CHAPTER 18 - LEGISLATIVE COMPENSATION SYSTEMS

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Workers compensation

In addition to the remedies for delicts provided by the common law, there are a number of other sources of compensation for injury and property loss contained in various statutory provisions. The most outstanding of these is the scheme that provides compensation to workers injured in the workplace. This scheme is now part of the National Social Security system and the detailed provisions relating to this scheme are contained in the National Social Security Authority (Accident Prevention and Workers’ Compensation Scheme) SI 68 of 1990. This scheme is funded by payments by employers into a central fund. These payments are assessed on the basis of the particular class of business and calculated against the wages earned by employees. The compensation fund is then used to compensate workers (or their dependants if they die or are unable to work anymore) who are injured in accidents that occur whilst they are in the course of their employment or who contract certain specified work-related diseases. This system of compensation is a no-fault compensation scheme in that the injured worker does not have to prove any negligence on the part of the employer before he is entitled to compensation. All he has to establish is that the injury occurred at the work place when he was in the course of his employment. Section 8 provides that the worker or his or her dependant cannot sue the employer under the common law.

 

If, however, the worker wishes to claim additional compensation on top of that paid to him out of the Workers’ Compensation Fund, in terms of section 9 he or she has to sue the employer on the basis of the negligence:

  • of the employer in causing him that injury; or
  • of a person who is managing or in charge of the employer’s business; or
  • of a person who engages or disengages workers on behalf of his or her employer.

See Ncube v Wankie Colliery Co & Anor 2007 (1) ZLR 95 (H).

 

Section 10 further provides that where the accident was caused in circumstances creating legal liability on the part of some person other than the employer (a third party) to the worker, the worker may, in addition to claiming under the compensation scheme, institute legal proceedings against the third party to recover damages. Before instituting such action or withdrawing such action, the worker must notify the general manager of NSSA in writing.

 

Public servants injured at work are covered by the State Service (Disability Benefits) Act [Chapter 16:05]. See also State Service (Pensions) Act [Chapter 16:06].

 

War victims

There are various other compensation systems for persons who are injured or who sustain property loss which are contained in legislation. See the War Victims Compensation Act [Chapter 11:06].

 

Persons suffering loss due to activities of dishonest lawyers

There are various other pieces of legislation which permit recovery of compensation in specific circumstances. One example is s 70 of the Legal Practitioners Act [Chapter 27:07] which provides for compensation to be paid to a person who has suffered loss due to the dishonesty of his legal practitioner.

 

Persons injured by uninsured or hit and run drivers

This is a voluntary scheme established by motor accident insurers under which the Motor Insurers’Bureau will pay compensation up to certain specified limits to victims of negligence on the roads, in situations where the wrongdoers are not insured or where the wrongdoers are hit and run drivers who cannot be traced. Under this scheme, claims are made to the Motor Insurers’ Bureau.

 

This agreement covers:

  • accidents resulting in death or personal injury where the person responsible for the accident is uninsured or his policy is held to be ineffective because a condition of the policy was breached or it was obtained by improper methods such as a false declaration. In this situation, the injured party must first obtain judgment against D but before commencing action he must notify the Motor Insurance Bureau. There is a shorter period of prescription governing this type of claim in that it is laid down that that the injured party must also issue summons against D within two years.
  • where a person has been run down and has sustained serious and permanent disablement or has died as a result of injury; and the driver has failed to stop after the accident and cannot be traced. However, if he had been traced and it is reasonably certain that he would have been delictually liable, the Motor Insurance Bureau will make an ex gratia payment.

 

Victims of crime

A person who suffers physical injury or damage to property due to criminal activity would be able to bring a delictual claim for damages against the criminal who caused him the harm. Thus for instance a victim of assault, rape or arson could seek to sue the person who committed such a crime for damages. In practice, however, after criminals have been dealt with by the criminal courts relatively few injured people bring civil actions against the wrongdoers. There are a number of reasons for this lack of civil claims. Potential claimants may be ignorant of the rights to sue, or they may lack the financial resources to be able to mount a civil claim, or it may be pointless to sue the wrongdoer as he is in prison and has no property or money outside that could be used to satisfy a judgment debt.

 

In order to alleviate this situation a criminal court is now empowered under the Criminal Procedure and Evidence Act to award compensation to injured parties at the conclusion of the criminal case. This applies in cases of personal injury and property damage or loss. However, a criminal court may not award such compensation if the harm resulted from a motor vehicle accident or if:

  • the compensation amount is not readily quantifiable;
  • the full extent of liability is not readily ascertainable;
  • the convicted person could be prejudiced if the matter is dealt with under this scheme.

 

Evidence during the trial can be used for this purpose and the court may call further evidence. Money found in the convicted person’s possession or in his savings account, etc. may be used for the purposes of providing compensation to the injured person.

 

Under this scheme the victim of a crime will only receive compensation if the criminal wrongdoer has some money or property that can be used to compensate the victim.

 

We presently have no State scheme whereunder the State will pay compensation out of a central fund to crime victims if the wrongdoer has no means that can be used for compensation purposes.