Jiya v Durban Roodepoort Deep Ltd

• Jurisdiction: South Africa

Jiya v Durban Roodepoort Deep Ltd
2000 (1) SA 181 (W)

2000 (1) SA p181

Citation	2000 (1) SA 181 (W)
Case No	98/28484
Court	Witwatersrand Local Division
Judge	Wunsh J
Heard	June 1, 1999
Judgment	June 10, 1999
Counsel	D H Soggot SC (with him J R Peter) for the plaintiff.; W L Wepener SC for the defendant.

Flynote : Sleutelwoorde E

Negligence — Action for damages — Common-law action for damages resulting from disease contracted during employment in mine — Occupational Diseases in Mines and Works Act 78 of 1973 providing F for compensation in case of compensatable disease (as defined) occurring as result of work in controlled mine or works — Section 100 of Act providing that persons entitled to compensation under Act not entitled to benefits under Workmen's Compensation Act 30 of 1941 'or any other law' — Defendant (employer) deciding to waive reliance on s 100 — Private concerns not precluded from waiving immunity conferred G by s 100 — In light of waiver, plaintiff's claim not ousted by s 100 — This finding arising not from interpretation of s 100 but from defendant's waiver — Quaere: Whether provisions of s 100 of Act 78 of 1973 ousting common-law claim for damages for compensatable disease contracted during employment in controlled mine or works. H

Headnote : Kopnota

The plaintiff instituted an action for damages of R336 000 against the defendant, the owner of the gold mine at which he had been employed from 1982 to 1989, for medical and related expenses, past and future losses of earnings and pain, suffering and loss of amenities of life resulting from having contracted pneumoconiosis by being negligently I exposed to unsafe levels of rock dust in the course of his employment with the defendant. The mine was a controlled mine in terms of the Occupational Diseases in Mines and Works Act 78 of 1973 (the Act) and pneumoconiosis a compensatable disease as defined therein. The Act provides for payment of compensation where a compensatable disease as defined is contracted as a result of J

2000 (1) SA p182

working in a controlled mine or works. Section 100 of the Act provided, A inter alia, that 'no person who has a claim to benefits under this Act . . . shall be entitled . . . to benefits under the Workmen's Compensation Act 30 of 1941 or any other law'. (The reference to the Workmen's Compensation Act had since 1 March 1994 to be taken to be to the Compensation for Occupational Injuries and Diseases Act 130 of 1993.) The defendant contended in its plea that s 100 ousted the plaintiff's B common-law claim because 'any other law' included the common law. At a pre-trial conference in terms of Rule 37 of the Uniform Rules the parties agreed to separate the issue raised by the defendant's reliance on s 100 and to formulate a question of law for separate determination. Shortly before the hearing of the application for the order of separation the defendant withdrew its reliance on s 100, C agreeing, in effect, that if the plaintiff were able to prove that the defendant was liable for the plaintiff's damages under the common law, he would be entitled to such damages as resulted from the defendant's delictual conduct. The Court (a Local Division) ruled that the defendant's abandonment of its defence based on s 100 did not relieve it from having to decide whether or not s 100 ousted the plaintiff's D claim. The issue formulated for separate determination at the present hearing was whether 'the provisions of (the Act) preclude(d) the plaintiff from claiming from his employer damages in delict for a compensatable disease contracted during his employment by defendant at a (controlled) mine and which (were) attributable to the employer's negligence'. Counsel for the plaintiff presented argument in support E of a negative answer while counsel for the defendant reiterated his client's abandonment of the defence based on s 100 but 'placed a few aspects before the Court not in opposition, but for consideration'. These 'aspects' were to indicate that the answer to the question had to be in the affirmative.

Held, that though the answer to the formulated question F might be of interest to employees and former employees of undertakings which ran controlled mines and to those undertakings, it did not serve any function in determining the plaintiff's claim. Although those who administered the Act were precluded from waiving enforcement of s 100, there was nothing to preclude the defendant, a concern in the private sector, from waiving its immunity. The purely academic enquiry posited by the formulated question did not require a response. (At 185B/C - H/I and 186G/H, paraphrased.)

Held, accordingly, that, although the plaintiff was entitled G to an order that his claim against the defendant was not precluded by s 100, the reason for this negative answer arose not from an interpretation of s 100 but from the defendant's election not to rely on it. (At 187A - A/B.)

Cases Considered

Annotations

Reported cases H

Bank of Lisbon International Ltd v Venter en 'n Ander 1990 (4) SA 463 (A): considered

Commissioner for Inland Revenue v Delfos 1933 AD 242: dictum at 248 applied

De Wet en Andere v Dauth 1966 (4) SA 57 (O): applied

Govender v Sona Development Co (Pty) Ltd I 1980 (1) SA 602 (D): dictum at 604H - 606A applied

Hoisain v Town Clerk, Wynberg 1916 AD 236: compared

Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC): distinguished

Multilateral Motor Vehicle Accident Fund v Meyerowitz 1995 (1) SA 23 (C): applied J

2000 (1) SA p183

Namex (Edms) Bpk v Kommissaris van Binnelandse A Inkomste 1994 (2) SA 265 (A): dictum at 283G applied

Namex (Pty) Ltd v Commissioner for Inland Revenue 1992 (2) SA 761 (C): dictum at 772A - 773B applied

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