Abstract
In the Mankayai v Anglogold Ashant Ltd 2011 32 ILJ 545 (CC) the Constitutional Court was called upon to give meaning and content by interpreting the provision of section 35 of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and section 100(2) of the Occupational Diseases in Mines and Works Act 78 of 1973. The Court had to determine if the employee common-law right of recourse against his employer in cases where he sustained occupational diseases is extinguished by virtue of section 35(1) of COIDA. The purpose of this case note is twofold: firstly, it analyses the decision of the Constitutional Court in the Mankayi case; secondly, the case note looks at the significance of the Mankayi case for the system of occupational health and safety in South Africa. In conclusion, the contribution explores the need for the introduction of a unified system which will address issues of occupational health and safety in a coordinated and unified manner.
Highlights
JUSTICE DELAYED IS JUSTICE DENIED: PROTECTING MINERS AGAINST OCCUPATIONAL INJURIES AND DISEASES: COMMENTS ON MANKAYI v ANGLOGOLD ASHANTI LTD 2011 32 ILJ 545 (CC)
The Constitutional Court had to determine whether section 35(1) of COIDA includes employees covered by ODIMWA, notwithstanding that they are barred from claiming benefits under COIDA; and the abrogation of the common-law right of action envisaged by section 35(1) of COIDA
In the judgment delivered by Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J, the Constitutional Court overturned the previous judgment of the Labour Court and the Supreme Court of Appeal where it was held that section 35 of COIDA extinguishes the common-law right of mineworkers to recover damages for occupational injury or disease from negligent mine owners under COIDA
Summary
"Death is the constant shadow that haunts the ex-mine workers as they struggle for compensation." Linked to this are the poor working conditions that South African miners find themselves in. This is evident from the statistics of workers who die in accidents underground, while thousands more die of work-related diseases such as silicosis, which is a debilitating disease that causes scarring and shrinking of the lungs, destroying the breathing ability of people who suffer from it. Excessive exposure to dust and asbestos results in asbestosis and silicosis, which remain major causes of premature retirement and death among South African miners.. Excessive exposure to dust and asbestos results in asbestosis and silicosis, which remain major causes of premature retirement and death among South African miners.5 Against this background, safety and health at work lie at the heart of the system of social security. A number of scholars have addressed the impact of silicosis and asbestosis on the lives of mineworkers in South Africa.6 The purpose of this case note is to analyse critically the judgment of Mankayi v AngloGold Ashanti, and to consider its implications for the system of occupational health and safety in South Africa. It is important to provide an overview of the Mankayi case for the discussion that follows This will be done by analysing important legislation which plays a key role in occupational health and safety. As a point of departure, it will be argued that the decision of the Constitutional Court has far-reaching implications for the future of occupational health and safety, and in particular for the employer's liability for occupational injuries and diseases in mines
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