In SACTWU obo Ramafoko / Bader SA (Pty) Ltd [2007] (CCMA) the employer had charged, in a disciplinary hearing, an employee with sabotage of a safety device or the deliberate misuse of company property, as well as making false reports to a company representative about the results of (safety) test. The facts related to a test required to be done by the company, to assess certain health risks associated with its operation. The employer alleged that the employee had deliberately manipulated the test so that a high risk was revealed. It instituted disciplinary action and dismissed the employee. The latter referred a dispute to the CCMA, alleging that his dismissal was substantively unfair. It was held that the evidence satisfied the arbitrator that the employee had indeed sabotaged the test. The dismissal was therefore fair, and the case dismissed.  The employer could have contacted DoL as it is a crime in terms of section 38(1)(n) for any person to tamper with safety equipment or even section 38(1)(p) for a person to willfully or recklessly does anything at a workplace or in connection with the use of plant or machinery which threatens the safety or health of any person. It could have been a nice test case but my guess is that it would have gone nowhere if DoL was involved.

In terms of section 23 of the Mine Health & Safety (MHS) Act workers have the right to leave a dangerous workplace. Employers are required to establish procedures for the exercise of this right and the resolution of problems arising from workers exercising this right. By implication workers enjoy the same right in section 14(c) of the OHS Act. Section 34 of the NOH&S draft Bill envisages to provide workers with this explicit right along the lines of the MHS Act. Can the exercising of this right be tantamount to a strike?  The onus is on NUM to prove this fact. They allege that the quarry was unsafe hence they withdrew their labour. He who alleges must prove.  The following facts militate strongly against the fact that the working place was unsafe:

1. The applicants (stockmen) remained and continued to work in the 'unsafe' working environment. They testified that they were prepared to sacrifice their safety by guarding the slates they had excavated. Surely if the place was that unsafe one would expect them not to remain in the quarry for a period of about 14 days.

2. The issue of unsafe working conditions was raised for the first time in the pre-trial conference. This can only lead to one conclusion. The safety issue was truly an afterthought.

Accordingly no evidence has been presented to substantiate the fact that the quarry was unsafe. The court is not in a position to find that the quarry was indeed unsafe.  On the contrary, there are sufficient factors referred to earlier which suggest that the quarry was indeed safe. If it was not, then the stockmen could have evacuated the quarry from day one of unsafe conditions. The court found that section 23 of the MHS Act did not apply and that it could therefore not be used as an excuse to strike.

In van Wyk obo Van Wyk v Daytona Stud Farm (Pty) Ltd & others [2007] (C). Can a child labourer injured on machinery on a farm claim damages, through her guardian, or is she precluded from suing by virtue of section 35 of the COID Act?

Exclusion of liability of the Road Accident Fund: Section 19(a) of the Road Accident Fund Act 56 of 1996 (the Act) provides that the Road Accident Fund (RAF) shall not be obliged to compensate any person in terms of section 17 (which establishes liability of the RAF) for any loss or damage for which neither the driver nor the owner of the motor vehicle concerned would have been liable but for section 21. In this case the plaintiff, a pedestrian, was injured while on duty due to the negligent driving of a motor vehicle driven by the insured driver who was both the owner of the vehicle and also the plaintiff’s employer. The RAF filed a special plea in terms of which it denied liability on the basis of section 19(a) of the Act and also on section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the COIDA), which provides that no action shall lie by an employee or dependant thereof against the employer for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee. Shongwe DJP dismissed the special plea with costs. The court said that the purpose of the Act was to protect any person who had been negligently injured so that he could be compensated. Under section 35(1) of the COIDA the legislature could not have intended to exclude an injured employee from claiming from the RAF simply because the driver of the vehicle involved was, at the same time, the employer of the injured person. Section 35(1) of the COIDA did not preclude an employee from claiming against the RAF. It did, however, preclude the employee from claiming against the employer. Accordingly, the plaintiff was entitled to claim against the Compensation Commissioner, provided that he could not be compensated for more than he was entitled to. If he claimed from the RAF and was adequately compensated, he could not be heard to wish to claim against the Commissioner as well. Click here for full Law Report.  Case overturned on appeal.

Ms Rauff (Plaintiff) was in the employ of Standard bank ("defendant"), a division of Stannic. Her office suite was on the 7th floor of a building with a basement and 8 floors. The building was fully occupied. There were other tenants besides Stannic or defendant, the owner of the building in Jorrissen Street. The incident happened just after the end of her working day at 16h30 on a Friday afternoon while on her way home. She had left the office suite in which she was employed and had passed through glass doors to the passage at three lifts alongside which was the stairway. The lift which plaintiff used went up to the 8th floor where it became stuck before it suddenly fell to the 6th floor. In the process she was injured. The court was tasked only to determine the applicability of section 35 of the Compensation for Occupational Diseases Act 61 of 1997. In terms of section 35 of the Act plaintiff will have no claim against defendant as her employer if the relevant event constituted an "occupational injury". That depends on whether the accident which is under discussion was "an accident arising out of and in the course of an employee's employment". See the definition of "accident" in section 1. It is clear that personal injury resulted from the accident. I focus on determining what relationship there was between the accident and the activity which the employee would be expected to do or not to do as a matter of executing the contract of employment. It is of necessity factually related to know whether the accident was indeed "arising out of" the employment or was unrelated to what the tasks of the employee entailed. The second leg is whether the accident was adequately integrated with the "course of . . . employment". It is on that rather common sense basis that it seems an obvious statement to say that the accident happened just after plaintiff for the particular day no longer had any relationship with her duties as employee. Vis-à-vis the employer and in her own mind plaintiff had become a free agent on a par with anyone who is not an employee. She could move slower or faster and by any means or route of her choice – all things in which the employer had no direct interest.  There was no evidence about plaintiff's contract of employment or any term obliging plaintiff to use a lift or the passage. The question is whether plaintiff was within the sphere of her employment while going home and not whether she was still on a site of which the employer is the owner, or whether the public had access. It follows that the matter can not be determined along defendant's line of reasoning which seems to entail that as long as plaintiff had not yet reached the street downstairs, she was not yet a member of the public and therefore something different and therefore she was there still qua employee. And whatever happens "arises out of" that involvement. The image which I reject is that employment sticks to the employee like a giant toffee until the general public is able to bump into plaintiff. That would ignore the need to look at the duties as employee and to ask in what sense the accident arose out of employment. In legal terms plaintiff was not in breach of a contractually arising duty if she had used the stairway. Secondly, plaintiff was in the same relationship to her daily task as would have been the case if Stannic's doors had led to a public street. It is true that if plaintiff had not been employed in her specific capacity, she would not have been on the specific premises on the specific day just after 16h30. It is true that if she went home a minute earlier or a minute later she would perhaps not have been in the one lift which malfunctioned. The question, again inaccurately stated for the purposes of simplification, is rather whether she was in the course of going about what her employer expected from her in her capacity as employee. In this case she had already terminated her working day, her day's involvement in doing what she was paid for (beyond merely turning up for work and staying there until permitted to leave).

Chapman’s Peak Drive is a road linking Hout Bay and Noordhoek on the west coast of the Cape Peninsula. On 26 June 1994 the respondent was severely injured while driving on the road when his vehicle was struck by a landslide descending from above a rock cut. The accident occurred during a particularly wet period in the Cape winter. The appellant is a local government body and the legal successor to the obligations of the Western Cape Regional Services Council which had previously been entrusted with the management and maintenance of the road on behalf of the Cape Provincial Administration. Mr. Graham successfully sued the Cape Metropolitan Council for damages in the Cape of Good Hope Provincial Division. At the conclusion of the trial it ruled that the Council was liable for the damage suffered by the Mr. Graham (respondent) in consequence of the accident. The judgment of the High court is reported sub nom Graham v Cape Metropolitan Council 1999 (3) SA 356 (C). The Cape Metropolitan Council appeals.

Appeal against finding in respondent’s favour in case where respondent sued appellant for damages after he was seriously injured in a rock slide on a road for whose maintenance appellant was responsible. The stretch of road on which the accident occurred is notorious for its steep inclines and rock falls. The Council (appellant) admitted that it was under a duty to take such precautions as to minimise the risk to users of the road. On each end of the stretch of road in question, signs were erected cautioning of the rock falls. The count held, that in assessing the precautions taken for reasonableness, all relevant circumstances must be taken into account, and competing considerations must be balanced. The relevant considerations are: the degree of the risk created by the actor’s conduct; the gravity of the possible consequences if the risk of harm materialises; the utility of the actor’s conduct; and the burden of eliminating the risk of harm. In light of the conditions prevailing at the time of the accident, the appellant was deemed to have realised the increased risk of harm to road users. The signs at the ends of the road were not sufficient to convey the extent of the risk at the particular time. As such, the appellant was negligent and the appeal dismissed.

The installation in question is located approximately 400m to the west of houses which form the perimeter of the township. Approximately 19m to the south is a well-worn pedestrian thoroughfare. A similar distance to the west is the bank of the Sundays River. An unproclaimed cemetery has taken root in the immediate vicinity of the installation. Martin's testimony, which could not be disputed by the defendant, was that four metal straps were employed, roughly equidistant apart, to secure the cables to the pole. Aided by the angle iron, the cables and the metal straps he climbed to the cross arm, on his version, with relative ease. Whilst electrification brings with it great convenience and I am sure much joy, its unmistakable potential for grave peril cannot be ignored. Many people from our deprived socio-economic communities, (and I dare say, the majority of this country's populace falls into that category), are oblivious to the inherent dangers posed by electricity. The potential danger inherent in electricity is instilled in children by caregivers from the time they first develop the capacity to comprehend. It is that taught and learnt behaviour which inculcates in a young impressionable mind, from its earliest recollection, a respect for the life threatening power of electricity. It is inconceivable that a caregiver would school a child on the dangers of a commodity to which they have no ready access. Regrettably, young Martin is one such child, having been raised without the convenience of electricity, it being common cause that electrification of his neighbourhood occurred during the mid to late 1990s. Mr Timothy Wyndham King, who at the relevant time was the Eskom Customer Service Centre Manager (Grahamstown), testified on behalf of the plaintiff that it was a specified Eskom requirement that installations of the nature in question were fitted with anti-climbing devices and warning signs. Eskom was forced to introduce such safety measures after a young herdsman climbed a similar installation and was electrocuted. It was not disputed by the defendant's witnesses that the Public Works Department also subscribes to similar safety measures as Eskom. The implementation by other undertakers of additional safety standards such as warning signs and anti-climbing devices, leads logically to the inescapable conclusion that they perceived the likelihood o f harm and governed their conduct accordingly. Having regard to the general location of the installation, the absence of any playground and other play facilities in the township (for that was the evidence of the defendant's witness), the presence on the wooden horizontal pole of cables, an angle iron and metal straps, the installation must have been seductively inviting to any adventurous young boy who prided himself on his climbing ability. I accordingly conclude, that a diligens paterfamilias (reasonable person) in the position of the defendant should have foreseen the reasonable possibility of a person such as Martin being injured in the manner described by him as a direct consequence of him climbing the installation in question.

'Die getuienis was dat die betrokke in/uitgang nie net Woolworths bedien nie, maar ook dien as 'n in- en uitgang tot die betrokke sentrum. Die getuienis was dat honderde mense hierdie in- en uitgange daagliks gebruik. Die gat was uiters strategies in die middel van die betrokke deur geleë. Dat al die mense van een van hierdie twee in- of uitgange gebruik moet maak is gewis. Die posisie by die verweerder betreffende voetganger verkeer is veel erger as wat die appellant se posisie was in die Bakkerud saak. Alhoewel die gat nie diep was nie was dit diep genoeg om te veroorsaak dat 'n persoon sy of haar balans kan verloor. Daarbenewens was dit vanweë die ligging daarvan in die swart teël, moeilik sigbaar vir die gewone voetganger. Mense van verskillende ouderdomme en posture wat verskillende soorte skoene dra gebruik hierdie uitgang. Die skoene wat die eiseres gedra het was nie buitengewoon nie. Die hak was van middelmatige hoogte en die punt daarvan was nie besonder skerp nie. Ek sou wou glo dat dié tipe skoen met so 'n hak 'n alledaagse verskynsel is. Dat die verweerder van al hierdie feite kennis gedra het en as 'n redelike moontlikheid inderdaad voorsien het dat iemand maklik in die gat kon trap en struikel blyk uit die getuienis van sowel mnr Marobane as me Opperman. Gegewe hierdie feite is dit geregverdig om te bevind dat die verweerder 'n regsplig gehad het om die gat te herstel, en so 'n bevinding word dan ook gemaak'.

Drifters Adventure Tours CC v Hircock 2006 SCA

The appellant, Drifters Adventure Tours, was a tour operator, and the respondent, Ms. Hircock, a tourist who was injured whilst on a tour conducted by the appellant. It was common cause that the injury was sustained in a motor vehicle accident caused by the negligence of the driver of the bus in which respondent was being conveyed. The driver was acting within the course and scope of his employment with the appellant. However, appellant disputed that the driver was reckless or grossly negligent. It resisted respondent’s claim for damages, relying on an indemnity form signed by her. On 8 August 1999 while the respondent was a passenger on an adventure tour in Namibia operated by the appellant, Wildhelm, who was acting in the course and scope of his employment with the appellant, negligently drove appellant's Mercedes Benz Ecoliner tour bus thereby causing an accident in which the respondent sustained injuries. The appellant admitted that the accident was caused by the negligence of Wildhelm. It, however, denied that he acted recklessly or with gross negligence. As a result, the respondent instituted action against the appellant for damages. The appellant defended the action relying on an indemnity form signed by the respondent on 24 July 1999 prior to the commencement of the tour. The terms of the indemnity will be considered in more detail presently.

Despite the fact that the indemnity clause is wide enough to exclude liability for negligence ("any liability whatsoever") one is nevertheless driven to refer to the reverse side of the document and particularly the conditions appearing there, in order to interpret the indemnity clause. A close examination of the conditions clause on the reverse reveals that it makes no mention whatsoever of negligent driving by employees of the appellant. Instead it exempts the appellant from responsibility "in respect of loss, injury, illness, damage, accident, fatality, delay or inconvenience experienced from time of departure to time of return, or subsequent to date of return, such loss, injury, etc. arising out of any such tour/venture organised by the appellant". Significantly absent are the risks that the appellant wishes to exclude are those inherent in ordinary road transportation. This is another pointer in the direction of interpreting the expression "driving" in the restricted way we have suggested. Moreover, road transportation is dealt with quite differently in the appellant's business set-up. The appellant is obliged in terms of the Cross-Border Road Transport Act 4 of 1998 to have a permit which requires it to hold minimum passenger liability insurance. The court a quo heard evidence that this requirement is imposed for the good of passengers and generally for ensuring the health of the tourism industry and has met with general approbation from all carriers. Contracting out of this liability altogether would be so perverse that we cannot accept that the appellant would have done so. The appeal is dismissed with costs.

Indemnities that are vague are interpreted biased in favour of the person signing them. RHL.

Ruben v Lockpa Investments (Pty) Ltd & another
[2006]  (N)

Regulation 17(1)(b) of the Regulations obliges an owner to ensure that a hoist under its control is equipped at every hatchway landing entrance with a substantial landing door with a mechanical lock so arranged that the landing door cannot be opened unless the conveyance is at that landing. In addition there must be in place a circuit breaker so arranged that the conveyance cannot be moved by power unless the door is closed.

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Vermooten v South African State Theatre
[2006] (T)

The plaintiff, a 73 year old female, sued the defendant, a theatre, for damages after she fell on its premises and sustained injury. She alleged that the accident was caused solely by the negligence of the defendant or its employees in failing to ensure that the premises were adequately lit and safe for patrons. The court held that the evidence established that the defendant had failed to take the necessary reasonable steps to guard against the possibility of people falling on the stairs in question. The court described possible measures which could have been taken by the defendant. The defendant was therefore liable for plaintiff's proven damages. A reasonable person in the position of the defendant would have foreseen that the possibility exists that during the show a person who ventures into the passage in question might not see the stairs and as a result might fall and injure himself or her........'Mr Conrad Bosch testified that he is an expert and he works in the field or area of Occupational Hygienist. He is a registered Occupational Hygienist, registered Occupational Safety Coordinator and registered Ergonomics Facilitator. He referred to section 47 of The Occupational Health and Safety Act 85 of 1993 (the Act) which states that the said act binds the state. In his view, the defendant is bound by the provisions of the said act and the regulations promulgated thereunder. He further referred to section 24 of the act whilst provides inter alia, that an incident in which a person is injured which at the premises where activities of the undertaking take place, shall be reported to the relevant inspector. He also referred to Regulation 8(1)(3) which provides, inter alia, that:

"Wherever an incident arising out of or in connection with the activities of persons at work occur to persons other than employees the user, the employee or self employed person as the case may be, shall forthwith notify the provincial director by facsimile or similar means of communication as to the ..." Regulation 9 provides for the keeping of records of incidents reportable in terms of section 24 of the act for a period of at least three years.

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Rieck v Crown Chickens (Pty) Ltd t/a Rocklands Poultry [2005] SE.

Rustenburg Platinum Mines Ltd v Chief Inspector of Mines & another [2006] (T).

A miner with AIDS had sustained a knee injury while working on the applicant company's mine. He subsequently died. In terms regulation 35.2 drafted under the provisions of the Mine Health and Safety Act 29 of 1996 (the MHS Act) the first respondent, inspector of mines, is required to establish a "safety risk factor" for every mine based on statistics of injuries and fatalities. The mine is then required to pay levies based on its safety risk factor to statutory bodies established under the MHS Act. The first respondent included the death of the miner as a fatality. It was common cause that it was unlikely that the miner would have died if he had not had AIDS. The applicant therefore applied to have the inspector's decision set aside in terms of the provisions of the Promotion of Administrative Justice Act 3 of 1996 (PAJA). The respondent raised three points in limine: the court's lack of jurisdiction in terms of section 82(1) of the MHS, the question of lis pendens because an appeal had already been lodged in the Labour Court on essentially the same issue; and the issue of non-joinder, inter alia, of the family of the deceased. Held that in terms of sections 1 and 6 of the PAJA the Labour Court has jurisdiction to hear matters based on the provisions of the PAJA. However, section 7 provides for the implementation of rules of procedure for judicial review. Before those rules are promulgated, section 7(4) provides that judicial review must be instituted in a high court or the Constitutional Court. Held that there is a distinction between appeal and review. The bringing of a review application while an appeal is pending is competent in our law. Held that a decision relating to compensation for a mining accident in terms of section 22(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is different to the statutory provisions authorising the first respondent to fix the safety risk factor of a mine. In determining whether compensation under COIDA is payable the law with regard to causation can be applied to determine, in law, whether the death resulted from the accident. In the case of safety risk assessment it had to be remembered that death would not normally have occurred in this instance. The safety risk could not simply be connected to the fact that a fatality occurred as a result of an accident. Therefore any decision of this court as to the manner in which the first respondent applied her mind in order to determine the applicant's safety risk would have no bearing on any decision made under COIDA for compensation. This issue of joinder did not succeed. Held, on the merits, that in terms of the definition of "risk" in the MHS Act the first respondent had to bear in mind the likelihood of the consequence, taking into account the particular incident. This would have meant taking into account the number of miners with AIDS. This she had not done. By failing to do so the inclusion of the fatality did not reflect a true safety risk. Her decision was not rationally connected to the purpose of the Act. The application to set it aside succeeded.

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Sea Harvest Corporation (Pty) Ltd and another v Duncan Dock Cold Storage (Pty) Ltd and another
[1999] (A).

Was a proper risk assessment done? The appellant sued the respondents for damages after their property had been destroyed in a fire in the first respondent's cold store. The cause of the fire was accepted as being the fault of an unknown party who had set off a distress flare during New Year's Eve celebrations. The appellants and the first respondent had entered into oral agreements whereby the first respondent would keep the appellant's stock in cold storage on his property. The appellants alleged negligence on the part of the respondents for various reasons. The allegations of negligence were based on alleged failure of the respondents to install a sprinkler system which could have extinguished the fire. The SCA found that, since it was reasonably unforeseeable for Duncan Cold Storage to foresee a fire emanating from an external source as a risk, a proper risk assessment was done and the respondents were not liable to compensate the appellants for damages caused by the fire. The Port master, who approved the risk assessment, was also found not to have been negligent.

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Commissioner for the SARS v Thor Chemicals SA (Pty) Ltd
[2000] (N).

Appeal against decision of tax Special Court on the question of the deduction of legal costs claimed by respondent and incurred at a Formal Inquiry for one of its tax years. The appellant argued that the costs were not connected to the incoming earning potential of the taxpayer and that the court should have found that the costs were of a capital nature and therefore not deductible. Held, that the finding that the enquiry which led to the respondent having to incur legal costs after two employees were diagnosed with mercury poisoning, centred around the respondent's operations. No evidence was led to counter this. Case law supported the contention that expenses attached to the performance of the business operation performed the purpose of producing income are deductible. The appeal was accordingly dismissed. During June 1992 Thor was notified by the Department of Manpower that an Enquiry in terms of 24(2) of the MOS Act would be held in the Camperdown Magistrate’s Court regarding ‘incidents at Thor Chemicals in January 1992 and 1991 incidents’.  A Summons to attend the Enquiry was served on the then Managing Director of Thor,  then Factory Manager of Thor and  a former Production Manager at Thor.  In response to a request to the Department of Manpower to define more closely the scope of the Enquiry, the Department of Manpower stated that the Enquiry was ‘to investigate the occurrence at Thor Chemicals which led to the contamination of Messrs Cele, Ngcobo and Dlamini and any other who had been exposed to mercury to the extent that their mercury biological level was allowed to go above that specified by the Department’.  The very wide scope of the subject matter made it clear that there was a distinct likelihood that the evidence produced at the Enquiry might incriminate Thor and certain of its employees. It was thus deemed appropriate to provide senior legal representation at the Enquiry to assist and protect Thor and its individual employees in asserting their rights against self-incrimation (sic) and in providing cross-examination of witnesses to the extent that their evidence tended to incriminate either Thor or their individual employees. The Enquiry lasted three full days and eleven witnesses were examined and cross-examined. The witnesses were questioned by the Chairman of the Enquiry on diverse matters, dealing with the implementation of Health and Safety Regulations at Thor’s factory, the monitoring of the state of health of the Thor workforce, actual industrial injuries allegedly suffered by certain employees, the standard of safety training given to employees and the standard of safety measures adopted by Thor in protecting employees against possible harm. The possible causes for the mercury poisoning of Messrs Dlamini, Ngcobo and Cele were also investigated.. The Chemical Workers Industrial Union, acting on behalf of workers who had allegedly been injured and ‘contaminated’ by mercury, was legally represented at the Enquiry. The employees of Thor were subjected to examination by the Chairman of the Enquiry and lengthy cross-examination. Thor’s Senior Counsel on numerous occasions having to assert, on behalf of the individuals concerned, the privilege against self-incrimination, and to object to the leading of possibly prejudicial evidence which did not fall inside the scope of the Enquiry.. An Enquiry in terms of Section 24 of the Act does not make a finding in the conventional sense of the word. It submits a report to the Attorney-General on what has been established in the Enquiry to enable the latter to make a decision whether any criminal offences have been uncovered, and whether prosecution should ensue. The Report to the Attorney-General is not made public and remains confidential between the Department of Manpower and the Attorney-General. Consequently, Thor was not advised of the outcome of the Enquiry but what subsequently transpired is indicative of the purpose for which the Enquiry was originally held. In terms section 32 (Formal Inquiries) of the OHS Act the Report to the Directorate of Public Prosecutions is not confidential and employers are entitled to a copy. Legal fees incurred at a Formal Inquiry are tax deductible.

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Sasol Synthetic Fuels (Pty) Ltd & others v Lambert & others [2002] (A)

The issue is whether payments made in terms of section 36(2) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("the 1993 Act") to a widow and dependent children in consequence of the death in a workplace accident of their husband or father, have to be deducted from their delictual claims for damages against two defendants. The contention of the plaintiffs is that the amounts of compensation which they have received constitute "pensions", so that they are not deductible from any award of common law damages, this because of the operation of the Assessment of Damages Act 9 of 1969 ("the 1969 Act"). In other words their common law claims for damages for loss of support are not to be reduced by the amounts of employees' compensation received. The opposed contention of the defendants is that in terms of the express provisions of section 36(2) of the 1993 Act (quoted below), compensation received by them must be deducted. The facts constituting the background to this issue were agreed in the form of a stated case for its purpose only.  The plaintiffs are Mrs Lambert, the widow of the late Mr Lambert, and their three schoolgoing children. Mr Lambert was working as a welder at the plant of the first appellant, Sasol Synthetic Fuels (Pty) Ltd ("Sasol"), at Secunda on 6 March 1994 when he suffered burns that led to his death on 3 April 1994. Sasol was cited as the first defendant in the delictual claims based on negligence brought by the plaintiffs in the Transvaal Provincial Division. The second defendant (now second appellant) was Mr Frans Fakude, a process controller in the employ of Sasol. On the day of the accident he negligently allowed gas to escape, thus causing the fire which fatally injured Lambert. At the time Fakude was acting as Sasol's employee and within the course and scope of his duties. Accordingly Sasol is vicariously liable with Fakude in delict.  Lambert's employer was not Sasol but a labour broker, ABC Recruitment (Pty) Ltd ("ABC"), the third appellant, which was joined as a third party by the two defendants. The basis of the joinder was a contractual indemnification of the defendants by ABC against claims of the sort brought by the plaintiffs. ABC has made common cause with the defendants in contending for the deduction of the compensation received. (It should be noticed that ABC is a "third party" in the procedural sense – under Uniform Rule 13 – whereas the two defendants are "third parties" in a quite different sense – in the sense of section 36(1) of the 1993 Act – as being persons other than the employer, who are allegedly liable in delict for the damage suffered by the employee's dependants.)  Roux J, a quo, determined the stated case in favour of the plaintiffs, holding that because of the form in which the compensation was received it consisted of "pensions" such as were not to be deducted, because of the terms of the 1969 Act, which forbids the deduction of pension monies from damages awarded to dependants. He later granted leave to appeal to this Court. For all of these reasons I consider that the question of law should be answered in favour of the appellants – compensation paid under section 36, even if it be in the form of a pension, must be deducted from any award of common law damages made in favour of the plaintiffs.  In the end the case is a relatively straightforward one, but the appellants have already lost in one court and the principle involved is of undoubted importance. In the result the appeal is allowed with costs. It is declared that in terms of section 36(2) of Act 130 of 1993, the compensation received by the first to fourth plaintiffs in terms of that Act falls to be deducted from any damages awarded to such plaintiffs.

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Dorland & another v Smits [2002]  (C)

The appellants (The Dorlands) and the respondent (The Smits)  are neighbours.   The area is a built-up residential suburb which is variously described by the respondent in the papers as "upmarket" or "middle-class". The two properties are divided by a boundary wall or walls, about 32 metres in length. Starting at the roadside the wall is a Columbia block wall some 20 metres long and 2,1 metres high. Thereafter, at the rear of the properties, there is a vibracrete wall some 12 metres long. It appears from the photographs to be a few centimetres shorter than the block wall. Her grandchildren, when they visit, like to climb in the trees near the wall. At about 6 pm on 17 December 1999, an intruder gained access to the appellants' kitchen. They suspect that he either entered or exited the property by climbing over the block wall at or near the respondent's front gate, a suspicion which is gainsaid by the respondent. Be that as it may, the appellants, being concerned about their own and their children's safety, immediately consulted security experts. They also spoke to the respondent at a stage when the installation of galvanised security spikes along the top of the walls was under consideration. The respondent was amenable to some sort of spikes. But the appellants were advised that spikes would not be adequate, and that they should rather install electrified fencing along all four boundaries of their property. The appellants accepted and acted on this advice. Along the boundary walls between No's 53 and 55, stanchions or posts were affixed by the contractors to the appellants' side of the wall. These stanchions protrude half a metre or more above wall height and carry nine strands of electrified wire. Attached to the wires are large warning signs. Initially five strands were installed but the appellants, acting on advice, later increased the strands. Electrified wiring of varying heights has been installed on all of the appellants' boundary walls. The respondent objected to the electrified fencing. Correspondence between the attorneys ensued but failed to resolve the matter. The respondent thereupon instituted proceedings on notice of motion in which she sought an order that the appellants:

Among the contentions debated in the affidavits were alleged contraventions of three regulations. The first was Electrical Machinery Regulation No 11  (GMR 11) promulgated in terms of the Occupational Health and Safety Act 85 of 1993. This regulation deals with electrified fencing in residential areas. According to Mr Van Tonder, whose evidence I shall summarise below, the installation under review complies fully with the requirements of the regulation.

Click here for General Machinery Regulation 11 as well as draft General Machinery Regulation 12 and 13.

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Du Pisanie v Rent-A-Sign (Pty) Ltd and another
[2001]  (A).

A father (du Pisanie Snr.) and the appellant (son) (du Pisanie Jnr.) were effecting repairs to an advertising board  when the sheet metal cladding which formed part of it gave way under them. As a result they both fell to the ground some six to seven metres below the board and the appellant suffered severe bodily injury. The appellant sued both the operator of the board (Rent-a-Sign (Pty) Ltd.) as well as the manufacturer (Advertising Displays (Pty) Ltd. ) for damages in the South Eastern Cape for damages. The case was dismissed and the son appealed to the High Court for a reversal of the decision. Before the appellant and his father commenced work inside the board an employee of the Rent-A-Sign (Board Operator)  warned the appellant's father that the board was clad with sheetmetal affixed to the steel framework only with pop rivets and that it would be dangerous to walk or place weight on it. The warning was given while this employee and the appellant's father were watching the demolition of a similar advertising board from which they had removed the internal electrical fittings two days earlier. The appellant’s father did not offer any comment or ask questions and the employee assumed that his warning would be heeded and communicated to the appellant. As the subsequent events indicated, the warning was neither heeded nor communicated to the appellant by his father. It was also argued that the appellant himself should have been warned by the employee. The appellant was working under the control and supervision of his father who was told about the danger attendant upon the performance of the work and it was, in the Judge's view, reasonable in the circumstances for the employee to expect that the warning would be conveyed to the son. 'Reliance was also placed by the appellant's counsel on the provisions of the Occupational Health and Safety Act 85 of 1993 and the regulations promulgated thereunder which, it was contended, placed statutory obligations on the Rent-a-Sign to safeguard the appellant against harm or injury. In particular reliance was placed on regulations 6, 12, 13D, 13F and 13G. It is unnecessary to quote them in extenso. It is clear from the wording of the above regulations that a general duty is imposed on an "employer" to ensure that work is performed by an employee in a relatively safe working place. Where work is performed in potentially dangerous areas, some of which are referred to in the said regulations, certain defined safety precautions are required to be taken by the employer to avoid harm to persons whom he has "required or permitted" to work in such dangerous work places. It is difficult to conceive that such a person is anyone other than an employee or a person falling directly under the employer’s control. I do not think, and, in any event, the wording of the regulations does not suggest, that an independent contractor or his workmen fall into this category. The appellant was not an employee of Rent-a-Sign and would therefore fall outside the category of persons mentioned in the Act and the regulations. The provisions of the Act and the regulations do not therefore assist the appellant'.

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International Stainless Steel Fabricators t/a Interfab v Stojovic [2001]  (A).

Appeal against finding that the Interfab (appellant) was solely the cause of an accident in which Stojovic (respondent) sustained injury. The respondent had been working on an angle grinder owned by appellant when the accident occurred. The angle grinder was not fitted with a safety cover. It was the respondent's evidence that he had protested against being asked to use the apparatus without a safety cover, and that an altercation had resulted between him and an employee of the appellant. However, this was denied by the appellant, and the witness who corroborated the respondent could not understand the contents of the alleged altercation. The respondent is a boilermaker. On 8 May 1995 while cutting stainless steel with an anglegrinder at the appellant's factory he sustained a serious injury which resulted in the loss of an eye. The anglegrinder, which belonged to the appellant, was not fitted with a safety cover. At the time the respondent was engaged by the appellant to perform certain work as an independent contractor. It was common cause that he was not an "employee" as defined in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and was accordingly not eligible for compensation in terms of that Act. He contended, however, that the accident was due solely to the negligence of the appellant and instituted an action for damages in the Transvaal Provincial Division. The appellant denied liability and alleged that the accident was caused solely by the negligence of the respondent. The High court a quo (Van Dyk J) was asked to decide only the issue of liability. It held that the appellant was solely to blame for the accident and refused leave to appeal. The finding was overturned on appeal.

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City Council of Pretoria v De Jager [1997] (A).

de Jager (Respondent) sued the City Council of Pretoria (Appellant) for damages arising from injuries sustained allegedly caused by roadworks being conducted at the Council's behest. Issue in question being the negligence of the appellant's employees, namely whether steps had been taken to guard against the harm that occurred and, if so, whether those steps were reasonable in the circumstances. On appeal finding that a separate walkway around the excavation site was constructed but appellant electing to avoid same and take a short cut. Held, merely because the walkway provided was not entirely of cement does not mean that it was inadequate as a temporary measure. Further, the fence around the excavation site was alleged to have been inadequate merely because it had not prevented de Jager from falling into the hole. Held, the Council was obliged to take no more than reasonable steps to guard against foreseeable harm to the public. Whether in any particular case the steps actually taken are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances of the case. Merely because the harm which was foreseeable did eventuate does not mean that the steps taken were necessarily unreasonable. Ultimately the inquiry involves a value judgment. In coming to a decision, regard must be had to (a) the degree or extent of the risk created by the actor's conduct; (b) the gravity of the possible consequences if the risk of harm materialises; (c) the utility of the actor's conduct; and (d) the burden of eliminating the risk of harm. The inquiry whether the reasonable man would have taken measures to prevent foreseeable harm involves a balancing of considerations (a) and (b) with (c) and (d). Finding merely because the nature of the fence was such that it did not prevent the de Jager from falling into the hole does not mean that the Council failed to take reasonable precautions in the circumstances.

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(b) It was kept under lock and key and the keys were issued only to electricians and an assistant, Phasake, who was allowed into the enclosure only under supervision.

 (f) Safety talks were held regularly to keep the workforce aware of the dangers inherent in an electrically live environment.

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Plaintiffs sought damages from defendant in respect of injuries sustained by second plaintiff when he climbed onto the roof of a railway truck and received a shock from the overhead power lines. Plaintiffs alleged that defendant was negligent in several respects. Held that the probabilities were that the defendant had failed to erect warning signs as required. According to the evidence such accidents were by no means uncommon and it was reasonably foreseeable that young boys who had access to railway trucks with ladders fitted to their roofs would climb these. Found that despite the fact that second plaintiff was a trespasser, defendant owed him a duty of care. A diligens paterfamilias in the position of the defendant would and should have foreseen the reasonable possibility of such an accident. Found that it was not reasonable to expect the defendant to make the property inaccessible to the public but that it was the responsibility of the defendant to see that warning notices are in place. Defendant was negligent in its duty of care towards second plaintiff. On balance of probability found that absence of such notice materially contributed to the harm complained of. Causation has thus been proved. Found that second plaintiff was also at fault and degree of fault assessed at two thirds. 'Much is made by defendant's counsel of the fact that second plaintiff was trespasser on the property of the defendant. However, the mere fact that a person may be trespasser does not mean that a landowner does not owe a duty of care to that person. In Farmer v Robinson GM Co Ltd 1917 AD 501 Innes CJ said at 523 –"In most cases the presence of trespassers cannot reasonably be foreseen; but if in any instance a reasonable man would anticipate such presence, then it seems to me that the owner should observe towards the trespassers due and reasonable care. The warning notice, namely, the electric shock hazard warning sign, required to be affixed to rolling stock upon which there are ladders leading to the roof thereon where one may come into contact with live overhead electrical wires and in the vicinity thereof, may well be a warning notice primarily intended for the defendant's own employees or for persons authorised to be in the vicinity of the rolling stock concerned. All the more so, however, is such a warning sign necessary in respect of unauthorised persons who may nevertheless reasonably be expected to be in the vicinity of such rolling stock and second plaintiff falls into this class'.

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Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening). 1999 CC.
In this case the Constitutional Court was asked to confirm a decision of the Eastern Cape High Court which declared section 35 of the Compensation for Occupational Injuries and Diseases Act (the Act) unconstitutional. The provision prevents employees from claiming damages from their employers, except where provided for in the Act. The Constitutional Court declined to confirm the judgment. Ms Jooste was employed as a cashier at Score Supermarket. She fell and was injured at her workplace. She claimed that her injuries were caused by the negligence of one or more of her fellow workers during the course of their employment. She brought a common law claim for damages against Score Supermarket, who argued that the provision prevented an employee from making such a claim against an employer. Jooste responded that the provision was unconstitutional in that it violated her rights to equality, fair labour practices, and access to courts. Her equality challenge was based on the fact that the provision denies employees their common law right to claim damages from their employers. This, she maintained, places them at a disadvantage in relation to people who are not employees and who retain such a right. The High Court found that the provision violated an employee’s right to equal protection and benefit of the law. The matter was then referred to the Constitutional Court for confirmation. The Constitutional Court said that it was clear that the challenged provision differentiated between employees and non-employees. Was this unconstitutional? The only issue was whether the challenged provision was rationally connected to a legitimate government purpose. The Constitutional Court found that the legitimate purpose of the Act is to provide a system of compensation for employees for disability or death caused by injuries or diseases in the workplace. Such a system supplants the common law right of an employee to damages from a negligent employer. Instead, it allows the employee to claim limited compensation from a fund (to which employers are obliged to contribute) even where the employer was not negligent. Therefore, viewed in the context of the Act as a whole, the challenged provision depriving employees of their common law right to damages from their employer was not arbitrary or irrational. Nor did it favour employers only . In other words, it was rationally connected to the legitimate purpose of the Act. The decision of the High Court therefore was not confirmed. The judgment of the Court was delivered by Yacoob J and was concurred in by the other members of the Court.

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Commissioner for the SA Revenue Service v TFN Diamond Cutting Works. SCA March 2005. 

On 31 March 2005 the Supreme Court of Appeal dismissed an appeal by the Commissioner for the South African Revenue Service (the Commissioner) and the Minister of Finance (the Minister) against a finding by the Pretoria High Court that they were jointly and severally liable to TFN Diamond Cutting Works (Pty) Ltd (TFN) for the loss of its diamonds. During November 2000 a consignment of diamonds was detained by customs officials at the Johannesburg International Airport who had undertaken to return the diamonds to TFN upon due entry of its contents. Two days later when employees of TFN presented the clearance documentation to the customs officials and sought release of the diamonds, it was discovered that the diamonds were missing. The Pretoria High Court concluded on the evidence before it that the diamonds had been stolen by one of the customs officials during the night shift. It accordingly held the Commissioner and Minister liable to TFN for the loss. With leave of that court, the Commissioner and the Minister appealed to the SCA, contending that the employee who had stolen the diamonds had acted outside the course and scope of his employment and that they were not vicariously liable for the theft. They contended further that by virtue of s 17(3) of the Customs and Excise Act they were exempt from liability. The SCA held that it was the duty of the employee in question to safeguard the diamonds. He failed in that duty. It followed that the Commissioner and the Minister were accordingly vicariously liable. If s 17(3) were to be construed as the Commissioner and the Minister would have it, that would lead to an absurdity said the SCA. It followed, held the SCA, that the Minister and the Commissioner were liable to TFN for its loss.

The same principles apply in determining whether a company is criminally liable for (OHS) crimes of its employees. RHL.