Sadly, Louis van Assen passed away on the 9th of April 2013 after being ill for quite some time.

Why Was Worker’s Compenstion Necessary?

I have over the past months presented you with a brief summary of the more important aspects of workers’ compensation in South Africa.  There were several Acts in this regard since the end of the 19th century and eventually culminated in the 1993 Act which came into force on 1 March 1994.  Generally speaking the different Acts improved over the years but the central theme remained unchanged and that is assisting the injured so as to avoid hardship.

Let us make it immediately clear that an Act is only as good as its administration.  Poor administration means bad legislation.  From the feedback that I receive from employers and employees a perception exist that the present administration is deficient and the purpose for the legislation, that is to assist the injured, has dismally failed.  The attitude of the CC-staff that they are doing the injured employee a favour must be changed and they should be made to understand that they are being paid handsomely to assist the persons in need.

Why Was Worker’s Compensation Legislation Necessary?

During the 19th century the economic conditions drastically changed as a result of the industrial revolution.  Greater protection and security became necessary for injuries on duty including fatalities.  To cut a long history short; three conditions arose which led to the advent of worker’s compensation, namely:

  1. The employer was by law compelled to compensate the injured employee irrespective of who caused the accident;
  2. The employer was obviously not always in a financial position to pay the compensation that was due as a result of the injury on duty;
  3. Because of the financial burden placed on employers, the state intervened and the principle of workers’ compensation insurance was created.  The full circle in the trade-off development was now complete.  This in short meant that the employer was now compelled by law to pay an annual premium to the state to create a compensation fund.  In exchange the injured employee is prohibited to sue the employer for damages in terms of his common law delictual rights, the so-called “trade-off”.

The Workmen’s Compensation Act, 1897

This Act can be regarded as the first true workmen’s compensation statute in a common law country.  Section 1 of the Act reads as follows:

“If in any employment to which this Act applies a personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall ……. be liable to pay compensation in accordance with the first Schedule to this Act”

For the first time the no-fault rule was introduced.  The workman was entitled to compensation irrespective whether the injury was caused through the fault of any person.  Due to the financial burden that this principle placed on the employer a state compensation fund from which the compensation was payable was established.

The Compensation for Injuries and Diseases Act, 1993 as amended

You will note from the brief history above that the main principles of the original legislation remained unchanged.  There were a few significant changes but in general it is based on the same principles.  One may ask: Should the present 1993 Act be changed at this stage, i.e. is it necessary to research and amend it now?  The fragmentation of cover for occupational diseases is a valid example.  Despite numerous commissions of enquiries and political promises occupational diseases in mines are still administered in terms of a different Act.  It appears as if the will to change this is absent.  My view, however, is that changes to the present COIDA is a definite NO mainly because of the following reasons:

  1. The present level of expertise is so low that the introduction of new principles will aggravate the chaotic situation which exists.  Training of the staff is a necessity but it is also true that it takes about ten years of experience to become a claims officer.  I have seen enough to vouch for this;
  2. Judging from the 1997 amendments to the COIDA the next amendments could even be a bigger disaster.  To illustrate ask yourself what the director-general of the department duties are since he became the accounting officer;  I sincerely doubt whether he knows, that is taking the many suspensions into account

Till next month