Ratified treaties¹

Occupational injury/ Statutory compensation/ Employment of children under the age of 15/ Contract declared void/ Damages compensation based on negligence/ Use of international law as a guide for interpreting domestic law

The plaintiff’s daughter, a minor, was injured in an accident at work which led to the amputation of her leg. In a special plea to the plaintiff’s claim for damages, the defendant employer argued that the 11-year-old child had sustained an “occupational injury” for which she was entitled to government-provided statutory compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA). The plaintiff mother and child argued that the child lacked contractual capacity and further that, under section 43 of the Basic Conditions of Employment Act (BCEA), it was a criminal offence to employ a child under the age of 15.

In deciding the issue, the Court considered that a primary objective of the BCEA is “to give effect to the Conventions of the International Labour Organization”,² including the Minimum Age and the Worst Forms of Child Labour Conventions Nos. 138 and 182. It noted that the BCEA not only seeks to protect children aged under 15 but also seeks to go further than this, namely by introducing “effective measures to combat the scourge of the practice of child labour and secure the prohibition and elimination of the worst forms of child labour”,³ which go beyond the interest of the individual child.

Accordingly, the Court expressed the view that the “purpose and objective of the BCEA and of the provisions of section 43(1) cannot effectively and completely be achieved if the underlying contract to the employment of a child which is prohibited in terms of that provision is not itself void ”.⁴

In conclusion, the Court dismissed the defendant’s special plea and declared the defendants to be “liable for such damages as the plaintiff may in due course prove that she and [her daughter] suffered as a result of the incidents and the injuries [her daughter] received”.⁵