Criminal and intentional acts versus COIDA

March 1st, 2014
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Twalo v The Minister of Safety and Security and Another [2009] 2 All SA 491 (E)

By Justice Finger

Court judgments with far-reaching effect sometimes go unnoticed for many years. A good example of such a case is Twalo v The Minister of Safety and Security and Another [2009] 2 All SA 491 (E), delivered by Ebrahim J that changed the law regarding claims for occupational injury or diseases. In South Africa, employees are generally barred from claiming damages against their employer for any occupational injury or disease. This is in terms of s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), which makes the Compensation Fund liable for payment. Ebrahim J ruled that there are exceptions to this general rule and that criminal and/or intentional acts in particular fall outside the reach of COIDA, thus entitling the employee to claim directly from the employer. There are indications that the judgment is now starting to have an impact.

In view of the high rate of crime in this country, one has to ask what the implications of the judgment are for the state and private sector and, more importantly, whether the judgment will open the floodgates of litigation. In this article the judgment is analysed in order to determine whether it was decided correctly.

COIDA

Section 1 of COIDA defines ‘accident’ as ‘an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee’ and ‘occupational injury’ as ‘a personal injury sustained as a result of an accident’.

Section 35(1) of COIDA states that: ‘No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any 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 save under the provisions of this Act in respect of such disablement or death.’

Background

The second defendant (an employee of the Minister) shot Twalo, a colleague, with a firearm at a police station. The plaintiff, Twalo’s widow, claimed that the defendant shot Twalo intentionally and she claimed damages in her personal capacity and on behalf of her three minor children from the Minister of Police and the second defendants for loss of support due to the death of her husband.

The first defendant admitted that, at the time of shooting, the second defendant was an employee but, of importance for the purpose of this article, he made a special plea that the plaintiff is barred from claiming damages against it by the provisions of s 35(1) of COIDA.

Judgment

The court was requested to determine the plea first and the issues that had to be determined can be summarised as follows –

  • whether intentional acts fall within the definition of an ‘accident’; and
  • whether the shooting arose out of and in the course of the employee’s employment.

Do intentional acts fall within the definition of an ‘accident’?:

It is important to note that COIDA attempts to define an accident, but never actually defines the word ‘accident’.

The defendant urged the court not to place a restrictive interpretation on the definition of ‘accident’. The proper interpretation would be that an accident included both a negligent as well as an intentional act and that it should be interpreted in line with the decision in Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) SA 1 (CC).

The court rejected this argument and stated that it could not find any substantiation for the contention that the definition of ‘accident’ should be broadened to include not only a negligent act but also the intentional killing by one employee of another, despite the absence of any causal connection with their respective duties.

The court went on to state that, on the agreed facts, it was not in dispute that the second defendant intentionally shot the deceased and pleaded guilty to a charge of murder. Relying on Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T) at 901G, regarding the definition of ‘accident’, the court concluded that on these facts the shooting was patently not an accident as defined in COIDA. It went on to state that it could be said that the shooting was an ‘unexpected occurrence’, but it was by no means ‘unintended’ – the second defendant’s actions in shooting the deceased were premeditated and were carried out with the intention to kill him.

Did the shooting arise out of and in the course of employment?

In this instance the plaintiff argued that the test was ‘not whether or not the “wrongdoer” was acting within the course and scope of his employment but rather whether the “victim” was acting within the course and scope of his employment at the time when he sustained or contracted the occupational injury’ (at para 13).

The court rejected this argument and applied the test of vicarious liability adopted by Zulman AJ in ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA) and concluded that the action was not ‘about the affairs, or business, or doing the work of, the employer’ (at para 5). It remarked that the sole reason for the second defendant shooting the deceased was the existence of a private dispute between them. The fact that it took place while both of them were on duty as policemen and at their workplace was entirely coincidental. The shooting could have occurred at any other place entirely unrelated to their work environment as the motive for the shooting bore no causal relationship with their work (at para 19).

The court rejected both arguments by the defendant on the basis that they created the impression that the right to claim compensation in terms of COIDA would effectively be unqualified, since it would mean that, as long as the employee (ie, the victim) was acting in the course and scope of his or her employment at the time of the incident, it would not be necessary to show that a causal relationship (Minister of Justice v Khoza 1966 (1) SA 410 (A) at 417) existed between the nature of the injury and the duties carried out by the employee.

It concluded that, on the facts as presented, the intentional shooting of the deceased was not an accident and that the deceased did not sustain an occupational injury that resulted in his death and that the provisions of s 35(1) of COIDA were accordingly not applicable.

Other relevant cases

To state that the Twalo case was the first judgment that pioneered the position that intentional acts do not fall within the confines of COIDA, will not be correct. One has to go as far back as the Khoza case where a policeman on duty played with his revolver and unintentionally shot and injured a fellow policeman. Rumpff JA in the majority judgment concluded that for an accident to arise out of and in the course of employment, there had to be a causal connection between the accident and work. Further, that causal connection is eliminated when a workman (an employee) is deliberately injured by another person and the motive for the attack bears no relationship to the duties of the workman (at 417). Recently the Free State High Court in the matter of De Necker v MEC for the Department of Health, Free State Province (FB) (unreported case no 2399/2012, 23-10-2013) (Mocumie J) – about a medical doctor who was raped at work – followed the Twalo and Khoza judgments. The De Necker case is subject to an appeal to the Supreme Court of Appeal.

There are other judgments, however, which differ from the judgments in the Twalo and Khoza cases. The first is the case of Ex Parte Workmen’s Compensation Commissioner: In re Manthe [1979] 4 All SA 885 (E). In this case an employee was robbed on the premises of his employer. Addelson J came to the conclusion that Rumpff JA’s conclusion about the motive of the attack in the Khoza case was obiter (at 816G) and declared that the assault occasioned by robbery is an ‘accident’ and further that it arose out of the course of employment (at 816F). The second is the case of Van De Venter v MEC of Education: Free State Province (unreported case no 3545/2010, 4-10-2012) (Rampai J) in which the court, although dealing with condonation, concluded that a robbery is and remains an occupational injury.

COIDA was implemented for the benefit of employees (the Jooste case at 13). It would appear that the reason for claiming outside COIDA is motivated by the desire to get more money. I am of this opinion because the Compensation Fund, in line with the In re Manthe judgment, accepts claims caused by intentional acts.

It is my submission that the Twalo and Khoza decisions (whether obiter or not) were wrong in many respects and will only lead to the disadvantage of employees. There is need to extend the definition of ‘accident’ and to adopt the position in the In re Manthe case. Failure to do so will mean that certain employees are barred from claiming under COIDA and will have to apply to court, as opposed to the quick and easy process provided for in COIDA. Furthermore, the concept of ‘arising out of and in the course of employment’ needs to be properly evaluated. The court in the Twalo case, in dealing with this concept, adopted the test in the Absa Bank case, which essentially dealt with vicarious liability. It will be interesting to see the effect of the absence of the word ‘scope’ in the COIDA definition. I submit that there is nothing wrong in interpreting ‘arising out of and in the course of employment’ to mean while ‘at work’ executing the employer’s  obligations.

As to the issue of opening the floodgates; I am of the opinion that, although there may be an increase, there is no evidence that there has been an increase of intentional incidents in workplaces. On the contrary, recent crime statistics indicate that a home is the most dangerous place to be. However, I submit that certain employers and employees, for example, in the security and protection services, will no doubt be negatively affected by the Twalo judgment. After all, these are sectors with employees who are more likely to experience cash in transit robberies or armed robberies. The decision in the Twalo case will have a negative effect on these employers as they may, in addition to contributing to the Compensation Fund, also have to take out insurance to cover intentional acts.

Conclusion

There is no merit in the argument in the Twalo case that extending the meaning of ‘accident’ will mean that COIDA is unqualified, thus creating the impression that any employee making an application will be covered. Claimants will still be required to prove that it was an ‘accident’ and that the injury or disease arose out of and in the course of employment. Applying the judgments in the Twalo and Khoza cases will be to the disadvantage of employees who will be burdened with applications to court and employers who will now have to face litigation from their own employees. As stated, the Supreme Court of Appeal will finally get the opportunity to give guidance on the matter.

Lastly, there is a scope for the Compensation Fund to review the tariffs and accommodate cases of intentional acts to ensure just compensation.

Justice Finger LLB (UFS) is a legal adviser in Bloemfontein.

This article was first published in De Rebus in 2014 (March) DR 39.