Article 4/2023

What are some of the guidelines to be taken into account to determine the degree of disability when an employee sustained an injury at the workplace?


In Department of Labour: Compensation Commissioner v Botha (2022) 3 SALLR 17 (SCA), our
supreme court of appeal, inter alia, adopted the following approach:

  • it is important to realise that, in terms of s49(2)(a) of COIDA, if an employee sustained an injury
    in Schedule 2, such employee is presumed to be permanently disabled to the degree as set out
    in the second column
  • what is the meaning of the sixth item in the first column of Schedule 2, to the effect that, if an
    employee suffered an injury not listed in such schedule, he would be deemed to be 100%

    • the SCA indicated that not every injury not listed in Schedule 2 entails a 100% disablement
      and the extent of disability falling outside of Schedule 2 must be determined in the light of
      the specific facts of the specific case and according to medical evidence

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.