More than 50 000 South Africans who have been disabled by work-related accidents in the past 11 years are challenging the government in court. They claim the government has reneged on its statutory obligation to provide them with a financial lifeline.
Inaction by the Department of Labour’s Compensation Fund, an insurance scheme established under the Compensation for Occupational Injuries and Diseases Act to remunerate injured workers, has thwarted scores of disabled workers over the past decade.
Most of them have had no source of income since they were injured and, without recompense from the fund, they either rely on their extended families for support or are eking out a living on the streets.
Now the Legal Resources Centre (LRC) is representing four main applicants in a class-action suit, representing 50 000 former workers who have been left in the lurch by the feebly managed fund.
”The compensation scheme is intended to assist people such as these. But thousands of workers, like our clients, who have become victims of work accidents, have also become victims of a wholly inadequate compensation scheme,” said Paula Howell, a paralegal at the LRC who is representing the workers.
The court application seeks to make the state provide fully disabled workers 75% of their monthly salary for life; and provide workers temporarily disabled with 75% of their salaries for the period they are unable to work.
Legally, the fund substitutes for all other common law claims, for example the right to sue an employer for personal injury. In return it pledges reimbursement. Employers contribute to the fund based on employees’ salaries and the level of risk their work entails. All business or farming industries that employ one or more people are required to register with the fund.
The workers who will fight this case fall under a section called ”temporary claims”, for claimants whose employers have not completed an accident report. In terms of the Act, injured workers can only be paid out if their employers complete this report, and in most cases they fail to do so because ”they wish to avoid increases in contributions to the fund due to rises in the number of accidents to their employees”, said Howell.
In terms of the Act, the labour department’s Director General, Dr Vanguard Mkosana, who administers the fund, and the fund’s commissioner, Sibongile Magojo, have the legal power to subpoena and fine recalcitrant employers for the full amount of compensation due to their employee if they do not fill in the form within seven days of the accident, but, ”this provision has never been enforced by the [commissioner]”, said Howell.
The Act gives the commissioner three months to settle claims. But 90% of the compensation cases with the LRC are more a year old and the majority of these more than three years old.
According to Howell: ”The fund’s staff are rewarded bonuses for the number of claims that they settle, encouraging a tendency to concentrate on less difficult claims [where the employer has filled out an injury form obligingly] in order to obtain higher bonuses.”
The LRC delivered its notice of motion and founding affidavits to the state attorney’s office in Pretoria and filed in the city’s High Court on Thursday last week. The commission has 30 days to reply.
Department of Labour spokesperson Monwabisi Maclean said this week that the department had not yet received the court application ”and therefore the minister cannot respond on hearsay”.
Maclean also challenged the LRC figures; he said only 5 600 temporary claims had been opened. Claiming that ”the backlog is historical in nature”, he said the department ”is determined to deal with the problem” and the compensation commissioner has held briefing sessions with 180 businesses and consultants. One tender is for eliminating all backlogs, and the other for ”re-engineering the business processes and internal restructuring of the Compensation Fund”.
Numerous attempts by the Mail & Guardian to contact the Compensation Fund failed because its phone was never answered. Two toll-free numbers for claimants were also unanswered despite umpteen attempts to call them.