In Mankayi v AngloGold Ashanti (126/2009) [2010] ZASCA 46 (31 March 2010) the SCA disallowed the mine worker’s appeal against the upholding of that exception by the lower court.

A mine worker claimed that he was employed by AngloGold Ashanti 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.

The 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 claim is that the mine owner 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 mine owner, 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.

The mine owner excepted to the claim and contended that the mine worker was an ‘employee’ under COIDA and section 35(1), as read with section 100(2) of ODIMWA, barred his claim.

Malan JA in the SCA thoroughly examined the history of the earlier South African health and safety legislation, more particularly the Occupational Diseases in Mines and Works Act 78 of 1973 (‘ODIMWA’) and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’).

In para [3] the relevant sections of those 2 statutes were quoted:

‘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 s 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 s 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”.

The SCA also rejected arguments to the effect that 3 constitutional rights of the appellant were infringed, ie the right to equality (s 9), the right of access to the courts (s 34) and the right to property (s 25).

Malan JA stated in para [33]:

‘The two acts must be harmonized.   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 s 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 s 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.   It follows that the legislature in enacting COIDA and ODIMWA intended s 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”‘. [Footnotes omitted]

In para [47] Malan JA dealt with the effect of COIDA as follows:

‘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’.

Supporting but briefer judgments were delivered by Harms DP and Cloete JA.

It will be interesting to see if the matter goes to the Constitutional Court and if so whether the approach adopted by the SCA will be upheld.