Minister of Defence and Military Veterans v Thomas (CCT168/14) [2015] ZACC 26 (2015) ILJ 2751 ; [2015] JOL 33707 (25 August 2015) per Froneman J (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring):

The Constitutional Court granted leave to appeal but disallowed the appeal.  The Compensation for Occupational Injuries and Diseases Act 130 of 1993 governs the compensation employees may claim arising from injuries suffered while at work.

‘Compensation under the Act may come in two guises.

  • The first is for prescribed benefits payable under the Act for occupational injuries sustained as a result of a work accident (occupational injury benefits). [footnote omitted]  It is payable irrespective of any negligence on the part of the employer.
  • The second is for damages, beyond those benefits, that were caused by a third party at the workplace (workplace damages).

This is an ordinary delictual claim, dependent on proof of wrongful and negligent conduct by the third party.   In contrast, the common law delictual claim against an employer for workplace damages is precluded’.

“[23]      What emerges from the language of the definition is that the word “employer” is used in the Act in a sense wider than its ordinary meaning.   But what is significant is the fact that the Act identifies the action that qualifies one as an employer.   The definition states that a person who employs another person is an employer.   It further tells us that employer includes the State when it employs a public servant.

The scope of the word “employer” under the Act extends further to include the person who controls the business of an employer, and a labour broker who pays the salary of a worker offered to a third party for specific services.

[24]      In contrast, where the employer seconds an employee to a third party or allows the employee to work for another person for a limited period, the person to whom an employee is seconded does not become an employer in the eyes of the Act.  

The definition specifically states that throughout the secondment, the person who originally employed the worker continues to be her employer.   When applying this part of the definition to the present matter, it means the Western Cape provincial government, which employed Dr Thomas within the State, remained her employer during her secondment to the Department of Defence and Military Veterans.

. . . . .

[27]      This argument is not consistent with the structure of our Constitution which establishes a government consisting of three spheres, namely, national, provincial and local.   The Constitution also acknowledges that, from time to time, disputes will arise between these spheres and when that happens, certain procedures must be followed in an attempt to resolve the dispute, before courts of law can be approached.

By accepting that disputes will sometimes reach the courts, the Constitution affirms that each sphere is separate from the others, even though they are interdependent and interrelated.   The Constitution provides for the devolution of power between these spheres and barring concurrent competencies, each sphere enjoys the exclusive exercise of power allocated to it.

[28]      The construction advanced by the Minister is also at odds with the Public Service Act which identifies various functionaries as the appointing authority of officials in different State departments at both provincial and national spheres.   That interpretation is, in addition, not in line with the other provisions of the Act set out below.

. . . . .

[38]      These considerations show how the approach in this judgment differs from that of the Supreme Court of Appeal.   The textual and contextual arguments counter each other and do not provide sufficient grounds for choosing one reasonable interpretation above the other.   The balance must be tilted by looking at which interpretation will best “promote the spirit, purport and objects of the Bill of Rights”.

In Bato Star,  this Court held:

“Indeed, every court ‘must promote the spirit, purport and objects of the Bill of Rights’ when interpreting any legislation.   That is the command of section 39(2).   Implicit in this command are two propositions: first, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and second, the statute must be reasonably capable of such interpretation.   This flows from the fact that the Bill of Rights ‘is a cornerstone of [our constitutional] democracy.’  It ‘affirms the democratic values of human dignity, equality and freedom.’” (Footnotes omitted.)

[39]      At stake is Dr Thomas’s fundamental right to bodily integrity and security of her person, a right that underlies her common law claim for workplace damages.   The interpretation advocated for by the Minister precludes a further delictual claim and is thus more restrictive of Dr Thomas’s rights.

On that score the Supreme Court of Appeal’s interpretation must be favoured and, therefore, upheld.   To deprive her of her full common law entitlement would, in these circumstances, not be justified.