Safe working conditions at mines – Common Law Duty of Care

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Published: 25 Jun 2010

Safe working conditions at mines – Common Law Duty of Care

On 31 March 2010 the Supreme Court of Appeal (per judges Harms DP, Cloete, Malan, Heher and Leach JJA) handed down judgment in the matter of Thembekile Mankayi vs Anglogold Ashanti Ltd. The matter was heard on appeal from the Johannesburg High Court and dealt with the question of whether a mineworker who contracted an occupational disease during the course of his employment could claim damages from his employer for injuries sustained as a result of the mine's breach of a common-law duty of care to provide a safe working environment.

The appellant was employed as an underground mine worker by the respondent during the period January 1979 to September 1995. The appellant sought damages from the respondent, a public company engaged in mining operations, amounting to R2,6 million basis on the respondent's alleged breach of duty of care to him leading to the appellant contracting diseases or diseases in the form of silicosis, pulmonary tuberculosis and obstructive airways disease. The basis of the appellant's claim was that the respondent owed him a duty of care arising under both the common law and statute to provide a safe and healthy working environment in which to work.

The main question revolved around whether section 100(2) of the Occupational Diseases in Mines and Works Act 78 of 1973 (ODMWA) which precludes any person from receiving any benefits in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), specifically also precludes the instituting of a common-law claim for damages against his employer in terms of section 35(1) of the COIDA.

Interpretation of the word ‘employee' in terms of s 35(1) of COIDA

The appellant pleaded that since he already received compensation in terms of section 94 of the ODMWA, he was not entitled to compensation under the COIDA, as specified in section 100(2) of the ODMWA. He therefore could not be defined as an ‘employee' in terms of the COIDA and subsequently was excluded from the restriction to claim any further compensation.

The Court held that the appellant's argument was based on a misconception of section 35(1) of the COIDA and pointed out that the definition of ‘employee' is not determined by the nature of a person's injury or disease but by the nature of the person's contract with the employer. The Court accordingly held that an ‘employee' as defined in the COIDA included employees at mines.

Generalia Specialibus Non Derogant

The Court (in judgment by Justice Malan) elaborated on the general principle that where a later statute is irreconcilable with an earlier on, the latter must be regarded as having been impliedly repealed. However, the position may be different where the later statute is general and the earlier one special. In such a case the earlier statute remains in force. It was clear to the Court that the appellant's interpretation of section 35(1) of the COIDA accorded with the maxim generalia specialibus non derogant but stated that the rule does not always find application: the cardinal question was whether the legislature intended that its later general Act should alter its own earlier special enactment. It was submitted that because section 35(1) of the COIDA did not repeal section 100(2) of the ODMWA expressly, it could not be construed as repealing or amending the latter section implicitly so that it remained applicable.

The Court held that section 100(2) of the ODMWA does not give an employee a common-law right to claim damages from his employer. The question is therefore not whether section 35(1) of the COIDA impliedly repealed section 100(2) of the ODMWA but whether section 35(1) of the COIDA abrogated the common-law cause of action of employees who have a claim under the ODMWA.

The Court went on to state that the provisions of the ODMWA do not apply specifically to ‘employees' but those persons performing ‘risk work' in mines. The COIDA is of more general application applying to ‘all employees'. Section 35(1) of COIDA was intended to protect all employers against common-law liability. In this sense it was ‘meant to cover, without exception, the whole field or subject to which it relates' refuting the presumption created by the maxim generalia specialibus non derogant.

COIDA vis-à-vis ODMWA

The Court held that the ODMWA does not affect any of the principles set out in the COIDA and that it merely recognises that certain duties preformed by employees working in mines entail them being at a higher risk of contracting certain diseases associated with the performance of such work. Therefore, the COIDA requires mining companies (the employers) to contribute to the compensation fund established in terms of the COIDA in order for employees working at mines and who sustain any occupational diseases or injuries to be compensated from that fund. Mining companies are similarly required by the ODMWA to contribute to the Mines and Works Compensation Fund established in terms of that Act, which compensates employees who may suffer from so-called ‘compensatable diseases' in terms of the ODMWA.

The Court confirmed that section 100(2) of the ODMWA only serves to prevent an employee from claiming compensation from two different funds for the same occupational injury or disease.

Conclusion

The Court held that the COIDA and the ODMWA must be harmonised as together they cover the entire field of compensation for damages arising from injury or diseases contracted at work. The ODMWA provides for injuries and diseases in a specific area while the COIDA has a more general application. From the wording of the COIDA the Court held that it was unlikely that the legislature intended to have different policies to apply to employer's liability under the two Acts. The exclusion of liability in terms of section 35 of the COIDA was therefore not limited to employees who claimed under the COIDA - it would be irrational not to extend the protection against the common-law liability of employers also to the owners of mines.

The Court went further to state that historically all employers, whether under the COIDA or the ODMWA, funded the compensation funds under the two enactments. The Court held that it follows that the legislature intended section 35 of the COIDA to also apply to claims under the ODMWA. The Court a quo was therefore held to have been correct in holding that there was no rational basis for protecting the employer from common law liability in return for funding statutory compensation for diseases contracted by mine employees under the COIDA and the ODMWA.

The appeal was dismissed, no costs order was made.

Written by: Liezl Sterne, Candidate Attorney at Cameron Cross Inc