There can be no more notorious invasion of a woman’s physical integrity and further more of her mental wellbeing than that of rape. We often encounter repulsive stories of female employees being raped and sexually violated whilst on duty. Even more revolting is that more often than not an employer’s failure to provide reasonable protective measures against rape was largely excused by Section 35(1) of The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), that is until now.
It is common cause that COIDA limits an employee’s common law right to sue his or her employer for injuries caused by an accident that arose out of such employee’s employment. The policy behind the Workers’ Compensation Legislation thus largely entails that workers should as far as possible be assisted to claim compensation that is their due under the Act and which flows from incidents connected to their employment and which can rightly be said to be a risk attendant upon or inherent to their employment. That being said surely it cannot be the approval of our Constitution that rape directed against woman is an inherent risk in employment in South Africa.
In the matter of MEC for the Department of Health , Free State Province v Dr Elizabeth Johanna de Necker The Supreme Court of Appeal scrutinised the barring provided by Section 35(1) by not merely asking the questions as to whether rape constituted an accident for the purposes of COIDA and furthermore arose out of and in the course of employment but rather made reference to terms such as “necessary risk of employment” or “risks incidental to employment” as the test for determining whether a causal connection had been established between the specific employment and the said accident. In layman’s terms if the act causing the injury is a risk incidental or necessary to the employment then the casual connection has not been severed and COIDA will apply.
By applying the said test the Court found that the risk of rape is not incidental to any employment thereby sending a strong message to employers who fail to provide reasonable measures to protect their employees from harm whilst on duty. In support of its judgment Acting Deputy President MS Navsa emphasised the following:
“Dealing with a vulnerable class within our society and contemplating that rape is a scourge of South African society, I have difficulty contemplating that employees would be assisted if their common law rights were to be restricted as proposed on behalf of the MEC. If anything, it might rightly be said to be adverse to the interest of employees injured by rape to restrict them to COIDA. It would be sending an unacceptable message to employees, especially woman, namely, that you are precluded from suing your employer for what you assert is a failure to provide reasonable protective measures against rape because rape directed against woman is a risk inherent in employment in South Africa. This cannot be what our constitution will countenance”.
Written by : Yolandi Vosloo (LL.B)