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Victory for mineworkers By John Grogan Victory for mineworkers Mr Mankayi was but one of countless mineworkers who have contracted tuberculosis and other respiratory ailments while toiling underground. As a mineworker, he was covered by the Occupational Diseases in Mines and Works Act 78 of 1973 (ODIMWA), the social legislation that regulates claims by mineworkers who have contracted specified occupational illnesses. Mankayi lodged a claim under that Act. He was paid out a paltry R16 320, small consolation for a man without a job and with a chronic disease, and for his dependants. Not content with the amount he received from the ODIMWA fund, Mankayi sued AngloGold Ashanti, his former employer, for R2,6m.This time, he based his claim on the company’s general common law and statutory duty to ensure a safe working environment. The company attempted to shield itself behind a technicality. Its legal team argued in the High Court that because Mankayi was covered by ODIMWA, he could not also claim for damages by civil action. This argument was problematic. Unlike the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), ODIMWA contains no provision precluding those covered by the statute from instituting civil claims as well as claims against the statutory fund. But the lawyers were not fazed by that omission.They argued that, since both ODIMWA and COIDA served the same objective, if for different sectors of the national workforce, the prohibition in the one Act must have been intended to apply to the other. Both the High Court and the Supreme Court of Appeal ruled that Mankayi’s right to pursue an action under the common law was excluded by ODIMWA, as read with COIDA. The courts reasoned, essentially, that ODIMWA and COIDA create an all-encompassing statutory compensatory regime, and that the two Acts must be read together. The SAC could see little sense in allowing mineworkers to claim against the statutory fund and sue their employers for more, while limiting the claims of all other employees to the amounts provided by statute.

The case proceeded to the Constitutional Court. In Mankayi v Anglogold Ashanti Limited (Constitutional Court case no. CCT40/10 dated 03/03/2011, unreported), unanimous court overruled the SCA. The CC held that the case turned essentially on whether the word “employee” in section 35(1) of COIDA (the provision which excludes civil actions) includes employees covered by ODIMWA. The judgment begins with the history of the respective statutes. ODIMWA repealed and consolidated all earlier mining legislation, and was amended in 1993. All health-related legislation for the non-mining sector was also repealed and consolidated by COIDA. The court accepted that the general definition of “employee” in COIDA is wide enough to include workers covered by ODIMWA. But this did not mean that section 35(1) of COIDA refers to “employees” covered by ODIMWA. That section had to be read in context. Furthermore, ODIMWA expressly excludes employees falling within its scope from COIDA. The two Acts therefore provide separate systems of compensation. Persons covered by COIDA are treated more favourably than those covered by ODIMWA. Had the legislature wished to include mineworkers in the statutory bar to civil claims, it would have done so expressly. The court found that section 35(1) of COIDA serves two related functions. The first is to indemnify employers from common law claims by employees. The second is to limit employers’ liability to pay compensation except as provided for by the Act.This indicated to the court that both parts of the provision apply only to those employees covered by “the provisions of this Act”, namely, COIDA.The contrary interpretation favoured by the SCA not only treated the two functions of section 35(1) as if they were one, but also ignored its plain language, as fortified by the context. The fact is that although some provisions of ODIMWA and COIDA intermesh, the two statutes remain distinct. ODIMWA and its parent legislation focus specifically on infectious diseases contracted in mines. The court found it neither surprising nor anomalous that mineworkers are treated differently from their counterparts in other sectors. Nor was the court surprised that COIDA and ODIMWA each deal distinctly with the claims for compensation by employees falling within their scope. Mining diseases have not only exacted their toll on the health of mineworkers and their families; they have also posed and continue to pose a danger to the health and welfare of the general public. To the court, the history of mining in South Africa, with its massive contribution to the country’s wealth and corresponding heavy toll on mineworkers’ health, justifies the different treatment. That toll explains why section 35(1) does not apply to mineworkers with diseases that qualify for compensation under ODIMWA. The appeal was upheld, and the company’s exception was dismissed. Sadly, however, the bell had tolled for Mr Mankayi. He died shortly before the judgment. The solace of the compensation to which he may be entitled will be experienced by his dependants, if any, and by the present and future generations of mineworkers. Unauthorised possession The respondent employee in Rainbow Farms (Pty) Ltd v CCMA & others had left the company premises carrying a bottle of milk.It turned out that the milk had been issued to the employee free of charge to drink while on duty. He had saved it to take home.The employee’s problem was that Rainbow Farms

PD 4 2011 April  
PD 4 2011 April  

Dynamics Labour relations and labour law Journal of the South African Institute of People Management April 2011 • Vol 29 No. 4...