The issue to be decided is whether section 35(1)¹ of the Compensation for Occupational Injuries and Diseases Act² (COIDA) extinguishes the common law right of mineworkers to recover damages for occupational injury or disease from negligent mine owners notwithstanding that they are not entitled to claim compensation under COIDA but only under the Occupational Diseases in Mines and Works Act³ (ODIMWA). Both the South Gauteng High Court⁴ (High Court) and the Supreme Court of Appeal⁵ interpreted section 35(1) of COIDA as extinguishing the mineworkers’ common law claim and extending the protection against common law liability to mine owners. Mr Thembekile Mankayi (Mr Mankayi) attacks these findings on the basis that, because he is precluded by section 100(2) of ODIMWA from claiming compensation under COIDA, section 35(1) of COIDA does not apply to him.