The Constitutional Court recently handed down a judgment with major implications for the mining sector. The decision recognised the contribution of mineworkers to the economic wealth of the country which, it stated, came at a great cost to their health and rendered them vulnerable members of society.

“The decision made by the Court provides recognition of mineworkers who have, for a long time, received minimal compensation for occupational injuries. The important implication of the judgment is that mining companies are to prioritise the health and safety of their employees and ensure that the proper precautions are taken in order to reasonably prevent unnecessary exposure to the harmful effects of the working environment,” said Sahndya Naidoo, an Associate in the Environmental practice at Cliffe Dekker Hofmeyr business law firm in Cape Town.

Mankayi v AngloGold Ashanti Ltd concerned a claim for damages of R2,6 million by a Mr Mankayi, who had contracted a disease as a result of alleged exposure to an unsafe working environment on a mine owned by AngloGold. He claimed medical expenses, loss of income and general damages from his employer. He had already received compensation under the Occupational Diseases in Mines and Works Act (ODMWA).

“The issue to be decided by the Court was whether the exclusion from claiming damages directly from employers contained in the Compensation for Occupational Injuries and Diseases Act, (COIDA), prevented an employee who had been compensated under ODMWA from claiming such damages. Section 35(1) of COIDA precludes an employee or any dependant of an employee from instituting a claim for damages against an employer in respect of any disablement or death caused by an occupational injury or disease. Instead the employee or the employee's dependant will only have a claim against the Compensation Board under COIDA.” Naidoo explains.

Naidoo says it was argued by AngloGold that a claim for damages against it was excluded by COIDA because an award had been made under ODMWA and the claim had to be dismissed. This argument was upheld by the High Court and Supreme Court of Appeal and was referred to the Constitutional Court to determine whether this was an issue of constitutional importance.

“The Court, in its majority judgment, responded that a matter that inevitably impacted on the constitutional right to freedom and security of a person and the consideration of delictual remedies protecting such constitutional rights was one that had to be addressed by the Court.

“The Court held that legislation regulating compensation for occupational injuries provided for two categories of workers, the first primarily mineworkers (ODMWA), and the other, all employees (COIDA). Importantly, section 100 of ODMWA prohibits "double-dipping" and provides that where a person had received or is receiving compensation in terms of its provisions, a claim may not be made for additional compensation under another Act,” she explains.

In considering the argument that the exemption in section 35(1) of COIDA prohibited Mankayi from claiming damages directly from AngloGold, the court held that the definition of “employees” in COIDA referred only to those who were able to claim under COIDA and not those who were precluded from benefiting under the Act.

Section 100 of ODMWA expressly excluded those who claimed under its provisions from claiming under COIDA; therefore section 35(1) of COIDA could not apply to those same excluded employees. It was also held that COIDA came into effect long after ODMWA and therefore if the legislature had intended employees covered by ODMWA to be covered by the provisions of COIDA, it would have expressly stipulated so.

It was further clear from the language of COIDA that its provisions only related to those employees that were covered by it. It was held that as ODMWA expressly excludes employees who claim for benefits under it, from a claim under COIDA, those employees are not subject to the limitation imposed by section 35(1) of COIDA and retain their right to claim damages from their employers for any losses or expenses not compensated in terms of ODMWA.

“Although this judgment is viewed by many as rendering mining company employers vulnerable to paying out large sums of money as compensation to employees who have been detrimentally affected by their work , it must be noted that a claimant employee must successfully prove negligence and substantiate the amount of his/her claim, which is often not easy in practice,” Naidoo adds.

For more information:
Sahndya Naidoo, Associate, Environmental Practice, Cliffe Dekker Hofmeyr,
Tel: +27 (0)21 481
email: sahndya.naidoo@dlacdh.com

Andrea Collocott, Head: Marketing, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1281
email: andrea.collocott@dlacdh.com

Angela Graham, Tel: 073 505 9012 yeahwrite@worldonline.co.za

Notes:
Cliffe Dekker Hofmeyr is one of the largest commercial law firms in South Africa with some 115 directors/partners and 250 qualified lawyers located at offices in Johannesburg and Cape Town.

Cliffe Dekker Hofmeyr lawyers specialise in services covering the complete spectrum of business legal needs in 11 core areas of practice. The firm also has dedicated sector-led teams consisting of lawyers with experience in a wide range of industries and the public sector.

Cliffe Dekker Hofmeyr is the South African member firm of DLA Piper Group, an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of the DLA Piper Practice but are not themselves members of it.

Cliffe Dekker Hofmeyr's Africa practice, in conjunction with DLA Piper Africa Group, is unrivalled in terms of pan-African legal services and geographical coverage.

DLA Piper is an international legal practice with over 3,500 lawyers located in 30 countries and 69 offices throughout Asia, Europe, the Middle East and the US.

For further information, please visit www.cliffedekkerhofmeyr.com