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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)

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?