Workmen's Compensation Commissioner v Jooste

• Jurisdiction: South Africa

Workmen's Compensation Commissioner v Jooste
1997 (4) SA 418 (SCA)

1997 (4) SA p418

Citation	1997 (4) SA 418 (SCA)
Case No	273/96
Court	Supreme Court of Appeal
Judge	Smalberger JA, Hefer JA, Marais JA, Schutz JA, Zulman JA
Heard	May 22, 1997
Judgment	May 29, 1997
Counsel	J W Olivier for the appellant; L J Bozaled for the respondent

Flynote : Sleutelwoorde B

Employment law — Workmen's compensation — Claim against Commissioner — Workmen's Compensation Act 30 of 1941 — Government Notice 3311 of 11 December 1992 adding in terms of C s 94(2) of Act 'occupational asthma' as occupational disease in Second Schedule to Act as from 1 January 1993 — Worker contracting occupational asthma and employment terminated in September 1992 — Whether Government Notice applying retrospectively to former workers ceasing to be such through being disabled by occupational asthma, and otherwise not having claim for D compensation under Act — Nothing in Act or Government Notice making amendment by Government Notice retrospective, notwithstanding Minister's power in terms of s 94(1) of Act, on recommendation of Commissioner, to do so — Minister stipulating that amendment taking effect from future date, fortifying conclusion that addition of occupational asthma to Second Schedule of E Act neither recommended nor intended to be retrospective — Amendment by Government Notice not retrospective in effect.

Headnote : Kopnota

The respondent, who had been a workman as defined in s 3 of the Workmen's Compensation Act 30 of 1941, had been employed by Tygerberg BMW Coachworks in the spray-painting F department from 4 October 1989 until 4 March 1992. On 4 March 1992 her general practitioner had issued a certificate putting her off work for six months because of severe bronchospasm. A specialist later diagnosed that she was suffering from occupational asthma, after which 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 G was no other work available. Her employment was consequently terminated in or about September 1992. The respondent had since not been engaged in employment, which qualified her as a workman as defined in the Act. Occupational asthma had not been a scheduled disease in terms of the Act when the respondent had contracted it, nor had it been such at the time when she had ceased to be a workman in terms of the Act. It had become a scheduled H disease with effect from 1 January 1993 when it had been added to the list of occupational diseases in the Second Schedule in terms of Government Notice 3311 of 11 December 1992 ('Government Notice'). On 12 February 1993 the respondent had submitted a claim for compensation in terms of the Act to the appellant which had been rejected on 2 July 1993. The respondent had lodged an objection to the appellant's decision in terms of s 25(2)(a) of the Act I which had been dismissed on 17 October 1994. The respondent then appealed to a Provincial Division in terms of s 25(7)(b) of the Act against the dismissal. The Court a quo upheld her appeal and ruled that she was entitled to compensation calculated on the basis that the date of her disablement for employment was 4 March 1992. The argument in the Court a quo had centered on two main issues. In regard to the first issue the Court a quo came to the conclusion that the provisions of s 89 of the Act J

1997 (4) SA p419

did not 'preclude a claim by a person who had, while he had been a workman, contracted an A industrial (scheduled) disease as a result of which he became disabled for employment and ceased to be a workman'. In other words, it was not a prerequisite for a successful claim for compensation that the claimant should still be a workman at the time when the claim for compensation was made. In respect of the second issue (which had been the focus of the B appeal), the Court a quo held that it had been no answer to the respondent's claim that she was no longer a workman as defined when occupational asthma had been added to the list of scheduled diseases because 'on a proper construction of the Government Notice, read with s 94, a workman who became disabled for employment and who ceased to be a workman by reason of having contracted occupational asthma became entitled, as from 1 January 1993, to C claim the benefits provided by the Act in respect of occupational diseases'. The effect of the Court a quo's judgment had been that the amendment had operated retrospectively. On appeal,

Held, that s 89 of the Act had provided in explicit terms that a workman was only entitled to D compensation if he or she was suffering from a scheduled disease. Consequently, a person who was not a workman, or no longer a workman, when he or she had first suffered from a scheduled disease, or a person who had ceased to be a workman by reason of disablement caused by a non-scheduled disease, would not be entitled to compensation. (At 423B/C–C/D.)

Held, further, that up to the time that the respondent had ceased to be a workman in September 1992, occupational asthma had not been a scheduled disease and when the E Minister had, with effect from 1 January 1993, amended the Second Schedule by adding occupational asthma to it, the respondent had ceased to be a workman. (At 423C/D–D/E.)

Held, further, that prima facie the respondent had failed to satisfy all requirements of s 89 of F the Act entitling her to compensation and could only be successful if the amendment to the Second Schedule by the addition of occupational asthma had been retrospective. (At 423D/E–E.)

Held, further, that there was nothing in the express provisions of the Act or the Government Notice making the amendment brought about by the latter retrospective, notwithstanding the fact that the Minister had the power in terms of s 94(1) of the Act, on the recommendation of G the Commissioner, to make it so. Nor were there any compelling indications from which retrospectivity could be implied. (At 424H–I.)

Held, further, that the fact that, far from exercising his powers in that regard (ie making the amendment retrospective), the Minister had done the opposite and had stipulated instead that the amendment would take effect only from a future date fortified the conclusion that the H addition of occupational asthma to the Second Schedule had been neither recommended, nor intended, to be retrospective. (At 424I–J.)

Held, further, that another consequence of retrospectivity would be to render nugatory (because of the coming into effect of the provisions of s 7 of the Act) any common-law rights a workman might otherwise have had against his employer in respect of any disablement arising from occupational asthma and was a further reason not to infer retrospectivity too readily. (At I 425D/E–E/F.)

Held, accordingly, that the amendment brought about by the Government Notice was not retrospective in effect: when it came into operation on 1 January 1993, and occupational asthma became a scheduled disease, the respondent had ceased to be a workman. The underlying requirement for a valid claim inherent in s 89 of the Act, that she be a workman J and

1997 (4) SA p420

simultaneously suffer from a scheduled disease (occupational asthma), had been lacking. It A followed that she was not entitled to compensation under the Act. (At 426I/J–427A/B.) Appeal upheld.

The decision in the Cape Provincial Division in Jooste v Compensation Commissioner 1997 (1) SA 83 reversed.

Cases Considered

Annotations: B

Reported cases

Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A): dictum at 811A–H applied

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

Jooste v Compensation Commissioner 1997 (1) SA 83 (C): reversed on appeal

Lek v Estate Agents Board 1978 (3) SA 160 (C): considered

Looyen v Simmer & Jack Mines Ltd and Another 1952 (4) SA 547 (A): dictum at 554C applied

National Iranian Tanker Co v MV Pericles GC 1995 (1) SA 475 (A): considered D

Protea International (Pty) Ltd v Peat Marwick Mitchell & Co 1990 (2) SA 566 (A): considered

Van Lear v Van Lear 1979 (3) SA 1162 (W): dictum at 1164E applied

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

Statutes Considered

Statutes

The Workmen's Compensation Act 30 of 1941, ss 2, 3(1)(c), 7, 25(2)(a), (7)(b), 50, 54, 89, 94: see Juta's Statutes of E South Africa 1996 vol 4 at 2-7–2-9, 2-14, 2-21, 2-22, 2-28, 2-29

Notices

Government Notice 3311 of 11 December 1992.

Case Information

Appeal from a decision in the Cape Provincial Division (Friedman JP and Van Zyl J). The facts appear from the judgment F of Smalberger JA.

J W Olivier...