What can I do if my husband was killed while working and his employer refuses to cooperate with the compensation process?

The long answer

If he was driving the company truck back to Rustenburg and was shot while stopping to urinate, he was still on duty. While working, people still have to urinate. The death of an employee due to an accident, even if it is a murder, is a reportable incident under COIDA. The employer is legally obliged under the Compensation for Occupational Injuries and Diseases Act (COIDA) to report all accidents and diseases that arise out of and in the course of duty within seven days. 

Incidents resulting in death must be reported "forthwith" (immediately) to the Provincial Director of the Department of Labour. 

The employer is required to report the incident, complete the necessary COIDA forms, and cooperate with the Compensation Commissioner to ensure that you, as the widow, receive the benefits you are entitled to. Failing to do so is a criminal offence and can result in up to a year’s imprisonment. The Commissioner can impose a penalty, which may include 10% of the declared annual earnings of the employer of a particular year, or the total amount of compensation payable plus interest from the date of the incident.

The Consolidated Employers’ Organisation of South Africa (CEOSA) says that if the employer fails to report the injury on duty, the employee will be deprived of their right to be compensated for either temporary disability of three months or more, permanent disability, medical expenses or death benefits. And if no notice is given to the Commissioner within 12 months after the date of the accident, the employee will forfeit their right to compensation, as the claim will be prescribed (no longer be valid) as per Section 44 of COIDA.

If an employer refuses to report a workplace accident or complete COIDA forms, a widow has the right to file a claim directly with the Compensation Commissioner.

What is not clear to me is whether you also filed a direct claim to the Commissioner when you opened a case at the Labour Dept to report the employer’s refusal to fill out the COIDA forms. It may be that you still need to make a claim directly to the Commissioner. 

To make a direct claim yourself, you must submit a claim form W.CL2: Notice of Accident and Claim for Compensation. Labour Guide says you will also need to submit certified copies of the following documents:

• marriage certificate or proof that you lived as husband and wife

• birth certificates or baptismal certificates of children (for proof of children)

• the death certificate

• declaration by the widow (form WCL32)

• the employer’s report of the accident or disease (if available)

• funeral accounts (form WCL46)

• a special Compensation form must be filled in that details your income and property

These are the death benefits you can claim:

• The widow: 

A lump sum payment of twice the monthly pension of the worker. (The pension is the amount the worker would have been paid if he had been 100% disabled.)

Monthly pension for life: 40% of the worker’s monthly pension, paid every month.

• Each child under the age of 18 years (including illegitimate, adopted and step-children) is entitled to: 

20% of the worker’s monthly pension paid every month until the child is 18 years old. The pension can continue for longer if the child is mentally or physically handicapped

• The person who pays for the funeral expenses will be paid expenses up to R6,970.

The Department of Employment and Labour says that a spouse pension will be paid from the date of death, and arrears will be paid as soon as the pension is authorised. 

Children’s pensions will be paid until they turn eighteen, but they can request for the pension to be extended if they are still in school (including tertiary education) or if the child has a disability prohibiting them from earning a living.

The total monthly pension per family cannot be more than the pension the deceased worker would have received if he was 100% disabled (i.e., 75% of the monthly wage).

To answer the question of what rights you have against the employer, CEOSA explains that if an employee is killed at work, compensation is primarily governed by the Compensation for Occupational Injuries and Diseases Act (COIDA). This is because anyone who employs one or more workers must register with the Compensation Fund and pay annual assessment fees. That means that when an employee is registered by their employer, the employer is protected against civil claims from the employee as stipulated in Section 35(1) of COIDA. COIDA provides a no-fault system of compensation, meaning the employer is generally protected from civil lawsuits by dependents.

So COIDA basically prevents employees covered by the Act from suing their employers for damages in terms of the common law. 

You may want to get more advice from COIDA on what your legal rights are: 

Tel: 064 681 6550

Email: info@coidaadvisory.co.za

You could also ask the Black Sash, which gives free paralegal advice:

Email: help@blacksash.org.za and info@blacksash.org.za

Tel (national office): 021 686 6952

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865.

Wishing you the best,
Athalie