As put forward in the previous chapter, legislation in general serves the community it rules and legislative measures are enacted in fulfilment of the needs of a specific community. As indicated in Chapter 2, workers' compensatory legislation in general was developed to fulfil a particular societal need, as was cited in the Australian case
76 Ibid 1 1 -1 2 & 19.
77 Chapter 3 paras 2.1; 2.2 & 2.3 supra.
78 Chapter 3 paras 2.1; 2.2 & 2.3 supra.
of Berowra Holdings Pty Ltd v Gordon79 that "all statutes give effect to some public policy." It will now be prudent to consider the statutory provisions pertaining to the purpose section included in a specific workers' compensation act and the interpretation the courts attach to it.
3.1. Purpose of COIDA
The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) came into operation on 1 March 1994 and repealed the 1941 Act in its totality.80 In South African law, the long title of an act may be consulted to establish the nature and scope of that act;81 while the Preamble describes the conditions and objectives intended.82 The purpose of COIDA as included in the long title 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; and to provide for matters connected therewith.83
The main object of the Act is encapsulated in the first six words which refer to the provision of compensation for disablement caused by injuries and diseases caused specifically by employment.
Although the long title does not create any rights or obligations, it is seen as a guiding principle in interpretation of an act and may be considered by the courts. In the case of Kirtley v The Compensation Commissioner and Another,m the honourable Court noted that the long title of the Act predicts the purpose of the Act to include amongst others, compensation for temporary partial and temporary total incapacity85 and compensation for the permanent consequences of occupational
79 Berowra Holdings Pty Ltd [24], so COIDA Schedule 1.
81 Burger 44. Burger at 26, based his opinion that the Constitution favours a purposive method of interpretation on s 39(2).
82 Burger 45.
83 Own emphasis.
84 (2005) 26 IL J1593 at [1],
85 Olivier et al (2003): 460 "Incapacity for work is usually conceived as the loss of the ability to earn and is classified under social insurance."
injuries and diseases.86 It is submitted that by dealing with the purpose contextually in the long title of the Act, light is shed on the intention and scope of COIDA. The purpose, to compensate, provides direction to each provision that follows and should be kept in mind whenever COIDA is interpreted.87
While the purpose of an act reveals the intentions of the legislature, it is in the interpretation and execution of a statute that the purpose becomes significant.
COIDA ought to provide a system beneficial to the South African society and the burden of cost caused by occupational injuries and diseases should not be transferred to employees. In this regard, the SCA held in the Mankayi ruling:
"Interpretation seeks to give effect to the object or purpose of legislation. It involves an inquiry into the intention of the legislature".88
3.2. Interpretation through case law
3.2.1. Jo o ste v Score S u perm arket Trading (Pty) Ltd (M inister o f Labou r Intervening)
In Jooste v Score Supermarket Trading (Pty) Ltd (Minister o f Labour Intervening),89 the Court cited the purpose of COIDA as encapsulated in the long title of the Act and considered the position of an employee at common law before the enactment of compensatory legislation.
The Constitutional Court had to consider a challenge on the validity of COIDA's section 35 which bars civil action against employers.90 In considering the validity of section 35, the Court contrasted the administrative remedy provided by the Act to the common law situation. The legislated remedy available to an employee who suffered an occupational injury consists of a claim for pecuniary loss through an administrative system designed at speedy payment from a fund, is contrasted to a
86 Ibid 1.
87 Wetsuitleg 81. The court confirmed that the long title may be consulted to determine the intention of an act in Bhyat v Commissioner fo r Immigration 1932 AD 125.
88 Mankayi (SCA] [25].
89 Jooste £13]—[14].
«> Ibid [2].
common law action through a process of civil litigation against a defendant employer by which damages will only be awarded upon proof of negligence on the part of the employer.91 Under common law, contributory negligence by the employee could result in a proportional reduction of damages without certainty of payment of the awarded damages by the defendant. Employees could also be held liable for legal costs if the case is unsuccessful. The legislated scheme’s intention is to provide limited compensation from a fund which is funded by mandatory contributions from employers.92 The Court held that the compensation scheme was rationally connected to a legitimate government purpose and the barring of the right is justified in the light of the purpose of compensatory legislation that was evident from historical context from which it developed.93
3.2.2. Davis v W orkm en's C om pensation Com m issioner
In the well-known case of Davis v Workmen's Compensation Commissionerm Friedman JP when citing from Williams v Workmen's Compensation Commissioner 1952 (3) SA 105 (C), expressly gave preference to an interpretation most favourable to employees while renouncing any prejudice to employees95
3.2.3. Healy v Com pensation Com m issioner an d A nother
In Healy v Compensation Commissioner and Another,96 Plasket J explained the purpose of COIDA is to be achieved through "give and take: it creates a no-fault system of compensation, channelled through an administrative process." The court appreciated the removal of compensation for occupational injuries and diseases from common law; and, while an employer is relieved from the burden associated
« Ibid [13]—£15].
92 Ibid [16].
93 Ibid [12].
94 Davis v Workmen’s Compensation Commissioner 1995 (3] SA 689 (C], at 694 E-G. Hereinafter: Davis.
95 The honourable Judge stated at E-G: "The policy of the Act is to assist workmen as far as possible. See Williams v Workmen's Compensation Commissioner 1952 (3) SA 105 (C) at 109C.
The Act should therefore not be interpreted restrictively so as to prejudice a workman if it is capable of being interpreted in a manner more favourable to him." This is supported by the rule that the legislature does not intend harsh, unjust or unreasonable legislative measures; Burger 33.
96 Healy [ 11].
with delictual actions, an employee may claim compensation without being burdened to prove negligence on the part of his employer. By replacing the court process by an administrative process, the nature of compensation was changed from adversarial to non-adversarial. This is a system intended at benefiting society at large.97
3.3. Summary
It is submitted that the protection of employers through the working of section 35 was never the main purpose of COIDA; and is not as such included in the long title of the Act but is the product of the principle of balancing the interests of employers and employees without regard to fault The protection is extended to employers irrespective of failure to register and pay assessments to the Compensation Fund because an employee's right to claim remains unaffected by such failures98 as will be discussed in Chapter 5 when the definitions of an employee and employer for the purposes of COIDA will be explored.