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

Dr De Necker, a paediatric registrar employed by the Free State Department of Health, was on duty at Pelonomi Hospital from 07:30 on 29 October 2010 until 13:00 on 30 October 2010. She was the only paediatric registrar on night duty and was responsible for multiple paediatric wards and units. At approximately 02:00 on 30 October 2010, while walking between the Neonatal High Care Unit and Ward 3A (in different but connected buildings), she was attacked on the first floor by a 16-17 year old intruder who struck her with a brick, rendered her unconscious, and raped her. The assailant was not a patient or employee, was not authorized to be on the hospital premises, and was later convicted of rape and sentenced to 15 years' imprisonment. At the time of the incident, there was construction work at the hospital, perimeter fencing was under temporary repair, the elevator between the ground and first floor was not working, and the lights on the first floor were not functioning. Dr De Necker instituted a delictual action 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).

• Whether the rape of an employee by an intruder on the employer's premises constituted an 'accident' as contemplated by COIDA
• Whether the rape 'arose out of and in the course of employment' as required by the definition of 'accident' in COIDA
• Whether section 35(1) of COIDA precluded a common law damages claim against the employer
• Whether the risk of rape was incidental to the employment of a medical doctor at a hospital
• The proper interpretation and policy considerations underlying COIDA's exclusivity doctrine

The appeal was dismissed with costs. The special plea based on section 35(1) of COIDA was rejected, meaning Dr De Necker was entitled to proceed with her common law delictual claim for damages against the MEC.

The binding legal principle is that a rape perpetrated by an unauthorized intruder on an employee while on duty does not constitute an 'accident arising out of employment' as defined in COIDA where the rape bore no connection to the employee's employment and was not a risk incidental to that employment. The causal connection required between employment and injury is severed when an employee is intentionally injured and the act causing injury bears no relation to the employee's work. For COIDA's exclusivity provision in section 35(1) to apply and bar a common law claim, the injury must not only occur during the course of employment but must arise out of the employment in the sense that it was a risk inherent or incidental to that employment. Each case must be determined on its own facts, and there is no bright-line test. The question to be asked is whether the wrong causing the injury bears a connection to the employee's employment, or whether the act causing injury was a risk incidental to the employment.

The court made several non-binding observations: (1) It noted some difficulty with the aspect of the dictum in Minister of Justice v Khoza relating the causal connection to the motive of the perpetrator, suggesting this could be problematic and lead to uncertainty, though the court did not overturn that precedent but rather adjusted the approach to ask whether the wrong bears a connection to employment. (2) The court emphasized policy considerations that restricting rape victims to COIDA would send an unacceptable message contrary to constitutional values that rape against women is a risk inherent in employment in South Africa. (3) The court observed that it had difficulty conceiving of circumstances where rape would be an inherent risk of employment, though it did not categorically rule out such a possibility. (4) The court noted that compensation under COIDA sets minimum and maximum amounts that may be inadequate for serious injuries like rape. (5) The court observed that while courts have strained to assist impecunious individuals to claim compensation from COIDA funds, this should not extend to restricting common law rights where doing so would be adverse to employees' interests, particularly vulnerable classes within society.

This judgment is highly significant in South African labour and delictual law as it establishes important limits on the exclusivity doctrine under COIDA. It clarifies that not every injury occurring on an employer's premises during working hours falls within COIDA's ambit - there must be a genuine causal connection between the employment and the risk that materialized. The judgment is particularly important for its recognition that rape is such an egregious violation of constitutional rights to dignity and bodily integrity that it should not ordinarily be classified as an occupational injury, thus preserving victims' full common law remedies against employers who fail to provide adequate security. The case has implications for gender equality in the workplace and employer duties to prevent sexual violence. It reinforces that the generous interpretation of COIDA in favour of employees does not mean restricting their rights where doing so would be contrary to their interests and constitutional values. The judgment engages with comparative law from New Zealand, Germany, England, and the United States on similar questions.