"Compensation for Occupational Injuries and Diseases Act"

Chapter VI: Determination and calculation of compensation

47. Compensation for temporary total or partial disablement

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.
[Para. (b) deleted by section 17 of Act No. 61 of 1997]

2) Compensation for temporary partial disablementshall consist of such portion of the amount calculated in terms of subsection (1) as the Director-General may consider equitable.

Notwithstanding section 29 the employer in whose service an employee is at the lime 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.

4) 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.

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.

6) Temporary total disablement continuing for more than 24 months may be treated by the Director-General as permanent disablement.

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)

48. Expiry of compensation for temporary total or partial disablement

1) 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.

2) 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.

3) 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 maybe, 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.

49. Compensation for permanent disablement

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.
[Para. (b) deleted by section 18 of Act No. 61 of 1997]

2) 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.
If an injury or a 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.

3) No payment for temporary disablement in terms of section 47 shall be deducted from compensation payable in terms of this section.

4) 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.

50. Amendment of Schedule 2

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.

51. Compensation for permanent disablement of employee in training or under 26 years of age

1) 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 Director-General 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.

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 normally to which a person of 26 years of age would 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.

52. Payment of lump sum in lieu of pension

1) 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.

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.

3) No pension or portion of a pension due to a child shall be paid in a lump sum.

4) 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.

53. Compensation to employee previously in receipt of compensation

1) 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.

2) 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.

3) Subject to section 56, an employee shall dot 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 per cent disablement.

54. Amount of compensation if employee dies

1) 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 and a monthly pension as set out in item 7 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: Provided that--
1. 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 la) of this subsection to the widow or widower;
2. 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 per cent permanent disablement;
3. 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;
4. iv) 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;
5. 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--
1. who is wholly financially dependant 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
2. who was partly financially dependant 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.
[Para. (e) deleted by section 21 of Act No. 61 of 1997].

2) 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.

3) 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.

4) 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.

5) 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).

6) 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.

55. Amendment of Schedule 4

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.

56. Increased compensation due to negligence of employer

1) 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 m terms of any regulation made under the Minerals Act, 1991 (Act 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 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.

2) 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.

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.

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.

5) 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 m terms of that section.

6) 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.>/p>

7) 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.

57. Increase of monthly pensions

1) 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.

2) In determining the percentage referred to in subsection (1) the Minister may differentiate between accidents which happened on different dates.

58. Advances on compensation

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.

59. Control over payment of compensation

1) 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 employee 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).

2) 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).

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.

60. Pensioner resident outside Republic

1) 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 totaling 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.

2) 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.

61. Recovery of compensation or other benefits

1) 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.

2) 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 judgment of that magistrate's court and the Director-General shall have all the powers of a judgment creditor.

3) 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.

62. Provisional settlements

1) 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.

2) 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.

63. Manner of calculating earnings

1) 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--
1. payment for intermittent overtime;
2. payment for non-recurrent occasional services;
3. amounts paid by an employer to an employee to cover any special expenses;
4. ex gratia payments whether by the employer or any other person.

2) 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.

3) 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.

4) 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.

5) 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.

6) This section shall not be construed as prohibiting the calculation of earnings on a weekly basis, but where earnings are so calculated the monthly earnings shall be calculated as equal to four and one-third times the amount of such weekly earnings.

64. Certain compensation to employers prohibited

1) 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.

2) 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).

3) 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.

4) 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.

5) An order made under this section shall have the effect of a civil judgment of a magistrate's court in favour of the commissioner.