The South African mining industry’s commitment to preventing fatalities and accidents – in line with the ‘2013 Milestones’ plan and other initiatives – has placed significant emphasis on health and safety, says law firm Brink Cohen Le Roux partner Willem le Roux.

However, he states that hearing loss, tuberculosis and silicosis are still the biggest health problems facing the industry, which has led to a reactive approach by mining companies to health and safety.

“It is important for the employee and the people that suffer as a result of the employee’s injuries or disabilities, as a result of work, to be compensated and to be remunerated for damages sustained. And it is important for the employee as well as the employer to understand the laws governing health and safety in industry.”

South Africa has two statutory systems for the payment of compensation for work-related deaths, injuries and diseases. These are contained in the Compensation for Occupational Injuries and Diseases Act (Coida) and the Occupational Diseases in Mines and Works Act (ODMWA).

Coida has a general application, while the ODMWA applies specifically to claims for defined compensable diseases, contracted as a result of work performed at ‘controlled mines’ or the performance of ‘risk work’.

The ODMWA definitions include diseases such as asbestosis, pneumoconiosis, silicosis and tuberculosis, besides others.

Coida applies to certain occupational dis- eases not covered by the ODMWA and to injuries arising out of and in the course of the employee’s employment and resulting in personal injury, illness or death.

Le Roux explains that, in terms of accidents, the two pieces of legislation differ and that there are a few loopholes to consider. “An acci- dent must happen in employment to be compensable. There must be a relationship between the nature of the accident and the workplace. However, if a person should be struck by lightning, for example, it is not regarded as an accident in terms of the legislation and cannot be compensated, unless the employee was working in a lightning-exposed position.

“In cases of an accident, the employee and the company are covered by Coida but, if it is not an accident, and there was negligence on the [part] of the employer, the employee (or the employees’ dependents) can sue the employer,” he states.

Le Roux says it is important to note that the usual compensation payable to employees or the independants in terms of Coida or the ODMWA may be significantly less than the amount of damages that would be awarded by a court if the employee or dependant were to succeed with a common law claim.

Coida pays an increased compensation if the employer is proven negligent, while the ODMWA does not make provision for the award of any increased compensation in the event of the negligence of the employer.

Further, Le Roux points out there are also challenges arising from the death of an employee at the workplace. “The use of State pathologists for postmortems presents a significant challenge. Rules are not being complied with, a proper examination is not conducted and biopsies are not taken. “I have experienced State pathologists who are not qualified to do the job, have no training and do not know what to look for. This could result in the wrong diagnosis of death and also affects the outcome of whether the employee had a work-related death or died of natural causes.

“It is, thus, important to know whether an employee has certain illnesses and whether this employee contracted the disease while in the employment of a particular company,” he says.