REPUBLIC OF SOUTH AFRICA
No. 130 of 1993: Compensation for Occupational Injuries and Diseases Act
as amended by
Compensation for Occupational Injuries and Diseases Amendment Act, No 61 of 1997
ACT
To provide for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases; and to provide for matters connected therewith.
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(Afrikaans text signed by the Acting State President.)
(Assented to 24 September 1993)
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BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows:-
TABLE OF CONTENTS
CHAPTER I
Interpretation of Act
Definitions
CHAPTER II
Administration of act
Compensation Director-General and staff
Delegation of powers and assignment of duties by Director-General
Functions of Director-General
Power of Director-General to acquire and alienate immovable property and to raise money
Powers of Director-General regarding witnesses and subpoenas
Powers of authorized person
Assessors
Benefits payable to assessors
Compensation Board
Constitution of Board
Functions of Board
Term of office and remuneration of members of Board
Meetings of Board
CHAPTER III
Compensation Fund and Reserve Fund
Compensation fund
Application of compensation fund
Valuation of compensation fund
Accounting
Reserve fund
Accounts and audit
Income of funds exempt from tax
CHAPTER IV
Compensation for occupational injuries
Right of employee to compensation
Accidents outside Republic
Application of Act to seamen and airmen
Accidents during training for or performance of emergency services
Special circumstances in which Director-General may refuse award
Special circumstances in which Director-General may make award
Employee requiring constant help
Liability for payment of compensation
Mutual associations
Security for payment of compensation and cost of medical aid by employers individually liable
Compensation may not be alienated or reduced
Cession or relinquishment of benefits void
Compensation not to form part of deceased employee's estate
Substitution of compensation for other legal remedies
Recovery of damages and compensation paid from third parties
Threats and compulsion
CHAPTER V
Claims for compensation
Notice of accident by employee to employer
Notice of accident by employer to commissioner
Inquiry by Director-General into accident
Particulars in support of claim
Employee to submit to medical examination
Claim for compensation
Prescription
Consideration of claim
Appearance of parties
CHAPTER VI
Determination and calculation of compensation
Compensation for temporary total or partial disablement
Expiry of compensation for temporary total or partial disablement
Compensation for permanent disablement
Amendment of Schedule 2
Compensation for permanent disablement of employee in training or under 26 years of age
Payment of lump sum in lieu of pension
Compensation to employee previously in receipt of compensation
Amount of compensation if employee dies
Amendment of Schedule 4
Increased compensation due to negligence of employer
Increase of monthly pensions
Advances on compensation
Control over payment of compensation
Pensioner resident outside Republic
Recovery of compensation or other benefits
Provisional settlements
Manner of calculating earnings
Certain compensation to employers prohibited
CHAPTER VII
Occupational diseases
Compensation for occupational diseases
Presumption regarding cause of occupational disease
Calculation of compensation
Notice of occupational disease by employee and employer
Amendment of Schedule 3
Appointment of medical advisory panels
CHAPTER VIII
Medical aid
First aid
Conveyance of injured employee
Medical expenses
Submission of medical report
Director-General to decide on need for, and nature and sufficiency of, medical aid
Fees for medical aid
Contributions by employees towards cost of medical aid prohibited
Medical aid provided by employers
Consultation of representative medical authorities by Director-General
CHAPTER IX
Obligations of employers
Employer to register with commissioner and to furnish him with particulars
Employer to keep record
Employer to furnish returns of earnings
Assessment of employer
Certain employers exempt from assessment
Variation of tariff of assessment
Assessment to be paid by employer to commissioner
Failure to pay assessment or other moneys
Contributions by employers individually liable and mutual associations
Mandators and contractors
CHAPTER X
Legal procedures
Review of decisions by Director-General
Objections and appeal against decisions of Director-General
Director-General may state case for Supreme Court
Evidence
CHAPTER XI
General
Arrangements with foreign states regarding compensation
Certain documents exempt from stamp duty
Disclosure of information
Regulations
False statements
Penalties
Repeal of laws
Short title and commencement
SCHEDULES
Schedule 1
Schedule 2
Schedule 3
In this Act, unless
the context indicates otherwise-
"accident" means 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;(xxiv)
"actuary"
means any Fellow of an institute, faculty, society or chapter of
actuaries approved by the Minister; (v)
"airman" means
an employee employed in any capacity in an aircraft; (xlii)
"annual earnings"
means-
the amount referred to in
section 82(1)(a) if accepted by the Director-General as correct;
the amount determined by the
Director-General if in his opinion the amount referred to in
paragraph (a) is less than the amount 1 actually paid; or
the estimated amount referred
to in section 82(5); (xvii)
"assessment"
means an assessment made in terms of section 83 ; (ii)
"assessor"
means a person appointed under section 8 as an assessor; (vii)
"Board" means
the Compensation Board established by section 10; (xxviii)
"business"
means any industry, undertaking, trade or occupation or any
activity in which any employee is employed; (x)
"chiropractor"
means a person registered as a chiropractor in terms 2 of the
Associated Health Service Professions Act, 1982 (Act No. 63 of
1982); (xii)
"commissioner"
means the Compensation Commissioner appointed under section
2(1)(a); (xviii)
"compensation"
means compensation in terms of this Act and, where applicable,
medical aid or payment of the cost of such medical aid; (xl)
"compensation fund"
means the fund established by section I5; (xli)
"continental shelf"
means the continental shelf referred to in section 7 of the
Territorial Waters Act, 1963 (Act No. 87 of 1963); (xxxviii)
"contractor"
means a person referred to as a contractor in section 89 ; (i)
"dependant of an employee"
means-
a widow or widower who at the
time of the employee’s death was married to the employee
according to civil law;
a widow or widower who at the
time of the employee’s death was a party to a marriage to the
employee according to indigenous law and custom, if neither the
husband nor the wife was a party to a subsisting civil marriage;
if there is no widow or
widower referred to in paragraph (a) or (b), a
person with whom the employee was in the at the time of the
employee’s death living as husband and wife;
a child under the age
of 18 years of the employee or of his or her spouse, and includes
a posthumous child, a step-child, an adopted child and a child
born out of “wedlock’;
a child over the age of 18
years of the employee or of his or her spouse, and a parent or any
person who in the opinion of the Director-General was acting in
the place of the parent, a brother, a sister, a half-brother or
half-sister, a grandparent or a grandchild of the employee;
a parent of the employee or
any person who in the opinion of the commissioner was acting in
the place of the parent, and who was in the opinion of the
Director-General at the time of the employee’s death wholly or
partly financially dependent upon the employee; (iv)
“Director-General”
means the Director-General of the Department of Labour;
"disablement"
means temporary partial disablement, temporary total disablement,
permanent disablement or serious disfigurement, as the case may be;
(vi)
"earnings"
means the remuneration of an employee at the time of the accident
or the commencement of the occupational disease as calculated in
terms of this Act; (xxxix)
"employee"
means a person who has entered into or works under a contract of
service or of apprenticeship or learnership, with an employer,
whether the contract is express or implied, oral or in writing, and
whether the remuneration is calculated by time or by work done, or
is in cash or in kind, and includes-
a casual employee employed for
the purpose of the employer's business ;
a director or member of a body
corporate who has entered into a contract of service or of
apprenticeship or learnership with the body corporate, in so far
as he acts within the scope of his employment in terms of such
contract;
a person provided by a labour
broker against payment to a client for the rendering of a service
or the performance of work , and for which service or work such
person is paid by the labour broker;
in the case of a deceased
employee, his dependants, and in the case of an employee who is a
person under disability, a curator acting on behalf of that
employee; but does not include-
a person, including a person
in the employ of the State, performing military service or
undergoing training referred to in the Defence Act, 1957 (Act No.
44 of 1957), and who is not a member of the Permanent Force of
the South African Defence Force;
a member of the Permanent
Force of the South African Defence Force while on "service
in defence of the Republic" as defined in section 1 of the
Defence Act, 1957;
a member of the South African
Police Force while employed in terms of section 7 of the Police
Act, 1958 (Act No. 7 of 1958), on "service in defence of the
Republic" as defined in section 1 of the Defence Act, 1957;
a person who contracts for
the carrying out of work and himself engages other persons to
perform such work;
a domestic employee employed
as such in a private household; (xlvii)
"employer"
means any person, including the State, who employs an employee,
and includes-
any person controlling the
business of an employer;
if the services of an employee
are lent or let or temporarily made available to some other person
by his employer, such employer for such period as the employee
works for that other person;
a labour broker who against
payment provides a person to a client for the rendering of a
service or the performance of work , and for which service or work
such person is paid by the labour broker; (xliv)
"employer individually
liable" means an employer who in terms of section 84(1)(a)
is exempt from paying assessments to the compensation fund; (xlv)
"employers'
organisation" means an employers' organisation as defined
in section 1 of the Labour Relations Act, 1956 (Act No. 28
of 1956) ; (xlvi)
"financial year"
means the period between the first day of March in any year and the
last day of February in the following year, both dates included;
(xi)
"mandator"
means a person referred to as a mandator in section 89 : (xix)
"medical aid"
means medical, surgical or hospital treatment, skilled nursing
services, any remedial treatment approved by the Director-General,
the supply and repair of any prosthesis or any device necessitated
by disablement, and ambulance services where, in the opinion of the
Director-General, they were essential; (xv)
"medical practitioner"
means a person registered as a medical practitioner in terms of the
Medical, Dental and Supplementary Health Service Professions Act,
1974 (Act No. 56 of 1974) (xiv)
"Minister"
means the Minister of Labour; (xx)
"mutual association"
means a mutual association licensed under section 30; (xxiii)
“National Revenue Fund”
means the fund established by section 213 of the Constitution of
the Republic of South Africa, 1996 (Act No. 108 0f 1996)
"natural resources"
means the natural resources referred to in section 7 of the
Territorial Waters Act, 1963 (Act No. 87 of 1963); (xxi)
"occupational disease"
means any disease contemplated in section 65(1)(a) or (b); (ix)
"occupational injury"
means a personal injury sustained as a result of an accident;
(viii)
"pension"
means a pension referred to in section 49 or 54; (xxvi)
"periodical payment"
means a periodical payment of compensation in respect of temporary
disablement; (xxvii)
“permanent disablement”,
in relation to an employee and subject to section 49, means the
permanent inability of such an employee to perform any work as a
result of an accident or occupational disease for which
compensation is payable;
"person under
disability" means a minor, a lunatic or any person who by
law is subject to curatorship or tutorship; (xxii)
"prescribed"
means prescribed in terms of this Act or by regulation; (xliii)
“presiding officer”
means any officer appointed in terms of section 2(1)(a) or (b) and
designated as such by the Director-General;
"regulation"
means a regulation made in terms of this Act; (xxix)
"reserve fund"
means the fund established by section 19; (xxx)
"seaman" means
an employee employed in any capacity on board a ship by the
owner or person in command of the ship; (xxxi)
"serious and wilful
misconduct" means-
being under the influence of
intoxicating liquor or a drug having a narcotic effect;
a contravention of any law for
the protection or the health of employees or for the prevention of
accidents, if such contravention was committed wilfully or with a
reckless disregard of the provisions of such law; or
any other act or omission
which the Director-General having regard to all the circumstances
considers to be serious and wilful misconduct; (xiii)
"South African
aircraft" means an aircraft registered or licensed in the
Republic in terms of a law governing the registration or
licensing of aircraft, and the owner of which is resident m the
Republic or has a place of business in the Republic;
(xxxiii)
"South African ship"
means a vessel used in navigation which-
is registered in the Republic
in terms of any law governing the registration of ships and is not
registered in any other state in terms of a similar law; or
is owned or chartered by a
person whose head office or place of business is in the
Republic or by a person who resides in the Republic; (xxxiv)
"tariff of assessment"
means the tariff of assessment referred to in section 83(1); (iii)
"temporary partial
disablement", in relation to an employee, means the
temporary partial inability of such employee as a result of an
accident or occupational disease for which compensation is payable
to perform the whole of the work at which he or she was
employed at the time of such accident or at the commencement of
such occupational disease or to resume work at a rate of earnings
not less than that which he or she was receiving at the time
of such accident or at the commencement of such occupational
disease; (xxxvi)
"temporary total
disablement", in relation to an employee, means the
temporary total inability of such employee as a result of an
accident or occupational disease for which compensation is payable
to perform the work at which he was employed at the time of such
accident or at the commencement of such occupational disease or
work similar thereto; (xxxv)
"this Act"
includes the Schedules thereto and any regulation; (xvi)
"trade union"
means a trade union as defined in section 1 of the Labour
Relations Act, 1956 (Act No. 28 of 1956), and includes an
employees' organization recognized by law and functioning;
(xxxvii)
"Workmen's Compensation Act" means the Workmen's Compensation Act, 1941 (Act No. 30 of 1941). (xxv)
Compensation
Director-General and staff
The Minister shall subject to
such conditions as he or she may determine, in order to assist the
Director-General in the performance of his or her functions in
terms of or under this Act and subject to the laws governing the
public service, appoint-
an officer to be called the
Compensation Commissioner; and
such other officers and
employees as the Minister or an officer designated by him or her
deem necessary.
The commissioner, and the
officers and employees referred to in subsection (1)(b), shall be
remunerated out of the National Revenue Fund, which shall be
reimbursed out of the compensation fund for the expenditure
concerned.
Delegation
of powers and assignment of duties by Director-General
The Director-General may,
subject to such conditions as he or she may determine, delegate any
of his or her powers or assign any of his or her duties to the
commissioner, or an officer or employee referred to in section
2(1)(b), and may at any time cancel any such delegation or
assignment.
A delegation or assignment
under subsection (1)-
shall not divest the
Director-General of the power delegated or duty assigned, and he
or she may at any time amend or set aside any decision made
thereunder; and
shall not prevent the exercise
of the power or the performance of the duty concerned by the
Director-General himself or herself.
Subject to the provisions of
this Act, the Director-General shall-
[deleted]
inquire into accidents and
occupational diseases;
adjudicate on claims and other
matters coming before him for decision;
issue an order for the payment
of compensation in respect of an award made by him;
whether a person is an
employee, an employer, a mandator or a contractor for the purposes
of this Act;
decide any question relating
to-
a right to compensation;
the submission, consideration
and adjudication of claims for compensation;
the calculation of earnings;
the degree of disablement of
any employee;
the amount and manner of
payment of compensation;
the award, withholding,
review, discontinuance, suspension, increase or reduction of
compensation;
the liability for payment of
compensation as contemplated in section 29;
decide whether a person is a
dependant of an employee and, if so, percentage of dependence ,
and, in the case where there is more than one dependant, which
shall receive compensation and the allocation of compensation
among them;
consider and adjudicate upon
claims in terms of section 62;
decide upon-
the need for, and the nature
and sufficiency of, medical aid;
the reasonableness of the
cost of medical aid, and the amount and manner of payment of such
cost;
decide upon the liability for
assessment, tariffs of assessment, the amounts of assessments, the
manner of payment of assessments and related matters;
decide upon any other question
falling within his functions in connection with the administration
of this Act;
administer the compensation
fund and the reserve fund;
recover amounts due to the
compensation fund, including amounts which should not have been
paid out in terms of this Act , or write off such amounts if, in
his opinion, they cannot be recovered;
after the conclusion of each
financial year submit a report to the Minister regarding the
administration of this Act during that year;
record statistics and
information regarding the occurrence and causes of accidents and
occupational diseases, and the award of benefits in terms of this
Act ;
institute such inquiries and
perform such other functions as may be prescribed, or as he may
deem necessary for the administration of this Act.
The Director-General may-
for the administration of this
Act enter into an agreement with any person for the performance of
a particular task or of particular work or for the rendering of
particular services on such conditions and for such remuneration
as may be agreed upon;
found, established or
subsidized, or assist with the founding, establishment or
subsidizing of, a body, organisation or scheme whose objects
include on or more of the following:
the prevention of accidents
or of any disease which is due to the nature of a particular
activity;
the promotion of the health
or safety of employees;
the provision of facilities
designed to assist injured employees and employees suffering from
occupational diseases to return to their work or to reduce or
remove any disability resulting from their injuries or diseases;
the carrying out of any
activity which will contribute to the attainment of any of the
objects referred to in subparagraphs (i), (ii) and (iii);
purchase or otherwise acquire
shares in any body, organization or scheme referred to in
paragraph (b) , and alienate any shares so acquired;
apply unclaimed compensation
for the general welfare of injured employees or employees
suffering from occupational diseases;
[deleted]
Power
of Director-General to acquire and alienate immovable property and
to raise money
The Director-General may with
the approval of the Minister-
raise money by way of loans;
purchase or otherwise acquire
immovable property, and alienate such property.
Immovable property acquired
under subsection (1) shall be held in the name of the
Director-General in trust for the compensation fund.
Powers
of Director-General regarding witnesses and subpoenas
(a) The
Director-General may subpoena any person who in his opinion is able
to give information concerning the subject of any inquiry in terms
of this Act, or who is suspected to have or in the opinion of the
Director-General has in his possession or custody or under his
control any book, document or thing which has a bearing on the
inquiry, to appear before him at a time and place specified in the
subpoena, to be interrogated or to produce such book, document or
thing, and the Director-General may retain such book, document or
thing for further investigation.
(b) An inquiry
referred to in paragraph (a) shall take place in public
unless the Director-General orders otherwise.
The Director-General may call
and administer an oath to, or accept an affirmation from, any
person present at such an inquiry who was or could have been
subpoenaed in terms of subsection (1), and the Director-General or
an assessor may interrogate such person and order him to produce
any book, document or thing in his possession or custody or under
his control.
A person who-
has been duly subpoenaed under
subsection (1) and who fails without sufficient cause to attend at
the time and place specified in the subpoena; 2
has been duly subpoenaed under
subsection (1) or called under subsection (2) and who-
fails to remain in attendance
until excused by the Director-General from further attendance;
refuses to be sworn as a
witness or to make an affirmation;
refuses or fails to answer
fully and satisfactorily any question lawfully put to him under
subsection (2);
refuses or fails to produce
any book, document or thing in his possession or custody or under
his control which he has been required to produce under
subsection (1) or (2);
hinders or obstructs the
Director-General in the performance of any of his functions in
terms of this section,
shall be guilty of an
offence.
A person who, after having been
sworn as a witness or having made an affirmation, makes a false
statement knowing it to be false, shall be guilty of an offence and
shall upon conviction be liable to the penalty that may be imposed
for perjury.
The law relating to privilege
as applicable to a witness testifying in a court of law shall be
applicable at an inquiry referred to in subsection (1).
If a person has been subpoenaed
to appear before the Director-General and the Director-General is
satisfied that such person has as a result of his appearance
suffered any pecuniary loss or had to incur expense, the
Director-General may pay out of the compensation fund the
prescribed allowances or the amount of the loss or expense,
whichever is the lesser.
The Director-General may
delegate any of his functions under this section to an assessor, an
officer or employee referred to in section 1 of the Public Service
Act, 1984 (Act No. 111 of 1984), or a medical practitioner, and in
this section "Director-General" includes any such
assessor, officer, employee or medical practitioner while acting
within the scope of such delegation.
The commissioner shall-
receive notices of accidents
and occupational diseases, claims for compensation, medical
reports and accounts, objections applications, returns of earnings
and payment due to the compensation fund;
by notice in the Gazette
prescribe the rules referred to in section 56(3)(c), as well as
the forms to be used and the particulars to be furnished in
connection with the notice of occupational injuries and diseases,
claims for compensation or any other form or matter which he or
she may deem it necessary for the administration of the Act.
The Director-General may
authorize any assessor, any officer or employee referred to in
section 1 of the Public Service Act, 1984 (Act No. 111 of
1984), or any medical practitioner to investigate any matter that
he may deem necessary for the performance of his functions.
A person authorized under
subsection (1) (in this section referred to as an "authorized
person") shall be furnished with a certificate to that effect
signed by the Director-General.
An authorized person may-
without previous notice, at
all reasonable times enter any premises, and take an interpreter
or other assistant or a police officer with him onto the
premises;
while he is on the premises,
or at any time thereafter, question any person who is or was on
the premises, either alone or in the presence of any other person
on any matter to which this Act relates;
order any person who has
control over or custody of any book, document or thing on or in
those premises to produce to him forthwith, or at such time and
place as may be determined by him, such book, document or thing;
at any time and place order
any person who has the possession or custody of or is in the
control of a book, document or thing relating to the business of
an employer or previous employer, to produce forthwith or at such
time and place as may be determined by him, such book, document or
thing;
seize any book, document or
thing which in his opinion may serve as evidence in any matter in
terms of this Act;
examine or cause to be
examined any book, document or thing produced to him or seized by
him, and make extracts therefrom or copies thereof, and order any
person who in his opinion is qualified thereto to explain any
entry therein;
order an employee to appear
before him at such time and place as may be determined by him, and
question that employee.
An authorized person performing
any function in terms of this section shall on demand produce the
certificate referred to in subsection (2).
Any person who-
falsely holds himself out to
be an authorized person;
refuses or fails to answer
fully and satisfactorily any question put to him by an authorized
person in the performance of his functions;
refuses or fails to comply
with any lawful request of or order by an : authorized person;
hinders or obstructs an
authorized person in the performance of his functions,
shall be guilty of an
offence.
The Minister may after
consultation with the Board appoint so many persons as assessors as
he may deem necessary to assist the Director-General in the hearing
of any objection in terms of section 91.
The assessors referred to in
subsection (1) shall be persons who in the opinion of the
Minister represent the interests of employees and employers,
respectively, and to that end the Minister may consult any
organization representing employees or employers.
The number of assessors
appointed to represent the interests of employees shall be equal to
the number of assessors appointed to represent the interests
of employers.
The Minister may in addition to
the assessors referred to in subsection (1) appoint one or more
medical practitioners, including a medical practitioner appointed
under section 2(1)(b) as medical assessors.
An assessor shall be appointed
for such period and on such conditions as the Minister may
determine, but the Minister may at any time terminate the
appointment of an assessor who-
has been guilty of misconduct
or neglect of duty;
is not able to perform his
functions in terms of this Act properly; or
in his opinion no longer
represents the interests on the ground of which he was
appointed.
An assessor shall be paid the
prescribed remuneration and travelling and subsistence allowances
out of the compensation fund.
If an assessor, excluding an
assessor in the employ of an employer contemplated in section
84(1)(a)(i)) meets with an accident arising out of and in the
course of the performance by him or her of his or her functions as
an assessor and resulting in a personal injury, illness or his or
her death, he or she or his or her dependants, as the case may be,
shall be entitled to the compensation as if he or she were an
employee at the time of the accident.
Compensation in terms of this
section shall be paid by the Director-General out of the
compensation fund.
There is hereby established a board to be known as the Compensation Board.
The Board shall consist of
the Director-General or an
officer contemplated in section 2(1)(a) or (b) designated by him
or her, who shall act as chairperson;
two persons appointed by the
Minister, one of whom shall be appointed after consultation with
the Minister of Health;
the Chief Inspector of
Occupational Health and Safety or his or her nominee;
one person as a member and one
person as an alternate member appointed by the Minister from a
list of the names of not more than three persons nominated in
order of preference by The Rand Mutual Assurance Company Limited;
one person as a member and one
person as an alternate member appointed by the Minister from a
list of the names of not more than three persons nominated in
order of preference by the Federated Employers' Mutual Assurance
Company Limited;
two persons as a members and
up to two persons as an alternate members appointed by the
Minister from a list of the names of not more than six persons
nominated in order of preference by the South African Medical and
Dental Council;
three persons as a members and
up to three persons as an alternate members appointed by the
Minister to represent the interests of all employers from a list
of the names of not more than ten persons nominated in order of
preference by employers' organisations;
five persons as a members and
up to five persons as an alternate members appointed by the
Minister to represent the interests of all employees from a list
of the names of not more than 16 persons nominated in order of
preference by employees' organisations.
An assessor may not be
appointed as a member or alternate member of the Board
An alternate member may attend
and may take part in the proceedings at any meeting of the Board
whenever the member in whose stead he or she has been appointed as
an alternate member, is absent from the meeting.
The Board shall advise the
Minister regarding-
matters of policy arising out
of or in connection with the application of this Act;
the nature and extent of the
benefits that shall be payable to employees or dependants of
employees, including the adjustment of existing pensions;
the appointment of assessors;
the amendment of this Act.
The Board may at the request of
the Director-General advise him regarding the performance of a
particular aspect of his functions.
Term
of office and remuneration of members of Board
The members of the Board
appointed by the Minister shall be appointed for a period not
exceeding four years and on such conditions as the Minister may
determine, but the Minister may at any time terminate the
appointment of any member who-
has been guilty of misconduct
or neglect of duty; or
is not able to perform his
functions in terms of this Act properly.
The Minister may-
at the request of a mutual
association referred to in section 11(1)(d) or (e) terminate
the appointment of a member representing such association; and
terminate the appointment of a
member referred to in section 11(1)(g) or (h) if in his
opinion such member no longer represents the interests on the
ground of which he was appointed.
A member of the Board shall be
paid the prescribed remuneration and travelling and subsistence
allowances out of the compensation fund.
The Board shall meet at the
times and places determined by the chairman.
If six or more of the members
of the Board request the Director-General in writing with a
statement of reasons to convene a meeting, the Director-General
shall within 21 days after having received such request convene a
meeting of the Board.
A quorum for a meeting of the
Board shall be nine members of the Board.
The decision of more than 75 per cent of the members present at a meeting of the Board shall be the decision of the Board.
There is hereby established a
fund to be known as the compensation fund.
The compensation fund shall
consist of
any moneys vested in the
compensation fund in terms of subsection (3);
the assessments paid by
employers in terms of this Act;
any amounts paid by employers
to the Director-General in terms of this Act;
any penalties and fines
imposed in terms of this Act other than by a court of law;
any interest on investments of
the compensation fund and the reserve fund;
any amounts transferred from
the reserve fund;
the payments made to the
Director-General in terms of section 88;
any other amounts to which the
compensation fund may become entitled.
The accident fund established
by section 64 of the Workmen's Compensation Act shall, as from the
commencement of this Act, cease to exist, and all amounts credited
to the accident fund immediately before such commencement, shall as
from such commencement vest in the compensation fund.
All liabilities and rights,
existing as well as accruing, of the accident fund shall devolve
upon the compensation fund as from the commencement of this Act.
The compensation fund shall,
subject to the provisions of this Act, be under the control of the
Director-General and its moneys shall be applied by the
Director-General to-
the payment of compensation,
the cost of medical aid or other pecuniary benefits to or on
behalf of or in respect of employees in terms of this Act where no
other person is liable for such payment;
the maintenance of the reserve
fund;
the payment of expenses
incurred in or in connection with the performance of his functions
in terms of section 4(2);
the reimbursement of the
National Revenue Fund in respect of remuneration paid in
terms of section 2(2);
the payment of the prescribed
remuneration and travelling and subsistence allowances to
assessors;
the payment of the cost of or
in connection with the medical examination of employees;
the payment of witness fees in
terms of section 6(6);
the payment of any other
expenditure incurred by the Director-General in the performance of
his functions in terms of this Act.
The Director-General may
transfer any surplus in the compensation fund to the reserve fund.
Valuation
of compensation fund
The assets and liabilities of
the compensation fund shall from time to time, as the
Director-General may consider necessary, but in any event at
intervals of not more than three years, be valued by an actuary
appointed by the Minister to 1 determine the sufficiency of the
fund.
The result of the valuation
referred to in subsection (l) shall be included in the next annual
report of the Director-General succeeding the completion of the
valuation.
The Director-General shall
receive all money payable to or for the benefit of the compensation
fund in terms of this Act, and shall be charged with the
responsibility of accounting for all money received and the
utilization thereof.
The Director-General may
transfer any part of the moneys in the compensation fund and the
reserve fund to the Public Debt Director-Generals for investment.
There is hereby established a
fund to be known as the reserve fund, consisting of cash or
investments or both.
The amount of the reserve fund
shall be determined by the Director-General.
The objects of the reserve fund
are-
to provide for unforeseen
demands on the compensation fund;
to stabilize the tariffs of
assessment.
Payments out of the reserve
fund shall take place on the authorization of the commissioner.
The reserve fund established in
terms of section 66 of the Workmen's Compensation Act shall, as
from the commencement of this Act, cease to exist, and all amounts
credited to the said reserve fund immediately before such
commencement shall as from such commencement vest in the reserve
fund established by subsection (1).
The Director-General shall keep
such accounts, including an account with a bank contemplated in the
Banks Act, 1990 (Act No. 94 0f 1990) and records as are necessary
for the exercise of proper control over the compensation fund and
the reserve fund, and shall prepare yearly balance sheets made up
to the last day of the financial year, showing in all
necessary detail the assets and liabilities and the revenue
and expenditure of the funds.
The accounts of the said funds
shall be audited by the Auditor-General, and the cost of such audit
shall be paid out of the compensation fund.
The Director-General shall, as
soon as possible after the completion of the balance sheets
referred to in subsection (1), submit a copy thereof and a copy of
the report referred to in section 4(1)(n) to the Minister, who
shall table such copies 5 in Parliament within 30 days after
receipt thereof, if Parliament is in ordinary session or, if
Parliament is not in ordinary session, within 30 days of the
commencement of its next ensuing ordinary session.
The income of the compensation fund and the reserve fund, including income from any investments, shall be exempt from income tax.
Right
of employee to compensation
If an employee meets with an
accident resulting in his disablement or death such employee or the
dependants of such employee shall, subject to the provisions of
this Act, be entitled to the benefits provided for and prescribed
in this Act.
No periodical payments shall be
made in respect of temporary total disablement or temporary partial
disablement which lasts for three days or less.
If an accident is attributable
to the serious and wilful misconduct of the employee, no
compensation shall be payable in terms of this Act, unless-
the accident results in
serious disablement; or
the employee dies in
consequence thereof leaving a dependant wholly financially
dependent upon him.
Notwithstanding paragraph (a)
the Director-General may, and the employer individually liable
or mutual association concerned, as the case may be, shall, if
ordered thereto by the Director-General, pay the cost of
medical aid or such portion thereof as the Director-General may
determine.
For the purposes of this Act an
accident shall be deemed to have arisen out of and in the course of
the employment of an employee notwithstanding that the employee was
at the time of the accident acting contrary to any law applicable
to his employment or to any order by or on behalf of his employer,
or that he was acting without any order of his employer, if the
employee was, in the opinion of the Director-General, so acting for
the purposes of or in the interests of or in connection with the
business of his employer.
For the purposes of this Act
the conveyance of an employee free of charge to or from his place
of employment for the purposes of his employment by means of a
vehicle driven by the employer himself or one of his employees and
specially provided by his employer for the purpose of such
conveyance, shall be deemed to take place in the course of such
employee's employment.
If an employer carries on
business chiefly in the Republic and an employee of his ordinarily
employed in the Republic, meets with an accident while temporarily
employed outside the Republic, such employee shall, subject to
paragraph (c), be entitled to compensation as if the
accident had happened in the Republic.
The amount of compensation
contemplated in paragraph (a) shall be determined on the
basis of the earnings which the employee, in the opinion of the
Director-General, would have received if he had remained in the
Republic.
This subsection shall cease to
apply to an employee after he has been employed outside the
Republic for a continuous period of 12 months, save by agreement
between the Director-General, the employee and the employer
concerned, and subject to such conditions as the
Director-General may determine.
If an employee resident in the
Republic meets with an accident while employed in, on or above the
continental shelf, such employee shall be entitled to compensation
as if the accident had happened in the Republic.
If an employer carries on
business chiefly outside the Republic and an employee of his
ordinarily employed outside the Republic, meets with an accident
while temporarily employed in the Republic, such employee shall not
be entitled to compensation unless the employer has previously
agreed with the Director-General that such employee shall be
entitled to compensation and, where applicable, has paid the
necessary assessments in respect of him.
An employee referred to in
paragraph (a) who is so temporarily employed in the
Republic for a continuous period of more than 12 months, shall be
deemed to be ordinarily employed by such employer in the
Republic.
If, in terms of the law of the
state in which an accident happens, an employee, in the
circumstances referred to in subsection (1), is entitled to
compensation or if an employee meets with an accident in the
circumstances referred to in subsection (2) or in the Republic and
he would be entitled to compensation in terms of the law of any
other state as well as in terms of this Act, he shall by written
notice to the Director-General elect to claim compensation either
in terms of this Act or in terms of the law of the other state.
This Act shall apply
to a seaman or airman-
while employed on a South
African ship or aircraft;
while, subject to section
23(3), employed in the Republic on any other ship or aircraft.
Accidents during training for or performance of emergency services
If an employee meets
with an accident-
while he is, with the consent
of his employer, being trained in organized first aid, ambulance
or rescue work, fire-fighting or any other emergency service;
while he is engaged in or
about his employer's mine, works or premises in organized first
aid, ambulance or rescue work, fire-fighting or any other
emergency service;
while he is, with the consent
of his employer, engaged in any organized first aid, ambulance or
rescue work, fire-fighting or other emergency service on any mine,
works or premises other than his employer's,
such accident shall, for the purposes of this Act, be deemed to have arisen out of and in the course of his employment.
If a right to
compensation in terms of this Act arises owing to the death or
disablement of an employee as a result of an accident, the
Director-General may refuse to award the whole or a portion of such
compensation and the Director-General, or, if authorized thereto by
the Director-General, the employer individually liable or mutual
association concerned, as the case may be, may also refuse to pay the
whole or any portion of the cost of medical aid-
if the employee at any time
represented to the employer or the Director-General, knowing the
information to be false, that he was not then suffering from or
had not previously suffered from a serious injury or occupational
disease or any other serious disease, and such an accident was
caused by, or the death resulted from or the disablement resulted
from or was aggravated by, such injury or disease; or
if, in the opinion of the
Director-General, the death was caused, or the disablement was
caused, prolonged or aggravated, by the unreasonable refusal or
wilful neglect of the employee to submit to medical aid in respect
of any injury or disease, whether caused by the accident or
existing before the accident.
Special circumstances in which Director-General may make award
If in a claim for
compensation in terms of this Act it appears to the Director-General
that the contract of service or apprenticeship or learnership of the
employee concerned is invalid, he may deal with such claim as if the
contract was valid at the time of the accident.
If the injury in
respect of which compensation is payable causes disablement of such a
nature that the employee is unable to perform the essential actions
of life without the constant help of another person, the
Director-General may in addition to any other benefits in terms of
this Act grant an allowance towards the cost of such help.
If an employee is
entitled to compensation in terms of this Act, the Director-General
or the employer individually liable or the mutual association
concerned, as the case may be, shall be liable for the payment of
such compensation.
The Minister may, for such
period and subject to such conditions as he may determine, issue a
licence to carry on the business of insurance of employers against
their liabilities to employees in terms of this Act to a mutual
association which was licensed on the date of commencement of this
Act in terms of section 95(1) of the Workmen's Compensation Act:
Provided that the Minister may, from time to time, order that, in
addition to any securities deposited in terms of the Insurance Act,
1943 (Act No. 27 of 1943), and the Workmen's Compensation Act,
securities considered by the Director-General to be sufficient to
cover the liabilities of the mutual association in terms of this
Act be deposited with the Director-General or his or her nominee.
Subject to the provisions of
subsection (4), a security so deposited shall be used solely for
making good the default of the association concerned in respect of
any liability of an employer in terms of this Act, and for payment
of any expenses lawfully incurred in connection with such making
good or the enforcement of such liability.
The Minister may from time to
time determine the conditions upon which, the manner in which and
the period within which any such security shall be made available
to a person entitled to payment therefrom.
If the Minister is satisfied
that the whole or any portion of such security is no longer
necessary and that the association concerned is not in a position
to incur a liability payable therefrom, he shall cause such
security, or portion thereof, to be returned to such association.
If an association has deposited
with the Director-General or his or her nominee any such security
and thereafter fails to meet in full any of its liabilities in
terms of this Act, or is placed in liquidation, then,
notwithstanding the provisions of any other law, such security
shall vest in the Director-General for the purpose of the
liabilities of the association in terms of this Act.
If at any time the Minister is
satisfied that a mutual association has failed to comply with any
of the conditions imposed by him or her under subsection (1), he or
she may suspend or withdraw the licence issued to that association
under the said subsection.
Security
for payment of compensation and cost of medical aid by employers
individually liable
The Director-General may order
an employer individually liable to deposit 4 such securities as in
the opinion of the Director-General are sufficient to cover the
liabilities of the employer in terms of this Act.
If an employer has deposited
with the Director-General any such security and thereafter fails to
meet in full his liabilities in terms of this Act, the
Director-General may apply such security to pay those liabilities,
and he may deposit any unused 5 balance in the compensation fund
and apply it for the payment of future liabilities of that employer
in terms of this Act.
Compensation
may not be alienated or reduced
Notwithstanding anything to the
contrary in any other law contained, compensation shall not-
be ceded or pledged;
be capable of attachment or
any form of execution under a judgement or order of a court of
law;
[deleted]
be set off against any debt of
the person entitled to the compensation.
Notwithstanding subsection (1),
the Director-General or the mutual association concerned, as the
case may be, may pay compensation payable to an employee in whole
or in part to the employer to the extent to which such employer has
made payments to the employee in respect of disablement arising out
of an occupational injury or disease.
Any provision of an
agreement existing at the commencement of this Act or concluded
thereafter in terms of which an employee cedes or purports to cede or
relinquishes or purports to relinquish any right to benefits in terms
of this Act, shall be void.
Compensation in terms
of this Act owing to the death of an employee shall not form part of
his estate.
Substitution
of compensation for other legal remedies
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.
For the purposes of subsection
(1) a person referred to in section 56(1)(b), (c), (d) and
(e) shall be deemed to be an employer.
Recovery of damages and compensation paid from third parties
If an occupational injury or
disease in respect of which compensation is payable, was caused in
circumstances resulting in some person other than the employer of
the employee concerned (in this section referred to as the "third
party") being liable for damages in respect of such injury or
disease-
the employee may claim
compensation in terms of this Act and may also institute action
for damages in a court of law against the third party; and
the Director-General or the
employer by whom compensation is payable may institute action in a
court of law against the third party for the recovery of
compensation that he is obliged to pay in terms of this Act.
In awarding damages in an
action referred to in subsection (1)(a) the court shall have
regard to the compensation paid in terms of this Act.
In an action referred to in
subsection (1)(b) the amount recoverable shall not exceed
the amount of damages, if any, which in the opinion of the court
would have been awarded to the employee but for this Act.
For the purposes of this
section compensation includes the cost of medical aid already
incurred and any amount paid or payable in terms of section 28,
54(2) or 72(2) and, in the case of a pension, the capitalized value
as determined by the Director-General of the pension, irrespective
of whether a lump sum is at any time paid in lieu of the whole or a
portion of such pension in terms of section 52 or 60, and
periodical payments or allowances, as the case may be.
Any person who threatens an employee or in any manner compels or influences an employee to do something resulting in or directed at the deprivation of that employee's right to benefits in terms of this Act, shall be guilty of an offence.
Notice
of accident by employee to employer
Written or verbal notice of an
accident shall, as soon as possible after such accident happened,
be given by or on behalf of the employee concerned to the employer,
and notice of the accident may also be given as soon as possible to
the commissioner in the prescribed manner.
Failure to give notice to an
employer as required in subsection (1) shall not bar a right to
compensation if it is proved that the employer had knowledge of the
accident from any other source at or about the time of the
accident.
Subject to section 43, failure
to give notice to an employer as required in subsection (l), or any
error or inaccuracy in such notice, shall not bar a right to
compensation if in the opinion of the Director-General-
the compensation fund or the
employer or mutual association concerned, as the case may be,
is not or would not be seriously prejudiced by such failure, error
or inaccuracy if notice is then given or the error or inaccuracy
is corrected;
such failure, error or
inaccuracy was caused by an oversight, absence from the Republic
or other reasonable cause.
If a seaman or airman meets
with an accident, the person in command or the owner of the ship or
aircraft, as the case may be, shall for the purposes of this
section and sections 39, 40, 41 and 43 be deemed to be the
employer.
Notice
of accident by employer to commissioner
Subject to the provisions of
this section an employer shall within seven days after having
received notice of an accident or having learned in some other way
that an employee has met with an accident, report the accident to
the commissioner in the prescribed manner.
For the purposes of subsection
(1) an employer referred to in section 84(1)(a)(i) means, in the
case of-
the national and provincial
spheres of government, the respective heads of department referred
to in section 7(3) of the Public Service Act, 1994 (Proclamation
No. 103 0f 1994);
Parliament, the Secretary to
Parliament;
a provincial legislature, the Secretary of the provincial legislature in question.
(3) (a) An employer referred to in section 84(1)(a)(ii) shall within
60 days after the commencement of this Act and an employer referred
to in section 84(1)(a)(iii) shall within 30 days after having been
granted exemption under section 84(2) furnish the commissioner in the
prescribed manner with the name of a person who shall be responsible
to report on behalf of such employer accidents as required by
subsection (1) (in this section referred to the "responsible
person").
If such employer
individually liable thereafter designates some other person as the
responsible person such employer shall within 30 days after such
designation notify the commissioner thereof in the prescribed
manner.
Notwithstanding subsection (1)
the Director-General may upon application authorize an employer
individually liable to report accidents at such intervals and in
such manner as the Director-General may determine.
An employer referred to in
section 84(1)(b) shall report accidents to the mutual association
concerned in the prescribed manner.
An employer, excluding an
employer referred to in section 84(1)(a)(i), (ii) and (iii), who
fails to comply with subsection (1) shall be guilty of an offence.
For the purposes of this
section an accident includes any injury reported by an employee to
his employer, if the employee when reporting the injury alleges
that it arose out of and in the course of his employment and
irrespective of the fact that in the opinion of the employer the
alleged accident did not so arise out of and in the course
thereof.
If an employer, excluding an
employer referred to in section 84(1)(a)(i), (ii) and (iii) fails
to report in the prescribed manner an accident which has happened
to an employee in his, her or its service within seven days after
having received notice thereof or having learned thereof in some
other manner, the Director-General may impose a fine of not more
than the full amount of the compensation payable in respect of such
accident upon him, her or it in addition to any other penalty to
which he, she or it may be liable.
If a fine is in terms of
subsection (8) imposed upon an employer referred to in section
84(1)(b), and is paid to the Director-General or recovered by him,
such fine shall be paid over to the mutual association concerned.
For the purposes of subsection
(8) compensation includes the cost of medical aid and any amount
paid or payable in terms of section 28, 54(2) or 72(2) and, in the
case of a pension, the capitalized value as determined by the
Director-General of the pension, irrespective of whether a lump sum
is at any time paid in lieu of the whole or a portion of such
pension in terms of section 52 or 60, and periodical payments or
allowances, as the case may be.
If the Director-General is of
the opinion that the failure referred to in subsection (8) was not
wilful or was due to a cause over which the employer had no control
or that the payment of the full amount of the compensation payable
in 3l respect of such accident, including the capitalized value as
determined in subsection (10), will probably result in the
insolvency of the employer concerned or, in the case of an employer
that is a company, its liquidation, the Director-General may on
such conditions as he may think fit-
reduce or remit any fine
imposed by him;
permit the employer to pay the
fine in such instalments as he may determine.
An employer shall at the
request of an employee or the dependant of an employee furnish such
employee or dependant with a copy of the notice of the accident
furnished by the employer to the commissioner in respect of a claim
for compensation by such employee or dependant.
The Director-General shall,
after having received notice of an accident or having learned in
some other way that an employee has met with an accident, make such
inquiry as he may deem necessary to enable him to decide upon any
claim or liability in terms of this Act.
An employee or employer shall,
at the request of the Director-General, furnish such further
particulars regarding the accident and injuries concerned as the
Director-General may require.
The Director-General shall, at
the request of an injured employee or his employer, furnish such
information as the Director-General may deem necessary to enable
that employee or employer to comply with the provisions of this
Act.
An employer who fails to comply
with the provisions of this section shall be guilty of an offence.
Notwithstanding section 4(1)(c)
, the Director-General may refuse to adjudicate on the claim of an
employee who fails to comply with subsection (2).
Particulars
in support of claim
An employee who has met with an
accident shall, when reporting the accident or thereafter at the
request of the employer or commissioner, furnish such information
and documents as may be prescribed or as the employer or
commissioner may direct.
Subject to section 62, an
employer shall within seven days after having received a claim
medical report or other documents or information concerning such
claim send such claim, report, documents or information to the
commissioner.
Employee
to submit to medical examination
An employee who claims
compensation or to whom compensation has been paid or is payable
shall when so required by the Director-General or the employer or
mutual association concerned, as the case may be, after reasonable
notice, submit himself at the time and place mentioned in the
notice to an examination by the medical practitioner designated by
the Director-General or the employer or mutual association
concerned.
Such expenses incurred by the
employee to comply with the provisions of this section as the
Director-General may deem necessary and reasonable, and the
prescribed remuneration for a medical examination in terms of this
section, shall be paid by the party requiring the examination.
If, in the opinion of any
medical practitioner the employee is not capable of calling upon
the designated medical practitioner, the employee shall inform the
party requiring the examination thereof or cause him to be so
informed, and the designated medical practitioner shall then
examine the employee at a time and place as agreed upon.
An employee shall be entitled
at his own expense to have a medical practitioner or chiropractor
of his choice present at an examination by a designated medical
practitioner.
(a) A claim for
compensation in terms of this Act shall be lodged by or on behalf
of the claimant in the prescribed manner with the commissioner or
the employer or the mutual association concerned, as the case may
be, within 12 months after the date of the accident or, in the case
of death, within 12 months after the date of death.
If a claim for compensation is
not lodged as prescribed in paragraph (a), such claim for
compensation shall not be considered in terms of this Act, except
where the accident concerned has been reported in terms of section
39.
Notwithstanding subsection
(1)(a) a claim for compensation by any seaman or airman may be
lodged with the person in command of the ship or aircraft
concerned, as the case may be, except if such seaman or airman is
himself the person in command.
If any seaman or airman meets
with an accident outside the Republic resulting in death, a claim
for compensation shall be instituted within 12 months after news of
the death has been received by any dependant claiming compensation.
The provisions of section 38
shall apply mutatis mutandis in respect of any failure to
institute a claim or in respect of any error or inaccuracy in a
claim instituted in terms of this section.
A right to benefits
in terms of this Act shall lapse if the accident in question is not
brought to the attention of the commissioner or of the employer or
mutual association concerned, as the case may be, within 12 months
after the date of such accident.
The Director-General shall
consider and adjudicate on a claim for compensation, and for that
purpose may carry out such investigation as he may deem necessary
or he may formally hear the claim.
If the Director-General decides
upon a formal hearing, he shall in the prescribed manner give
notice of the date, time and place of the hearing to the claimant
and employer.
If the Director-General
considers it necessary that any person including the claimant and
the employer, should be present at a formal hearing to be
interrogated, he may issue a subpoena for the appearance of such
witness.
Upon application by a person
who in the opinion of the Director-General has a sufficient
interest in the subject of a formal hearing, the Director-General
shall issue a subpoena for the appearance of a person except if he
is of the opinion that such person cannot further the investigation
, in which case the Director-General shall issue a subpoena only if
the party applying therefor deposits with the Director-General a
sum sufficient to cover the necessary expenses to be incurred by
the witness as well as the cost of the service of such subpoena.
The provisions of section 6
shall apply mutatis mutandis to a person subpoenaed in terms
of subsection (3) or (4).
The Director-General may from
time to time adjourn a formal hearing to a date, time and place
determined by him.
The Director-General shall keep
or cause to be kept a record of the proceedings at a formal
hearing, and upon payment of the prescribed fees any person may
obtain a copy of such record.
(a) Every party to a
claim for compensation or his representative may appear before the
Director-General at a formal hearing.
The Director-General may
designate any person to investigate a claim, attend
aformalhearing,cross-examinewitnesses,adducerebuttingevidenceandpresent
arguments.
No person other than an
advocate or attorney shall be entitled to any fees or remuneration
except such necessary expenses as the Director-General may allow.
No fees or remuneration shall
be claimed from an employee or employer except with the approval of
the Director-General.
(a) The Director-General may
of his or her own motion or on an ex parte application by a
party to a claim for compensation , order any attorney employed by
such party or a representative who has allegedly, contrary to
subsection (2), claimed fees or remuneration, to submit to him or
her a statement showing what he or she has received or contracted
to receive from his or her client, and to submit for taxation his
or her bill of costs, including attorney and client costs, against
such client.
Upon such taxation the
Director-General may allow such fees, costs and expenses as he may
consider reasonable in the circumstances.
If an amount has been paid in
excess of the amount allowed upon taxation, the excess shall be
refunded to the person concerned, and any agreement in terms of
which such an excess is otherwise payable shall be void as to that
excess.
The provisions of subsections
(2), (3) and (4) shall also apply to any act in connection with a
claim for compensation which is not the subject of a formal
hearing.
Any person who agrees or attempts to collect any money contrary to the provisions of this section shall be guilty of an offence.
Compensation
for temporary total or partial disablement
(a) Compensation
for temporary total disablement shall be calculated on the basis
set out in item 1 of Schedule 4 subject to the minimum and maximum
amounts.
[deleted]
Compensation for temporary
partial disablement shall consist of such portion of the amount
calculated in terms of subsection (1) as the Director-General may
consider equitable.
(a) Notwithstanding section 29
the employer in whose service an employee is at the time of the
accident shall be liable for the payment of the compensation
referred to in subsection (1) for the first three months from the
date of accident.
After the expiry of the said
three months, compensation so paid by such employer shall be
repaid to the employer by the Director-General or mutual
association concerned, as the case may be.
An employer who fails to
comply with paragraph (a) shall be guilty of an offence.
Payment of compensation in
terms of subsections (1) and (2) shall take place in the form of
periodical payments at such times and intervals, but not exceeding
one month, as the Director-General may determine.
(a) Periodical payments shall
take place for so long as the temporary total disablement
continues, but not for a period exceeding 24 months.
If such disablement continues
for longer than 12 months, the Director-General may order the
continuation of those payments for such further period as he may
determine.
Temporary total disablement
continuing for more than 24 months may be treated by the
Director-General as permanent disablement.
(a) No periodical payments
shall be payable for the period in respect of which the employer
pays the cost of maintenance of an injured seaman in terms of the
merchant shipping law.
Notwithstanding paragraph (a)
such payments may be made as the Director-General may deem
equitable but not exceeding the amount contemplated in subsection
(1).
Expiry
of compensation for temporary total or partial disablement
The right to compensation for
temporary total or partial disablement shall expire-
upon the termination of such
disablement or if the employee resumes the work upon which he was
employed at the time of the accident or occupational disease, or
resumes any other work at the same or greater earnings;
if the employee is awarded
compensation for permanent disablement.
Notwithstanding subsection (1)
the Director-General may, and the employer individually liable or
mutual association concerned, as the case may be, shall, if
directed thereto by the Director-General, again award compensation
for temporary total or partial disablement if-
the disablement of the
employee concerned recurs or deteriorates; or
the employee receives further
medical aid necessitating further absence from his service
provided that such aid will in the opinion of the Director-General
reduce his disablement.
If the Director-General awards
compensation under subsection (2), he may suspend or direct the
employer individually liable or mutual association concerned, as
the case may be, to suspend any pension payments to the employee
concerned in respect of the same accident for so long as such
employee is receiving periodical payments.
Compensation
for permanent disablement
(a) Compensation for
permanent disablement shall be calculated on the basis set out in
items 2, 3, 4 and 5 of Schedule 4 subject to the minimum and
maximum amounts.
[deleted]
(a) If an employee has
sustained an injury set out in Schedule 2, he shall for the
purposes of this Act be deemed to be permanently disabled to the
degree set out in the second column of the said Schedule.
If an employee has sustained
an injury or serious mutilation not mentioned in Schedule 2 which
leads to permanent disablement, the Director-General shall
determine such percentage of disablement in respect thereof as in
his opinion will not lead to a result contrary to the guidelines
of Schedule 2.
(c) If an injury or
serious mutilation contemplated in paragraph (a) or (b) has
unusually serious consequences for an employee as a result of the
special nature of the employee’s occupation, the
Director-General may determine such higher percentage as he or she
deems equitable.
No payment for temporary
disablement in terms of section 47 shall be deducted from
compensation payable in terms of this section.
For the purposes of this
section "monthly pension' ' means, where it appears in the
relevant items in Schedule 4, a pension payable monthly during the
lifetime of the employee and which expires at the end of the month
in which the employee dies.
The Minister may on
the recommendation of the Director-General, and after consultation
with the Board, amend Schedule 2 by notice in the Gazette in respect
of injuries or categories of injuries as well as the percentage of
disablement: Provided that at least 60 days before any such amendment
a notice shall be published in the Gazette-
of the intention to effect an
amendment and the proposed content of the amendment; and
inviting any person who wishes
to comment on the proposed amendment to submit such comment in
writing to the commissioner within the period mentioned in the
notice.
Compensation
for permanent disablement of employee in training or under 26 years
of age
If as a result of an accident
an employee sustains permanent disablement and at the time of the
accident-
was an apprentice or in the
process of being trained in any trade, occupation or profession;
or
was under 26 years of age, the
commissioner shall determine the earnings of such employee in
accordance with subsection (2) for the purpose of the calculation
of compensation in terms of section 49.
(a) In the case of an employee
referred to in subsection (1) (a), his earnings shall be calculated
on the basis of the earnings to which a recently qualified person
or a person in the same occupation, trade or profession with five
years more experience than the employee would have been entitled at
the time of the accident, whichever calculation is more favourable
to the employee.
In the case of an employee
referred to in subsection ( 1) (b) , his earnings shall be
calculated on the basis of the earnings to which a person of 26
years of age would normally have been entitled if at the time of
the accident he had been performing the same work as the employee
or a person in the same occupation, trade or profession with five
years more experience than the employee , whichever calculation is
more favourable to the employee.
If a pension does not exceed a
prescribed amount, the Director-General ' may, upon the application
of the pensioner, pay or direct the payment of a lump sum in lieu
of that pension or a portion thereof.
(a) If a pension exceeds the
prescribed amount, the Director-General may, upon the application
of the pensioner, in lieu of a portion of that pension not
exceeding the prescribed amount pay or direct the payment of a lump
sum.
If the balance of the pension
payable is less than the prescribed amount per month, the
Director-General may pay or direct the payment of a lump sum in
lieu of the whole of such pension.
No pension or portion of a
pension due to a child shall be paid in a lump sum.
Any lump sum in terms of this
section shall be calculated on the basis determined by the
Director-General, and the payment thereof shall be subject to
the control of the Director-General as referred to in section 59.
Compensation
to employee previously in receipt of compensation
In awarding compensation to an
employee in respect of permanent disablement or in reviewing an
award of compensation, the Director-General may take into account
any compensation awarded in terms of this Act or any other law to
the employee as a result of permanent disablement.
If an employee has received
compensation for permanent disablement in terms of this Act and
subsequently meets with an accident resulting in further permanent
disablement in respect of which compensation is payable in terms of
this Act, the Director-General may calculate his compensation in
respect of such further permanent disablement and, where
applicable, also the first-mentioned compensation, on the basis of
the earnings that he received at the time of any of the accidents
concerned, whichever earnings are more favourable to the employee.
Subject to section 56, an
employee shall not be paid compensation in the form of a pension or
pensions in respect of one or more accidents if it amounts to more
than the pension payable in respect of 100 percent disablement.
Amount
of compensation if employee dies
If an employee dies as a result
of an injury caused by an accident, compensation shall be payable
as follows:
If the employee leaves a
dependant referred to in paragraph (a), (b) or (c) of
the definition of "dependant of an employee" in section
1 (in this section referred to as the "widow or widower"),
and there are no children, a lump sum as set out in item 6 of
Schedule 4;
if the employee leaves a widow
or widower and a child referred to in paragraph (d) of the
said definition, compensation to the widow or widower calculated
in accordance with paragraph (a) of this subsection, and in
respect of the child a pension calculated in accordance with
paragraph (c) of this subsection: Provided that any pension
payable in terms of this paragraph shall not in all exceed the
pension for 100 per cent permanent disablement which would have
been payable to the employee under section 49(1);
if the employee leaves a child
referred to in paragraph (d) of the said definition, or a child
referred to in paragraph (e) of the said definition who in the
opinion of the Director-General is unable to earn an income owing
to a physical or mental disability, a pension as set out in item 8
of Schedule 4;
if the employee at the time
of his death does not leave a widow or widower or where such a
widow or widower later dies, the aggregate amount of the pensions
payable in terms of this paragraph may, in the discretion of the
Director-General and subject to review by him from time to time,
be increased by an amount not exceeding the pension which is or
would have been payable in terms of paragraph (a) of this
subsection to the widow or widower;
the pension payable in terms
of this paragraph shall not in all exceed the pension which would
have been awarded to the employee under section 49(1) in the case
of 100 percent permanent disablement;
any increase or reduction of
a pension in terms of this proviso shall be calculated in such
manner as the Director-General may deem equitable, and the amount
and manner of awarding may be reviewed by him from time to time;
the pension payable to a
child referred to in paragraph (d) of the said definition shall
lapse at the end of the month in which such child reaches the age
of 18 years, except where such child is unable to earn an income
owing to a physical or mental disability, or dies or marries
before reaching the age of 18 years, or until the child completes
secondary education, or while the child is undergoing tertiary
education and it could reasonably have been expected that the
employee would have contributed to the maintenance of that child,
whichever occurs last;
the
pension payable to a child referred to in paragraph (d) or (e)
of the said definition who is unable to earn an income owing
to a physical or mental disability, shall cease on a date
determined by the Director-General when in his or her opinion it
may reasonably have been expected that the employee would no
longer have contributed towards the maintenance of that child;
if the employee leaves no
dependants referred to in paragraph (a), (b) or (c) of
this subsection but a dependant referred to in paragraph (e)
of the said definition, excluding a child over the age of
18 years who is unable to earn an income owing to a physical or
mental disability, and-
who was wholly financially
dependent upon the employee, a monthly pension which in all shall
not amount to more than 40 per cent of the pension which would
have been payable to the employee under section 49(1) for 100 per
cent permanent disablement, for so long as in the opinion of the
Director-General it may reasonably have been expected that the
employee would have contributed to the maintenance of that
person; or
who was partly financially
dependent upon the employee and there is no dependant as
contemplated in subparagraph (i), a lump sum as set out in item 9
of Schedule 4.
[deleted]
The Director-General may pay
out of the compensation fund such amount as he may deem reasonable,
within the limits set out in item 10 of Schedule 4, for the funeral
costs of an employee or direct the employer individually liable or
mutual association concerned, as the case may be, to pay such
costs.
No amount shall be deducted
from the compensation awarded in terms of this section to a
dependant in respect of any compensation awarded to the employee
himself in respect of the same or any other accident.
A pension payable to a widow or
widower in terms of this section shall lapse on the last day of the
month in which she or he dies.
If an employee leaves two or
more dependants referred to in paragraph (b), (d) or (e)
of the definition of "dependant of an employee" in
section 1-
the compensation payable to
the dependants shall, notwithstanding the provisions of this
section, be awarded in such manner as the Director-General may
determine: Provided that the compensation payable in all shall not
exceed the lump sum and pension which would have been payable in
terms of this section if such employee had left only one such
dependant;
the Director-General may, if
one of the dependants referred to in the said paragraph (b)
dies, allocate the pension which was payable to that dependant
to the children, if any, of such dependant or, if there are no
children, to the other dependant or dependants referred to in the
said paragraph (b).
For the purposes of this
section a dependant referred to in paragraph (a) , (b) or
(d) of the definition of "dependant of an employee" in
section 1 shall be deemed to have been wholly financially dependent
upon the employee at the time of the accident unless the contrary
is proved.
The Minister may on
the recommendation of the Director-General and after consultation
with the Board, amend Schedule 4 by notice in the Gazette in respect
of the nature, extent, minimum and maximum amount of benefits:
Provided that at least 60 days before any such amendment a notice
shall be published in the Gazette-
of the intention to effect an
amendment and the proposed content of the amendment; and
inviting any person who wishes
to comment on the proposed amendment to submit such comment in
writing to the commissioner within the period mentioned in the
notice.
Increased
compensation due to negligence of employer
If an employee meets with an
accident or contracts an occupational disease which is due to the
negligence-
of his employer;
of an employee charged by the
employer with the management or control of the business or of any
branch or department thereof;
of an employee who has the
right to engage or discharge employees on behalf of the employer;
of an engineer appointed to be
in general charge of machinery, or of a person appointed to assist
such engineer in terms of any regulation made under the Minerals
Act, 1991 (Act No. 50 of 1991); or
of a person appointed to be in
charge of machinery in terms of any regulation made under the
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993),
the employee may, notwithstanding any provision to the contrary contained in this Act, apply to the commissioner for increased compensation in addition to the compensation normally payable in terms of this Act.
For the purposes of subsection
(1) an accident or occupational disease shall be deemed also to be
due to the negligence of the employer if it was caused by a patent
defect in the condition of the premises, place of employment,
equipment, material or machinery used in the business concerned,
which defect the employer or a person referred to in paragraph (b),
(c), (d) or (e) of subsection (1 ) has failed to remedy
or cause to be remedied.
(a) An application for
increased compensation in terms of this section shall be lodged
with the commissioner in the prescribed manner within 24 months
after the date of the accident or the commencement of the
occupational disease , but the ' commissioner may extend that
period by a further period not exceeding 12 months if he is
satisfied that there are good reasons why the employee did not
lodge his application within that period, and that neither the
compensation fund nor the employer will unreasonably be prejudiced
by the extension of such period.
The commissioner shall, as
soon as possible after receipt of such an application, send a copy
thereof to the employer in whose employ the employee was at the
time of the accident or the employer in whose employ the employee
was when he contracted the occupational disease.
The provisions of sections 6,
7, 45 and 46 shall, subject to such rules as the commissioner may
prescribe for the facilitation of the consideration of
applications in terms of this section, apply mutatis mutandis
in respect of such an application.
(a) If the
Director-General is satisfied that the accident or occupational
disease was due to negligence as referred to in subsection (1), he
shall award the applicant such additional compensation as he may
deem equitable.
The amount of such additional
compensation together with any other compensation awarded in terms
of this Act shall not exceed the amount of the pecuniary loss
which the applicant has in the opinion of the Director-General
suffered or can reasonably be expected to suffer as a direct
result of the said accident or occupational disease.
The Director-General may deal
with an application in terms of subsection (1) mutatis mutandis
in accordance with the procedure prescribed in section 91 as if
it were an objection in terms of that section.
The presiding officer may in
any proceedings in terms of this section make such an order as to
costs and the payment thereof as he may deem fit.
If increased compensation has
been awarded in terms of this section the Director-General may for
such period as he may deem necessary apply the provisions of
section 85(2) in respect of the employer of the employee
concerned.
The Minister may on the
recommendation of the Director-General by notice in the Gazette
increase the monthly pensions payable in terms of sections 49
and 54 by such percentage as he may so determine' Provided that at
least 60 days before any such increase a notice shall be published
in the Gazette-
of the intention to increase
the monthly pensions; and
inviting any person who wishes
to comment on the proposed increase to: submit such comment in
writing to the commissioner within the period mentioned in the
notice.
In determining the percentage
referred to in subsection (1) the Minister may differentiate
between accidents which happened on different dates.
In anticipation of
the award of compensation the Director-General may, if in his opinion
the interests or pressing need of the employee warrants it,
advance to or on behalf of the employee such amount as he may deem
equitable or direct the employer individually liable or mutual
association concerned to advance it, subject to such conditions as
the Director-General may determine.
Control
over payment of compensation
Compensation payable in terms
of this Act may for reasons deemed by the Director-General to be
sufficient, be-
paid to the employee or the
dependant of an employee entitled thereto, or to any other person
on behalf of such enrolee or dependant, in instalments or in such
other manner as he may deem fit;
invested or applied to the
advantage of the employee or the dependants of an employee;
paid to the Master of the
Supreme Court, a trustee or any other person to be applied in
accordance with such conditions as may be determined by the
Director-General;
applied according to one or
more of paragraphs (a), (b) and (c).
Notwithstanding any provision
to the contrary contained in this Act, if compensation is payable
by an employer individually liable or a mutual association, as the
case may be, the Director-General may direct such employer or
mutual association to pay the whole or any portion of the
compensation concerned to the Director-General to be dealt with in
terms of subsection (1).
(a) On the death of an
employee or a dependant of an employee the unpaid balance of any
compensation awarded shall not form part of his estate and shall be
paid to such dependant as the Director-General may designate.
Where there is no dependant,
the Director-General may pay such balance or a portion thereof to
the estate of the deceased.
If an employee or a dependant
of an employee to whom a pension is payable in terms of this Act is
resident outside the Republic or is absent from the Republic for a
period or periods totalling more than six months, the
Director-General may award a lump sum as determined by him in
lieu of such pension, and upon payment of such lump sum the right
to the pension shall expire.
Before the Director-General
exercises his power under subsection (1), he shall notify that
employee or dependant of his intention and request him to submit
any representations that he wishes to make for consideration to the
Director-General within the period specified by the
Director-General.
Recovery
of compensation or other benefits
If an employer individually
liable or a mutual association that is liable for the payment of
compensation or any other pecuniary benefit in terms of this Act,
refuses or fails to pay such compensation or benefit, the
Director-General may issue an order in the prescribed form for the
payment thereof.
The Director-General shall send
a certified copy of the order referred to in subsection (1) to the
clerk of the magistrate's court of the district in which the party
referred to in subsection (1) has its place of business, and
thereupon such order shall have the effect of a civil judgement of
that magistrate's court and the Director-General shall have all the
powers of a judgement creditor.
Any amount recovered under
subsection (2) shall be paid into the compensation fund and the
provisions of section 59 shall apply mutatis mutandis in
respect of such amount.
Notwithstanding any provision
to the contrary contained in this Act, the Director-General may,
subject to such conditions as he may determine, authorize an
employer individually liable or a mutual association to
provisionally settle claims by employees for compensation or for
the payment of the cost of medical aid.
An employer or association
referred to in subsection (1) shall report provisional settlements
to the Director-General at such intervals and with such particulars
as the Director-General may determine, and the Director-General may
confirm, amend or repudiate any such provisional settlement, or
deal with the claim in accordance with section 45 as if the
provisional settlement concerned had not been made.
Manner
of calculating earnings
In order to determine
compensation, the Director-General shall calculate the earnings of
an employee in such manner as in his opinion is best to determine
the monthly rate at which the employee was being remunerated by his
employer at the time of the accident, including-
the value of any food or
quarters or both supplied by the employer to the date of the
accident;
any overtime payment or other
special remuneration in cash or in kind of a regular nature or for
work ordinarily performed, but excluding-
payment for intermittent
overtime;
payment for non-recurrent
occasional services;
amounts paid by an employer
to an employee to cover any special expenses;
ex gratia payments
whether by the employer or any other person.
If an employee's remuneration
is determined in accordance with a rate calculated upon work
performed, his earnings shall be deemed to be his remuneration for
similar work upon the same conditions of remuneration for as long a
period as possible prior to the accident but not exceeding 12
months.
If by reason of the short
duration of the service of an employee with his employer it is
impracticable to calculate his earnings in such service, his
earnings shall , if possible , be calculated on the basis of the
amount which the employee with similar work at the same conditions
of remuneration earned with another employer during the 12 months
immediately prior to the accident, or on the basis of the amount
which during the 12 months immediately prior to the accident
was earned by other employees of the first-mentioned employer with
similar work and on the same conditions of remuneration, or would
have been earned by the employee during the previous 12 months had
he been so employed.
If an employee has entered into
contracts of service with two or more employers and has in terms of
those contracts worked at one time for one employer and at another
time for another employer, his earnings shall be calculated as if
his earnings under all such contracts were earnings in the
employment of the employer for whom he was working at the time
of the accident.
If in the opinion of the
Director-General it is not practicable to calculate the earnings of
an employee in accordance with the preceding provisions, the
Director-General may calculate those earnings in such manner as he
may deem equitable, but with due regard to the principles laid down
in those provisions.
This section shall not be
construed as prohibiting the calculation of earnings on a weekly
basis, but where earnings are so calculated the monthly earrings
shall be calculated as equal to four and one-third times the amount
of such weekly earnings.
Certain
compensation to employers prohibited
Any employer who deducts from
the earnings of an employee any amount or receives any amount from
him to compensate the employer directly or indirectly for any
amount which the employer is liable to pay in terms of this Act,
shall be guilty of an offence.
Any court convicting an
employer of contravening subsection (1) shall, in addition to any
penalty it may impose, order the employer to pay to the
commissioner within a specified period and in instalments or
otherwise as the court may determine, such amount as he has
received contrary to the provisions of subsection (1).
The commissioner shall pay the
amount received by him in terms of such an order to the employee
from whose earnings that amount has been deducted or from whom the
amount has been received.
Upon application by the
employer the court may at any time, on good cause shown, extend the
period within which the amount referred to in subsection (2) is
payable or amend the amount of the instalments.
An order made under this section shall have the effect of a civil judgment of a magistrate's court in favour of the commissioner.
Compensation
for occupational diseases
Subject to the provisions of
this Chapter, an employee shall be entitled to the compensation
provided for and prescribed in this Act if it is proved to the
satisfaction of the Director-General-
that the employee has
contracted a disease mentioned in the first column of Schedule 3
and that such disease has arisen out of and in the course of his
or her employment; or
that the employee has
contracted a disease other than a disease contemplated in
paragraph (a) and that such disease has arisen out of and in the
course of his or her employment.
If the employee has contracted
a disease referred to in subsection (1) and the commissioner is of
the opinion that the recovery of the employee is being delayed or
that his temporary total disablement is being prolonged by reason
of some other disease of which the employee is suffering, he may
approve medical aid also for such other disease for so long as he
may deem it necessary.
If an employee has contracted a
disease referred to in subsection (1) resulting in permanent
disablement and that disease is aggravated by some other disease,
the Director-General may in determining the degree of permanent
disablement have regard to the effect of such other disease.
Subject to section 66, a right
to benefits in terms of this Chapter shall lapse if any disease
referred to in subsection (1) is not brought to the attention of
the commissioner or the employer or mutual association concerned,
as the case may be, within 12 months from the commencement of that
disease.
For the purposes of this Act
the commencement of a disease referred to in subsection (1) shall
be deemed to be the date on which a medical practitioner diagnosed
that disease for the first time or such earlier date as the
Director-General may determine if it is more favourable to the
employee.
The provisions of this Act
regarding an accident shall apply mutatis mutandis to a
disease referred to in subsection (1), except where such provisions
are clearly inappropriate.
If an employee who has contracted an occupational disease was employed in any work mentioned in Schedule 3 in respect of that disease, it shall be presumed, unless the contrary is proved, that such disease arose out of and in the course of his employment.
Compensation for a disease
referred to in section 65(1) shall be calculated on the basis of
the earnings of the employee calculated mutatis mutandis in
accordance with the provisions of section 63 and the disablement of
the employee at the time of the commencement of the disease or such
earlier date as the Director-General may determine, if it is proved
to his satisfaction that the employee was suffering from the
disease at an earlier date, whichever earnings are more favourable
to the employee.
If an employee is no longer in
employment at the time of the commencement of the said disease ,
his earnings shall be calculated on the basis of the
earnings that he would probably have been earning had he still been
working.
Notice
of occupational disease by employee and employer
An employee shall as soon as
possible after the commencement of a disease referred to in section
65(1) give written notice thereof to his employer or to the
employer where he was last employed, and he may also give written
notice of the said disease in the prescribed manner to the
commissioner.
An employer shall within 14
days after having so received notice or having learned in some
other way that an employee has contracted a disease referred to in
section 65(1), report such disease in the prescribed manner to the
commissioner or mutual association concerned, as the case may be,
irrespective of whether he may be of the opinion that the employee
did not contract such disease in his employ or in the employ of a
previous employer.
An employer who fails to comply
with subsection (2) shall be guilty of an offence.
The Minister may on the recommendation of the Director-General and after consultation with the Board and the chairpersons of the medical advisory panels, amend Schedule 3 by notice in the Gazette, also with retrospective effect, in respect of the description of the diseases and work: Provided that at least 60 days before any such amendment a notice shall be published in the Gazette-
of the intention to
effect an amendment and the proposed content of the amendment ;
and
in which any person who wishes
to comment on the proposed amendment is invited to submit such
comment in writing to the commissioner within the period mentioned
in the notice.
Appointment
of medical advisory panels
The Director-General may on a
regional basis appoint medical advisory panels which shall consist
of as many members as he may deem necessary to-
assist him with regard to the
diagnosis of occupational diseases in individual cases;
advise him regarding the
inclusion of occupational diseases in Schedule 3;
advise him regarding general
policy concerning the diagnosis of, and disablement as a result
of, occupational diseases.
A member of a medical advisory
panel shall be paid the prescribed remuneration and travelling and
subsistence allowances out of the compensation fund.
The Director-General shall
designate a member of a medical advisory panel as chairman
thereof.
The members of medical advisory
panels shall be appointed by the Director-General for such period
and on such conditions as he may determine , but the
Director-General may at any time terminate the appointment of any
member who-
has been guilty of misconduct
or neglect of duty; or
is not able to perform his
functions in terms of this Act properly.
The provisions of section 9 shall apply mutatis mutandis to members of medical advisory panels.
[Repealed]
Conveyance
of injured employee
If an employee meets with an
accident which necessitates his conveyance to a hospital or medical
practitioner or from a hospital or medical practitioner to his
residence, his employer shall forthwith make the necessary
conveyance available.
The Director-General or the
employer individually liable or mutual association concerned, as
the case may be, shall pay the reasonable cost (as determined by
the Director-General) incurred in respect of that conveyance.
Any employer who fails to
comply with subsection (1) shall be guilty of an offence.
The Director-General or the
employer individually liable or mutual association concerned, as
the case may be, shall for a period of not more than two years from
the date of an accident or the commencement of a disease referred
to in section 65(1) pay the reasonable cost incurred by or
on behalf of an employee in respect of medical aid necessitated by
such accident or disease.
If, in the opinion of the
Director-General, further medical aid in addition to that referred
to in subsection (1) will reduce the disablement from which
the employee is suffering, he may pay the cost incurred in
respect of such further aid or direct the employer individually
liable or the mutual association concerned, as the case may be, to
pay it.
A medical practitioner or
chiropractor shall within 14 days after having for the first time
examined an employee injured in an accident or within 14 days after
having diagnosed an occupational disease in an employee, furnish a
medical report to the employer concerned in the prescribed manner:
Provided that where the employee was at the time of the diagnosis
of an occupational disease not employed, the medical report shall
be furnished in the prescribed manner to the commissioner.
If the commissioner or the
employer individually liable or mutual association concerned, as
the case may be, requires further medical reports regarding an
employee, the medical practitioner or chiropractor who has
treated or is treating the employee shall upon request furnish the
desired reports in the manner and at the time and intervals
specified or prescribed.
If a medical practitioner or
chiropractor fails to furnish a medical report as required in
subsection (1) or (2) or in the opinion of the commissioner or the
employer individually liable or mutual association concerned, as
the case may be, fails to complete it in a satisfactory manner,
such party may defer the payment of the cost of the medical aid
concerned until the report has been furnished or completed in a
satisfactory manner, and no action for the recovery of the said
cost shall be instituted before the report has been so furnished or
completed.
No remuneration shall be
payable to a medical practitioner or chiropractor for the
completion and furnishing of a report referred to in subsection (1)
or (2).
A medical practitioner or
chiropractor shall at the request of an employee or the
dependant of an employee furnish such employee or dependant
with a copy of the report referred to in subsection (1).
Director-General to decide on need for, and nature and sufficiency of, medical aid
All questions regarding the need for, and the nature and sufficiency of, any medical aid supplied or to be supplied in terms of this Chapter shall be decided by the Director-General.
Subject to the provisions of
this section, the cost of medical aid shall be calculated in
accordance with a tariff of fees determined by the
Director-General.
The tariff of fees for medical
aid affecting the Medical Association of South Africa, the
Chiropractic Association of South Africa and the Dental Association
of South Africa shall be determined after consultation with those
associations.
If the Director-General or an
employer individually liable or a mutual association is liable in
terms of this Act for the payment of the cost of medical aid-
no amount in excess of that
determined in the tariff of fees or, if no amount has been
determined for particular medical aid, no amount in excess of that
deemed reasonable by the Director-General, shall be recoverable
for the medical aid concerned;
no amount in respect of the
said cost shall be recoverable from the employee or an employer
other than an employer individually liable.
Contributions
by employees towards cost of medical aid prohibited
An employer who demands or
receives from an employee a contribution towards the cost of
medical aid supplied or to be supplied in terms of this Act, shall
be guilty of an offence.
If an employer has been
convicted of contravening subsection (1), the Director-General may
in the prescribed form issue an order against that employer for the
payment of the amount that he received contrary to the provisions
of subsection (1), and section 61(2) and (3) shall then apply
mutatis mutandis in respect of such order and amount.
Medical
aid provided by employers
If an employer makes
arrangements to provide to his employees injured in accidents
medical aid which in the opinion of the Director-General is not
less favourable to the employees than that provided for in this
Chapter, the Director-General may, subject to such conditions as he
may determine, approve such arrangements.
If the Director-General has
approved the arrangements referred to in subsection (1)-
the employees concerned shall
be entitled to medical aid in accordance with the
arrangements;
the employer concerned shall
not be required to provide or pay for medical aid except in
accordance with the said arrangements;
the Director-General may
reimburse an employer who is not individually liable so much out
of the compensation fund or reduce his assessment to such an
extent as he may deem equitable.
The Director-General may at any
time withdraw the approval or amend the conditions referred to in
subsection (1).
Consultation of representative medical authorities by Director-General
The Director-General may consult the South African Medical and Dental Council referred to in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974), the Medical Association of South Africa, the Chiropractic Association of South Africa and any other representative medical authority concerning matters connected with or arising out of the application of the provisions of this Act with regard to medical aid, and may for that purpose disclose any information relating to a matter in respect of which the views of the Council, the Associations or other authority are required.
Employer
to register with commissioner and to furnish him with particulars
An employer carrying on
business in the Republic shall within the prescribed period and in
the prescribed manner register with the commissioner, and shall
furnish the commissioner with the prescribed particulars of his
business, and shall within a period determined by the commissioner
furnish such additional particulars as the commissioner may
require.
The particulars referred to in
subsection (1) shall be furnished separately in respect of each
business carried on by the employer.
An employer shall within seven
days of any change in the particulars so furnished notify the
commissioner of such change.
The Director-General may exempt
employers referred to in section 84(1)(a) and (b) from the
provisions of this section.
Any person not resident in the
Republic or any body corporate not registered in terms of any law
governing the registration of bodies corporate in the : Republic,
and carrying on business in the Republic or engaged in, on or above
the continental shelf in activities in connection with surveys,
research, prospecting or exploitation of natural resources, and
employing an employee in connection therewith, shall furnish the
commissioner with the address of his or its head office and the
name and address of his or its chief officer in the Republic, and
that officer : shall for the purposes of this Act be deemed to be
the employer of the said employee.
Any person who fails to comply
with the provisions of this section shall be guilty of an offence.
An employer shall keep a
register or other record of the earnings and other prescribed
particulars of all employees , and shall at all reasonable times
produce such register or record or a microfilm or other microform
reproduction thereof on demand to an authorised person referred to
in section 7 for inspection.
An employer shall retain the
register, record or reproduction referred to in subsection (1) for
a period of at least four years after the date of the last entry in
that register or record.
An employer who fails to comply
with a provision of this section shall be guilty of an offence.
A health and safety
representative elected in terms of the Occupational Health and
Safety Act, 1993(Act No. 85 of 1993), or the Mine Health and Safety
Act, 1996 (Act No. 29 of 1996), and a trade union representative
elected in terms of section 14 of the Labour Relations Act, 1995
(Act No. 66 of 1995), shall have the right to inspect, and where
appropriate bring to the attention of the commissioner, any
register, record or document which the employer must maintain, keep
or complete in terms of this Act.
Employer
to furnish returns of earnings
Subject to subsection 1A, an
employer, excluding an employer referred to in section 84(1)(a) and
(b), shall not later than the thirty-first day of
March in each year furnish the commissioner with a return in the
prescribed form, certified by him her or it as correct, showing-
the amount of earnings up to
the maximum contemplated in section 83(8) paid by him her or it to
his her or its employees during the period with effect from the
first day of March of the immediately preceding year up to and
including the last day of February of the following year; and
such further information as
may be prescribed or as the Director-General may require.
An employer who commences
business after the last day of February of a particular year shall
within seven days after such commencement furnish the commissioner
with a return in the prescribed form, certified by him, her or it
as correct, showing the estimated earnings of his, her or its
employees for the period with effect from the commencement of the
business up to and including the last day of February of the
following year.
If an employer carries on
business at more than one place or if he carries on more than one
class of business, the commissioner may require a separate return
for each place or class of business from him.
If in a return referred to in
subsection (1) the amount shown as earnings, excluding earnings
exceeding the maximum contemplated in subsection 83(8), is less
than the amount actually paid, the Director-General may impose
upon and recover from the employer a fine not exceeding 10 per cent
of the difference between the amount shown and the actual amount.
The Director-General may reduce
any fine referred to in subsection (3). (5) If an employer fails to
furnish a return or if the estimate of the earnings which an
employer expects to pay during a particular period is in the
opinion of the Director-General too low, the Director-General may
himself estimate the earnings concerned.
An employer who fails to comply
with the provisions of this section shall be guilty of an offence.
Subject to the provisions of
this section, an employer shall be assessed or provisionally
assessed by the Director-General according to a tariff of
assessment calculated on the basis of such percentage of the annual
earnings of his her or its employees as the Director-General with
due regard to the requirements of the compensation fund for the
year of assessment may deem necessary.
Notwithstanding subsection (1),
the Director-General may-
assess a particular employer
or category of employers on such other basis as he may deem
equitable;
levy a minimum assessment in
respect of a particular employer or category of employers.
In determining the tariff of
assessment the Director-General shall provide for the capitalized
value of pensions.
For the purposes of this
section earnings shall be calculated in the prescribed manner.
If the earnings actually paid
by an employer in respect of a particular period differ from the
earnings shown in respect of that period in the return concerned,
the Director-General shall adjust his assessment accordingly.
If an employer fails to furnish
the Director-General within the prescribed period with a return in
terms of section 82 in respect of a particular period, the
Director-General may-
assess the employer on the
basis of the earnings estimated in accordance with section 82(5)
impose upon and recover from
the employer a fine not exceeding 10 per cent of the amount so
assessed.
where it later appears that
the actual earnings were more than the earnings estimated under
paragraph (a), recover the difference in the assessment from the
employer, and may impose and recover a fine on such difference as
contemplated in paragraph (b);
where it later appears that
the actual earnings were less than the earnings estimated under
paragraph (a), make the necessary adjustment.
An assessment of an employer
shall be paid at such time and in such manner as the
Director-General may determine.
The Minister may, on
recommendation of the Director-General and after consultation with
the Board prescribe by notice in the Gazette a maximum amount of
earnings on which an assessment of an employer shall be calculated
by the Director-General.
Certain
employers exempt from assessment
No assessment in favour of the
compensation fund shall be payable in respect of employees-
in the employ of-
the national and provincial
spheres of government, including Parliament and provincial
legislatures;
a local authority which has
obtained a certificate of exemption in terms of section
70(1)(a)(ii) of the Workmen's Compensation Act and has notified
the Director-General in writing within 30 days after the
commencement of this Act that it desires to continue with the
arrangements according to the said certificate of exemption;
a municipality contemplated
in section 10B of the Local Government transition Act, 1993 (Act
No. 209 0f 1993), to which exemption has been granted in terms of
subsection 2;
whose employer has with the
approval of the Director-General obtained from a mutual
association a policy of insurance for the full extent of his
potential liability in terms of this Act to all employees employed
by him, for so long as he maintains such policy in force.
The Director-General may upon
application exempt any local authority referred to in subsection
(1)(a)(ii) or any municipality referred to in subsection
(1)(a)(iii) from the obligations of an employer in terms of this
Act on such conditions as he or she may think fit.
Notwithstanding the provisions
of this section, the Director-General may on application by an
employer referred to in subsection (1) permit such employer to pay
assessments to the compensation fund in respect of his employees,
and thereafter the provisions of this section shall cease to apply
to such an employer.
Variation
of tariff of assessment
If in the opinion of the
Director-General the business of an employer is designed, equipped,
organized or conducted in a manner which is calculated to prevent
accidents and the number of accidents and the expenditure in
connection therewith are or are likely to be less than those
usually occurring in comparable businesses, the Director-General
may assess that employer at a lower tariff of assessment than the
tariff of assessment for employers in like businesses.
If the accident record
of an employer during a particular period is in the opinion of the
Director-General less favourable than those of employers in
comparable businesses and the Director-General is of the opinion
that such state of affairs will probably continue, the
Director-General may assess such employer at a higher tariff of
assessment than the tariff of assessment for employers in like
businesses.
If the accident record of an
employer during a particular period is in the opinion of the
Director-General more favourable than those of employers in
comparable businesses, the Director-General may give such employer
a rebate on any assessment paid or payable by him.
Assessment
to be paid by employer to commissioner
An assessment shall be paid by
an employer to the commissioner within 30 days after the date of
the notice of assessment or, with the approval of the commissioner,
in such instalments and at such times and on such conditions as the
commissioner may determine.
Interest is payable on an
overdue assessment at a rate determined by the Director-General,
which shall not exceed the prevailing standard rate of interest as
defined in section 1 of the Exchequer Act, 1975(Act No. 66 of
1975).
Failure
to pay assessment or other moneys
If an employer fails to pay an
assessment in accordance with section 86, the Director-General may
impose a fine at the prescribed percentage on the outstanding
amount upon him.
(a) If an employer fails to
comply with the provisions of section 80(1) and an employee in his
employ meets with an accident, the Director-General may, in
addition to any other penalty to which such employer may be liable,
impose a fine not exceeding the full amount of the compensation
payable in respect of such accident upon him.
If the Director-General is of
the opinion that such failure was not wilful or was due to some
cause over which the employer had no control, or that payment of
the full amount of the capitalized value of a pension payable as
compensation to the employee would probably lead to the insolvency
of that employer or, in the case where the employer is a company,
to its liquidation, the Director-General may-
waive in whole or in part any
fine imposed by him;
allow the employer to pay the
penalty in such instalments as he may determine.
An employer who refuses or
fails to pay any assessment, instalment or fine referred to in this
section or any other money payable in terms of this Act, shall be
guilty of an offence.
(a) If an employer fails to
pay any amount due to the commissioner, the commissioner may issue
an order in the prescribed form for the payment thereof.
The commissioner shall send a
certified copy of the order referred to in paragraph (a) to
the clerk of the magistrate's court of the district in which that
employer is resident or where he has his place of business, and
thereupon such order shall have the effect of a civil judgment of
that magistrate's court, and the commissioner shall have all the
powers of a judgment creditor.
For the purposes of this
section compensation includes the cost of medical aid, as well as
any amount paid or payable in terms of section 28, 54(2) or 72(2)
and, in the case of a pension, the capitalized value as determined
by the Director-General of the pension, irrespective of whether a
lump sum in lieu of the pension or a portion thereof is at any time
paid under section 52 or 60, and periodical payments or allowances,
as the case may be.
Contributions
by employers individually liable and mutual associations
Notwithstanding any provision
to the contrary contained in this Act, the employers individually
liable and the mutual associations shall pay annually to the
Director-General in such manner and at such times as he may
determine, such portion of the expenditure incurred by him in the
administration of the provisions of this Act as he may deem
equitable.
(a) The Director-General shall
as soon as possible after the end of each financial year estimate
the loss suffered during that year as a result of compensation that
became payable out of the compensation fund in respect of
employees with regard to whom their employers failed to pay
assessments.
Such loss shall be estimated
on the basis of the difference between the compensation referred
to in paragraph (a) as calculated by the Director-General,
together with any expenditure incurred or likely to be incurred in
connection therewith, and the amounts recovered from the employers
concerned or likely to be recovered whether by way of
compensation, fines or otherwise.
The loss for any particular
financial year may be revised by the Director-General in
subsequent years in the light of the amounts actually paid or
recovered.
The employers individually
liable and the mutual associations shall pay to the
Director-General, in such manner and at such times as he may
determine, such portion of the said loss as he may deem
equitable.
The provisions of this Act with
regard to the recovery of assessments shall apply mutatis
mutandis to the recovery of an amount owing by an employer or
mutual association in terms of this section.
For the purposes of this
section compensation includes the cost of medical aid, as well as
any amount paid or payable in terms of section 28, 54(2) or 72(2)
and, in the case of a pension, the capitalized value as determined
by the Director-General of the pension, irrespective of whether a
lump sum in lieu of the pension or a portion thereof is at any time
paid under section 52 or 60, and periodical payments or allowances,
as the case may be.
(a) If a person (the mandator)
in the course of or for the purposes of his business enters into an
agreement with any other person (the contractor) for the execution
by or under the supervision of the contractor of the whole or any
part of any work undertaken by the mandator, the contractor shall,
in respect of his employees employed in the execution of the work
concerned, register as an employer in accordance with the
provisions of this Act and pay the necessary assessments.
If a contractor fails so to
register or pay any assessment, the said employees of the
contractor shall be deemed to be the employees of the mandator,
and the mandator shall pay the assessments in respect of those
employees.
If a mandator has paid an
assessment or compensation for which he would not have been liable
but for the provisions of subsection (1), such mandator may recover
that assessment or compensation from the contractor.
If a mandator has in terms of
this section paid an assessment or compensation to the
commissioner, he may set off the amount so paid by him against his
debt to the contractor.
Notwithstanding the provisions
of this section, the Director-General may recover compensation from
the contractor instead of from the mandator, and if the full amount
cannot be recovered from the one, the shortfall can be recovered
from the other.
A mandator shall not be liable in terms of this section in respect of any accident which happened at a place which is not on or about the premises on which the mandator undertook to execute the work, or which is not otherwise under his control or management.
Review
of decisions by Director-General
The Director-General may after
notice, if possible, to the party concerned and after giving him an
opportunity to submit representations, at any time review any
decision in connection with a claim for compensation or the award
of compensation on the ground-
that the employee has not
submitted himself to an examination referred to in section 42;
that the disablement giving
rise to the award is prolonged or aggravated by the unreasonable
refusal or failure of the employee to submit himself to medical
aid;
that compensation awarded in
the form of a periodical payment or a pension is excessive or
insufficient because of existing or changed circumstances;
that the decision or
award was based on an incorrect view or misrepresentation of the
facts, or that the decision or award would have been otherwise in
the light of evidence available at present but which was not
available when the Director-General made the decision or award.
The Director-General may, after
he has considered the evidence and representations submitted to him
and made such inquiry as he may deem necessary, confirm, amend or
set aside his decision, and may suspend, discontinue, reduce or
increase compensation awarded.
For the purposes of this
section compensation shall include medical aid.
Objections
and appeal against decisions of Director-General
Any person affected by a
decision of the Director-General or a trade union or employers'
organization of which that person was a member at the relevant time
may, within 180 days after such decision, lodge an objection
against that decision with the commissioner in the prescribed
manner.
(a) An objection lodged
in terms of this section shall be considered and decided by the
presiding officer assisted by two assessors designated by him, of
whom one shall be an assessor representing employees and one an
assessor representing employers.
If the presiding officer
considers it expedient, he may, notwithstanding paragraph (a),
call in the assistance of a medical assessor.
The provisions of sections 6,
7, 45 and 46 shall apply mutatis mutandis in respect of the
consideration of an objection.
(a) After considering an
objection the presiding officer shall, provided that at least one
of the assessors, excluding any medical assessor, agrees with him,
confirm the decision in respect of which the objection was lodged
or give such other decision as he may deem equitable.
If neither of the assessors
agrees with the view of the presiding officer, the presiding
officer shall submit the dispute in terms of section 92 to
the Supreme Court for decision.
The presiding officer may in
connection with proceedings in terms of this section make such
order as to costs and the payment thereof as he may deem
equitable.
(a) Any person affected
by a decision referred to in subsection (3)(a), may appeal to any
provincial or local division of the Supreme Court having
jurisdiction against a decision regarding-
the interpretation of this
Act or any other law;
the question whether an
accident or occupational disease causing the disablement or death
of an employee was attributable to his or her serious and wilful
misconduct;
the question whether the
amount of any compensation awarded is so excessive or so
inadequate that the award thereof could not reasonably have been
made;
the right to increased
compensation in terms of section 56.
Subject to the provisions of
this subsection, such an appeal shall be noted and prosecuted as
if it were an appeal against a judgment of a magistrate's court in
a civil case, and all rules applicable to such an appeal shall
mutatis mutandis apply to an appeal in terms of this
subsection.
Except where the presiding
officer orders otherwise, no obligation to pay any assessment,
compensation or any other amount to the Director-General or to the
compensation fund, or to pay any periodical payments to or on
behalf of an employee under a decision of the presiding officer,
shall be suspended or deferred by reason of the fact that an
objection has been lodged against such decision in terms of
subsection (1), or that an appeal has been noted in terms of
subsection (5).
(a) If during the hearing of an
objection the presiding officer dies or becomes unable to act as
presiding officer -
the hearing may, with the
consent of the person, trade union or employers’ organisation
contemplated in subsection (1), proceed before another presiding
officer and the assessors concerned; or
the hearing shall start de
novo if the consent contemplated in subparagraph(i) is not
given.
If during the hearing of an
objection an assessor dies or becomes unable to act an assessor-
the hearing may, with the
consent of the person, trade union or employers’ organisation
contemplated in subsection (1), proceed before the presiding
officer concerned and the remaining assessor; or
the hearing shall start de
novo if the consent contemplated in subparagraph(i) is not
given.
If any question of law arises
in the performance of the functions of the Director-General, the
Director-General may of his or her own motion or at the request of
a party with a sufficient interest in any matter or proceedings
before the Director-General, state a case for decision by a High
Court having jurisdiction.
The Director-General shall set
out in the stated case-
the facts that he found
proved; and
the view of the law which he
has adopted in relation to those facts.
If the Director-General has any
doubt as to the correctness of a decision given by any provincial
or local division of the Supreme Court regarding a question of law
in connection with the application of this Act, he may submit such
decision to the Appellate Division of the Supreme Court and cause
the question of law to be argued so that the Appellate Division may
decide such question of law for the future guidance of all
courts.
The record of any decision or
award made by the Director-General, and a copy of or extract from a
record or document kept by the Director-General or lodged with him,
which purports to be certified by the Director-General as a true
copy or extract shall upon its mere production in a court of law be
prima facie evidence of the content of such record or
document.
In any proceedings in terms of
this Act, or in any court of law, any document purporting to be a
sworn statement made by the Director-General or an authorized
person referred to in section 7(2), and in which it is stated-
that any person is an
employer, a mandator, a contractor, an employee or a dependant of
an employee in terms of this Act;
that any person is or was
required in terms of this Act to pay an amount to the
Director-General or to an employee or other person specified in
the statement;
that an amount referred to in
paragraph (b), or any portion thereof, has or has not been
paid on a date specified in the statement;
that he has exercised a power
under this Act, shall upon its mere production be prima facie
evidence of the facts stated therein.
The person presiding at the court or other proceedings referred to in subsection (1) or (2) may cause the person who has made a sworn statement referred to in subsection (2) to be subpoenaed to give viva voce evidence or cause written interrogatories to be sent to him for answering, and a document purporting to be a sworn statement with the answers of that person shall upon its mere production be prima facie evidence of the facts stated therein.
The Minister may, by notice in the Gazette, issue directions to give effect to the provisions of any agreement between the Republic and any other state in which provision is made for reciprocity in matters regarding compensation to employees for accidents resulting in disablement or death, including directions-
to determine in any case where
an employee is entitled to compensation both in terms of this Act
and in terms of the law of any such state under the law of which
party such employee or his dependants shall be entitled to recover
compensation;
to authorize the
Director-General to allow evidence taken in any such state, and to
obtain and take evidence for use in such state or for the
facilitation of proceedings for the recovery of compensation in
terms of the law of any such state.
Notwithstanding any provision to the contrary contained in any other law, any sworn statement, certificate, receipt or other document required or issued under this Act, shall be exempt from stamp duty.
No person shall disclose any
information obtained by him in the performance of his functions in
terms of this Act, except-
to the extent to which it may
be necessary for the proper administration of a provision of this
Act;
for the purposes of the
administration of justice; or
at the request of the Minister
or any other person entitled thereto.
Any person who contravenes the
provisions of subsection (1) shall be guilty of an offence.
The Minister may make
regulations, after consultation with the Board, regarding -
the place of meeting and the
procedure to be followed at any meeting of the Director-General
and assessors or at any proceedings in terms of this Act with
which the assessors are concerned, or at any investigation in
terms of this Act;
subject to section 76, the
fees payable to medical practitioners or chiropractors in respect
of services rendered in terms of this Act;
the procedure to be followed
in paying assessments and fines to the Director-General;
the persons to whom, the
places where and the manner in which payment of assessments in
terms of this Act shall be made;
the determination of the
amount and the conditions and manner of payment of benefits to
assessors or classes of assessors;
the disposal of moneys payable
in terms of this Act to any person other than the Director-General
and not claimed within the prescribed period by the person
entitled thereto;
any matter which shall or may
be prescribed by regulation in terms of this Act;
any other matter, whether or
not connected with any matter mentioned in paragraphs (a) to
(g), which he may deem necessary or expedient to prescribe
in order to further the objects and purposes of this Act.
Different regulations may be
made under subsection (1) in respect of different classes of
employers and employees and of different areas, and the Minister
may, after consultation with the Board, in respect thereof
differentiate in such manner as he or she may deem expedient.
Any person who contravenes or
fails to comply wit any regulation made under subsection (1) shall
be guilty of an offence and liable on conviction to a fine, or
imprisonment for a period not exceeding six months.
Any person who in connection with a claim for compensation in terms of this Act, or in any return, notice, report or statement to be given, made or furnished in terms of this Act, makes or causes to be made any statement which is false in a material respect, knowing it to be false, shall be guilty of an offence.
Any person who is convicted of an offence in terms of this Act shall be liable to a fine, or to imprisonment for a period not exceeding one year.
Subject to the provisions of
this section, the laws specified in Schedule 1 are hereby repealed
to the extent set out in the third column thereof.
Any regulation made, any
direction, order or directive issued, any request made or any
requirement prescribed and any other thing done under a provision
of the Workmen s Compensation Act, and which could be made, issued,
prescribed or done under a provision of this Act, shall be deemed
to have been made, issued, prescribed or done under the
last-mentioned provision.
Any claim for compensation or
medical aid under a law repealed by subsection (1) in respect of an
accident that happened or a scheduled disease contracted prior to
the commencement of this Act shall be dealt with in terms of the
repealed law as if this Act had not been passed and any right or
privilege acquired or accrued under such repealed law shall not be
affected by such repeal.
This Act shall be called the
Compensation for Occupational Injuries and Diseases Act, 1993,
and shall come into operation on a date fixed by the State
President by proclamation in the Gazette.
Different dates may be fixed under subsection (1) in respect of different provisions of this Act.
No. and year of law |
Title |
Extent of repeal |
Act No. 30 of 1941 |
Workmen's Compensation Act, 1941 |
The whole |
Act No. 27 of 1945 |
Workmen's Compensation Amendment Act, 1945 |
The whole |
Act No. 36 of 1949 |
Workmen's Compensation Amendment Act, 1949 |
The whole |
Act No. 5 of 1951 |
Workmen's Compensation Amendment Act, 1951 |
'The whole |
Act No. 51 of 1956 |
Workmen's Compensation Amendment Act, 1956 |
The whole |
Act No. 7 of 1961 |
Workmen's Compensation Amendment Act, 1961 |
The whole |
Act No. 21 of 1964 |
Workmen's Compensation Amendment Act, 1964 |
The whole |
Act No. 58 of 1967 |
Workmen's Compensation Amendment Act, 1967 |
The whole |
Act No. 9 of 1970 |
Workmen's Compensation Amendment Act, 1970 |
The whole |
Act No. 27 of 1970 |
Second Black Laws Amendment Act, 1970 |
Section 2 |
Act No. 60 of 1971 |
Workmen's Compensation Amendment Act, 1971 |
The whole |
Ate No. 11 of 1974 |
Workmen's Compensation Amendment Act, 1974 |
The whole |
Act No. 28 of 1977 |
Workmen's Compensation Amendment Act, 1977 |
The whole |
Act No. 8 of 1979 |
Workmen's Compensation Amendment Act, 1979 |
The whole |
Act No. 24 of 1981 |
Workmen's Compensation Amendment Act, 1981 |
The whole |
Act No. 29 of 1984 |
Workmen's Compensation Amendment Act, 1984 |
The whole |
Act No. 35 of 1987 |
Workmen's Compensation Amendment Act, 1987 |
The whole |
Act No. 40 of 1990 |
Workmen's Compensation Amendment Act, 1990 |
The whole |
Injury |
Percentage of permanent disablement |
|
Loss of two limbs |
100 |
|
Loss of both hands, or of all fingers and both thumbs |
100 |
|
Total loss of sight |
100 |
|
Total paralysis |
100 |
|
Injuries resulting in employee being permanently bedridden |
100 |
|
Any other injury causing permanent total disablement |
100 |
|
Loss of arm at shoulder |
65 |
|
Loss of arm between elbow and shoulder |
65 |
|
Loss of arm at elbow |
55 |
|
Loss of arm between wrist and elbow |
55 |
|
Loss of hand at wrist |
50 |
|
Loss of four fingers and thumb of one hand |
50 |
|
Loss of four fingers |
40 |
|
Loss of thumb: |
both phalanges |
25 |
one phalanx |
15 |
|
Loss of index finger: |
three phalanges |
10 |
two phalanges |
8 |
|
one phalanx |
5 |
|
Loss of middle finger: |
three phalanges |
8 |
two phalanges |
6 |
|
one phalanx |
4 |
|
Loss of ring finger: |
three phalanges |
6 |
two phalanges |
5 |
|
one phalanx |
3 |
|
Loss of little finger: |
three phalanges |
4 |
two phalanges |
3 |
|
one phalanx |
2 |
|
Loss of metacarpals: |
first, second or third (additional) |
4 |
fourth or fifth (additional) |
2 |
|
Loss of leg: |
at hip |
70 |
between knee and hip |
45 to 70 |
|
below knee |
35 to 45 |
|
Loss of toes: |
all |
15 |
big, both phalanges |
7 |
|
big, one phalanx |
3 |
|
toes other than big toes: |
|
|
four toes |
7 |
|
three toes |
5 |
|
two toes |
3 |
|
one toe |
1 |
|
Loss of eye: |
whole eye |
30 |
sight |
30 |
|
sight except perception of light |
30 |
|
Loss of hearing: |
both ears |
50 |
one ear |
7 |
Total permanent loss of the use of a limb shall be treated as the loss of the limb.
Any injury to the left arm or hand and, in the case of a left-handed employee, to the right arm or hand, may in the discretion of the Director-General be rated at ninety per cent of the above percentage.
If there are two or more injuries the sum of the percentages for such injuries may be increased, in the discretion of the Director-General.
Diseases |
Work |
|
(a) Any work involving the handling of or exposure to any of the following substances emanating from the workplace concerned: |
Pneumoconiosis-fibrosis of the parenchyma of the lung |
organic or inorganic fibrogenic dust |
Pleural thickening causing significant impairment of function |
asbestos or asbestos dust |
Bronchopulmonary disease |
metal carbides (hard metals) |
Byssinosis |
flax, cotton or sisal |
Occupational asthma |
the sensitizing agents- |
(1) isocyanates |
|
(2) platinum, nickel, cobalt, vanadium or chromium salts |
|
(3) hardening agents, including epoxy resins |
|
(4) acrylic acids or derived acrylates |
|
(5) soldering or welding fumes |
|
(6) substances from animals or insects |
|
(7) fungi or spores |
|
(8) proteolytic enzymes |
|
(9) organic dust |
|
(10) vapours or fumes of formaldehyde, anhydrides, amines or diamines |
|
Extrinsic allergic alveolitis |
moulds, fungal spores or any other allergenic proteinaceous material, 2,4 toluene-diisocyanates |
Any disease or pathological manifestations |
beryllium, cadmium, phosphorus, chromium, manganese, arsenic, mercury, lead, fluorine, carbon disulfide, cyanide, halogen derivatives of aliphatic or aromatic hydrocarbons, benzene or its homologues, nitro- and amino-derivatives of benzene or its homologues, nitroglycerine or other nitric acid esters, hydrocarbons, trinitrotoluol, alcohols, glycols or ketones, acrylamide, or any compounds of the aforementioned substances |
Erosion of the tissues of the oral cavity or nasal cavity |
irritants, alkalis, acids or fumes thereof |
Dysbarism, including decompression sickness, baro-trauma or osteonecrosis |
abnormal atmospheric or water pressure |
Any disease |
ionising radiation from any source |
Allergic or irritant contact dermatitis |
dust, liquids or other external agents or factors |
Mesothelioma of the pleura or peritoneum or other malignancy of the lung |
asbestos or asbestos dust |
Malignancy of the lung, skin, larynx, mouth cavity or bladder |
coal-tar, pitch, asphalt or bitumen or volatiles thereof |
Malignancy of the lung, mucous membrane of the nose or associated air sinuses |
nickel or its compounds |
Malignancy of the lung |
hexavalant chromium compounds, or bis chloromethyl ether |
Angiosarcoma of the liver |
vinyl chloride monomer |
Malignancy of the bladder |
4-amino-diphenyl, benzidine, beta naphtylamine, 4-nitro-diphenyl |
Leukaemia |
benzene |
Melanoma of the skin |
polychlorinated biphenyls |
Tuberculosis of the lung |
(1) crystalline silica (alpha quartz) |
(2) mycobacterium tuberculosis or MOTTS (mycobacterium other than tuberculosis) transmitted to an employee during the performance of health care work from a patient suffering from active open tuberculosis |
|
Brucellosis |
brucella abortus, suis or mellitensis transmitted through contact with infected animals or their products |
Anthrax |
bacillus anthracis transmitted through contact with infected animals or their products |
Q-fever |
coxiella burneti emanating from infected animals or their products |
Bovine tuberculosis |
mycobacterium bovis transmitted through contact with infected animals or their products |
Rift Valley Fever |
virus transmitted by infected animals or their products |
|
(b) Any work involving the handling of or exposure to any of the following: |
Hearing impairment |
excessive noise |
Hand-arm vibration syndrome (Raynaud's phenomenon) |
vibrating equipment |
Any disease due to overstraining of muscular tendonous insertions |
repetitive movements |
(i) |
(ii) |
(iii) |
(iv) |
(v) |
Item |
Section |
Nature and degree of disablement |
Nature of benefits |
Manner of calculating benefits |
1. |
47(1)(a) |
Temporary total disablement |
Periodical payments |
75% of an employee's monthly earnings at the time of the accident to a maximum compensation of R6 064,50 per month |
2. |
49(1) |
Permanent disablement of 30% |
Lump sum |
15 times the monthly earnings of the employee at the time of the accident to a minimum and a maximum compensation of R12 375,00 and R67 950, 00, respectively |
3. |
49(1) |
Permanent disablement of less than 30% |
Lump sum |
An amount which bears to a lump sum calculated under item 2 the same proportion as the degree of permanent disablement to 30% |
4. |
49(1) |
Permanent disablement of 100% |
Monthly pension |
75% of an employee's monthly earnings at the time of the accident to a minimum and a maximum compensation of R618,75and R6 064,50 per month, respectively; |
5. |
49(1) |
Permanent disablement of less than 100% but more than 30% |
Monthly pension |
A monthly pension which bears to a pension calculated under item 4 the same proportion as the degree of permanent disablement to 100% |
6. |
54(1)(a) |
Fatal |
Lump sum |
Twice the employee's monthly pension that would have been payable to the employee under item 4 had he been totally permanently disabled |
7. |
54(1)(b) |
Fatal |
Monthly pension |
40% of the monthly pension that would have been payable to the employee under item 4 had he been totally permanently disabled |
8. |
54(1)(c) |
Fatal |
Monthly pension |
20% of the monthly pension that would have been payable to the employee under item 4 had he been totally permanently disabled, to each child |
9. |
54(1)(e) |
Fatal |
Lump sum |
Percentage dependence as portion of R28 680,00 |
10. |
54(2) |
Fatal |
Funeral costs |
A reasonable amount for funeral costs to a maximum of R5 350, 00 or the actual amount, whichever is the lesser |