The short answer
Your first step should be to establish from the compensation company how they decided on the amount
The whole question
My late husband had been declared permanently disabled as a result of hearing loss and was subsequently retrenched in 1998 but had received no compensation. It has taken a very long time for the claim to be adjudicated and I am not satisfied with the measly R300 which has been awarded.
The long answer
I am not sure from your email whether the R300 awarded to you by Rand Mutual Assurance (RMA) is a monthly pension or a once-off lump sum payment.
RMA says that in the case of permanent disability, a lump sum will be paid out to the injured worker if the disability is assessed as between 1 and 30%. Hearing loss in one ear is assessed at 7%, and hearing loss in both ears at 50%.
If it is assessed to be greater than 30%, a monthly pension based on a percentage of the salary being earned will be paid to the worker.
The Western Cape government says: “The amount of compensation paid to you, depends on how much you were earning when you got injured or diagnosed. If you’ve stopped working by the time a disease is diagnosed, the compensation will be worked out according to what you would have been earning.”
Labour Guide says that the Compensation Fund is covered by the Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA) and the Compensation for Occupational Injuries and Diseases Amendment Act (No 61 of 1997). The Act says an employer has to pay compensation to the injured worker for the first 3 months from the date of the occupational injury. The Compensation Fund will repay the employer for the money that was paid.
If I am understanding your email correctly, it seems that your late husband did not receive any compensation for his permanent disability when he was retrenched in 1998.
RMA says that a lump sum death benefit and a pension will be paid to his widow if the worker dies from his injury or occupational disease. RMA explains: “This is a monthly benefit that is paid to the spouse at 40% of the pension the deceased was earning at the time of their death (bearing in mind that their pension was paid at 75% of their accident earnings). This pension will be paid out to the spouse for the rest of their life, regardless of whether they remarry.”
If a worker is not satisfied with the RMA adjudication, they can lodge an objection within 180 days of the adjudication. RMA must then set up an independent tribunal to decide whether the RMA adjudication was correct, or not. If the worker is dissatisfied with the ruling of the tribunal, they can challenge it in court.
In 2022, RMA declined a claim from a mineworker who was losing his hearing after working with very noisy machinery for a long time. RMA said that the worker had not proved that his hearing loss was caused by his work. He lodged an objection to RMA’s assessment and they appointed a tribunal, which upheld RMA’s assessment. The worker then took the matter to the Gauteng High Court, where two judges found that the worker was entitled to compensation as the RMA tribunal was required to prove that the worker’s hearing loss was not caused by his work, and they failed to prove it. In other words, it was not the worker who had to prove that his hearing loss was caused by his work, but RMA who had to prove that it was not caused by his work.
The judges found that the tribunal did not properly assess the medical evidence that the worker presented, and so the court overturned the tribunal’s decision and sent the matter back to the tribunal to decide how much compensation the worker was owed.
Perhaps your first step should be to establish from RMA how they decided on the amount of R300:
If it is a pension, is it a percentage of the salary your late husband had been earning before he was retrenched in 1998? How did they work it out?
If your late husband had not received any compensation after he had been found to be permanently disabled, is this the compensation they are now obliged to pay to you? How did they work it out?
If you do not get satisfactory answers to the above questions, you could lodge an objection to the adjudication as a mineworker’s widow. If you do, you must fill out a notice of objection form from RMA or through their call centre at 086 0222 132. RMA must then set up an independent tribunal under Section 91(2) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), to judge whether the amount of the award was correct or not. A worker has to lodge an objection within 180 days of the adjudication, and then RMA should set up an independent tribunal within three months of an objection being lodged.
You can get a notice of objection form from RMA at any branch of RMA or through the call centre: 0860 222 132. You would need to fill in the form and send it back to RMA together with supporting documents like doctor’s or employer’s reports.
You can be at the meeting of the Tribunal or you can be represented by your lawyer. If the Tribunal upholds the RMA adjudication, you can take the case to the High Court.
In Ramanand v Compensation Commissioner in 2022, the court pointed out that Section 91(5)(a) of the COID Act gives the right to take the following questions on review to court: (amongst others, but these are the ones that apply to you)
(iii) 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;
(v) the right to increased compensation in terms of section 56.
The court also said: “The (COID) Act is thus essentially concerned with providing appropriate social security to employees who have suffered disablement as a result of an occupational injury or disease and its provisions are to be interpreted generously to promote this purpose.”
In addition, in Mahlangu and another v Minister of Labour and others, the court stated that the Act “must now be read and understood within the constitutional framework of s 27 and its objective to achieve substantive equality.”
Section 27 of the Constitution guarantees everyone a right to access social security and the State must take steps to progressively realise this right.
You can contact RMA at the following telephone and email address:
Tel: 0860 222 132
You could also ask for legal advice. Legal Aid is a means-tested organisation that must assist people who cannot afford a lawyer. Here are their contact details:
Tel: 0800 110 110 (Monday to Friday 7AM - 7PM) or send a please call me to 079 835 7179
You could also approach The Black Sash for free paralegal advice. Here are their contact details:
Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865
Wishing you the best,
Answered on Sept. 14, 2023, 1:42 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.