The historical development of compensatory legislation in South Africa cannot be separated from the history of mining in South Africa or the consequences thereof.
South Africans were not subjected to the dreadful consequences of the Industrial Revolution because farming was the general occupation. However, the discovery of minerals like gold, diamonds and coal and the mining operations89 which consequently followed90 exposed employees to newly-identified risks,91 causing them to organise themselves into trade unions and enforce collective interests92 Workers compensatory legislation developed along two very distinguishable lines in the form of compensation for injuries and diseases other than lung diseases93 contracted by mine workers and compensation for the latter.94
Compensation for occupational injuries commenced for mine workers when three gold mining companies founded the Rand Mutual Assurance Company Limited in 189495 and it rapidly expanded to include forty-two mines by 19 0 0.96 This
89 International Labour Office. Silicosis records o f the International Conference held at Johannesburg 1 3 -2 7 August 1930. London: PS King & Son. Retrieved on 01/08/2013 from
http://www.ugr.es/~amenende/investigacion/ILO-Silicosis-Conference-1930.pdf. Hereinafter:
ILO Silicosis Conference Report. At 5 8 9 -5 9 0 & 4 9 4 -4 9 5 the paper states that mine managers and officials were of American origin and miners came from England particularly from Cornwell and Northern England. Only a few South Africans were employed in mining. Due to their previous exposure to tuberculosis, the migrant workers from Europe and the USA had a measure of immunity to tuberculosis contrary to South Africans.
90 Dekker, AH. 2005. Informal social security: A legal analysis. LLD thesis. University of South Africa. At 29.
91 ILO Silicosis Conference Report 4 9 4 -4 9 5 . 92 Dekker 31.
93 Compensated under COIDA.
94 Compensated under ODIMWA.
95 RMA History and nature o f the business. [Sa]. Retrieved on 18/03/2012 from http: //www.randmutual.co.za/AboutUs/HistoryandNatureoftheBusiness/tabid/15 2/Defaultaspx, Garzarelli, G, Keeton-Stolk, L & Schoer, V. 2008. Report on workers' compensation in the Republic o f South Africa. Two licensed mutual associations function pursuant to COIDA i.e. the Rand Mutual Assurance in the mining industry and The Federated Mutual Employers Assurance in the building and construction industry at 3. Retrieved on 23/07/2013 from
http://ssreform.treasury.gov.za/Publications/W orkers'%20Compensation%20in%20the%20 Republic%20of%20South%20Africa%20(USAID,%202008].pdf.
voluntary scheme preceded legislation in the Transvaal and the Cape Colony as well as Britain.97
Legislation commenced with the Employer’s Liability Act 35 of 1886 in the Cape Colony and Natal followed in 188 6.98 The first real compensation act was the Workmen's Compensation Act 40 of 1905 (Cape of Good Hope) that replaced the Employer's Liability Act 35 of 1886. The Transvaal followed in 190799 with the Workmen's Compensation Act 36 of 1907 (hereinafter: 1907 Act). This Act applied only to white employees and it compensated loss of income at a rate of 50% of earnings during periods of disablement and compensated fatal injuries or permanent disablement in the form of lump sums. Calculations were based on the employee's earnings and were restricted to maximum amounts. The unification of South Africa in 1910, lead to the applicability of the Transvaal's 1907 Act to the whole country. It was repealed by the Workmen's Compensation Act 25 of 1914.100
A voluntary compensation scheme for black workers was introduced in 1905 and followed up in 1911 with the Native Labour Regulation Act 15 of 1911.101 Racial discrimination was thus embedded in legislation and people covered by the definition of a worker by virtue of this Act were precluded from claiming under Act 25 of 1914.102 Over time, the Rand Mutual Assurance provided benefits to all races at higher rates considered more appropriate than the statutory prescribed rates.103 Racial discriminative provisions pertaining to benefits were only removed by the Workmen's Compensation (Amendment) Act 28 of 1977.104
96 Lang, J. 1986. Bullion Johannesburg: Men, mines and the challenge o f conflict. Johannesburg:
Jonathan Ball. At 197. Garzarelli 3.
97 Lang 51. The British Workmen’s Compensation Act took effect in 1908.
98 Strydom, EML (ed). 2006. Essential social security law. 2nd edition. Cape Town: Juta Law. At 3.2.1. Le Roux 28.
99 Le Roux 29. Lang 197. The Act came into operation in April 1908. Garzarelli 2, the authors noted that the Anglo-Boer War interrupted passing of an intended Employers’ Liability Act in the Transvaal.
100 Lang 197.
101 Ibid.
102 Strydom e t a l 3.2.1. Le Roux 30. Lang 197.
103 Lang 197. The Rand Mutual Assurance Company under the auspices of the Chamber of Mines established two mine hospitals to provide specialist treatment to injured employees, the first of which was the Cottesloe Hospital in 1936 and the second known as the Rand Mutual Hospital in
1979, Lang 358 & 45 9 -4 6 0 . Ibid 459.
One of the demands by organised labour contained in the Worker's Charter published near the end of the 1913 strike by mine workers on the Witwatersrand was the amendment of the 1907 Act.105 The Workmen's Compensation Act of 1914 (hereinafter: 1914 Act), consolidated, revised and broadened benefits to employees paid by employers under specific conditions.106 Certain industrial diseases were included by amendment in 1917 in the Workmen's Compensation (Industrial Diseases) Act 13 of 1917.107
The Statutes of 1914 and 1917 were repealed108 by the Workmen's Compensation Act 59 of 1934109 (hereinafter: 1934 Act), pursuant to which fault on the part of the employer as sine qua non for compensation was removed.110 The office of the Compensation Commissioner was set up to mediate111 on compensation settlements between employees and employers who were obliged to obtain insurance.112
The Workmen's Compensation Act 30 of 1941 (hereinafter: 1941 Act), introduced a whole new compensation dispensation by establishing a central fund from which employees were compensated subject to the fulfilment of certain conditions.113 This Act did not cover all employees or incidents and categorised employees by race,114 sex115 and income.116
105 Ibid 223.
106 Le Roux 29. Mankayi vAnglogoldAshanti LTD 2010 (5) SA 137 (SCA). [15]. Hereinafter: Mankayi (SCA).
107 Le Roux 29. Mankayi (SCA) [15].
108 Schedule 3 of the 1934 Act.
109 Frank v; the then Minister of Labour wrote in the Foreword: "One of the first legislative attempts of the Union of South Africa in the industrial sphere was the Workmen’s Compensation Act, No. 24 of 1914. It was a measure which played a useful part in its time, but by 1934, when the new Act, No. 59 of 1934, was passed, it was quite inadequate to meet the needs which had arisen in our post-war industrial world."
110 Mankayi (SCA) [16].
111 S 17. S 18 sets out the functions of the Commissioner i.e.
"(a) To investigate or cause investigation to be made into any claim or other matter referred to him in terms of this Act and to assist the parties in bringing about a settlement of the dispute by agreement;
(b) To examine the settlements transmitted to him in terms of section seventy-seven by any insurer and if he be not satisfied that the terms of any such settlements are equitable, to bring the claim into review before a magistrate..."
112 S 74. Frank at v.
113 Mankayi (SCA) [17].
114 The 1941 Act defined "Black" in s 2 as: "'B lack'...[Definition of 'Black' amended by s. 1 (g) of Act 51 of 1956, substituted by s. 1 (c) of Act 29 of 1984- and deleted by s. 1 (2) of Act 114 of 1991.]”
115 Gender differentiation is evident from the title of the Act referring to men e.g. "Workmen's Compensation Act."
116 The role of remuneration will be discussed in Chapter 5 as part of the definition of an "employee."
The 1941 Act was repealed by COIDA which came into operation on 1 March 1994 and broadened the definition of "an employee" by removing the restriction on income. Benefits that employees may be entitled to, in essence remained the same with strict limitations on the time period (maximum of 24 months) afforded for payment of income replacement benefits during periods of recovery; limitations on the duration allowed for payment of medical costs (maximum of 24 months) and the scheduled determination of the degree of permanent disability stayed unchanged from 1941117 and calculation of the monetary value remained tied to the average accident earnings.118 The time limits can be criticised for they do not take note of the type or seriousness of the injury and no provision being made for individual cases. No rights have been enacted pertaining to rehabilitation and return-to-work programmes119 and no clear prohibition against dismissal120 is entertained within the ambit of compensatory legislation in South Africa while travelling expenses have only been allowed for emergency transport associated with the accident.121 No provision has been made for loss of retirement income or for expenses needed in respect of adjustments to homes, vehicles etc. to accommodate consequential disabilities.
Mine workers suffering from occupational diseases contracted through work on mines could be compensated on an ex-gratia basis within the discretion of the Board pursuant to the Miners' Phthisis Act 34 of 1911122 (hereinafter: 1911 Act) in anticipation of the Miner's Phthisis Act 19 of 1912123 (hereinafter: 1912 Act). The 1911 Act defined a "miner" as a person from European descent who worked underground on a “scheduled mine"124 and a "native labourer" was considered to be of aboriginal or African tribal origin who worked underground on a scheduled
117 1941 Act Schedule 1 and COIDA Schedule 2.
us i94i Act ss 38 & 39 and COIDA Schedule 4.
119 Oliphant, M. 2013. Budget vote address. The honourable Minister of Labour announced intended amendments to COIDA to include rehabilitation and early return-to-work provisions.
Retrieved on 25/ 07/ 2013 from http://www.labour.gov.za/media-desk/speeches/2013/
budget-vote-address-by-the-hon-minister-of-labour-ms-mildred-n-oliphant-mp-national-assembly.
120 Dismissals fall within the ambit of the Labour Relations Act 66 of 1995. Hereinafter: LRA.
121 COIDA s 72.
122 ILO Silicosis Conference Report 650.
123 Mankayi v Anglogold Ashanti Ltd 2011 32 ILJ 545 (CC) at 26 -2 7 . Hereinafter: Mankayi (CC).
124 ILO Silicosis Conference Report at 592 indicated that the Transvaal mines were classified as
"phthisis-producing of non-phthisis mines" with all of the gold producers schedules as phthisis- producing mines.
mine.125 The 1912 Act introduced a system of compensation to be paid according to the degree of disease, first and advanced stages, which remained the basis until presently as section 44 of the Occupational Diseases in Mines and Works Act 78 of 1973 (hereinafter: ODIMWA) classifies as first and second degree.126
It is important to note that contrary to one of the principles of compensatory legislation i.e. funding of compensation by employers in exchange for protection against civil liability,127 persons fulfilling the definition of a "miner” were expected to contribute 2xh percent of their earnings towards the compensation fund which constituted half of the levy with their employer the balance. The formula was changed on 1 August 1914- to a total levy of IVz of the earnings of which the employer had to contribute 5 percent.128 "Native labourers" were not expected to contribute in the same way but the monetary value of compensation was markedly less than the value of compensation paid to "miners"129 under the 1912 Act and its amendments in 1914, 1916, 1917 and 1918 as well the Miners' Phthisis Act 40 of 1919 (a new Principal Act) as amended in 1924130 and the Miners' Phthisis Act, Consolidation Act, No. 35 of 1925.131 Payment of compensation was considered a burden that could ruin a marginally profitable mine.132
Ironically South Africa was considered to be a world leader in the field of occupational lung diseases.133 South Africa inter alia enacted the first statutory
125 ibid 6 5 0 -6 5 1 . 126 ibid 6 5 1 -6 7 3 .
127 The protection of employers against common law liability will be discussed in the following chapters.
128 ILO Silicosis Conference Report 653 & 6 7 2 -6 7 3 . 129 Ibid 653.
130 By the Miners' Phthisis Act Amendment Act 35 of 1924.
131 ILO Silicosis Conference Report 6 5 2 -6 7 4 . 132 ibid 595.
1 3 3 South Africa (Republic). Department of Health. 2009. The hidden epidemic amongst form er
miners: silicosis, tuberculosis and the Occupational Diseases in Mines and Works Act in the Eastern Cape, South Africa. (Research report by Roberts, J). Durban: Health Systems Trust. Retrieved on 26/06/2012 from http://www.hst.org.za/uploads/files/ODMWA.pdf. At 17 the author cited the finding of Katz, E (1994), The White Death. Silicosis on the Witwatersrand Gold Mines 1886 -1910 at 5 that between the years 1902 and 1925, "silicosis was the subject of no fewer than nine legislative acts, six commissions, ten parliamentary select committees and four major state industry reports".
compensation scheme134 compensating silicosis and tuberculosis,135 did extensive research within specialised research facilities136 and accommodated the very first International Conference on Silicosis (19 3 0)137 under the auspices of the ILO.138
A very important feature of the South African compensatory legislation is the entrenched distinction and long-standing disparity139 between compensation for lung diseases contracted on "controlled" mines and "controlled" works140 and occupational injuries sustained on mines and works as well as occupational injuries and diseases flowing from work in other industries as is evident from the judgment by Khampepe J in the Constitutional Court ruling of Mankayi v Anglo Gold Ashanti141 (hereinafter: Mankayi (CC)). The disparity lead to three court actions culminating in a landmark Constitutional Court ruling confirming the right of an employee to sue his employer for negligence in forsaking his "duty of care" to an employee pursuant to ODIMWA. The Constitutional Court was faced with the question whether section 35 of COIDA precludes the right to sue an employer pursuant to ODIMWA.142
134 Mcculloch, J. 2009. Counting the cost: gold mining and occupational disease in contemporary South Africa. African Affairs Journal 108(431): 221-240. Retrieved on 26/06/2012 from http: //www.cwbpi.com/AIDS/reports/SouthAfri caGoldMining.pdf.
135 Meiklejohn, A. 1954. The development of compensation for occupational diseases of the lungs in Great Britain. Brit J. Industr. Med. 1 1 :1 9 8 -2 1 2 . Retrieved on 25/07/2013 from
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1037557/pdf/brjindmed00231-0034.pdf.
136 ILO Silicosis Conference Report 98.
Ibid 2.
138 Butler, HB. 1928. Labour problems in Southern Africa. International Labour Review 17(4): 4 6 5 485. Butler, the then Deputy Director of the International Labour Office, reported at 469, after a visit to South Africa in 1927 that a conference to be held in Johannesburg and convened by the ILO has been proposed on the prevention of silicosis. Retrieved on 02/03/2013 from http: //heinonline.org.
139 Olivier et al (2003) 459. "There is also the Occupational Diseases in Mines and Works Act (ODMWA), which provides for mandatory reporting and the payment of certain benefits to mine workers who develop certain occupational lung diseases, as well as the payment of certain benefits for dependants of workers who die from such diseases."
140 ODIMWA s 10 states: "Declaration as controlled mine or controlled works
(1) Whenever it comes to the notice of the Minister that any persons are performing risk work at a mine or works which is not a controlled mine or a controlled works in terms of section 9 or a notice under this subsection, he or she shall, subject to the provisions of subsection (3) of this section, by notice in the Gazette declare the mine or works in question to be a controlled mine or a controlled works as from a date to be specified in the notice, not being a date earlier than thirty days after the day on which the notice is published in the Gazette."
2011 32 ILJ 545 (CC). At 29 -3 4 .
142 Ibid the whole ruling but particularly paras 13-14.