A court ruling that a miner was able to seek damages, despite regulated benefits for contracting an occupational disease, has rocked the regulated occupational health insurance regime in South Africa.
The case follows a 2.7-million rand lawsuit by Thembekile Mankayi, who worked at the Vaal Reefs mine up to 1995. Mankayi stopped working after contracting silicosis and was awarded R16 316 compensation in due course.
South African legislation requires miners to belong to a certain health insurer, and precludes civil claims for occupational disease, however, employers are also required to provide a safe and healthy work environment.
South Africa’s Constitutional Court ruled that Mankayi was not precluded from making a civil claim by virtue of having been covered by the Occupational Diseases in Mines and Works Act.
Implication for Compensation Fund
OCSA commented that the judgement could set a precedent in mining as well as in other industrial sectors, where workers are covered by the Compensation for Occupational Injury and Disease (COID) Act, and have to be covered by the Department of Labour’s Compensation Fund (CF).
South African employers contribute to health insurance covering accidents and occupational illness, although there are separate pieces of legislation and administrative mechanisms for mining and other sectors.
The March 2011 judgement “opens the door to injured or ill employees to sue employers for uninsured costs, where it could be shown that the employer was negligent”, commented OCSA.
Legislation mandates employers to comprehensively insure employee injuries and diseases, seen by labour interests as an incentive to skimp on health, safety and environmental compliance.
OCSA advises employers and employees to focus on health risk assessments, and medical surveillance of workers who are exposed to stressors and at risk of occupational diseases.
Legislation and corporate governance codes require employers, including boards and executive managers, to practice enterprise risk management. Directors serving on corporate risk committees must ensure compliance with safety, health and environmental legislation, said OCSA.