Chantelle Benjamin
12 February 2008
Johannesburg — A COURT ruling that could open the way for workers to sue employers directly for damages would have "far-reaching and substantial economic consequences" for the mining industry, claims mining company AngloGold Ashanti.
The mining company has brought an application in the Johannesburg High Court, challenging a bid by a former AngloGold employee, Thembekile Mankayi, to claim R2,7m in compensation after falling ill while working at its Vaal Reefs gold mine.
Mankayi was paid R16000 in compensation under the Occupational Diseases in Mines and Works Act (ODIMWA) for 16 years' service.
At issue in the test case is whether two acts governing worker compensation, ODIMWA and the Compensation for Occupational Injuries and Diseases Act (COIDA), offer different protection to workers, and if one act is therefore discriminatory.
A finding in favour of Mankayi would set a precedent, and might open the floodgates to claims from miners and industry workers suffering from dust-related diseases, among them pneumoconiosis, tuberculosis caused by conditions at work and permanent obstruction of the airwaves.
Mankayi argued that he was employed under ODIMWA, which did not contain a clause preventing employees from suing their employers if the injuries were caused by negligence on the part of employers.
He said that workers were barred from suing employers only in terms of COIDA, under which he did not fall.
Mankayi also claimed that ODIMWA offered fewer benefits to the workers falling under it, namely mine workers.
AngloGold had brought an application challenging this argument before Mankayi's compensation case could be heard.
AngloGold counsel Chris Loxton said in court papers that the case was "clearly one of importance. It has far-reaching and substantial economic consequences for the mining industry, and consequently the state."
Loxton told the court yesterday that such a ruling would allow miners to claim twice for injuries. He could not believe that was the intention of the legislators. Workers would be able to claim compensation in terms of ODIMWA, and then sue in terms of common law, he said.
Loxton also disputed the argument by Mankayi's legal team that ODIMWA was unconstitutional in offering inferior compensation to injured workers.
"The two acts were intended to be read together, and in fact refer to each other a number of times," said Loxton.
"COIDA applies to mine workers and industry workers, while ODIMWA applies to mine workers with specific diseases contracted while working. There is no basis on which the legislature would seek to discriminate.
"It is not always correct to say that a worker who claims under COIDA will be better off than a worker under the other act."
The hearing continues today .
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