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Article 1/2023

An employee arriving at work is faced with a group of striking workers, who proceed to abuse her emotionally…

A doctor is raped at work whilst performing her duties…

A teacher is shot at school during a tea break…

What are some of the important principles governing the applicability of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’) in the above circumstances as
opposed to the employer’s civil liability?

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In Churchill v Premier of Mpumalanga and Another (2021) 32 SALLR 27 (SCA) and Erasmus v
Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the courts identified, inter
alia, the following appropriate approach:

  • in terms of s22(1) of COIDA, if an employee meets with an accident, resulting in such employee’s
    disablement or death, such employee or dependants of same shall be entitled to the benefits of
    COIDA, subject to the provisions of COIDA
  • it is important to realise that an accident is defined as meaning same arising out of and in the course of an employee’s employment, so resulting in the injury, illness or death of the employee
  • therefore, the said injury, illness or death is to be directly linked to the accident in which same
    was sustained
  • the exclusionary principle entails that, in terms of s35(1) of COIDA, an employee or any
    dependant of such employee shall not have a claim for damages in respect of an injury, disease
    or death, against such employee’s employer and such employer shall not be liable in the above
    regard except to the extent as set out under COIDA
  • in order to determine whether COIDA is applicable, it is, as already indicated above, essential to
    determine whether or not the injury, illness or death arose out of and occurred in the course of
    the employee’s employment. In the above regard, the following is a summary of factors that
    should not be utilised to determine whether or not the above occurred:

    • a single test is not feasible nor desirable
    • mere presence at the workplace will not suffice
    • foreseeability of the risk is not definitive
    • the fact that the employer brought the employee into the zone of hazard during the course of
      employment is also not sufficient to establish the causal link

  (Ex parte Workman’s Compensation Commissioner: in re Manthe 1979 (4) SA 812 (E))

  • rather, the following approach should be adopted:
    • it is irrelevant that the employment brought the employee within the zone of hazard, but
      what has to be determined is whether or not the injury, illness or death is incidental to the
      employee’s specific employment (i e with reference to the questions posed above, whether
      or not the rape is incidental to the employment as a doctor or whether or not a robbery is
      incidental to employment as a teacher)

(MEC for Health, Free State v DN 2015 (1) SA 182 (SCA) 

    • the above approach was followed in Churchill where it was stated that the said industrial
      action (I e being emotionally abused by striking workers) was not incidental to the
      employment of the employee as chief director: policy and research, so employed by the
      premier of Mpumalanga (the said approach was also followed in Erasmus)

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?