MEC for the Department of Health, Free State Province v De Necker

The respondent, Dr Elizabeth Johanna de Necker, was employed by the Free State Department of Health as a paediatric registrar at Pelonomi Hospital. While on night duty in the early hours of 30 October 2010, she was attacked by an intruder who had unlawfully gained access to the hospital premises. She was struck with a brick, rendered unconscious and raped while moving between hospital wards in the course of performing her duties. The assailant was not a patient or employee and had no connection to the hospital. Dr De Necker instituted a delictual claim for damages against the MEC. The MEC raised a special plea that the claim was barred by section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), contending that the rape constituted an occupational injury arising out of and in the course of employment.

The appeal was dismissed with costs, and the High Court’s dismissal of the MEC’s special plea was upheld.

This case is significant for clarifying the limits of COIDA’s exclusivity provision. It establishes that not all injuries suffered at the workplace fall within COIDA, particularly where intentional criminal acts by strangers bear no causal connection to the employee’s work. The judgment is important for victims of workplace violence, especially sexual violence, confirming that they may pursue common-law remedies where the injury does not arise out of employment.