In particular the Applicant complains that s.35 of the Act violates her right to equality [s.9], her right to fair labour practices [s.23(l)], and her right of access to the Courts [s.34]. The Learned Judge further held that s.35 is not validated by the provisions of s.36 of the Constitution. In terms of s.172 of the Constitution, the Court below referred the matter to this Court.
34;The final burden is lifted from the shoulders of the employee, and placed upon the employer, who is expected to add it to his costs, and so transfer it to the consumer. He is liable for injuries caused by pure unavoidable accident, or by the negligence of the workman himself. In sum, neither the history of legislative intervention in this field, nor the justifications for fault based liability provide a strong foundation for the challenges now brought to s.35(l) of the Act.
1907, permitted an employee to choose between claiming compensation in terms of the Act or pursuing common law remedies. By way of the Workmen's Compensation Act, 59 of 1934, employers were required to insure against their liability to compensate workers, and the restriction of claims by way of common law damages. In order to assess the distribution of benefits as between employer and employee, it is necessary to refer to some of the detailed provisions of.
One feature of this regime is that an employee in the position of the Applicant is barred from claiming compensation at common law.
EQUALITY ANALYSIS
It is submitted that the equality jurisprudence of this Court in respect of s.8 of the Interim Constitution is of application to s.9 of the Constitution. In the present matter, the first issue, under the equality challenge, is 5 whether the bar imposed by s.35(l) of the Act, understood in the. The mere requirement that an employee in respect of occupational injury 20 should be required to seek compensation by way of administrative.
Nothing indicates that proper adherence to the requirements of the Act would not achieve a rational determina- tion of the compensation due in a fair fashion and that the law would not be administered in an impartial way. The procedures contemplated in the Act are certainly distinctive and are intended to avoid lengthy and costly recourse to courts of law, but that does not mean that in substance the procedure set out in the Act do not yield a fair way of treating a claim for compensation. The bar placed upon an employee against pursuing a delictual action in the ordinary courts may have the result that a particular employee will obtain less compensation under the Act than such employee would obtain by way of pursuing the delictual action.
The limited disadvantage that accrues to an employee when compared 20 to an ordinary civil litigant does not provide a basis upon which s.35(l). In sum, the scheme set out in the Act, provides the employee with considerable advantages in securing compensation without compromising any significant aspect of fairness. The bar in s.35 of the Act is a legitimate means of securing the stated purpose of the Act.
If the bar in s.35 did not form part of the scheme, central aspects of the 20 scheme of benefits would break down. In any event, it is submitted that the test of rationality is not whether there may be a different scheme which would permit of recourse to common law remedies, but rather whether the bar in s.35 constitutes a rational way of bringing about a scheme of compensation. It is submitted that s.35 read within the context of the Act meets the test of rationality.
UNFAIR DISCRIMINATION
The next question that arises is that even if s.35 of the Act meets the scrutiny of rationality review, does it nevertheless constitute unfair
What must then be determined is whether the treatment given to employees under the Act and in s.35 in particular, may be said to
While employees may be unfairly discriminated against as a class, the impugned provision does not constitute such unfair discrimination. The challenged section makes no inroad upon any aspect of dignity, or any allied aspect of that fundamental right. Though the administrative scheme laid down in the Act provides compensation by procedures that are distinctive from an ordinary trial action, these.
Indeed, it may be 10 submitted that the scheme in this Act is intended to enhance the dignity. The present case is concerned with a scheme of compensation for employees which is distinctive for a particular class of persons, and all those within the class receive the same treatment. Applicant to be prevented from pursuing the action that she has 5 instituted, but, with other employees, to pursue a claim for compen-.
34;supplant a system under which he assumed the entire risk of injury in ordinary cases, and in others had a right to recover an amount more or less speculative upon proving facts of negligence that often were difficult to prove, and substitute a system under which in all ordinary cases of accidental injury, he is sure of a definite and easily ascertained compensation, not being obliged to assume the entire loss in any case, but in all cases assuming any loss beyond the prescribed scale." (at 204). Environmental Study Group, Inc 438 US 59, a statutory limit on the liability of nuclear energy companies in the case of a nuclear accident was found to be constitutional. Provisions similar to those challenged in these proceedings were upheld 20 as constitutionally valid in the Canadian decision of Reference re.
ACCESS TO COURTS
Understood in the light of these decisions, there is no infringement of the plaintiffs rights in terms of s.34 of the Constitution. Although this section is somewhat more widely framed than s.22 of the Interim Constitution, the scheme of the Act seeks in the first place to avoid. Indeed, the Act does indeed provide the means by which disputes may be determined, first before the Commissioner and assessors, and there- after by way of appeal to the High Court.
Accordingly, it is submitted that there is no foundation for the challenge 5 in terms of s.34 of the Constitution. There is no authority as to the meaning and scope of the rights in s.23(l) of the Constitution. A tangential consideration of the Constitution in relation to fair labour 10 practices is to be found in Concorde Plastics (Ptv) Limited v NUMSA &.
The right in s.23(l) of the Constitution would seem to be based on a 20 practice that arises within the context of a particular relationship of. The Applicant contends that it is not clear which organ of state should have been notified. It is plain that the Minister of Labour, as defined hi s.l of the Act, bears responsibility.
A consideration of the Act makes it tolerably plain that the Minister plays an important role in the administration of. The Applicant in the Court below did not rely upon any evidence in raising a constitutional challenge.
