Workmen's Compensation Commissioner v Jooste

• Jurisdiction: South Africa
• Judge: Smalberger JA, Hefer JA, Marais JA, Schutz JA, Zulman JA
• Judgment Date: 29 May 1997
• Citation: 1997 (4) SA 418 (SCA)
• Docket Number: 273/96
• Hearing Date: 22 May 1997
• Counsel: J W Olivier for the appellant L J Bozaled for the respondent
• Court: Supreme Court of Appeal

Smalberger J A:

This is an appeal, with the necessary leave, against a decision of a Full Bench of the former Cape of Good Hope Provincial Division (Friedman JP and Van Zyl J). D The appeal concerns the interpretation of certain provisions, and in particular ss 89 and 94, of the now repealed Workmen's Compensation Act 30 of 1941 ('the Act').

The relevant facts are common cause. They are set out accurately and succinctly in the judgment of the Court a quo as follows:

'From 4 October 1989 until 4 March 1992 Sanna (Suzanna) Jooste (the respondent), who was a E workman as defined in s 3 of the Act, was employed by Tygerberg BMW Coachworks in the spray-painting department. Towards the end of 1991 she started experiencing chest-tightness and difficulty in breathing. She saw a number of general practitioners. After presenting (with) a particularly severe episode of bronchospasm, her general practitioner issued a certificate on 4 March 1992 putting her off work for six months. She was referred to the Respiratory Clinic at the F Groote Schuur Hospital where she was seen for the first time on 22 June 1992. Dr White, a specialist in respiratory diseases attached to the Respiratory Clinic, diagnosed the condition as sensitisation to workplace chemicals, probably isocyanates, and that she was suffering from occupational asthma. She returned to work after six months, but her employer refused to take her back as it was feared that because of her condition she would be unable to continue working in G the spray-painting department and there was not other work available. Her employment was consequently terminated in or about September 1992. Since that date she has not been engaged in employment which qualifies her (as) a workman as defined in the Act.'

When the respondent contracted occupational asthma, it was not a scheduled disease in terms H of the Act. Nor was it such at the time when she ceased to be a workman in terms of the Act. It became a scheduled disease with effect from 1 January 1993 when the responsible Minister, in terms of Government Notice 3311 of 11 December 1992 ('the Government Notice'), and by virtue of the power vested in him in terms of s 94(2) of the Act, amended the Act by adding 'occupational asthma' to the list of occupational diseases in the Second Schedule.

I Arising from these facts, a claim for compensation was submitted on 12 February 1993 to the appellant ('the Commissioner') on the respondent's behalf in terms of the Act. On 2 July 1993 the respondent was informed that her claim had been rejected. She duly lodged an objection to the Commissioner's decision in terms of s 25(2)(a) of the Act. The J

Smalberger J A

objection was heard in March 1994, and was dismissed on 17 October 1994. The respondent A appealed to the Court a quo in terms of s 25(7)(b) of the Act against such dismissal. Her appeal was upheld with costs, and the Court ruled that '(she) is entitled to compensation calculated on the basis that the date of her disablement for employment is 4 March 1992'. It is against this order that the present appeal lies. B

Argument in the Court a quo centered on two main issues. In regard to the first, the Court came to the conclusion that the provisions of s 89 of the Act did not 'preclude a claim by a person who, while he was a workman, contracted an industrial (scheduled) disease as a result C of which he became disabled for employment and ceased to be a workman'. In other words, it is not a prerequisite for a successful claim for compensation that the claimant should still be a workman at the time when the claim for compensation is made. This conclusion, which in my view was correct, essentially for the reasons given by the Court a quo, was not challenged on appeal. D

In respect of the second issue, the Court held that it was no answer to the respondent's claim that she was no longer a workman as defined when occupational asthma was added to the list of scheduled diseases because

'on a proper construction of the Government Notice, read with s 94, a workman who became E disabled for employment and who ceased to be a workman by reason of having contracted industrial (occupational) asthma, became entitled, as from 1 January 1993, to claim the benefits provided by the Act in respect of occupational diseases'.

This finding is the focus of the present appeal.

A workman's right to compensation in respect of a scheduled industrial disease arises from s 89 of the Act, the relevant part of which reads: F

'Where it is proved to the satisfaction of the Commissioner in such manner as he may determine that the workman is suffering from a scheduled disease due to the nature of his occupation and is thereby disabled for employment, or that the death of the workman was caused by such disease, the workman shall be entitled to compensation as if such disablement or death had been caused by an accident. . . .' G

(In terms of s 2 of the Act a 'scheduled disease' means 'any disease specified in the Second Schedule to this Act', and 'disablement' means 'disablement for employment or permanent injury or serious disfigurement'; s 3(1)(c) provides that a 'workman' includes 'when...