Die aanspreeklikheid van die mynsektor in Suid-Afrika op grond van 'n ongesonde en onveilige werksomgewing
Occupational health services in South Africa have developed in a fragmented manner and lag behind international developments. Even though there is a renewed effort to attend to the challenges facing the occupational health services in this country, is it important to reform the compensation legislation of South Africa in order to comply with international developments. A main problem with a claim for compensation for an occupational injury or disease, is that in terms of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, no action shall lie by an employee or any dependant of an employee for recovery of damages in respect of an occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no liability for compensation on the part of such employer shall arise under the provisions of the Act in respect of such disablement or death. This provision was referred to the Constitutional Court for a final decision on the validity of section 35 of the Act, where the Constitutional Court found that section 35 does not violate the right to equal protection and benefit of the law in section 9 of the Constitution of the Republic of South Africa, 1996. According to the Constitutional Court, the question whether or not an employee ought to have retained the common law right to claim damages, either over and above or as an alternative to the advantages conferred by the Act, is a highly debatable, controversial and complex matter of policy. Other obstacles with the submitting of claims for occupational injuries and disease is: that the Compensation Commissioner will only pay 2 reasonable medical expenses; the medical report, which must be completed by a chiropractor, makes only provision for occupational injuries and must be adapt to make provision for the claim of compensation for occupational diseases; there is unreasonable delays in claims, due to the fact that there is no provision in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 to compel the Compensation Commissioner to act within a certain period of time; etcetera. Since 1994 important developments took place in South Africa, especially with the commencement of the Constitution of the Republic of South Africa, 1996. The mining industry, which includes underground and surface ore extraction, smelting and refining, remains a pillar of the South African economy. The promulgation in 1996 of the Mine Health and Safety Act 29 of 1996, was thus important to modernise occupational health and safety practices in the mining industry. Section 24 of the Constitution of the Republic of South Africa, 1996 states that everyone has the right to a healthy environment that is not harmful to their health or well-being. The "right to a healthy environment" could also be interpreted to include the right to a clean and healthy "working environment". Section 24 may also be horizontally applied, which means that individuals or companies (the mine for example) may be held accountable for the infringement of a fundamental right. It is thus clear that there is an obligation, in terms of the Constitution, on the mining sector to protect the fudamental rigths of employees by providing a clean and healthy working environment for them.
- ETD@PUK