On March 3 2011 the Constitutional Court handed down a landmark judgment in which it found that employees of mining companies may institute claims for damages for occupational injuries or diseases against their employers, despite the provisions of the Compensation for Occupational Injuries and Diseases Act (130/1993) and the Occupational Diseases in Mines and Works Act (78/1973), which had previously been regarded as immunising mining houses from such claims.
Mr Manyaki was employed as an underground worker by Anglo Gold Ashanti from 1979 to 1995. He developed tuberculosis and chronic obstructive airways and received compensation of R16,320 under the Occupational Diseases in Mines and Works Act. Despite receiving this compensation, he instituted a claim for damages in the amount of R2.6 million against Anglo Gold Ashanti.
Anglo Gold Ashanti argued that because Manyaki fell within the definition of an 'employee' contained in the Compensation for Occupational Injuries and Diseases Act, and because Occupational Diseases in Mines and Works Act compensatable diseases fell within the definition of a 'disease' contained in the Compensation for Occupational Injuries and Diseases Act, the provisions of that act applied to Manyaki. The argument continued that because Section 35(1) of the Compensation for Occupational Injuries and Diseases Act precludes employees and/or their dependants from recovering any damages in respect of occupational injury or disease resulting in death or disablement from their employers, Manyaki was precluded from bringing his claim .
Manyaki conceded that he fell within the definition of 'employee' contained in the Compensation for Occupational Injuries and Diseases Act, but argued that in terms of the Occupational Diseases in Mines and Works Act, he is not precluded from claiming damages from his erstwhile employer. In essence, he argued that he had received compensation in terms of Section 100(2) of the Occupational Diseases in Mines and Works Act, and that because this section expressly barred him from also receiving benefits in terms of the Compensation for Occupational Injuries and Diseases Act, it followed that the Compensation for Occupational Injuries and Diseases Act was not applicable to him. Therefore, his employer was not immunised from his damages claim.
The Constitutional Court found that although the compensatable diseases under the Occupational Diseases in Mines and Works Act overlap with the occupational diseases under the Compensation for Occupational Injuries and Diseases Act, the compensation system under the Occupational Diseases in Mines and Works Act was separate from the compensation system under the Compensation for Occupational Injuries and Diseases Act. In particular, the court found that Section 100(2) of the Occupational Diseases in Mines and Works Act "expressly insulate[s] or separate[s]" employees who benefit from the Occupational Diseases in Mines and Works Act (eg, Manyaki) from those who benefit from the Compensation for Occupational Injuries and Diseases Act. The court then found that as the Compensation for Occupational Injuries and Diseases Act was not applicable to Manyaki, Section 35(1) of that act (which would have precluded a claim for damages by Manyaki against Anglo Gold Ashanti) was not applicable. It followed that Manyaki was entitled to bring the claim for damages, as he had done.
The practical implication of this judgment is that employees who have received payment in terms of Section 100(2) of the Occupational Diseases in Mines and Works Act are not precluded from bringing claims for damages against their employers for occupational injuries or diseases. However, the judgment does not alter Section 35(1) of the Compensation for Occupational Injuries and Diseases Act – that is, employees and/or their dependants who receive payment in terms of the Compensation for Occupational Injuries and Diseases Act are still precluded from bringing claims for damages against their employers for occupational injuries or diseases.
This judgment exposes mining companies to potential claims from employees, former employees and dependants of deceased former employees – and collectively, these claims will run into millions of rand.
For further information on this topic please contact Stuart Harrison, Otsile Matlou or Lizle Louw at ENSafrica by telephone (+27 21 410 2500), fax (+27 21 410 2555) or email ([email protected], [email protected]problemsolved.co.za or [email protected]problemsolved.co.za).