Jooste v Score Supermarket Trading (Pty) Limited

On 27 December 1995, the applicant (Susara Elizabeth Magdalena Jooste), a cashier employed by the respondent (Score Supermarket Trading (Pty) Limited), fell and was injured at the respondent's supermarket. On 29 April 1997, after the 1996 Constitution came into force on 4 February 1997, she instituted action in the Eastern Cape High Court claiming general damages, alleging that her injuries resulted from the negligence of the respondent's employees. The respondent raised a special plea based on section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, which bars employees from suing employers for damages in respect of occupational injuries. The applicant challenged the constitutionality of section 35(1), arguing it violated the interim Constitution's provisions on equality, access to courts, and fair labour practices.

• Whether section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is inconsistent with the equality provisions in section 8(1) and (2) of the interim Constitution (or section 9(1) and (3) of the 1996 Constitution)
• Whether section 35(1) violates the right of access to courts guaranteed by section 22 of the interim Constitution (or section 34 of the 1996 Constitution)
• Whether section 35(1) infringes the right to fair labour practices under section 27(1) of the interim Constitution (or section 23(1) of the 1996 Constitution)
• Which Constitution applies: the interim Constitution (in force when the injury occurred) or the 1996 Constitution (in force when proceedings commenced)
• Whether it was proper for the High Court to determine the constitutional validity without notice to the relevant organ of state (the Minister of Labour)

1. The order of constitutional invalidity of section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is not confirmed. 2. The appeal succeeds. 3. The whole of the order of the High Court is set aside and substituted by the following order: 3.1 The defendant's special plea is upheld. 3.2 The plaintiff's claim is dismissed. 3.3 There is no order as to costs. 4. There is no order as to the costs of the application for confirmation and the appeal before this Court.

The binding legal principles established in this case are: (1) The constitutionality of an Act or statutory provision is ordinarily to be determined by the substantive constitutional provisions in force at the time the cause of action arose. (2) In equality challenges not based on a specified ground, the proper test is: (a) first, whether there is a rational relationship between the differentiation and a legitimate government purpose (if not, there is a breach of section 8(1)); (b) second, if there is such a rational relationship, whether the differentiation amounts to unfair discrimination under section 8(2); (c) if unfair discrimination is established, whether the measure can be justified under the limitations clause (section 33 of the interim Constitution). (3) Rationality review is limited to determining whether differentiation is arbitrary, irrational, or manifests naked preference; it is not concerned with whether the legislative scheme could be improved and does not permit courts to make policy choices under the guise of constitutional review. (4) Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is rationally connected to the legitimate purpose of the Act (comprehensive regulation of compensation for occupational injuries) and does not constitute unfair discrimination against employees. The section cannot be analyzed in isolation from the broader compensation scheme of which it forms an integral part. (5) The right of access to courts (section 22 of the interim Constitution) does not require the retention of all common law rights of action.

The court made several non-binding observations: (1) It noted that courts in the United States of America, Canada, and Germany have found similar worker compensation legislation that limits common law damages claims not to be irrational or arbitrary, though the court did not base its decision on these comparative law references. (2) The court observed that it is "very much an open question" whether the Compensation Act scheme is actually to the disadvantage of employees when compared to the common law position, given the trade-offs involved (certainty and speed versus potential for higher awards but with litigation risks). (3) The court suggested it may have declined to confirm the order of invalidity solely on the ground that notice was not given to the Minister of Labour in the High Court proceedings, though it did not need to decide this point as the matter was disposed of on substantive grounds. (4) The court noted that whether the provisions of section 35(1) constitute a "labour practice" for purposes of section 27(1) of the interim Constitution could be left undecided since there was no evidence that the provision was unfair.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It clarified the proper approach to equality challenges under section 8 of the interim Constitution (and section 9 of the 1996 Constitution), particularly when the differentiation is not based on a specified ground. The court established the two-stage test: first, rational relationship to a legitimate government purpose; second, if there is such a relationship, whether there is unfair discrimination. (2) It established the principle that the constitutionality of legislation should ordinarily be determined by reference to the Constitution in force when the cause of action arose, not when proceedings were instituted. (3) It reinforced the importance of giving notice to and allowing intervention by the relevant organ of state in constitutional challenges. (4) It affirmed the constitutional validity of the worker compensation scheme that trades common law damages rights for a no-fault, administratively efficient compensation system. (5) It delineated the proper boundaries of judicial review, emphasizing that rationality review should not be used as a vehicle for courts to make policy choices that are properly the domain of the legislature. (6) The case demonstrates judicial restraint in matters involving complex social and economic policy choices concerning the balance between employer and employee rights.