Jooste v Compensation Commissioner

• Jurisdiction: South Africa
• Judge: Friedman JP, Van Zyl J
• Judgment Date: 26 March 1996
• Docket Number: A426/95
• Hearing Date: 08 March 1996
• Counsel: L J Bozalek for the appellant J W Olivier for the respondent
• Court: Cape Provincial Division

Friedman JP:

The question which arises for decision in this appeal in terms of the H Workmen's Compensation Act 30 of 1941 (the Act) is whether a person who is no longer a workman as defined in the Act is entitled to compensation in terms of the Act if that person, while still a workman, contracted a disease which became a scheduled industrial disease after such person ceased to be a workman.

The facts giving rise to the present proceedings may be stated shortly as follows: From I 4 October 1989 until 4 March 1992 Sanna Jooste (the appellant), who was a 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 J practitioner issued a certificate on 4 March 1992 putting her off

Friedman JP

A work for six months. She was referred to the Respiratory Clinic at the 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 B 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 the spray-painting department and there was no 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 to be C a workman as defined in the Act.

In terms of Government Notice 3311 of 11 December 1992 the Minister, by virtue of the power vested in him in terms of s 94(2) of the Act, added 'occupational asthma' as an occupational disease in the Second Schedule to the Act.

D On 12 February 1993 a claim was submitted to the Compensation Commissioner on appellant's behalf. 22 June 1992 was given as the 'date of the accident'. Dr White gave this date as he was aware of a 'convention' in the office of the Compensation Commissioner to regard the date on which a workman is first seen by a doctor as the date of the accident. E

On 2 July 1993 appellant was informed that her claim for compensation was rejected. She lodged an objection with the Commissioner against the decision in terms of s 25(2)(a) of the Act. Her objection was heard on 25 March 1994. On 17 October 1994 the Commission dismissed her objection. She now appeals to this Court in terms of s F 25(7)(b) of the Act against the rejection of her objection.

The Commission's reason for rejecting her objection was that occupational asthma was added to the Second Schedule as from 1 January 1993, which meant that only those workers who were diagnosed as suffering from occupational asthma after 1 January 1993 were entitled to compensation; as appellant's condition was diagnosed before that G date, namely in 1992, she did not qualify for compensation.

By the time occupational asthma was added to the list of occupational diseases appellant was, for the reasons indicated above, no longer a workman. The question which arises is whether, as a result of the Government Notice whereby occupational H asthma was added to the list of occupational diseases with effect from 1 January 1993, appellant acquired a claim for compensation.

Counsel for the Commissioner (respondent) submitted that appellant was not entitled to compensation on two main grounds. Firstly, he argued that the Government Notice did not apply retrospectively and that it merely gave a right to compensation to a I workman who became disabled as a result of occupational...