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)

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.