Mankayi v AngloGold Ashanti Ltd

• Jurisdiction: South Africa
• Citation: 2010 (5) SA 137 (SCA)

Mankayi v AngloGold Ashanti Ltd
2010 (5) SA 137 (SCA)

2010 (5) SA p137

Citation	2010 (5) SA 137 (SCA)
Case No	126/2009
Court	Supreme Court of Appeal
Judge	Harms DP, Cloete JA, Heher JA, Malan JA and Leach JA
Heard	March 4, 2010
Judgment	March 31, 2010
Counsel	GF Marcus SC ( with AC Dodson and A Friedman) for the appellant.; CDA Loxton SC (with DM Antrobus SC and A Cockrell) for the respondent.

Flynote : Sleutelwoorde E

Labour law — Employee — Common-law claim for damages for negligence F against employer — Damages resulting from disease contracted during employment in mine — Whether employee's claim extinguished by statute — Section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993 extinguishing employee's common-law action for damages in respect of 'any occupational injury or disease resulting in disablement or death' — Section 35(1) applying to employee who received G compensation under Occupational Diseases in Mines and Works Act 78 of 1973 — His common-law claim against employer extinguished — Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 35(1), read with Occupational Diseases in Mines and Works Act 78 of 1973.

Headnote : Kopnota

An employee who contracts a 'compensatable disease' as intended in the H Occupational Diseases in Mines and Works Act 78 of 1973 (ODIMWA) is under s 100(2) of that Act precluded from receiving any benefits under the Compensation for Occupational Diseases and Injuries Act 130 of 1993 (COIDA) (a broader Act that covers all occupational injuries and diseases). Section 35(1) of COIDA in turn provides that an employee may not recover damages, resulting from an occupational disease or injury, from I his employer (the idea being that such an employee is instead entitled to prescribed compensation out of the COIDA fund).

The appellant, a mineworker who had contracted phthisis while working for the respondent mining company, brought a common-law suit against the company on the ground it had breached its duty to provide him with a healthy work environment. When the company raised s 35 of COIDA as a J

2010 (5) SA p138

A bar to the claim, the appellant alleged that the prohibition in s 35 did not apply to his claim. His argument ran as follows: he was employed by the company to work at one of its mines; he contracted an 'occupational disease' as defined in ODIMWA; he received compensation under ODIMWA; he was thus not entitled to compensation under COIDA; and, consequently, he was not an 'employee' as intended in COIDA.

B The High Court declined to accept this argument, pointing out that it went against the clear wording of s 35(1) of COIDA. The appellant appealed to the SCA, which followed suit and dismissed the appeal on essentially the same ground, holding that, since s 35(1) extinguished all common-law claims for damages 'in respect of any occupational injury or disease resulting in disablement or death', it followed that the common-law claim C of someone in the position of the appellant was also extinguished. (Paragraph [36] at 160F - G.)

Cases Considered

Annotations

Reported cases

Southern Africa D

Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A): referred to

Arenstein v Secretary for Justice 1970 (4) SA 273 (T): referred to

Barlow & Jones Ltd v Elephant Trading Co 1905 TS 637: referred to

Casserley v Stubbs 1916 TPD 310: referred to

Chotabhai v Union Government and Another 1911 AD 13: referred to E

Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530: dictum at 543 applied

Davis v Workmen's Compensation Commissioner 1995 (3) SA 689 (C): dictum at 694F - G applied

De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC) (2001 (11) BCLR 1109): referred to F

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219): referred to

Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (2) SACR 197; 2001 (11) BCLR 1197): referred to

Government of the Islamic Republic of Iran v Berends 1998 (4) SA 107 (Nm): dictum at 118J - 119C applied G

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489): dictum in para [53] applied

Hewlett v Minister of Finance and Another 1982 (1) SA 490 (ZS) (1981 ZLR 571): referred to

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079): dictum in para [24] applied H

Johannesburg City Council v Makaya 1945 AD 252: referred to

Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC) (1999 (2) BCLR 139): dicta in paras [14] and [17] applied I

Khumalo v Director-General of Co-operation and Development and Others 1991 (1) SA 158 (A): dictum at 163B - E applied

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775): referred to

Mlomzale v Mizpah Boerdery (Pty) Ltd 1997 (1) SA 790 (C): referred to J

2010 (5) SA p139

Mphosi v Central Board for Co-operative Insurance Ltd 1974 (4) SA 633 (A): distinguished A

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to

National Director of Public Prosecutions and Another v Mohamed NO and Others 2002 (4) SA 843 (CC) (2002 (2) SACR 196; 2002 (9) BCLR 970): referred to B

National Director of Public Prosecutions v Carolus and Others 2000 (1) SA 1127 (SCA) (1999 (2) SACR 607): dictum in paras [34] - [35] applied

New Modderfontein Gold Mining Co v Transvaal Provincial Administration 1919 AD 367: referred to C

New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC) (1999 (5) BCLR 489): referred to

Nkabinde v Nkabinde and Nkabinde 1944 WLD 112: referred to

Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A): referred to D

Pettersen v Irvin & Johnson Ltd 1963 (3) SA 255 (C): dictum at 256H - 257A applied

Petz Products (Pty) Ltd v Commercial Electrical Contractors (Pty) Ltd 1990 (4) SA 196 (C): referred to

Phumelela Gaming and Leisure Ltd v Gründlingh and Others 2007 (6) SA 350 (CC) (2006 (8) BCLR 883): referred to E

Poswa v Member of the Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA) (2001 (6) BCLR 545): dictum in para [9] applied

President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) (1997 (1) SACR 567; 1997 (6) BCLR 708): referred to

Principal Immigration Officer v Bhula 1931 AD 323: referred to F

R v Maseti and Others 1958 (4) SA 52 (E): referred to

R v Detody 1926 AD 198: referred to

Rand Mutual Assurance Co Ltd v Road Accident Fund 2008 (6) SA 511 (SCA): referred to

Rossouw v Sachs 1964 (2) SA 551 (A): referred to

S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) (1997 (2) SACR 540; 1997 (10) BCLR 1348): referred to G

S v Mseleku 1968 (2) SA 704 (N): referred to

Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert and Others 2002 (2) SA 21 (SCA): referred to

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) ((2007) 28 ILJ 2405; 2008 (2) BCLR 158; [2007] 12 BLLR 1097): referred to H

Small v Goldreich Buildings Ltd and Reid & Knuckey (Pty) Ltd 1943 WLD 101: distinguished

Standard Bank Investment Corporation Ltd v Competition Commission and Others; Liberty Life Association of Africa Ltd v Competition Commission and Others 2000 (2) SA 797 (SCA) ([2000] 2 All SA 245): referred to I

Transnet Ltd v Ngcezula 1995 (3) SA 538 (A): referred to

Transvaal Investment Co Ltd v Springs Municipality 1922 AD 337: referred to

Turffontein Estates Ltd v Mining Commissioner, Johannesburg 1917 AD 419: referred to

Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission, and Others; Transnet Ltd (Autonet Division) v Chairman, National Transport Commission, and Others 1999 (4) SA 1 (SCA) ([1999] 3 All SA 365): referred to J

2010 (5) SA p140

Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007 (3) SA 210 (CC) (2006 (2) SACR 319): referred to A

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) (2008 (11) BCLR 1123): referred to

Workmen's Compensation Commissioner v Jooste 1997 (4) SA 418 (SCA) ([1997] 3 All SA 157): applied B

Workmen's Compensation Commissioner v Van Zyl 1996 (3) SA 757 (A): referred to

Yarram Trading CC t/a Tijuana Spur v Absa Bank Ltd 2007 (2) SA 570 (SCA): referred to.

European Court of Human Rights C

Pressos Compania Naviera SA and Others v Belgium (1995) 21 EHRR 301: referred to.

United States

Logan v Zimmerman Brush Co 455 US 422 (1982): referred to D

Montgomery v Daniels 340 NE 2d 444 (1975): referred to.

Statutes Considered

Statutes

The Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 35(1): see Juta's Statutes of South Africa 2009/10 vol 4 at 1-78

E The Occupational Diseases in Mines and Works Act 78 of 1973, s 100(2): see Juta's Statutes of South Africa 1998 vol 4 at 1-104.

Case Information

Appeal against a decision in the South Gauteng High Court, Johannesburg (Joffe J). The facts appear from the judgment of Malan JA.

GF Marcus SC (with AC Dodson and A Friedman) for the appellant.

CDA Loxton SC (with DM Antrobus SC and A Cockrell) for the respondent. F

Cur adv vult.

Postea (March 31). G

Judgment

Malan JA:

[1] This is an appeal with the leave of Joffe J in the...