THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 889/2019

In the matter between:
CATHERINE MAY CHURCHILL

APPELLANT
and
THE PREMIER OF MPUMALANGA
FIRST RESPONDENT
DIRECTOR-GENERAL: OFFICE OF THE
PREMIER OF MPUMALANGA

SECOND RESPONDENT

Neutral citation: Churchill v Premier, Mpumalanga (889/2019) [2021]
ZASCA 16 (4 March 2021)
Coram:
PONNAN, WALLIS and SALDULKER JJA and CARELSE
and KGOELE AJJA
Heard:
19 February 2021
Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 4 March 2021
Summary: Compensation for Occupational Injuries and Diseases Act
130 of 1993 (COIDA) – plaintiff mistreated and injured in the course of a
protest by trade union members on premises where she was employed –
whether her injuries an accident as defined in s 1 of COIDA – whether

accident arising out of and in the course of her employment – whether
liability of employer excluded by s 35 of COIDA.

ORDER

On appeal from: Mpumalanga Division of the High Court, Mbombela
(Roelofse AJ, sitting as court of first instance):
Judgment reported sub nom Churchill v Premier Mpumalanga and
Another 2020 (2) SA 309 (MN):
The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
The order of the high court is set aside and replaced with the
following order:
'(a)
The special plea is dismissed.
(b)
It is declared that the First Defendant is liable to compensate the
Plaintiff for such damages as may be agreed or proved arising out of the
injuries suffered by her in the course of the protest at the offices of the
First Defendant on 5 April 2017.
(c)
The matter is remitted to the high court for the determination of the
nature and extent of any and all such injuries and the quantum of
damages to which she is entitled in consequence thereof.
(d)
The First Defendant is to pay the costs of the action up to
23 May 2019, being the date of judgment in the high court.'

JUDGMENT

Wallis JA (Ponnan and Saldulker JJA and Carelse and Kgoele AJJA
concurring)

[1] On 5 April 2017 the appellant, Ms Catherine Churchill, went to
work as usual at the offices of the first respondent, the Premier of

Mpumalanga (the Premier), where she was employed as the Chief
Director: Policy and Research. During the morning, protest action over
labour issues, organised by a trade union, the National Education, Health
and Allied Workers' Union (NEHAWU), occurred at the premises and in
the building where she worked. She became caught up with the
protestors, was assaulted and mistreated by them and eventually evicted
from the premises in a manner that was humiliating and degrading. An
agreed medical report reflects that she suffered some physical injuries, in
the form of bruises, scratches and a swollen foot. More importantly, she
was shocked and humiliated and suffered psychiatric injury1 that has left
her with PTSD (Post Traumatic Stress Disorder) of significant intensity.
She tried to return to work, but alleges that she found the situation
intolerable and was compelled to resign at the end of June 2017.

[2] Ms Churchill sued the Premier and the Director-General in the
office of the premier (the D-G), the first and second respondents
respectively, alleging that her treatment by the protestors, including the
assaults, was occasioned by their negligence. She contended that they
took no steps, or alternatively inadequate steps, to ensure the safety of
their employees in the workplace. Had they taken reasonable or adequate
steps to do so she claimed that the assault on her would have been
avoided. Her claim amounts to nearly R7.5 million for past and future
medical treatment, general damages and past and future loss of income.
The bulk of this is compensation for loss of income calculated up to her
date of retirement on the basis that she will be unable to work again.

1 A psychiatric injury is no different from a physical injury having outward manifestations in the body
of the claimant. Bester v Commercial Union Versekeringsmaatskappy van SA Beperk Bpk 1973 (1) SA
769 (A); Barnard v Santam Beperk 1999 (1) SA 202 (SCA); Road Accident Fund v Sauls 2002 (2) SA
55 (SCA); Komape and Others v Minister of Basic Education [2019] ZASCA 192; 2020 (2) SA 347
(SCA) paras 25-32.

[3] The Premier and the DG raised a special plea, contending that her
claim constituted an occupational injury for which she was entitled to
compensation in terms of the Compensation for Occupational Injuries and
Diseases Act 130 or 1993 (COIDA) and was therefore excluded by
s 35(1) of COIDA. On the merits they denied the existence of any legal
duty and the fact of negligence. They denied that they were vicariously
liable for the behaviour of the protestors. At the trial the parties agreed
that the judge (Roelofse AJ) should determine the merits of her claim,
leaving the quantum to be dealt with separately. He upheld the special
plea and concluded that there was no need to consider the remaining
defences on the merits, whilst saying that he would have rejected them.
The appeal is with his leave.

The ambit of the appeal
[4] The heads of argument before this court dealt only with the special
plea and not negligence or vicarious liability. We asked appellant's
counsel at the outset what order should be made if the appeal succeeded.
It emerged from the discussion that there was confusion about the ambit
of the appeal. Appellant's counsel took the view that the high court's
judgment disposed of all issues of liability other than the special plea and
therefore, if the appeal succeeded, a suitable declaratory order should be
made in regard to liability. Respondents' counsel contended that the
appeal was limited to the special plea and indicated that if it was upheld
the case should be remitted to the high court to determine the issues of
negligence and vicarious liability.

[5] An examination of the record showed the respondents' approach to
be incorrect. Before the trial started the judge noted that the parties had
agreed to separate the merits from issues of quantum and enquired

whether the special plea could be determined on the basis of the agreed
facts. Counsel for the respondents, who was counsel before us, said this
was not possible, because if the court rejected the special plea the
remainder of the merits would need to be determined. He added that
whether the plaintiff's injuries arose out of her employment could best be
determined in the context of all the happenings on the day in question.
The judge then made an order that the case would proceed on the merits,
with the issue of damages and quantum to stand over until there had been
a final resolution of the merits.

[6] The confusion over the ambit of the appeal appears to have arisen
because the judgment does not deal in any detail with the issues of
negligence and vicarious liability arising if the special plea was
dismissed. After upholding the special plea, the judge said:
'There is accordingly no need to consider the defendants’ other defences. However, I
need to say this and no more. Having regard to the evidential material before me as
set out earlier in this judgment, the defendants’ delictual defence would have come to
naught.'
This was an undesirable way in which to dispose of these matters given
the distinct possibility that the decision on the special plea would prompt
an appeal to this court. But it is clear that, had he taken a different view of
the special plea, the plaintiff's claim would have succeeded. He should
have given his reasons for that conclusion, notwithstanding his view on
the merits of the special plea.

[7] Thus all the issues in respect of the merits were resolved. The
parties had closed their cases on the merits and the trial on those issues
was finished. No further evidence could be led on the merits unless the
trial was reopened. The plaintiff's claim was dismissed without

qualification. Leave to appeal was sought and granted against the whole
order. The notice of appeal asked not only that the special plea be
dismissed, but that judgment on the merits be granted in favour of the
plaintiff. The judge had expressed his view on the remaining issues, albeit
without reasons. The respondents were entitled to resist the appeal by
arguing that whatever the fate of the special plea, neither negligence nor
vicarious liability for the actions of the protestors had been established.
They did not do so and counsel did not seek an opportunity to supplement
his argument in this regard.

[8] In the circumstances the appeal proceeded on the basis that, if the
appeal in relation to the special plea succeeded, a suitable declaration
should be made in regard to the liability of the Premier to compensate Ms
Churchill for her damages and remitting the matter to the high court for
the determination of the quantum of such damages if the amount thereof
cannot be settled by agreement.

The law on the application of COIDA
[9] There is little point in yet again traversing the background and
history of workmen's compensation statutes leading up to COIDA.
Statutes, pre-dating the Union of South Africa in 1910, derived from
English statutes, provided for workers to be compensated for injuries or
illness suffered in the course of their work. The history was traced by the
Constitutional Court in Mankayi.2 The language of the relevant sections
has remained largely unaltered over time and there are numerous cases
dealing with whether particular injuries or illnesses fell within or outside
the scope of the statute. Where an employee is entitled to compensation

2 Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC) paras 41-58.

under COIDA any right of action against their employer is excluded by s
35(1). The constitutionality of that provision has been upheld.3

[10] The right to compensation is established under s 22(1) of the Act,
which provides that:
‘If an employee meets with an accident resulting in his disablement or death such
employee or the dependants of such employee shall, subject to the provisions of this
Act, be entitled to the benefits provided for and prescribed in this Act.’
The key word is ‘accident’, which is defined as meaning:
‘. . . an accident arising out of and in the course of an employee’s employment and
resulting in a personal injury, illness or the death of the employee’.
The exclusionary provision in s 35(1), which is headed ‘Substitution of
compensation for other legal remedies’ reads as follows:
‘No action shall lie by an employee or any dependant of an employee for the recovery of
damages in respect of any occupational injury or disease resulting in the disablement or death
of such employee against such employee’s employer and no liability for compensation on the
part of such employer shall arise save under the provisions of this Act in respect of such
disablement or death.’

[11] The fact that there are separate definitions of 'occupational disease'
and 'occupational injury' shows that the word 'occupational' qualifies both
injury and disease in s 35. Occupational illnesses are specified in some
detail in Schedule 3 of COIDA.4 An occupational injury is defined as:
'A personal injury sustained as a result of an accident.'
An occupational injury is therefore directly connected to the accident in
which it was sustained. Presumably it was thought that 'disease' and
'illness' were equivalent, so that in the case of an occupational illness the

3 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) [1998] ZACC 18;
1999 (2) SA 1 (CC).
4 Some of the illnesses described in Schedule 3, for example, those in items 1.2 and 2.3, might in the
past have been regarded as injuries.

requirement that it arise from an accident is maintained. Fortunately, that
is not a drafting puzzle that needs to be solved in this case.

[12] Were Ms Churchill's injuries sustained in an accident as defined in
COIDA? There are three elements to the definition of an accident, namely
(a) an accident; (b) arising out of and in the course of an employee’s
employment; and (c) resulting in a personal injury, illness or the death of
the employee. The duplication of the word 'accident' derives from historic
usage in earlier statutes, both here and overseas. Longstanding authority
shows that in the context of COIDA it bears a broader meaning than ‘an
unexpected or usual event or happening that is external to the
[employee]’.5

[13] In Nicosia v WCC6 Roper J traced the developments in English law
from the time when the equivalent English statute provided that
‘accident’ was an accident resulting in personal injury. The cases
originally said7 that it was used in:
‘The popular and ordinary sense of the word as denoting an unlooked-for mishap or an
untoward event which is not expected or designed’.
However, no doubt moved by a desire to assist workers to secure
compensation, even where there was no negligence on the part of their
employer, or where any claim they might have would have been defeated
by the operation of the 'last opportunity' rule:
'… courts have strained to come to the rescue of particularly impecunious individuals
and held them entitled to claim compensation from a fund established for that
purpose.'8

5 Air France v Saks 470 US 392 (1985) a decision on the meaning of ‘accident’ in the Montreal
Convention of 1999.
6 Nicosia v Workmens’ Compensation Commission 1954 (3) SA 897 (T) at 900D-902C.
7 Fenton v J Thorley & Co Limited 1903 AC 443 at 448.
8 MEC for Health, Free State v DN (MEC v DN)[2014] ZASCA 167; 2015 (1) SA 182 (SCA) para 33.

This benevolent approach to the meaning of an accident and personal
injury led courts in England to extend the concept of an accident to
include illness derived from an accident.9 In addition they held that while
an accident is frequently something external to the employee – such as an
explosion or a fall from a ladder – it included internal injuries occasioned
by performing the work of the employee, for example, a slipped disc
when lifting something at work. Roper J cited the following passage from
the speech of Lord Lindley in Fenton v Thorley:
‘Speaking generally, but with reference to legal liabilities, an accident means any
unintended and unexpected occurrence which produces hurt or loss. But it is often
used to denote any unintended and unexpected loss or hurt apart from its cause; and if
the cause is not known the loss or hurt itself would certainly be called an accident.
The word ‘accident’ is also often used to denote both the cause and the effect, no
attempt being made to discriminate between them.’

[14] The resulting position is that almost anything which unexpectedly
causes an injury to, or illness or death of, an employee falls within the
concept of an accident. The result is that the focus of the cases is less on
the first element of an accident, because almost anything unexpected can
be an accident, but on whether the accident arose out of and in the course
of the employee’s employment. The two expressions are not coterminous
so that an accident may arise in the course of, but not out of, the
employee's employment. It is not necessary to consider whether the
reverse is also true. Two judgments of this court set out the broad
approach to be adopted to these expressions.

9 Brintons Limited v Turvey 1905 AC 230 (Anthrax); Innes v Kynoch 1919 AC 765 (Streptococcus).
COIDA deals with this separately.

[15] The first, Khoza,10 arose when a 19 year old police constable,
playing with his service revolver in the back of a police van, in the
presence of another constable and five arrestees, fired a shot and hit his
colleague.11 An action similar to the present one was met with a similar
plea.12 The court held that the requirement that the accident occurred 'in
the course of' the employee's duties was satisfied if it occurred while the
employee was engaged in their basic duties and responsibilities. That
element was satisfied because both policemen were on duty and
responsible for arresting and holding in safe custody the other people in
the van.

[16] The more problematic element was whether Constable Khoza's
injuries arose out of his employment. In the following passage,13 the
majority judgment by Rumpff JA emphasised that this required a causal
connection between the employee’s service and the accident
'When this undefined connection is viewed in the light of the purpose and inclusive
scope of Act 30 of 1941, it must in my view be found that the causal connection
between accident and service in general is fully satisfied when the accident occurs at
the place where the workman is executing his duties.' (My translation and emphasis.)

10 Minister of Justice v Khoza 1966 (1) SA 410 (A).
11 The judgment treated this as an accident arising from a show of bravado on the young man's part.
The facts as set out in Khoza v Minister of Police 1965 (4) SA 286 (W) at 287A-E suggest that it was
more than that and they provide an insight into the pervasive racism within the police force at the time.
12 Under s 7 of the Workmen's Compensation Act 30 of 1941, which was in terms the same as s 35(1)
of COIDA. Constable Khoza was faced with a dilemma in that he had not given notice of his claim as
required by s 32 of the Police Act 32 of 1958. He was required to do so if the claim arose from
anything done in terms of that Act. His claim against the Minister depended on his being able to show
that the constable who shot him was acting in the course and scope of his employment, but not under
the Police Act. Additionally, he had to show that his own injuries did not arise out of his employment.
This meant that he had to thread an almost indiscernible path between these apparently mutually
inconsistent contentions.
13 Khoza at 417D-F, where Rumpff JA said:
'Wanneer hierdie onomskrewe verband gesien word in die lig van die doel en ingrypende omvang van
Wet 30 van 1941, moet dit m.i. bevind word dat die kousale verband tussen ongeval en diens in die
algemeen voldoende geskep word wanneer die ongeval plaasvind op die plek waar die werksman by
die uitvoering van sy diens is.'

The nature and extent of the causal connection is not defined in the Act.
Rumpff JA held that, given the statutory purpose, there would in general
be a causal connection between the accident and the person's employment
if the accident occurred at the place where the employee was performing
their duties. On that basis the court held that constable Khoza was shot in
an accident arising out of his employment and his claim was dismissed.

[17] The judgment was careful to point out that it was no more than a
generalisation to say that a causal connection would ordinarily be
established if the accident occurred at the employee's place of work.
Whilst it was unnecessary to attempt to identify the exceptions,
nonetheless the following was said:14
'It is in any event clear that this causal connection for the purposes of the Act would
among other things disappear if the accident was of such a nature that the workman
would have suffered the injuries even though he was at a place other than the one his
work demanded, or if the workman by his own act severed the existing connection
between his service and the accident, or where the workman was deliberately injured
by another person and the motive for the assault had no connection with the working
duties of the workman.' (My translation and emphasis.)

[18] Formulating a single test to determine whether an injury arose out
of the injured party's employment is neither feasible nor desirable. The
majority judgment in Khoza made it clear that mere presence at the
workplace would not suffice, although in general the fact that the accident
occurred at the injured person's place of employment pointed to it having
arisen out of their employment. Nor is foreseeability of the risk definitive.

14 At 417F-I: 'Dis in elk geval duidelik dat hierdie kousale verband vir doeleindes van die Wet sou
verdwyn, onder andere, indien die ongeval van so 'n aard is dat die werksman die beserings sou
opgedoen het al was hy op 'n ander plek as wat sy diens sou vereis het of wanneer die werksman deur
sy eie  handeling die plaaslike verband tussen diens en ongeval uitskakel of wanneer die werksman
opsetlik beseer word deur 'n ander persoon en die motief van die aanranding geen verband hou met die
werksaamhede van die werksman nie.'

Even an entirely unforeseen and unforeseeable event may arise out of
employment.15 Williamson JA made this point in his concurring judgment
saying that:16
‘The decision is in essence in each case one of fact related only to the particular facts
in issue. The enquiry on the particular issue is whether it was the actual fact that he
was in the course of his employment that brought the workman within the range or
zone of the hazard giving rise to the action causing injury. If it was, the action arose
‘out of the employment’ …’
The fact that the course of employment brought the worker into the zone
of the hazard may be a necessary condition of the injury arising out of the
employment but, as the subsequent decision of this court demonstrated, it
is not a sufficient condition.17

[19] In MEC v DN,18 a doctor on night duty, walking along a passage
between two wards, was assaulted by an intruder, who hit her with a brick
and raped her. Her claim for damages against the MEC, on the basis that,
through negligence, inadequate security precautions had been taken, was
met with a plea based on s 35(1) of COIDA. The plea was dismissed and
Navsa ADP said:19
'. . . the question that might rightly be asked is whether the act causing the injury was
a risk incidental to the employment. There is of course, as pointed out in numerous
authorities, no bright-line test. Each case must be dealt with on its own facts.
I am unable to see how a rape perpetrated by an outsider on a doctor – a paediatrician
in training – on duty at a hospital arises out of the doctor’s employment. I cannot
conceive of the risk of rape being incidental to such employment.'

15 Instances drawn from the English cases are the wall of an adjacent building collapsing on to the
building in which the claimant was working and causing her injuries (Thom (or Simpson) v Sinclair
[1917] AC 127) and the fireman standing at the entrance to his engine who was struck by a pellet fired
not at him, but at the engine (Powell v Great Western Railway Co [1940] 1 All ER 87 (CA)).
16 Khoza op cit fn 10 at 419H-I.
17 The problem in treating it as such is illustrated by the decision in Ex parte Workmen's Compensation
Commissioner: In re Manthe 1979 (4) SA 812 (E) at 817E-818F.
18 Op cit fn 8.
19 Ibid, paras 31-32.

[20] The plaintiff in that case was at her place of employment and about
her duties at the time of the assault. Her employment had brought her
within the zone of the hazard giving rise to her injuries. That pointed to
her injury arising out of her employment. But when the question was
asked whether the risk was incidental to her employment, the answer was
an emphatic 'No'. The only safe approach is to examine closely the facts
of each case in order to decide whether the person's injuries arose out of
their employment. The closer the link between the injury sustained and
the performance of the ordinary duties of the employee, the more likely it
will be that they were sustained out of their employment. The further
removed from those duties, and the less the likelihood that those duties
will bring the employee into a situation where such injuries might be
sustained, the less likely that they arose out of their employment. In the
case of Ms Churchill, it is common cause that her injuries were sustained
in the course of her employment. The only issue is whether they arose out
of her employment.

The facts
[21] These were fully canvassed in the judgment of the high court and
again in the heads of argument. There is no dispute of any significance
regarding them. Ms Churchill went to work that day and was attending to
her duties. NEHAWU had called upon its members to demonstrate over
certain labour-related issues. The demonstration should have taken place
at a point outside the complex where the offices of the Premier were
situated. However, some of the participants in the demonstration were
employed in the building where Ms Churchill worked and by using their
access cards about twenty or thirty of them obtained access to the foyer,
which is on the upper ground floor. Ms Churchill encountered them when

she was returning with a colleague to her office on the lower ground floor
from a meeting on the upper ground floor.

[22] After Ms Churchill returned to her office, her assistant, Ms
Ngwambe, indicated that she was afraid of the protest. She was told that
she would be able to lock up and go home after Ms Churchill had taken a
document across the passage to Ms Mabaso's office. While Ms Churchill
was in Ms Mabaso's office, three demonstrators, including the branch
secretary of NEHAWU, entered the office, asked who was there, and left
without an answer. Ms Churchill followed them to return to her office
and discovered that it was locked. In frustration she swore and a man in
the passage asked her what she had said. She apologised and tried to
explain, but this individual regarded the expletive as being directed at the
demonstrators and shouted at her demanding to know on what basis she
had sworn at them. He repeatedly shouted at her saying: 'Who are you to
call us an ****?' and 'How dare you swear at us?' This caused
Ms Churchill to retreat to Ms Mabaso's office. The man followed and
shouted at her: 'We're coming for you!'

[23] Ms Mabaso and Ms Mahlalela were also in the office when another
official, Mr Bellim, came there and said that they should leave and work
from home. He left to go back to his own office, but returned almost
immediately as he saw fifteen or twenty protestors marching along the
lower ground floor towards Ms Mabaso's office. He entered the office
and tried to hold the door closed against the protestors, but to no avail.
Ms Churchill tried to hide behind the door and telephoned her husband
telling him she was not safe and asking him to come and fetch her. The
protestors found her behind the door and one of them tried to take her cell
phone. He also tried to pick her up with his arms around her. In the

confusion Ms Mahlalela managed to slip out of the office and phone both
the D-G's office and the security office for help, but no assistance was
forthcoming.

[24] Two other men joined the man trying to lift Ms Churchill. Together
they lifted her above their heads, carried her out of the office and up two
flights of stairs to the upper ground floor. Mr Bellim shouted at the men
to put her down, but they disregarded him and three other men blocked
him from going to her aid. She was carried up the stairs pleading to be put
down, but there was no response and she heard someone calling her 'a
piece of white s**t'. Mr Bellim heard one of the protestors say: 'This
mlungu is not with us.'

[25] Once the men had carried Ms Churchill to the foyer she was put
down in the middle of the crowd of protestors and her shoes removed.
People in the crowd pushed, shoved and punched her, while jeering and
shouting 'Voetsek' and 'Get out'. One of her shoes was thrown at her and
she was chased out of the building and left to make her way to the
entrance where her husband had arrived to collect her. He had heard
everything, because she had kept her cellphone on throughout the
incident. From the time she first encountered the protestors as she was
making her way back to her office until she was collected by her husband
about three quarters of an hour had passed.

Discussion
[26] Did this incident arise out of Ms Churchill's employment so that
her injuries, both physical and psychiatric, were sustained in an accident
for the purposes of COIDA? It was accepted that because it happened at
her place of employment and while she was going about her duties it

arose in the course of her employment. Did it arise out of her
employment? In other words, was it sufficiently closely connected to her
employment to have arisen from it? The fact that it occurred in her
workplace when she was going about her duties is undoubtedly a factor
that connected it to her employment. In that sense her employment
brought her within the zone of risk, but that is merely where the enquiry
commences. Was the risk also incidental to her employment?

[27] The respondents argued that the risk was foreseeable, because it is
a regrettable reality that protest action and industrial action can
sometimes lead to incidents where people are pushed, shoved or attacked
in a more aggressive fashion. They referred to a previous protest in 2016,
where women members of the bargaining group who had remained at
their posts were forcibly removed from their work stations. It was agreed
that the employees not engaged in the protest were wary of intimidation
by the protestors and realised that because feelings were running strong
the protest might turn 'unpeaceful', that is, violent, with a risk of physical
injury to those employees.

[28] It is not apparent to me why the possibility of protests or industrial
action turning violent and resulting in assaults on non-participating
employees, means that the assaults are risks incidental to the employment
of those assaulted. The wider implications of this were explored with
counsel. They appear to be far-reaching. Take the case of a non-striking
employee who crossed a picket line to work and was condemned as a
scab by the strikers. Would an aggravated assault aimed at persuading
them to desist arise from their employment? Would it make a difference
if the assault was an act of revenge after the strike ended? Neither
situation seems to me to be closely connected to the performance of their

duties as an employee. To adopt the language used in Khoza in describing
an instance where the assault would not arise out of the employee's
employment, such an assault has no connection with the working duties
of the employee. It is connected to their employment, but not to their
duties in that employment.

[29] Another example debated in argument was the conduct of
disgruntled participants in a service delivery protest, who broke into the
Premier's office building demanding to present a petition to the Premier
in person and, on being rebuffed, took out their anger on the most senior
employee present. That would be similar to the situation in this case, save
that the perpetrators would not be employees engaged in protest action. It
is hard to accept that such a situation would arise out of the injured
person's employment. The only causal connection would be that the
employee had the misfortune to be attending at their place of work when
the incident occurred. The assault and the resultant injuries would have
no connection, direct or indirect, with their duties in terms of their
contract of employment. Yet there appears to be no basis for
distinguishing it from the same events in the course of a protest by
workers.

[30] The statutory compensation scheme was established, and
employers granted immunity from claims by their employees, to provide
compensation for workplace injuries and illnesses, whether due to
misfortune, the fault of a co-employee, or the employer's or employee's
fault. Compensation is payable irrespective of whether direct or vicarious
liability would otherwise rest on the employer. The requirements that the
accident occur in the course of and arise out of the injured party's
employment circumscribe the liability of the compensation fund

established in terms of s 15 of COIDA. The purpose of the fund is to
compensate for occupational injuries and disease. While long-standing
authority dictates that social legislation of this type is given a generous
construction, it is not directed at providing compensation and exempting
employers from liability for injuries and diseases that are only tenuously
and tangentially connected to the duties of the employee. Had that been
the purpose the legislation could simply provide for compensation for all
and any injuries or illnesses sustained when at work, or when working.

[31] The respondents also relied on the agreed fact that non-participants
in the protest, including the plaintiff, 'formed part of the staff that were
responsible for either formulating or implementing labour related issues
of employment against which NEHAWU was opposed'. However, there
was no evidence that Ms Churchill had any direct involvement in labour
issues in her position as Chief Director Policy and Research in the office
of the Premier. Beyond a speculative suggestion that she was possibly a
member of staff involved in efforts by the office of the Premier to
reconfigure regional services in the province that might possibly lead to
job losses, no link was suggested between her duties as an employee and
the issue in regard to which the protest action had been called. She was
not responsible for the formulation of employment policy. Given that the
respondents must have been fully aware of Ms Churchill's duties and
would have been in a position to deal in detail with her involvement in
these labour issues, if in truth her work was closely connected to them, it
is safe to say that any connection must have been entirely peripheral.

[32] What is more, the incident was unrelated to the subject matter of
the protest, much less to Ms Churchill's work. After her meeting, she had
walked through, or past, the group of protestors in the foyer without

incident. When she was initially in Ms Mabaso's office and three of the
protestors, including the branch secretary of the union, came in and asked
who was there, they did not say or do anything in respect of
Ms Churchill. The incident arose because of the unfortunate fact that,
when she returned to her office and found it locked, she swore and this
was taken amiss by one individual who thought it was directed at him and
the protestors. Everything that happened after that was triggered by that
incident, which had no connection at all with either the protest or Ms
Churchill's employment.

[33] There are of course jobs the nature of which gives rise to a risk of
assault by co-workers, outsiders or criminals arising from the
performance of the worker's ordinary duties. Security personnel come to
mind in that regard. Assaults sometimes occur in the context of
employment and may arise from it, as in the case of the trammer in
McQueen20 assaulted by a miner after he tried to pull him to work at a
different point in the mine. But assault on a co-worker is treated in many,
if not most, workplaces as a serious disciplinary offence that may lead to
dismissal. It is not something that ordinarily arises from a person's
employment. Where the assault occurs in the workplace, but as a result of
something external to the workplace and the duties of the person
assaulted, it is difficult to see on what basis it can be said to arise out of
their employment. That is why, when a policeman was shot and killed at
the police station by another policeman, whom he had taunted about a
relationship he was conducting with the latter's wife, it was held that this
did not arise from his employment.21

20 McQueen v Village Deep GM Co Ltd 1914 TPD 344.
21 Twalo v Minister of Safety and Security [2009] 2 All SA 491 (E).

[34] Cases where employees have been assaulted by criminals while on
duty stand on a different footing.22 But being assaulted as a consequence
of something one says being misconstrued and offence being taken, is not
ordinarily incidental to employment.23 The fact that the place where that
occurred was the workplace, and the perpetrator or perpetrators of the
assault were co-employees, does not alter that. In the present case the
assault took on racial and gendered overtones. The respondents' counsel
was asked whether it would have made a difference to the argument if the
assault on Ms Churchill had become overtly sexual. Other than saying
that every case depends on its own facts, there was no answer, but the
nature and severity of the assault and the extent of the incursion upon the
dignity and bodily integrity of the victim, cannot be the factors that
determine whether it arose out of their employment. As held in MEC v
DN it is difficult to see on what basis, as a general proposition, attacks on
a person's dignity and bodily integrity are incidental to their employment.
In simple language they are not things that 'go with the job'.

[35] Emphasis was also placed on the fact that the protestors were
protesting about workplace issues in support of colleagues in the social
development area. But this falls into the very error identified in MEC v
DN24 of using the motive of the perpetrator to establish the requisite
connection between the incident and the duties of the injured party.

[36] It is necessary to repeat what has oft been said before in these
cases, namely that there is no bright line test and the enquiry is always

22 The injuries of a cashier or messenger carrying money or valuables for deposit at a bank, or carrying
the weekly wages to a payment point on a building site, who is assaulted and injured by robbers arise
out of their employment. Nisbet v Rayne and Burn [1910] 2 KB 689 cited in MEC v DN para 29.
23 The position in the case of an immediate physical response to an insult in the workplace, especially if
the insult had arisen out of a work-related incident, might be different.
24 Op cit, fn 8, para 31.

whether the statutory requirement that the accident arose out of the
person's employment, as well as in the course of that employment, is
satisfied. The court must analyse the facts closely to determine whether
on balance the accident arose out of the person's employment. And in the
last resort an employer seeking to rely on s 35 to avoid liability bears the
onus of satisfying the court that the accident arose out of the claimant's
employment. In this case the only connection between the incident and
Ms Churchill's employment was that she was at work at the time. The
incident bore no relation to her duties and was the result of misplaced
anger directed at her because of a misunderstanding. She was not
assaulted because of the position she held, or because of anything she had
done in carrying out her duties, or for any reason related to the protest
action that took place that day. She was assaulted because one individual
mistakenly thought she had sworn at him and he, together with others,
responded by assaulting and humiliating her. In my opinion her injuries
did not arise out of her employment.

[37] The appeal must therefore succeed. I have adapted the following
order slightly from that suggested by counsel for the plaintiff.
The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
The order of the high court is set aside and replaced with the
following order:
'(a)
The special plea is dismissed.
(b)
It is declared that the First Defendant is liable to compensate the
Plaintiff for such damages as may be agreed or proved arising out of the
injuries suffered by her in the course of the protest at the offices of the
First Defendant on 5 April 2017.

(c)
The matter is remitted to the high court for the determination of the
nature and extent of any and all such injuries and the quantum of
damages to which she is entitled in consequence thereof.
(d)
The First Defendant is to pay the costs of the action up to
23 May 2019, being the date of judgment in the high court.'

_________________
M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
T J Bruinders SC (with him J L Basson)
Instructed by:
Du Toit-Smuts & Partners, Mbombela;
Phatshoane Henney Attorneys, Bloemfontein

For respondent:
H van Eeden SC (with him T Mathopo and B
Manning)

Instructed by:
Adendorff Theron Inc, Mbombela;
Lovius Block Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM The Registrar, Supreme Court of Appeal
DATE 4 March 2021
STATUS Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

Churchill v Premier, Mpumalanga (889/2019) [2021] ZASCA 16 (4 March
2021)

The SCA today upheld an appeal by Ms Catherine Churchill against the
dismissal by the Mpumalanga Division of the High Court of her claim for
damages against the Premier, Mpumalanga.
The claim arose from an incident occurring on 5 April 2017 during a protest by
members of NEHAWU at the offices of the Premier. Ms Churchill, then the
Chief Director: Policy and Research in the Premier's office, was at work on
the day of the protest. The protest was supposed to take place outside the
gates of the complex, but some protestors obtained access to it and to the
building containing the office of the Premier.
Ms Churchill encountered the protestors on two occasions during the morning
without incident. What triggered the events that led to her being assaulted,
was that she found herself locked out of her office, when she and other
employees were preparing to leave the premises. A protestor reacted in a
hostile fashion to her uttering an expletive. Shortly afterwards a group of
twenty or so protestors came to find her in the office of a colleague. They

forcibly removed her from the office and, despite her protestations, carried her
above their heads, upstairs to where the body of protestors was gathered.
There she was surrounded by protestors, pushed, shoved and punched,
whilst being jeered at and abused. She was eventually chased out of the
building.
Ms Churchill suffered some physical injuries as a result and PTSD. Eventually
she felt compelled to leave her job. Her claim against the Premier was based
on a negligent failure to provide proper protection to staff in that situation.
The Premier defence was that the injuries sustained by Ms Churchill
constituted an 'occupational injury' arising from an 'accident' as those
expressions are defined in the Compensation for Occupational Injuries and
Diseases Act 130 of 1993 (COIDA) and accordingly that she was precluded
from suing for damages by the provisions of s 35 of COIDA. This defence was
upheld by the high court. The essential question was whether her injuries
arose out of her employment, it being agreed that they arose in the course of
her employment.
Whether injuries are suffered in the course of a person's employment
depends on whether they arose from the performance of their duties and were
incidental to those duties. Ms Churchill's duties were not concerned with
labour matters or the issues giving rise to the protest. In the ordinary course
an assault, even by a co-worker, is not incidental to the performance of one's
duties in the workplace.
In this case the incident was unrelated to the issues giving rise to the protest.
It was sparked by a protestor taking offence at her swearing when she found
herself locked out of her office. His reaction escalated into an incident where
she was assaulted and humiliated. The assault took on racial and gendered
overtones. The SCA accordingly held that it did not occur in the course of Ms
Churchill's employment. The appeal was upheld and an order declaring the
Premier liable to compensate Ms Churchill for her proved or agreed damages
was made.