Mankayi v AngloGold Ashanti Ltd

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J
• Judgment Date: 19 February 2010
• Citation: 2011 (3) SA 237 (CC)
• Docket Number: CCT 40/10
• Hearing Date: 17 August 2010
• Counsel: R Spoor (attorney) for the applicant. CDA Loxton SC (with DM Antrobus SC and A Cockrell) for the respondent.
• Court: Constitutional Court

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring): D

Introduction

E [1] The issue to be decided is whether s 35(1) [1] of the Compensation for Occupational Injuries and Diseases Act [2] (COIDA) extinguishes the common-law right of mineworkers to recover damages, for occupational injury or disease, from negligent mine owners, notwithstanding that they are not entitled to claim compensation under COIDA, but only under the Occupational Diseases in Mines and Works Act [3] (ODIMWA). Both the F South Gauteng High Court [4] (High Court) and the Supreme Court of Appeal [5] interpreted s 35(1) of COIDA as extinguishing the mineworkers' common-law claim, and extending the protection against common-law liability to mine owners. Mr Thembekile Mankayi (Mr Mankayi) attacks these findings on the basis that, because he is precluded by s 100(2) of ODIMWA from claiming compensation under COIDA, s 35(1) of COIDA G does not apply to him.

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

Factual background A

[2] The applicant is Mr Mankayi, who is currently unemployed. In 2006 Mr Mankayi instituted an action for delictual damages against the respondent mining company, AngloGold Ashanti Ltd (AngloGold). In his particulars of claim Mr Mankayi asserted that he was employed by B AngloGold as an underground mineworker during the period January 1979 to September 1995. He stated that, during his employment, AngloGold negligently exposed him to harmful dusts and gases, as a result of which he contracted diseases in the form of tuberculosis and chronic obstructive airways, which have rendered him unable to work as a mineworker or in any other occupation. As a result, he claimed C damages in the sum of about R2,6 million. This comprised past and future loss of earnings of R738 147,14, future medical expenses of R1 374 600 and general damages of R500 000.

[3] The basis of his claim is that AngloGold owed him a legal duty, D arising under both common law and statute, to provide a safe and healthy environment in which to work. In breach of this duty, AngloGold failed to apply appropriate and effective control measures.

[4] Mr Mankayi averred that AngloGold and its predecessors [6] were the owners of a 'controlled mine', [7] as contemplated in Ch II of ODIMWA. He performed 'risk work' as defined in s 13, [8] and contracted 'compensatable E

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A diseases' [9] as defined in ODIMWA. After being certified in 2004 as suffering from a compensatable disease, he received compensation of R16 320 under ODIMWA from the Compensation Commissioner. [10] The thrust of .

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

Mr Mankayi's case is that, in terms of s 100(2) of ODIMWA, he is entitled A to and did receive compensation under ODIMWA, but is not precluded from suing the mine at common law. Given that s 100(2) barred him from claiming benefits under COIDA, he contends that the prohibition in s 35(1) of COIDA does not apply to him. There is no provision in ODIMWA excluding a common-law claim. Section 100(2) of ODIMWA reads: B

'Notwithstanding anything in any other law contained, no person who has a claim to benefits under this Act in respect of a compensatable disease as defined in this Act, on the ground that such person is or was employed at a controlled mine or a controlled works, shall be entitled, in respect of such disease, to benefits under the Workmen's Compensation Act, 1941 C . . . or any other law.' [11]

[5] AngloGold excepted to the particulars of claim, as lacking averments necessary to sustain a cause of action. It contended that, because Mr Mankayi is an 'employee', [12] and AngloGold an 'employer', [13] under COIDA, s 35(1) presents a statutory bar to Mr Mankayi's claim. Because D

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A of the form in which AngloGold's challenge to Mr Mankayi's claim is cast, the court is required to assume that the facts set out in his particulars of claim are true. The question is whether, on those assumed facts, he has a claim in law.

Main issues

B [6] The main issues that arise for consideration are whether:

[6.1]

the word 'employee' in s 35(1) of COIDA includes employees covered by ODIMWA, notwithstanding that they are barred from claiming benefits under COIDA; and

[6.2]

the abrogation of the common-law right of action envisaged by C s 35(1) of COIDA applies to Mr Mankayi.

Preliminary issues

[7] Before considering the main issues, it is necessary to deal with two preliminary questions. The first is whether condonation for the late D submission of Mr Mankayi's written argument should be granted, and the second is whether leave to appeal should be granted.

Should condonation be granted?

[8] The test for the grant of condonation is whether the interests of E justice permit. Factors relevant to this inquiry include, but are not limited to, the extent and cause of the delay, the prejudice to the

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

opposing litigant, the reasonableness of the explanation, the importance A of the issues to be decided, and the prospects of success. [14] The inquiry entails weighing each factor against the others and determining where the interests of justice ultimately lie. Mr Mankayi's written submissions were filed six days late. [15] Mr Spoor, who appeared on his behalf, has ascribed his failure to lodge the written submissions timeously to lack of B funds. AngloGold does not oppose the application for condonation. There is, in my view, a satisfactory explanation for the delay. The delay was minimal and there was no prejudice to AngloGold. The issues raised in the application for leave are important, and it cannot be said that the application has no prospects of success. In these circumstances, it is in the interests of justice to grant condonation. C

Should the application for leave to appeal be granted?

[9] It is axiomatic that leave to appeal will be granted by this court only if the application raises a constitutional matter and only if it is in the interests of justice to grant it. [16] D

[10] The key question whether the threshold requirement for jurisdiction has been satisfied in an application for leave is dependent upon the constitutional character of the issue. This court has recognised that, in a system of constitutional supremacy, it is inappropriate to construe the concept of what is a 'constitutional matter' narrowly. [17] E

[11] The decisions of this court reveal that a constitutional matter has been held to be raised where the matter involves the following:

'. . . (a) the interpretation, application or upholding of the Constitution itself . . . ; (b) the development of (or the failure to develop) the F common-law in accordance with the spirit, purport and objects of the Bill of Rights; (c) a statute that conflicts with a requirement or

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A restriction imposed by the Constitution; (d) the interpretation of a statute in accordance with the spirit, purport and objects of the Bill of Rights (or the failure to do so); (e) the erroneous interpretation or application of legislation that has been enacted to give effect to a constitutional right or in compliance with the Legislature's constitutional responsibilities; or (f) executive or administrative action that B conflicts with a requirement or restriction imposed by the Constitution.' [18] [Footnotes omitted.]

[12] By contrast, this court has refused to entertain appeals that seek to challenge only factual findings [19] or incorrect application of the law by the lower courts. [20]

Does this matter raise a constitutional issue? C

[13] The issue that the High Court was required to decide was whether s 35(1) of COIDA extinguishes the common-law claim of an employee, who is not entitled to claim for compensation under COIDA, but only under ODIMWA. If AngloGold's contention is correct then this provision D extinguishes Mr Mankayi's common-law right to sue it for negligence. This issue ineluctably implicates the right to freedom and security of a person as enshrined in s 12 of the Constitution. The right in s 12(1)(c) confers on everyone the right to be free from all forms of violence from either public or private sources. This section states that:

E 'Everyone has the right to freedom and security of the person, which includes the right —

. . .

(c)

to be free from all forms of violence from either public or private sources. . . .'

F [14] In Law Society of South Africa and Others v Minister for Transport and Another [21] (Law Society), this court held that the abolition by the legislature of the common-law claim to sue a driver of a motor vehicle for negligent injury implicated the right enshrined in s 12(1)(c), and had to pass muster under the limitations provision of the Bill of Rights. [22] This same constitutional right finds expression in the legislation that seeks to G regulate the safety of the mining industry, the Mine Health and Safety Act 29 of 1996 and the regulations prescribed thereunder. Were the exception to be sound — in other words, were Mr Mankayi's common-law claim to be extinguished — s 12(1)(c) would likewise be implicated.

Khampepe J (Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J...