensation under ODIMWA.


Mankayi v Anglogold Ashanti Ltd [2011] CC)

Key Words

Labour Law – Employment – Occupational diseases – Compensation for – Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1998 – Effect on common law right of mineworkers to recover damages against mine owners

Mini Summary

The applicant sued the respondent mining company for damages on the basis that during his employment, the respondent 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 rendered him unable to work as a mineworker or in any other occupation.

Held that the issue for determination was whether section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1998 (“COIDA”) extinguishes the common law right of mineworkers to recover damages against mine owners even though they are covered by the Occupational Diseases in Mines and Works Act 78 of 1973 (“ODIMWA”), and as such are not entitled to claim under COIDA. Section 35(1) provides that “[n]o 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.” The High Court and the Supreme Court of Appeal interpreted section 35(1) of COIDA as extinguishing the mineworkers’ common law claim and extending the protection against common law liability to mine owners. The respondent objected to the applicant’s particulars of claim as raising no cause of action because section 35(1) of COIDA precludes common law claims by employees against their employers. The applicant’s response was that, because he was precluded by section 100(2) of ODIMWA from claiming compensation under COIDA, section 35(1) of COIDA did not apply to him.

The meaning of the word “employee” in section 1 of COIDA covers employees like the applicant who are entitled to claim for occupational diseases under COIDA and who might become entitled to claim benefits for compensatable diseases under ODIMWA. COIDA also applies to employees in “controlled mines and works” such as the mine in which the applicant was employed.

The Court set out the established approach to statutory interpretation, and found that the plain language of section 35(1) indicates clearly that it was directed only at and intended to cover only COIDA entitled employees. It does not cover employees who are not entitled to claim under COIDA.

The appeal was upheld and the respondent’s exception dismissed.

KHAMPEPE J:

Introduction

The issue to be decided is whether section 35(1)1  of the Compensation for Occupational Injuries and Diseases Act2  (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 Act3  (ODIMWA). Both the South Gauteng High Court4  (High Court) and the Supreme Court of Appeal5  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 predecessors6  were the owners of a "controlled mine"7  as contemplated in chapter II of ODIMWA. He performed "risk work" as defined in section 138  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 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 another21  (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 191231  (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 191637  (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  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 194144  (1941 Act).

The Pneumoconiosis Act of 195645  (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 Act65  (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 191769  (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 193471  (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:

(a) 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

 (b) 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 ODIMWA87  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 provision89  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. TS 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 diseases103  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 2010108  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:

(a) 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.

 (b) 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 salary121  if that employee suffers from a compensatable disease in the first degree, and about three times his annual salary122  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 20 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 Ltd127  (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, Johannesburg130  (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, 20 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, Froneman, Mogoeng, Nkabinde, Skweyiya and Yacoob JJ concurred 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 Constitution139  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 Act140  (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 others141  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 Boesak144  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.