IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between:
SUSARA ELIZABETH MAGDALENA JOO r:-
CRIfFlERVAtf DIV: IX
to. ziz
PR1VAATSAK/PRIVATE-BAG X32
1998-08
3TE RRAAMFONTEIN HO17
REGISTRAR OS-THC CQgffifflilOHAI. COURT
Applicant
and
SCORE SUPERMARKET TRADING <PTY) LIMITED Respondent
NOTICE OF MOTION
TO : THE REGISTRAR OF THE CONSTITUTIONAL COURT
1. TAKE NOTICE t h a t t h e E a s t e r n Cape D i v i s i o n o f t h e H i g h Court of South Africa has referred the v a l i d i t y of Section 35 of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993, to the Constitutional Court.
2. Section 35(1) of Act 130 of 1993, i s as follows:
No action shall l i e by an employee or any Defendant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no l i a b i l i t y for compensation on the part of such employer shall a r i s e , save under the provisions of this Act in respect of such disablement or death.
3. The Applicant contends that Section 35 of the Compensation for Occupational and Injuries and Deceases Act, no. 130 of 1993, are inconsistent with the provisions of the Constitution of the Republic of South Africa, Act no. 108 of •1996 in that its provisions offend the provisions of Sections 9, 34 and 23 of the Constitution.
4. The Order of the High Court of South Africa (Eastern Cape Division) directing the referral of the issue, is annexed together with a copy of the Judgment.
DATED at GRAHAMSTOWN this the 3rd day of AUGUST 1998
s<
fot' NETTELTONS
ATTORNEYS FOR APPLICANT 11BA High Street
P O Box 449
Tel.: (046) 62-27149 Fax: (046) 62-27197 GRAHAMSTOWN
(Ref.: Mr De la Harpe) Locally represented by SMIT & LOWNDES
2nd Floor Nedbank Park
13 Girton Road PARKTONW
P O Box 8 JOHANNESBURG
Tel. : (Oil) 484-1777 Fax: (Oil) 484-2922
(Ref.: Mr A Lowndes)
TO : THE REGISTRAR OF THE CONSTITUTIONAL COURT
AND TO : THE REGISTRAR
{EASTERN CAPE DIVISION) HIGH COURT
HIGH STREET GRAHAMSTOWN
AND TO : NEVILLE BORMAN & BOTHA ATTORNEYS FOR RESPONDENT MILBARN CENTRE
off High Street High Street P O Box 3 8
Tel.: (046) 62-27200 Fax: (046) 62-62-27885 GRAHAMSTOWN
(Ref.: Mr Philipson)
BOTHA
HOT
IN THE HIGH COURT OF SOUTH AFRICA ;
(EASTERN CAPE DIVISION) CASE NO: 524/97
In the matter between:
SUSARA ELIZABETH MAGDALENA JOOSTE Plaintiff
and
SCORE SUPERMARKET TRADING (PAY) LTD Defendant
JUDGMENT ZIETSMAN. J.P.:
The plaintiff was at all relevant times employed by the defendant in the defendant's supermarket. On 27 December 1995 the plaintiff, during normal working hours and while acting within the course and scope of her employment in the supermarket, slipped on the floor and fell as a result of which she sustained severe bodily injuries. The plaintiff has issued summons against the defendant in
which she alleges that her fall was due to negligence on the part of the defendant or its servants in that they had inter alia left the floor in a wet and slippery condition and had failed to warn employees and customers of this fact. The plaintiff claims damages in the sum of R207 000,00.
In answer to the plaintiff's claim the defendant has filed a special plea alleging that the plaintiff is precluded from instituting her claim against the defendant by reason
2.
of the provisions of section 35 (1) of the Compensation for Occupational Injuries and Diseases Act No.130 of 1993 (hereinafter referred to as the Act). In a replication to the special plea the plaintiff pleads that the said section 35 is inconsistent with the provisions of sections 9 (1), 9(3), 23(1) and 34 of the Constitution of the Republic of South Africa Act, Act No.108 of 1996 (hereinafter referred to as the Constitution) and is therefore unconstitutional and invalid and cannot be relied upon by the defendant. (The plaintiff initially based its replication on the provisions of the Interim Constitution Act, No.200 of 1993, but it is now common cause that it is Act 10S of 1996 that applies and an appropriate amendment to the replication was duly granted).
At this stage it is only the defendant's special plea that needs to be considered, the question being whether or not section 35 of the Act is invalid as being in conflict with the Constitution.
One of the main purposes of the Act is to provide for the payment of compensation to employees or their dependants where employees are injured or killed while acting in the course of their employment. A compensation fund is established to which employers are obliged to contribute (sections 83 and 86 of the Act) and it is from this fund that compensation is paid. The fund is under the control of a
compensation commissioner appointed by the Minister of Manpower. Section 22 of the Act provides that, save where the Act otherwise provides, if an employee meets with an accident resulting in his disablement or death such employee or his dependants shall, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act. The employee is entitled to such compensation even if the injury suffered is not caused by any negligence or fault attributable to the employer, and even if it is the employee's own negligence that has caused the accident. It is only if the accident is attributable to serious and wilful misconduct (as defined) on the part of the employee that compensation will not necessarily be paid. The commissioner considers and adjudicates on the claim for compensation (sections 40, 45 and 46 of the Act) and he can , if he so wishes, carry out a formal investigation and subpoena witnesses to give evidence before him. The Act prescribes a formula to be used in assessing the compensation to be paid but no provision is made for the payment of general damages for e.g. pain and suffering and loss of the amenities of life. If the accident is due to the negligence of inter alia the employer the employee can apply for compensation additional to the compensation normally payable in terms of the Act in which case he may be awarded such additional compensation as the commissioner deems equitable, but his compensation is limited to the amount of his pecuniary loss (section 56 (4) of the Act). The Act makes further provision for the lodging of an objection to a commissioner's decision which objection is then considered by the commissioner
4.
assisted by two assessors, one representing employees and one representing employers (section 91 of the Act). Provision is also made for an appeal to a provincial or local division of the High Court on certain points which include the question whether the amount of compensation awarded to the employee is so excessive or inadequate that it could not reasonably have been made.
Sections 43 and 44 of the Act provide that a claim for compensation in terms of the Act must be lodged within twelve months of the date of the accident. The right to benefits in terms of the Act lapses if the accident is not brought to the attention of the commissioner or the employer within twelve months of the date of the accident.
Section 35 (1) of the Act provides as follows:
"35. (1) No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no liability for compensation on the part of such
employer shall arise save under the provisions of this Act in respect of such disablement or death".
The Act thus contains provisions which are beneficial to an employee as well as provisions which place limitations upon his rights to be compensated for his injuries. Of benefit to the employee is the fact that he will receive compensation for his injuries even where he is unable to prove that his injuries have been caused
by the negligence or fault of some other person. He is also likely to benefit from the fact that his claim can be dealt with inexpensively and speedily. Where he can prove that the accident was caused by the fault or negligence of his employer he can claim additional, but still limited, compensation. If he is not satisfied with a decision made by the commissioner he can have the matter reconsidered by the commissioner assisted by two assessors. He also has a limited right of appeal to the High Court. Provisions which are not of benefit to the employee are the provisions which limit the time within which he must institute his claim and the provisions which limit the amount of compensation payable to him.
Mr. Paterson. for the plaintiff, does not submit that the section in the Act limiting the time within which an employee must submit his claim is unconstitutional. His argument is simply that section 35 of the Act, which provides that no action can be brought by an employee against his employer for damages in respect of an occupational injury or disease, is in conflict with the Constitution and is therefore invalid.
The Act, it should be noted, does not preclude claims by employees against persons other than their employers (section 36 of the Act). However no action can be brought against the employer even if negligence on the part of the employer or on the part of the employer's servant caused the employee's accident and
resulting injuries. Compare South African Railways and Harbours v. South African Stevedores Services Co. Ltd 1983 (1) S.A. 1066 (A) at 1082-3.
Mr. Paterson submits that the Act makes serious inroads into the common law rights of an employee who has been injured by the negligence of his employer in that the employee is precluded from instituting action against his employer and is precluded from recovering the full extent of the damages suffered by him. In particular he cannot, in terms of the Act, recover general damages for pain and suffering and loss of the amenities of life. See e.g. Mphosi v. Central Board for Co-operative Insurance Ltd. 1974 (4) S.A. 633 (A). The equivalent English Statute of 1906 gave a workman the option to claim compensation in terms of the relevant Act or to proceed with a common law action against his employer if the cause of his injury was the negligence of the employer or of some person for whose negligence the employer was responsible. See the South African Railways and Harbour's case (supra) at page 1082 C. Mr. Paterson's submission is that section 35 of our Act, which denies this option to the employee, is in conflict with our Constitution. Mr. Paterson bases his argument on sections 9 (1) and 9 (3) of our Constitution. Sections 9 (1) and 9 (3) provide as follows:
"9{1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
7
orientation, age, disability, religion, conscience, belief, culture, language and birth."
Section 9 (3) does not entirely prohibit discrimination by the State. What it prohibits is unfair discrimination. Where there is discrimination on one of the grounds specified in the section i.e. on the ground of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth there is a presumption that the discrimination is unfair discrimination. In respect of any other ground of discrimination no such presumption operates. See Prinsloo v. van der Linde and Another 1997 (3) S.A. 1012 (CC). In the case of Cabinet for the Territory of South West Africa v. Chikane and Another 1989 (1) S.A. 349 (A) the Court, at page 363, quoted with approval the approach of the Courts in India when dealing with a similar provision in the Indian Constitution. According to this approach for discriminatory legislation to be valid two conditions have to be fulfilled namely (1) the classification (or discrimination) must be founded on an intelligible differentia, and (2) the differentia must have a rational relation to the object sought to be achieved by the statute. See also the case of Mfolo and Others v. Minister nf Education Bophuthatswana 1994 (1) BCLR 136 (B).
In the case of Prinsloo v. van der Linde and Another (supra) it was again stated that for differentiation not to amount to unfair discrimination there has to be a
8
rational relationship between the differentiation and the purpose of the legislation.
It was further stated that even if this requirement is satisfied the legislation can still constitute unfair discrimination. However where the purpose of the legislation is legitimate, and the differentiation or discrimination has a rational connection to that purpose, and does not impair the fundamental dignity of the persons discriminated against, the discrimination will not be held to be unfair discrimination. See Harksen v. Lane N O and Others 1998 (1) S.A.300 (CO;
Larbi-Odam and Others v. Member of the Executive Council for Education (North- West Province) and Another 1998 (1) S.A. 745 (CC) at 754-6.
In the present case section 35 of the Act is discriminatory in that it precludes an employee who has sustained "any occupational injury or disease" (as defined in the Act) from instituting a common law action for damages against his employer where his employer would otherwise be liable for the damages suffered by him.
The compensation which the employee can recover in terms of the Act is limited.
The question to be determined is whether this discrimination against employees constitutes ''unfair discrimination" in the sense in which that term has been interpreted.
The stated object of the act is "to provide for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the
course of their employment, or for death resulting from such injuries or diseases".
The purpose is to benefit employees by ensuring that they, or their dependants, are compensated for diseases contracted in the course of their employment or for injuries sustained as a result of their being involved in accidents during the course of their employment. The stated purpose of the Act is to benefit employees; the purpose is not to benefit employers. The major benefit to employees is that they are guaranteed compensation in terms of the Act even where the cause of the disease or injury cannot be attributed to any other person. The question however is whether section 35 of the Act, which denies to employees the right to claim compensation from their employers, has a rational connection to the purpose of the Act. If not it constitutes unfair discrimination against employees.
The effect of section 35 of the Act is that it benefits employers. It does not benefit employees; it in fact restricts their rights. This is not in keeping with the stated purpose of the Act and has no rational connection to that purpose. For this reason the discrimination created by section 35 is, in my opinion, an unfair discrimination. This brings the section into conflict with section 9 (1) of the Constitution which provides that everyone has a right to equal protection and benefit of the law.
I am further of the view that the limitation placed upon the rights of employees
10
by section 35 is not validated by the provisions of section 36 of the Constitution.
This section was not relied upon by counsel for the defendant.
My conclusion is that the defendant's special plea is to be dismissed, with costs.
This order which I make is based upon my finding and declaration that section 35 of Act 130 of 1993 is inconsistent with the Constitution of the Republic of South Africa Act No. 108 of 1996 and is therefore unconstitutional and invalid. In terms of section 172 of the Constitution the matter is referred to the Constitutional Court for a final decision on the validity of the said section 35 of Act 130 of 1993.
/4
N.W. ZfJETSMAN JUDGE PRESIDENT.
CASE NO: 524/97
IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION)
GRAHAMSTOWN 30th JULY 1998
BEFORE THE HONOURABLE MR. JUSTICE 2IETSMAN (JUDGE PRESIDENT) IN THE MATTER BETWEEN:
SUSARA ELIZABETH MAGDALENA JOOSTE PLAINTIFF AND
SCORE SUPERMARKET TRADING (PTY) LIMITED DEFENDANT
Having on the 4th May 1998 heard Counsel for the Plaintiff and having read the documents filed of record
THE COURT RESERVED JUDGMENT;
THEREAFTER ON THIS DAY;
IT IS ORDERED:
1. THAT the Defendant's special plea be and is hereby dismissed with costs.
2. THAT in terms of Section 172 of the Constitution the matter be and is hereby referred to the Constitutional Court for a final decision on the validity of the said Section 35 of Act 130 of 1993.
BY ORDER OF COURT
J.V.VANAARDT REGISTRAR NETTELTONS
