Looyen v Simmer & Jack Mines Ltd and Another

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA, Van Den Heever JA, Hoexter JA, and Fagan JA
• Judgment Date: 03 October 1952
• Hearing Date: 19 September 1952
• Court: Appellate Division

Schreiner, J.A.:

The appellant's husband was employed as a miner by the E first respondent and was killed as the result of an accident arising out of and in the course of his employment. The appellant was entitled to the ordinary compensation payable under sec. 40 of Act 30 of 1941 (The Workmen's Compensation Act), but, in addition, applied for increased compensation under sec. 43 on the ground that the accident had F been due to the negligence of a shift boss employed by the first respondent. The respondents admitted that the accident was due to the negligence of a shift boss, but denied that a shift boss is a person whose negligence in terms of sec. 43 renders the mine employing him liable to pay increased compensation.

G Sec. 43 allows an application for increased compensation to be made only where the accident was due to a patently defective condition of the employer's plant, premises, etc., or to the negligence of the employer himself or of certain specified classes of person. It was common cause between the parties that the only class which could possibly include a H shift boss is described as follows in the Afrikaans and English versions of the Act, the former being that signed by the Governor-General:

'Sec. 43 (1) (a) (ii): 'n persoon aan wie die bestuur of beheer van die besigheid of enige tak of afdeling daarvan deur daardie werkgewer opgedra is;'

and

'Sec. 43 (1) (a) (ii): a person entrusted by such employer with the management, or in charge of the business or any branch or department thereof.'

The fact that the English version reads 'in charge' and not 'the charge' is for present purposes immaterial, and the issue

Schreiner JA

was whether the shift boss was a person entrusted with the management or charge (bestuur or beheer) of any branch (tak) or department (afdeling) of the mine, i.e. of the first respondent's mining business. Although the meaning of branch or 'tak' was referred to in the course of the A argument the question to be decided resolved itself finally into whether a shift boss is a person entrusted with the management or charge of a department or 'afdeling' of the mine.

The application was heard by the Assistant Workment's Compensation B Commissioner, the only evidence being that of the manager of the first respondent's mine, who described the organisation of the mine and the part played therein by a shift boss. The Commissioner granted the application, but his decision was reversed on appeal, under sec. 25 (7) (b) (iv) of the Act, to the Transvaal Provincial Division. From that Court, leave having been granted, appeal is now brought to this Court.

C The evidence shows the organisation of the Simmer and Jack Mine to be as follows:

(a)

The mine as a whole is under the control of the mine manager.

(b)

The mine's activities are classified as (i) mining, (ii) D engineering, (iii) reduction works, (iv) compounds, (v) administration. The officials at the head of these spheres of activity are responsible to and take orders from the mine manager only.

(c)

So far as mining is concerned no single official below the E manager is in charge of all the mining activities. There are two assistant managers each in charge of all such activities in one of the two sections or areas comprising the mine property.

(d)

F Under each assistant manager are two underground managers, and under each of the latter are several mine captains, otherwise called mine overseers. The fields of activity of the underground managers and of the mine captains are distinct portions of the mine property.

(e)

G Under each mine captain are from three to six shift bosses, each of whom is assigned his own portion of the mine property within which to function.

(f)

Under each shift boss are from three to six miners, each of whom has under him a gang of natives, of varying number, who work at one, two or three working places.

The manager in his evidence described the functions of a shift boss and H compared them with those of the other underground employees as follows:

'A shift boss is in charge of a sub-section of a mine captain's section. In that section he is appointed shift boss in charge of that section in accordance with the regulations to see that all mining regulations are carried out in his section and to see to the safety of all persons in that section under his charge and to see that mining is carried out properly and efficiently and also to carry out any instructions given to him by his immediate superior. The shift boss gets his orders from the mine captain . . . The mine captain can give certain

Schreiner JA

orders but his main instructions come from the underground manager and he passes them on to the shift boss. A mine captain is limited to certain matters. He has a section to control - that section is laid out for him - and any major changes have to be authorised by the underground manager. When the shift boss is in charge of the section, he can make such changes as he deems necessary but he must report the A changes to the mine captain who can alter them if he likes. That is in regard to any matter on which a shift boss has jurisdiction. Below the shift boss is the miner who takes charge of the working place and he is supervised by the shift boss. He must carry out any instructions the shift boss may wish to give him. His position in relation to the shift boss is very much the same as the shift boss's is to the mine captain . . As far as engagement and dismissal are concerned, neither the miner B nor the shift boss nor the mine captain nor the underground manager can dismiss anyone. All dismissals come to me . . . The shift boss only sees the miners sometimes. He has to visit every workplace once a shift . . . The miner is in a similar relationship to the shift boss as the shift boss to the mine captain. The mine captain is in a similar relationship to the underground manager. If a miner causes a breach of C the regulations, the shift boss must report him in his log book. The shift boss can reprimand the miner. The shift boss may dispose of a breach of the regulations by reprimanding a miner. He is not required to log such a reprimand or...