IN THE HIGH COURT OF SOUTH AFRICA 
		(WITWATERSRAND LOCAL DIVISION)

Case no: 06/22312

In the matter between:

And

JUDGMENT

JOFFE J:

2. Arising from these alleged occupational diseases the plaintiff instituted action against the defendant. He claims damages in the sum of R 2,612,747-10. The claim is calculated as follows;

3. The plaintiffs claim is grounded in delict. The basis of the claim is that the defendant owed the plaintiff a duty of care to provide a safe and healthy environment within which to operate. This duty arose by virtue of both the common law and statute. It is the plaintiff's allegation that his exposure to harmful dust, in particular silica dust, in the work place caused or contributed materially to the fact that he contracted pulmonary tuberculosis. Furthermore, it is the plaintiff's case that, the exposure to silica dust during his employment, caused the plaintiff to develop silicosis and that exposure to the harmful dust and gasses caused or contributed materially to the fact that he developed obstructive airways disease.
4. In paragraph 10 of the particulars of claim it is alleged that;

4.2.        defendant was and is the "owner" of such mines;

6. Counsel where at idem that the legislative history of the relevant interventionist legislation which provided, and still today provides, compensation for workmen in South Africa, is of fundamental importance in the determination of the exception. It is to this history that reference will now be made.

10. In summary the 1914 Workmen's Compensation Act provided compensation for a workman payable by the employer in the circumstances stipulated in the Act. At the same time the Act preserved the workman's right to claim delictual damages. A miner would qualify in terms of the Act as a workman even if his entitlement to compensation arose out of the activities referred to in section 1 (2) of the Act. Alongside this statute, the miner specific legislation provided for compensation.

13.    Accordingly as at 1917;
13.1 provision had been made for the relief and assistance of, and the grant of benefits to persons employed in the mines who suffered from miners' phthisis or other lung diseases contracted during underground work.
13.2. provision had been made for the compensation of workmen for injuries suffered in the course of their employment and for death resulting from such injuries. This compensation was provided by the employer.
13.3. the Phthisis Acts, referred to supra, did not exclude the right of an employee to claim damages from his or her employer in term of the common law.
13.4. none of the Workmen' Compensation Acts referred to supra, excluded the right of an employee to claim damages from his or her employer in terms of the common law. An injured workmen had an election as to whether to institute proceedings to recover compensation at common law or to institute proceedings for compensation under the 1914 Act. Where a claim for compensation was made under the Act, a workman was however barred from instituting proceedings at common law against the employer in respect of the same accident.
13.5      certain industrial diseases qualified for compensation in terms of the Workmen's Compensation Act.

15. Act 59 of 1934 achieved this in the following manner: 
15.1       Section 2(1) provided:

"(1) No action at common law shall lie by a workman or any dependant of a workman against such workman's employer or the principal as defined in section forty-five to recover any damages for or in respect of any injury resulting in the disablement or death of such workman caused by any accident happening after the commencement of this Act; and any claim for such damages shall be determined under and in accordance with this Act
(2)    No liability for compensation shall arise save under and in accordance with the provisions of this Act in respect of any such injury."

15.4      Chapter V of the 1934 Act dealt with industrial diseases and provided for compensation in respect of "scheduled diseases" Section 60 of the Act provided inter alia, as follows;

"Where it shall appear from a certificate granted by a medical practitioner that a workman is suffering from a scheduled disease causing disablement or that the death of a workman was caused by any such disease, and that such disease was due to the nature of the workman's employment as set out in the Second Schedule to this Act at any time within the twelve months previous to the date of such disablement or death, the workman or, if he is deceased, his dependants, shall be entitled to claim compensation under this Act as if such disablement or death had been caused by an accident, and the provisions of this Act shall, subject to the provisions of this Chapter, mutatis mutandis, appiy unless at the time of entering into the employment, the workman wilfully and falsely represented to the employer in reply to a specific question that he had not previously suffered from the disease: Provided..."
The compensation provided for in section 60 was payable in terms of section 61(1) by the employer who last employed the workman during the period of twelve months referred to in section 60 unless that employer proved that the disease was not contracted while the workman was in such employment".

16. In regard to the issue presently being determined, it is important to emphasise that the effect of the provisions of section 60, read together with section 4 of the 1934 Act, was to provide the employer with an indemnity against delictual claims arising not only from injuries caused by accidents but also from claims arising from defined industrial diseases contracted by a workman, it should however be noted that whilst defined industrial diseases where included in the 1934 Act, the regime in respect of phthisis as provided for in the enactments referred to above remained unaffected.

18. Act 30 of 1941 achieved this in the following manner:

18.4. Section 43 provided for the possibility of an increase in the compensation  payable  if the Workmen's Compensation Commissioner found that the accident was due to the negligence of the employer.

18.7      Section 7 provided as follows:
"Substitution of compensation for other legal remedy from and after the fixed date -
(a) no action at law shall lie by a workman or any dependant of a workman against such workman's employer to recover any damages in respect of a injury due to accident resulting in the disablement or the death of such workman; and
(b) no liability for compensation on the part of such employer shall arise under the provision of this Act in respect of any such disablement or death."

19.    On a reading of the Second Schedule prior to the repeal of the 1941 Act, silicosis was expressly excluded from the operation of the Act, if it arose from an occupation in a "dusty atmosphere" as set out in the schedule. Such silicosis continued to be provided for in particular legislation.

21. Act 47 of 1946 proceeded to provide:

21.1. for the establishment of two funds namely the "Scheduled Mines Compensation Fund" (the "A" Fund) and the "Registered Mines Compensation and Outstanding Liabilities Fund" (the "B" Fund) (section 30)
21.2. for the funding of these funds by way of the payment of levies "from all owners of scheduled mines and from all owners of registered mines (section 33)
21.3. for the award of benefits from the funds by the Silicosis Board (sections 2 and 94) to miners suffering from silicosis and tuberculosis and tuberculosis combined with silicosis (sections 59 to 64)
21.4. section 84 of the Act provided for the reduction pensions of persons who were also entitled to pensions under the Workmen's Compensation Act 30 of 1941

22. The Silicosis Act of 1946 operated in tandem with the Workmen's Compensation Act of 1941. As is apparent from section 84 the two Acts speak to each other. What is noteworthy of the communication in section 84 is that it refers to a monthly allowance or to a provision in terms of the Act being taken into account and reduced where the miner or a dependant of a deceased miner is also entitled to a monthly allowance or a pension under the Workmen's Compensation Act of 1941.
23. The Silicosis Act of 1946 was in turn repealed by the Pneumoconiosis Act, 57 of 1956. It is to this Act that reference was made in the amended second schedule to Act 30 of 1941 (see paragraph 18.6 supra).
24. The Pneumoconiosis Act of 1956:

24.3 provided in section 54 for the declaration of scheduled and registered mines as controlled mines
24.4 prohibited in section 16 work in a dusty atmosphere at a controlled mine without a prior medical examination and the issuing of the certificate of fitness
24.5 established in section 55 a Controlled Mines Compensation Fund and the payment in section 79 and 83 to 87 of benefits to sufferers from pneumoconiosis and tuberculosis and to the dependents of deceased miners.

27. The 1962 Act dealt inter alia with the following matters: restrictions on employment in dusty atmosphere (sections 18 and 19), the examination of persons and the granting of certificates of fitness (sections 20 to 42), declaration of mines as "controlled mines" (sections 43 and 44), the estimation of the pneumoconiosis risk of controlled mines and the notification thereof (sections 66 to 68) and payment of benefits to miners and other labourers and their dependents (section 71 to 80).
28. Section 94 (2) of the 1962 Act provided for a reduction of a monthly allowance or pension where the recipient was also in receipt of a monthly allowance or pension in terms of the Workmen's Compensation Act of 1941.

(a) pneumoconiosis;
(b) the joint condition of pneumoconiosis and tuberculosis;
(c) tuberculosis which, in the opinion of the certification committee, was contracted while the person concerned was performing risk work, or with which the person concerned was in the opinion of the certification committee already affected at any time within the twelve months immediately following the date on which that person performed such work for the last time;
(d) permanent obstruction of the airways which, in the opinion of the certification committee, is attributable to the inhalation of dust in the course of the performance of risk work;
(e) any other permanent disease of the cardiorespiratory organs which in the opinion of the certification committee is attributable to the performance of risk work;
(f) any other disease which in the opinion of the certification committee is attributable to the performance of risk work at a mine or works and which the Minister has,  subject to  the provisions  of

32.4	Chapter iv - certification of compensatable disease.
32.5		Chapter v -   the establishment of the commission, an advisory committee and the establishment of the Mines and Works Compensation Fund.

32.7	Chapter vii - the provision of compensation to Bantu Persons.
32.8	Chapter viii- General.

(2) Notwithstanding anything in any other law contained, no person who has a claim to benefits under this Act in respect of a compensatable disease as defined in this Act, on the ground that such person is or was employed at a controlled mine or a controlled works, shall be entitled, in respect of such disease, to benefits under the Workmen's Compensation Act, 1941 (Act No. 30 of 1941), or any other law."

35. Most if not all of the legislation thus far referred to contained offensive racial characterisation and differentiation. Reference has not been made thereto herein as it does not take the determination of the issue at hand further. Suffice it to say that such characterisation and differentiation belongs to the past and cannot be adequately deprecated.

37.1 has in section 1 a wide definition of "employee" and "employer". This is in keeping with the intention of the Act as is apparent from its long title.

37.3 the compensation fund is funded inter alia by assessments by the Director-General calculated on a percentage of the annual earnings of employees and is payable by the employers (see sections 15 (2), 80 to 83 and 86).
37.4 creates an entitlement in section 22 to the benefits provided for and prescribed in the Act for an employee or his dependents if such employee meets with an accident resulting in his death or disablement.

37.6 Provision is made in section 56 (1) (d) for increased compensation if an employee meets with an accident or contracts an occupational disease due to the negligence inter alia of his employer.

38. It is correctly submitted by the excipient's counsel that the clear intention of COIDA is to cast the net of employees entitled to compensation in terms of GOIDA as widely as possible, so that only those employees specifically excluded will not fall within the scheme for payment of compensation.
39.    There are clear indications in COIDA that the net was cast wide enough to include employees employed at mines. 
39.1       Section 25, in relevant part, provides as follows:

"Accidents   during   training  for  or performance  of emergency services

If an employee meets with an accident -

(a)   	
(b) while he is engaged in or about his employer's mine, works or premises in organised first aid, ambulance or rescue work, fire-fighting or any other emergency service;
(c) while he is, with the consent of his employer, engaged in any organised first aid, ambulance or rescue work, fire-fighting or other emergency service on any mine, works or premises other than his employer's,
such accident shall for the purposes of this Act, be deemed to have arisen out of and in the course of his employment"

39.3 Section 56(1 )(d), in relevant part, provides as follows; 
"Increased compensation due to negligence of employer If an employee meets with an accident or contracts an occupational disease which is due to the negligence
(a)     of his employer;
........

the employee may, notwithstanding any provisions to the contrary contained in this Act, apply to the commissioner for   increased   compensation   in   addition   to   the compensation normally payable in terms of this Act"

39.5 Section 81, in relevant part, provides as follows: 
"Employer to keep record
(1) An employer shall keep a register or other record of the earnings and other prescribed particulars of all the employees, and shall at all reasonable times produce such register or record or a microfilm or other microform reproduction thereof on demand to an authorised person referred to in section 7 for inspection.
. . . . . . . . . 

39.6 The Mine Health and Safety Act is a statute specifically promulgated to provide for the protection of the health and safety of employees and other persons at mines.

"When the Legislature has given attention to a separate subject and made provision for it the presumption is that a subsequent general enactment is not intended to interfere with the special provision, unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms. This case is a peculiarly strong one for the application of the general maxim per Lord Hobhouse delivering the judgment of the Privy Council in Barker v A Edger ([1898} AC at 754). 'Where general words in a later Act are capable of reasoning and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly. .. altered. .. merely by force of such general words, without any indication of a particular intention to do so. "In such cases it is presumed to have only general cases in view and not particular cases which have been already otherwise provided for by the special Act. Having already given its attention to the particular subject and provided for it, the Legislature is reasonably presumed not to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language . . .(Maxwell Interpretation of Statutes 7th edat 153)."

46. The maxim does not have application where the legislative intention is manifestly clear and unambiguous. See S v Mseluku 1968 (2) SA 704 (N).

49. In the circumstances the maxim aforementioned is not applicable. Section 35(1) is clear and unequivocal and accordingly the maxin is of no application.

53. Section 9 of the Constitution provides as follows:
"1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
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 orientation, age, disability, religion, conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair."

54. The equality jurisprudence of the Constitutional Court has been conveniently summarised in Harksen v Lane 1998 (1) SA 300 (CC) para 54:
"... it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on section 8 of the interim Constitution. They are:

(b) Does    the    differentiation    amount    to    unfair discrimination? This requires a two stage analysis: 

(b)(ii) if the differentiation amounts to "discrimination", does it amount to "unfair discrimination"? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his situation.
If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2). 
(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provisions can be justified under the limitations clause (section 33 of the interim Constitution)."

56. The difficulty with the argument advanced on behalf of the plaintiff is in the identification of a class of persons against whom the state has unjustly discriminated and a class of persons against whom they have not. Clearly there is no class of persons against whom there has been unfair discrimination. If there is discrimination it relates to the benefits the various claimants can claim. The scale of benefits has not been challenged. Furthermore a comparison of benefits would be a futile exercise as they cannot be weighed against each other.

"The Legislature clearly considered that it is appropriate to grant the employees certain benefits not available at common-law. The scheme is financed through contributions from employers. No doubt for these reasons the employee's common-law right against an employer is excluded. Section 35 (1) of the Compensation Act is therefore logically and rationally connected to the legitimate purpose of the Compensation Act, namely a comprehensive regulation of compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment."
59. Regard being had to aii of the aforegoing the interpretation as required by section 39 (2) of the Constitution does not avail the plaintiff.
60. At the commencement of the hearing of the matter the parties arrived at an agreement. They agreed as follows:
"1. At the commencement of argument the court raised issues relating to the plaintiff's argument foreshadowing a direct constitutional attack on s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA").
2. In order to address those issues, the parties have agreed that the plaintiff will not pursue the direct constitutional challenge at this stage.
3. The parties have further agreed that, if the exception is upheld, either in this court or an appellate court, the plaintiff shall be given leave to amend its particulars of claim to introduce the direct constitutional challenge to s 35 of COIDA."
61. It is clear that the matter is of such a nature that the successful party should be entitled to the costs of two counsel.
62. In the result the following order is made:

1.	The exception is upheld with costs, such costs to include the costs consequent upon the employment of two counsel.
2.	The plaintiff is given leave to amend his particulars of claim within 14 days from date of delivery of this judgment.