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Article 2/2022

Liability of an employer in terms of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’)?

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The facts of Churchill v Premier, Mpumalanga and Another (2021) 32 SALLR 27 (SCA) are briefly as follows: the employee worked at the Premier of Mpumalanga, employed as the chief director: policy and research.  Protest action regarding labour disputes, so organised by NEHAWU, had occurred at the premises and in the building where she worked.  She was assaulted and mistreated by the protestors and eventually evicted from the premises in a humiliating and degrading manner.  The employee claimed that the injuries were caused by the negligence of her employer not to take steps or, alternatively, took inadequate steps to ensure the safety of the employees in the workplace.  On the other hand, the employer raised a special plea claiming that the employees’ claim constituted an occupational injury making her entitled to compensation in terms of COIDA and, therefore, her claim is to be excluded in terms of section 35(1) of COIDA.

How did the supreme court of appeal deal with this issue?

  • in terms of s22(1) of COIDA, if an employee meets with an accident resulting in his disablement or death, such employee (or dependents) is entitled to benefits under COIDA
  • an accident is defined as meaning: ‘…an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee’
  • in MEC for Health, Free State v DN 2015 (1) SA 182 (SCA), it was held that there is no bright-line test to determine whether or not the accident arose out of and in the course of an employee’s employment and each case must be dealt with on its own merits – in this matter, a rape perpetrated by an outsider on a doctor on duty at a hospital was found not to arise out of the doctor’s employment because the risk of rape is not incidental to such employment
  • in the aforesaid matter, the SCA held that the employee’s employment brought her within the zone of hazard, giving rise to her injuries – however, the risk of rape was not incidental to her employment
  • on the basis of the above approach, the SCA in casu concluded that the closer the link between the injury sustained and performance of the ordinary duties of an employee, the more likely it is that it can be said that they were sustained arising out of and in the course of employment – on the basis of this approach, the SCA in casu found that the protest action turning violent and resulting in assaults are not risks incidental to employment and, therefore, do not arise out of and occur in the course of employment.  This meant that the employee’s claim was not covered by COIDA and she was entitled to institute a civil claim, based on delict, against her employer.
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?