Klass Looch Associates

Employer OHS Champion since 1986 


Dear Folks

Many of you may have read about the controversial amendment to the Mine Health and Safety (MHS) Act in the form of the MHS Amendment Act 74 of 2008. In particular the proposed, section 86A entitled ”Criminal Liability”, has generated considerable debate. I myself touched on it in my newsletter “Managerial Danger Pay’. It will create a new quasi homicide OHS statutory crime with penalties of R1 million or 5 years imprisonment. I say proposed, because, despite the Amendment Act having being promulgated, this particular section apparently has not yet come into force. This has also caused considerable confusing even amongst specialised OHS legal practitioners. Not even the Department of Minerals gives any clarity. Their website has a hyperlink to the Acts-on-Line Website which includes section 86A as if it is already law. Anyway let’s debate it. It isn’t Corporate Homicide as envisaged in the draft National Occupational Health & Safety (NOH&S) Bill nor the common law crime of culpable homicide. The focus of the debate has been primarily on the potential personal criminal liability of chief executive officers, managers, agents and employees for any MHS Act contravention resulting in death, serious injury or illness. Except for introducing a similar provision to section 37 of the OHS Act pertaining to employees and mandataries – if indeed ‘agents’ are mandataries – this amendment is really superfluous as regards personal liability and is most probably designed to placate certain labour / political constituencies. To a degree the amendment, in particular Section 86A, is a repetition of existing legal mechanisms in the Criminal Procedure Act which provide for personal criminal liability for directors and servants of corporate bodies. And I doubt whether it will make any real difference .

I hear you all say. What has the MHS Act to do with my company’s operation? You will be surprised. I have conducted a survey with OHS Practitioners in preparation for a newsletter to them and the MHS Act does apply to a large percentage of the non mining companies who responded. Click here to participate.

Do we need these amendments to bring delinquent employers / miners in line? Is the MHS Act or, for that matter OHS legislation in general, toothless? Every single week the media will carry a report where COSATU, government or the ruling party bemoans the selfish exploitation of the health and safety of workers by employers and make repeated calls for employers to be brought to book. The problem is not with existing OHS legislation and they know it. They choose to ignore it so as continue scoring cheap political points off employers and to rally the masses / voters. The problem lies, as it has for more than a decade, with the enforcement of the legislation by the law enforcement agencies (Inspectorates), including it appears, the National Prosecuting Authority (NPA). This became crystal clear after the Presidential Mining Audit disclosed that, since 2004, only 3 out of 223 MHS Act cases referred to the NPA for consideration / prosecution, were concluded. Dare I say it? In the early eighties, when I prosecuted in the Mining Court based in Johannesburg, I concluded more than 3 mining prosecutions every month! The Court had jurisdiction for the entire (former) Transvaal and, using the Mines & Works Act of 1957, the Factories, Machinery & Building Works Act of 1941 (later the Machinery & Occupational Safety Act of 1983) and the common law as it still is today, I spent many a day prosecuting employers (mines) and management in the Oberholzer, Rustenburg, Westonaria and Germiston Magistrates Courts to mention a few. And I could not have done this without the guidance of the Mining Inspectors who sat next to me in court. So what has gone wrong?

There is nothing wrong with the current MHS Act, OHS Act or the common law. Everything is there to enable a successful prosecution of delinquent mines / employers /users and their management. The common law in the form of culpable homicide has been successfully utilised for decades. The MHS & OHS Acts are fair and balanced. (These amendments are merely designed to tip the scale even more in favour of workers). Both Acts place duties on both management and workers. They provide for workers to leave a dangerous workplace or refuse to do dangerous work without fear of intimidation. The MHS Act even provides for full time health and safety representatives who normally are NUM members to assist employers in providing a safe and healthy working environment. The draft NOH&S Bill also provides for full time health & safety representatives.

I believe that the problem lies with:

1. The steadily decreasing quality and quantity of inspectors. (Lowered qualifications, lousy pay, lousy working conditions).

2. The historical hysterical hostility of COSATU, towards employers. COSATU sees everything, including OHS, as confrontational issue as opposed to a co-operative arrangement. It believes that employers must always be driven into a corner no matter what. It should start acting like a genuine trade union federation and stop playing at everything. There are numerous mechanisms in both the MHS & OHS Acts which unions could, but fail, to embrace in the interests of their member’s safety and health. (OHS has been reduced to a cheap political slogan designed to polarise and galvanise votes / union membership rather than unite). Remember that many, if not most of the ruling cabal, have their roots in the trade union movement and often seem to get confused as to whether they represent government or organised labour.

3. The complete inability of the NPA to decide / prosecute OHS cases. (Remember 3 MHS Act cases out of 223 since 2004)! Are we talking total collapse?

‘Corporate homicide' Bill causes tremors. Mail & Guardian of 12 March 2009. ‘Of the 223 negligence-related cases referred to the NPA since 2004, only three have been concluded. One mining company was found guilty; two have been fined R5 000 and R2 500. The remaining 220 cases are still "awaiting response". Tlali Tlali, spokesperson for the NPA, said he had not seen the presidential report and was unable to explain the backlog of cases. "We cannot say why 200 cases are still awaiting an outcome, because it will take weeks for us to be able to track down these cases and tell you who was responsible," he said’.

4. The skills shortage encountered by employers exacerbated by rigid governmental regulation. Watch this space for more regulations particularly as regards Slave Traders. (Labour Brokers). You will recall Minister Mdladlana, in a clumsy effort to emulate Abraham Lincoln, has promised to personally intervene and write the law that will ban this modern form of slavery. Wonder how far he has got?

Labour brokers “human traffickers”: Mdladlana. The Citizen of 20 March 2009. 'Labour brokers are nothing more than “human traffickers”, Labour Minister Membathisi Mdladlana said on Thursday. Mdladlana said he would do everything in his power to stop the practice of labour brokers when he addressed the national bargaining conference of the Chemical, Energy, Paper, Printing, Wood and Allied Workers Union in Pretoria. “It is selling people, it is inhumane, and it is against the Constitution of South Africa,” he said. Mdladlana said the ANC plans to ban labour brokers after the coming elections. “It is in the manifesto of the ANC and it will not go away. It will be implemented.” Mdladlana said that many labour brokers do not take responsibility for their workers. The brokers did not contribute to the Unemployment Insurance Fund and they confused workers as to whom they work for. “You find workers that have worked for a company for 20 years that only found out that they have not been employed by the company for which they had worked after they have been dismissed,” he said. This creates a problem at the Commission for Conciliation, Mediation and Arbitration, and labour courts, as it was not clear who to lay charges of unfair labour practises against. Mdladlana said he will make it easier for the next labour minister to put this into law. “The issue is in the manifesto. He just needs to get a good lawyer and draft the amendment,” he said. “In fact, I will draft it for him myself.” (By now you know that he has been retained as Minister of Labour).

So the real problem lies with government. What you hear ad nauseam from governmental quarters is nothing more than a deflective tactic designed to conceal their own shortcomings. If government was serious about OHS it would have revamped the entire OHS enforcement system years ago. It would have revived and expanded upon the existing specialised OHS Courts instead of letting them deteriorate. The unions would actively agitate for specialised OHS courts countrywide. I hear that Government will now be reviving the Environmental Courts and even create Ecological Courts. Government must fast track the promulgation of the draft National Occupational Health & Safety Bill. The silence surrounding the Bill is deafening. Four years have passed since its ‘leaking’! Aren’t we supposed to report our progress towards the adoption of the Bill to the ILO ever so often? Government has chosen rather to neglect and deflect! If you want successful OHS prosecutions look to the obviously weakest link. It is not OHS legislation. It’s the inspectorates and the NPA . The inability of non-specialised prosecutors to understand or use OHS legislation is perhaps because of the quality of the Inspectors Reports. While I can still understand why prosecutors would be hesitant to touch a DoL OHS matter, particularly as they usually emanate from a fuzzy section 31 Investigation, MHS Act fatalities must be formally investigated and a recorded tested transcript generated for the benefit of the prosecutor. Having said that, if I was a prosecutor today, I would be very wary to rely on the ‘expert’ evidence of an inspector – more so DoL – to make a convincing case. There you have it. The quality and quantity of inspectors coupled with a crippled judicial system! The only ‘successful’ OHS prosecutions these days seems to be the result of plea bargains where, because the strong State case where essentially the facts speak for themselves (res ipse loquitur), an accused decides not to risk trial, pleads guilty and no evidence is led.

I don’t think for one moment that employers are more delinquent than before. I also don’t think that we need draconian amendments to the OHS legislation to turn the situation around. It clear that the current system is not working and is most probably deteriorating. We don’t need the constant bleating of the union propaganda machine to realise that safety is not negotiable. We don’t need incendiary divisive rhetoric by cabinet ministers who patently don’t understand the modern labour market, believe it is still rooted in slavery, and that the only way to freedom is for the slaves to join COSATU. We don’t need to send DoL inspectors to Cuba for OHS training either. The politicalisation of OHS is divisive and it is time for a new realisation. NEDLAC is a start. Government must commit to resolving the current OHS malaise and refrain from pointing fingers elsewhere. It must commit to a time frame for the eventual adoption of the National Occupational Health & Safety Bill .It must look to raising the standard of inspectors. An inspector must have forensic investigative abilities, must know the law of evidence, be eloquent and firm – not rude and we do have the talent and experience out there. These persons, however, will never be recruited into the current governmental setup. Perhaps the proposed autonomous National Occupational Health & Safety Authority holds promise? The Mine Health & Safety Inspectorate has gone this route and time will tell what difference, if any, it will make. We need a another Turn-a-round Strategy!

As always

Your Devil’s Advocate
Raynard will be discussing this and much much more at the open workshops in October & November entitled “Reducing Company & Management Criminal Liability Exposure’.

You can book now! See attachments .This page is under construction.

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