The employee‘s right to a safe working environment or a safe place of work is
recognised in common law, the Constitution of the Republic of South Africa 1996, the
Labour Relations Act, Act 66 of 1995, The Basic Conditions of Employment Act, Act
75 of 1997 and the Occupational Health and Safety Act, Act 85 of 1993.
The Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993
(COIDA) prescribes the procedure for compensating employees for injury on duty.
Regionally the standards for working condition have been formalized by the South
African Development Community. A safe workplace has been the cornerstone of
development in working conditions and labour law, throughout the last century in
generally and specifically the last decade.
COIDA provides for a system of ―no-fault compensation‖ This eliminated the
onerous common-law burden previously resting on employees to prove negligence
on the part of the employer in order to be able to claim compensation for injury on
duty.
However Section 35 of COIDA creates problems of it‘s own. It provides that no
employee is allowed to claim damages from his/her employer for any injuries
sustained on duty. Section 35(1) reads as follows:
―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 problem section 35 creates is that because of the protection it gives employers
against claims, it derogates from employer‘s duty to provide a safe working
environment. Even if an employee is injured because of the employer‘s negligence
or failure to create a safe and secure working environment, no action may be taken
against that employer. In Twalo v Minister of Safety & Security & another (2009) 30 ILJ 1578 (Ck) the court
held that an injury caused by an intentional act cannot be deemed an accident as
defined in COIDA and that it would therefore not be covered by COIDA. In DN v
MEC for Health, Free State 2014 (3) SA 49 (FB), once again, an accident in the
ordinary and grammatical sense was held not to be an injury on duty if that injury had
been caused by an intentional and deliberate act. These judgements followed an
argument in Minister of Justice v Khoza 1966 (1) SA 410 (A). On this basis it is
therefore possible to claim damages from the employer for an injury on duty that was
not caused by an accident, but was caused by an intentional act performed by a
criminal. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2015
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/16325 |
| Date | January 2014 |
| Creators | Smit, Marius Lafras |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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