On 3 March 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 of 1993 ("COIDA") and the Occupational Diseases in Mines and Works Act 78 of 1973 ("ODIMWA"), which had previously been regarded as immunizing mining houses from such claims.

The facts of the case were briefly as follows. Mr Manyaki was employed as an underground worker by Anglo Gold Ashanti for 16 years, from 1979 to 1995. He contracted the diseases of tuberculosis and chronic obstructive airways and received compensation in terms of ODIMWA of R16 320. Despite receiving this ODIMWA compensation, Mr Manyaki instituted a claim for damages in the amount of R2,6 million against Anglo Gold Ashanti.

Anglo Gold Ashanti argued that because Mr Manyaki fell within the ambit of the definition of "employee" contained in COIDA and because ODIMWA compensatable diseases fell within the ambit of the definition of "disease" contained in COIDA, the provisions COIDA were applicable to Mr Manyaki. The argument continued that, because of section 35(1) of COIDA, which precludes employees and/or their dependents from recovering any damages in respect of occupational injury or disease resulting in death or disablement from their employers, Mr Manyaki was precluded from bringing his claim.

Mr Manyaki conceded that he fell within the ambit of the definition of "employee" contained in COIDA but argued that, in terms of ODIMWA, he was 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 ODIMWA and that, because this section expressly barred him from also receiving benefits in terms of COIDA, it then followed that COIDA was not applicable to him and as such his employer was not immunized from his damages claim.

The Constitutional Court found that although the compensatable diseases under ODIMWA overlap with the occupational diseases under COIDA, the compensation system under ODIMWA was separate from the compensation system under COIDA. In particular, the Court found that section 100(2) of ODIMWA "expressly insulate or separate" employees who benefit from ODIMWA (like Mr Manyaki) from those who benefit from COIDA. The Court then found that, as COIDA was not applicable to Mr Manyaki, section 35(1) of COIDA (which would have precluded a claim for damages by Mr Manyaki against Anglo Gold Ashanti) was not applicable. It then followed that Mr 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 ODIMWA, are not precluded from bringing claims for damages against their employers for occupational injuries or diseases. This judgment does not, however, alter section 35(1) of COIDA, i.e. employees and/or their dependents who receive payment in terms of COIDA 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 dependents of deceased former employees. These claims will collectively run into millions. Our employment, litigation and mining law departments will shortly be running seminars in regard to the meaning, effect and import of the judgment to prepare our clients for dealing with the aftermath of this judgment.