Thembekile Mankayi v AngloGold Ashanti Limited

Mr Thembekile Mankayi was employed by AngloGold Ashanti as an underground mineworker from January 1979 to September 1995. During his employment, he was negligently exposed to harmful dusts and gases, causing him to contract tuberculosis and chronic obstructive airways disease. These diseases rendered him unable to work. He was certified in 2004 as suffering from a compensatable disease under the Occupational Diseases in Mines and Works Act (ODIMWA) and received R16,320 in compensation from the Compensation Commissioner. In 2006, Mr Mankayi instituted a delictual damages claim against AngloGold for approximately R2.6 million, comprising past and future loss of earnings, future medical expenses, and general damages. AngloGold excepted to the claim, arguing that section 35(1) of the Compensation for Occupational Injuries and Diseases Act (COIDA) barred his common law claim. Both the High Court and Supreme Court of Appeal upheld the exception, finding that section 35(1) of COIDA extinguished mineworkers' common law claims even when they were not entitled to claim compensation under COIDA but only under ODIMWA.

• Whether section 35(1) of COIDA extinguishes the common law right of mineworkers to recover damages for occupational injury or disease from negligent mine owners when they are not entitled to claim compensation under COIDA but only under ODIMWA
• Whether the word 'employee' in section 35(1) of COIDA includes employees covered by ODIMWA notwithstanding that they are barred from claiming benefits under COIDA
• The proper interpretation of section 35(1) of COIDA in light of section 100(2) of ODIMWA
• Whether the interpretation of section 35(1) of COIDA engages constitutional rights, particularly the right to freedom and security of the person (section 12(1)(c))
• Whether the abolition of a common law remedy that gives effect to a constitutional right raises a constitutional matter

Condonation granted. Leave to appeal granted. Appeal upheld. The order of the Supreme Court of Appeal set aside. The exception dismissed. The respondent (AngloGold Ashanti) ordered to pay the applicant's costs in the High Court, Supreme Court of Appeal, and Constitutional Court, including costs of two counsel.

Section 35(1) of COIDA, which extinguishes employees' common law claims for damages against employers and limits employer liability to compensation under that Act, applies only to employees who are entitled to claim compensation under COIDA. It does not apply to employees who are barred by section 100(2) of ODIMWA from claiming benefits under COIDA and are entitled only to compensation for compensatable diseases under ODIMWA. The provision must be interpreted contextually. The "employee" referred to in section 35(1) whose common law claim is expunged is limited to employees with claims for compensation under COIDA in respect of occupational diseases mentioned in COIDA. The expungement does not extend to employees not entitled to claim compensation in respect of occupational diseases under COIDA. Section 100(2) of ODIMWA expressly removes certain employees from the COIDA compensation scheme. Section 35(1) limits employer liability to compensation "save under the provisions of this Act", indicating both parts of the provision apply only to those covered by COIDA. The provision is located within Chapter IV of COIDA, all provisions of which deal exclusively with COIDA compensation. ODIMWA and its antecedent legislation are silent on the exclusion of common law claims.

Khampepe J observed that: (1) The common law right to claim damages for negligent infliction of bodily harm constitutes an effective remedy required by section 38 of the Constitution to protect the section 12(1)(c) right to freedom and security of the person; (2) Delictual remedies protecting constitutional rights may constitute appropriate relief for purposes of section 38; (3) ODIMWA compensation is significantly inferior to COIDA compensation - ODIMWA provides only lump sum payments without provision for funeral expenses, dependants' pensions, or increased compensation for employer negligence, unlike COIDA; (4) The singular history of mining in South Africa, with its massive contribution to national wealth and corresponding toll on mineworkers' health, justifies distinct treatment of mining diseases; (5) There is nothing irrational in preserving employees' common law claims in respect of ODIMWA-compensatable diseases given the unique risks of mining and its historical role. Froneman J in his concurrence stated that: (1) All statutory interpretation is a constitutional matter because section 39(2) of the Constitution requires courts to interpret legislation to promote the spirit, purport and objects of the Bill of Rights; (2) The question for leave to appeal should shift from "what is a constitutional matter" to "which constitutional matters will this Court hear"; (3) All questions of law are constitutional matters over which the Constitutional Court may exercise jurisdiction (reviewing only findings of fact are not); (4) The Constitution is the plenary source of all law and there is an impossible tension in attempting to conceive of areas of law operating independently of the Constitution; (5) It would only be in the interests of justice to hear a constitutional matter if the legal issue involves a plausibly contested vision of the content or reach of constitutional values or rights.

This case is significant for establishing that section 35(1) of COIDA does not extinguish the common law delictual claims of mineworkers who are entitled only to compensation under ODIMWA and are barred from claiming under COIDA. It affirms the importance of contextual statutory interpretation, particularly where a statute is claimed to curtail fundamental common law rights that give effect to constitutional protections. The judgment recognizes the distinct treatment of mineworkers given the historical role of mining in South Africa and the particular dangers it poses. It protects vulnerable mineworkers who would otherwise be left with inadequate ODIMWA compensation without recourse to common law remedies for employer negligence. The case also addresses jurisdictional questions about what constitutes a "constitutional matter" for purposes of Constitutional Court jurisdiction, with Froneman J's concurrence suggesting that all questions of law are constitutional matters given the Constitution's status as the supreme and plenary source of all law. The case has important implications for occupational health and safety law, employer liability, and the intersection between statutory compensation schemes and common law remedies.