Klass Looch Associates

Employer OHS Champion since 1986 


 

 

 

 


Occupational Health & Safety Legislation Consultants


LANGLEY FOX BUILDING PARTNERSHIP (PTY) LTD v PATRICIA POUPINEL DE VALENCE 1990 A (Below)

You may find this civil case – as opposed to criminal (OHS Act) - Appellate Division (SCA) interesting. It analyses the factors which could create employer vicarious liability for the wrongful acts or omissions of a contractor It aligns with section 37 of the OHS Act which can trigger vicarious criminal liability.

OHS Act. Section 37. Acts or omissions by employees or mandataries

(1) Whenever an employee does or omits to do any act which it would be an offence in terms of this Act for the employer of such employee or a user to do or omit to do, then, unless it is proved that -
(a) in doing or omitting to do that act the employee was acting without the connivance or permission of the employer or any such user;
(b) it was not under any condition or in any circumstance within the scope of the authority of the employee to do or omit to do an act, whether lawful or unlawful, of the character of the act or omission charged; and
(c) all reasonable steps were taken by the employer or any such user to prevent any act or omission of the kind in question, the employer himself shall be presumed to have done or omitted to do that act, and shall be liable to be convicted and sentenced in respect thereof; and the fact that he issued instructions forbidding any act or omission of the kind in question shall not, of itself, be accepted as sufficient proof that he took all reasonable steps to prevent the act or omission.

(2) The provisions of subsection (1) shall mutatis mutandis apply in the case of a mandatary of any employer or user except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatary with the provisions of this Act.

"mandatary" includes an agent, a contractor or a subcontractor for work, but without derogating from his status in his own right as an employer or a user.

Langley_fox.pdf (181.98KB)
Langley_fox.pdf (181.98KB)



Click on the link for the video of my presentation: https://www.youtube.com/watch?v=uFroaPfKWLY

 

Contact Advocate Raynard Looch at raynard04@gmail.com / raynard@klasslooch.com for a quotation. Klass Looch Assciates charges a flat rate - as opposed to a fee per delegate - so you can load the number of delegates!

Opinion_CR11_2.pdf (142.79KB)
Opinion_CR11_2.pdf (142.79KB)



 

DEL's interpretation's of a competent Person.

 


Apart from the construction regulations which recognises the statutory appointments of managers, supervisors and safety officers, the current OHS Act and draft OHS Amendment Bill fail to recognise any statutory appointments with the exception of the 16(2) individual – which is not even a compulsory written appointment and the GMR2 appointments. This also contradicts the MHS Act.  The UK OHS legislation has a great solution which I embrace providing for all statutory appointments albeit senior, middle managers, supervisors and even safety practitioners. It recognises  the importance of devolved statutory appointments where, in the equivalent of section 8, it reads:

  • Every employer shall appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.
  • The employer shall ensure that the number of persons appointed, the time available for them to fulfil their functions and the means at their disposal are adequate having regard to the size of his undertaking, the risks to which his employees are exposed and the distribution of those risks throughout the undertaking’.

Click on the link below for the interview with Dr Sanjay Munnoo FEM Chief Business Development Officer on Enca.

https://youtu.be/cyHuRPL1DIU

Below. Advocate Raynard Looch's full Interview at the SAIOSH Conference 2023.

https://www.youtube.com/watch?v=diNeNfvFQGI

DEL Chief Inspector Milly Ruiters - “OHS Prepare and Prevent Instead of Repair and Repent.” 22 June 2023.

https://www.youtube.com/watch?v=uFroaPfKWLY

2023 Saiosh Health and Safety Conference Highlights

https://www.youtube.com/watch?v=bs_Xfrn2gMA

The draft Rehabilitation Reintegration & Return-to-Work regulations have been published for comment in terms of the COID Act.

Great presentation by Stuart Hughes - Head of health & Safety Mercedes AMG Petronas Formula One Team & IOSH President elect.



Above Left. Neels Nortje CEO of SAIOSH. Middle. Ms. Milly Ruiters Chief Inspector, Department of Employment & Labour. Right. Tibor Svana former Chief Inspector. 

 

In my view the draft OHS Amendment Bill will be set aside on review. Obviously someone / entity will need to take it on review. It fails to align itself with the Constitution as I outline in this PDF. document. (These are my notes I used for my presentation at the Annual SAIOSH Conference 2023.











Above. My presentation to the Master Builders Association Western Cape on 23 February 2023 on the draft OHS Amendment Bill.

The SAIOSH Technical Commitee (TC) commenced analysiing two draft regulations (below) on 31 October 2022. I am a member & have published the TC's comments below.

Draft Noise Induced Hearing Loss Regulationsd (NIHL) and the draft Physical Agents Regulations below:







Advocate Raynard  Looch  presenting at a SAIOSH sponsored workshop in Cape Town on the draft OHS Amendment Bill. 


A Clip of Industrial (OHS) Theatre. SAIOSH Conference. May 2020


 

(YouTube).The DEL Chief Inspector's presentation at the annual SAIOSH Conference. May 2022.
The draft OHS Amendment Bill & related enforcement issues.
Phumi_utube_may_22.pptx (48.75KB)
(YouTube).The DEL Chief Inspector's presentation at the annual SAIOSH Conference. May 2022.
The draft OHS Amendment Bill & related enforcement issues.
Phumi_utube_may_22.pptx (48.75KB)
The Draft Mine Health & Safety Amendment Bill 2022
Draft_MHS_Bill_2022.pdf (818.48KB)
The Draft Mine Health & Safety Amendment Bill 2022
Draft_MHS_Bill_2022.pdf (818.48KB)


Department of Employment & Labour's presenation on the Draft OHS Amndment Bill & more.
The new Chief Inspector, Phumi Maphaha, presented this presentation at the annual SAIOSH Conference on 1 June 2022.
DEL IES OHS SAIOSH_original_ 2022.pptx (990.02KB)
Department of Employment & Labour's presenation on the Draft OHS Amndment Bill & more.
The new Chief Inspector, Phumi Maphaha, presented this presentation at the annual SAIOSH Conference on 1 June 2022.
DEL IES OHS SAIOSH_original_ 2022.pptx (990.02KB)




The Draft OHS Amendment Bill.
A preview of my upcoming PowerPoint Presentation to SAIOSH members later next month.
SAIOSH_RHL_june_22.pptx (550.16KB)
The Draft OHS Amendment Bill.
A preview of my upcoming PowerPoint Presentation to SAIOSH members later next month.
SAIOSH_RHL_june_22.pptx (550.16KB)
The Department of Employment & Labour's original presenation on the draft OHS Amendment Bill..
Sadly DEL's take on the Bill fails the Constitutionality Test.
SAIOSH_DEL_june_22.ppt (2.93MB)
The Department of Employment & Labour's original presenation on the draft OHS Amendment Bill..
Sadly DEL's take on the Bill fails the Constitutionality Test.
SAIOSH_DEL_june_22.ppt (2.93MB)

No-one is immune to prosecution in terms of the OHS Act, yet it is mostly employers and users of plant and machinery who are exposed to criminal prosecution. The reason for this is to be found in the extensive duties which the OHS Act imposes upon them, thereby creating a host of legal rights for employees sections 8 and 13, persons in general (non employees) section 9, recipients of articles and substances manufactured, imported and supplied and utilised at a workplace, clients for whom articles (including structures) are designed, erected or installed. (Section 10) read with the Construction Regulations). Criminal liability emanates from the infringement of these statutory rights by employers or users. Juristic persons or corporate bodies along with natural persons such as the CEO and his or her team of section 16(2)“Assigned Persons’ are regarded as employers and users for prosecution purposes. Employers can also be held vicariously liable for wrongdoings of contractors in terms of section 37.

The duties placed upon employers & users are not absolute but are tempered with reasonability and practicability. What the Labour Court says in this regard:

‘Sections 8 and 9 therefore place a duty on the employer to act proactively to avoid any harm or injury to its employees and others. There is no standard as to what is reasonably practicable. Each case will have to be determined on its own facts and circumstances. As can be seen from the definition of reasonably practicable it involves weighing different considerations from risk evaluation, means of removing or avoiding the risk, resource availability and a cost-benefit analysis. In Edwards v National Coal Board, Lord Justice Asquith stated:

"Reasonably practicable as traditionally interpreted, is a narrower term than 'physically possible' and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measure necessary to avert the risk is placed in the other; and that, if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon who the duty is laid discharges the burden of proving that compliance was not reasonably practicable." Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others [2014] (LAC)

The broad duties of employers (mines & works) in the Mine Health & Safety Act is contained in sections 5 to 19

Employers have OHS rights too. How does an employer earn such rights?

Start by training your employees into their duties. The opposite of a 'Right' is a "Duty'. If employees have duties, employers have rights. They are not automatic rights as those enjoyed by employees but must be earned. By training employees into their duties, employers earn rights! In the OHS Act section 14 is a good point of departure. Similarly in the MHS Act start with section 22

In brief, you should know the following about us: our company was established in 1986 and had been responsible for providing outstanding legal advice, legal representation and OHS legislation workshops ever since. Our business is located in Johannesburg.





SAIOSH Annual Conference 31 May to 2 June 2022. 

The draft OHS Amendment Bill 2020. 'Back to the Drawing Board'.










Dear Raynard Looch,

Thank you very much for attending Teaming up for Safety, the first virtual conference from DuPont Personal Protection. It was a pleasure for us to host the event and collaborate with our partners to prepare this 2-day digital event for you. We hoped you enjoyed the event as much as we did.

 

 

I am also proud to be associated with a body which has been established for Occupational Health & Safety Professionals. The South African Institute of Occupational Safety & Health (SAIOSH) has been established by dedicated safety practitioners for whom I tremendous respect and with whom I have been associated for decades. I encourage you to visit their website. Visit www.saiosh.co.za

Saiosh launch new OHS Legal Advice Forum

Saiosh is pleased to announce that it has secured the services of Advocate Raynard Looch to provide opinion on member's Occupational Health and Safety legal queries. The OHS Legal Advice Forum is now live and members are invited to post their OHS legal queries. This free service is only available to paid up Saiosh members.

Disclaimer:

Opinions expressed on the Saiosh OHS Legal Advice Forum reflect the personal opinion of Advocate Raynard Looch. It is accepted that other individuals may differ with his opinion or interpretation of OHS legislation which remains untested by the courts. Advocate Raynard Looch will not accept liability for any loss, including reputational damage or costs, however caused, arising from the use or reliance upon, in any manner, the opinion provided on this forum and does not warrant the truth, accuracy or completeness of the opinion provided.

The OHS Legal Advice Forum can be found on the "Professional Registration" drop down page on the Saiosh website www.saiosh.co.za