Klass Looch Associates

Employer OHS Champion since 1986 

 

Dear Folks                                                                           2 May 2017

DoL inspectors are empowered to make decisions, based on their subjective opinion, which can negatively impact upon the profitability of employers. Section 30(1)(a) of the OHS Act (Special powers of inspectors) reads ’Whenever an employer performs an act or requires or permits an act to be performed, or proposes to perform an act or to require or permit an act to be performed, which in the opinion of an inspector threatens or is likely to threaten the safety or health of any person, the inspector may by notice in writing prohibit that employer from continuing or commencing with the performance of that act or from requiring or permitting that act to be continued or commenced with, as the case may be’. You may know it as the Prohibition Notice which is often served on employers post a reportable incident. Invariably the Prohibition Notice is very broad or vague and has the effect of stopping all operations resulting in production losses.

Any decision based on the subjective opinion of an inspector is open to abuse and this abuse is real as you will see below as I highlight some recent High Court cases in this regard.  Although these court cases pertain to the so-called ‘Safety Stoppages’ as per section 54 of the Mine Health & Safety Act (MHS Act), the principles are the same as section 30 of the OHS Act. Mining inspectors are undoubtedly more competent than their OHS Act counterparts yet the courts have been very scathing of their performance which bordered on kragdadigheid and vindictiveness!   Because inspectors are fallible and decisions are based on subjective opinions, both the MHS and OHS Acts provide for an appeal mechanisms – either to the chief inspectors or to the courts if employers feel aggrieved by decisions of inspectors. The problem is that any ‘stay of production’ remains pending an appeal which invariably results in huge production losses.

Over and above the appeal recourse to the chief inspector or even the courts which are only designed to lift a Prohibition Notice / safety stoppage, does an employer have a civil recourse to recoup losses if the decision by an inspector to halt activities at a mine / plant is not proportional to the perceived threat to the health and safety of employees or is in fact is malicious?  In other words, can an employer sue an inspector – or even the chief inspector where an appeal fails - for damages if an inspector either deliberately, recklessly, maliciously or even negligently fails to properly discharge their statutory duties as prescribed by the OHS Act and an employer suffers losses as a result? Or do inspectors enjoy a blanket indemnity against civil suits? We know that, by virtue of sections 31 and 32 of the OHS Act, inspectors are indemnified, post an investigation or formal inquiry, against civil action for anything that may be contained in their reports to the Chief Inspector and the National Prosecuting Authority. (NPA).

Section 31(4). An inspector holding an investigation shall not incur any civil liability by virtue of anything contained in the report.

Section 32(13). An inspector presiding at any formal inquiry shall not incur any civil liability by virtue of anything contained in the report.

It follows that inspectors only enjoy a limited indemnity against civil suits for damages and, should they fail to properly discharge their duties with resultant losses to employers, they are exposed to civil action.   

In Anglogold Ashanti Limited v Mbonambi & others [2016] (LC) the learned Judge lambasted mining inspectors for failing to appreciate the conceptual framework within which they are required to discharge their duties when issuing safety stoppages. The Department of Mineral & Energy even had the nerve to suggest that proportionality was irrelevant and that an inspector need not consider that principle when issuing (safety stoppage) instructions because it did not feature as a criterion in section 54 of the MHSA. ‘Further, as this case illustrates, the respondents are clearly under the impression that they are empowered to close entire mines on account of safety infractions in a single section or on a single level, without specific reference to objective facts and circumstances that render the whole mining operation unsafe. The MHSA has as its commendable purpose the promotion of a culture of health and safety and the protection of the health and safety of those employees employed in mining operations. But that does not entitle those responsible for enforcing the Act to act outside of the bounds of rationality. Had the applicant sought an order for costs on the basis that the respondents bear the costs of these proceedings in their personal capacities, I would have given serious consideration to such an order. This Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. In my view, and in the absence of any submission that costs ought to be awarded on a punitive scale, those interests are best served by an order that costs follow the result’.

Judge rebukes state on mine-safety stoppages. 15 November 2016.

In a scathing judgment, the Labour Court has overturned a safety stoppage at AngloGold Ashanti’s Kopanang mine and addressed the core concern mining companies have about the way the Department of Mineral Resources’ safety officials implement stoppages. For the past two years, mining executives have become increasingly outspoken in their frustration with the way mine safety has been handled, with shutdowns ordered by the department’s inspectors of entire mines for violations of the Mine Health and Safety Act in sections of the mines. The Chamber of Mines has estimated the cost of the safety stoppages between 2012 and 2015 at R13.6bn in lost revenue, excluding the losses incurred in restarting mines.

In Bert's Bricks (Pty) Ltd and Another v Inspector of Mines, North West Region and Others 2011 the judge said the following regarding the abuse of the safety stoppages by the mining inspectors ‘It seems that not one of the officials properly applied his mind to the operation of the MHSA and that there was a gross abuse of the provisions of the Act. This is most disturbing. This litigation has resulted in a waste of the state's funds (taxpayers' money) and a waste of the court's time. It is striking that throughout these proceedings the Department's officials have failed to give proper consideration to the applicants' complaints and that they have not deemed it necessary to dispute the applicants' factual allegations. In such a case the court should order that the responsible officials must bear the costs of the litigation. However, the applicants have not sought such an order and it requires no further consideration’.

It didn’t take long for Sibanye Gold’s subsidiary Sibanye Platinum to serve summonses on Mineral Resources Minister Mosebenzi Zwane and three of his officials, claiming R26.8m from them in their personal capacities as compensation for losses incurred as a result of irrational and disproportionate safety stoppages. Sibanye Platinum is acting against Zwane, the acting chief inspector of mines, Xolile Mbonambi, and two senior inspectors in North West where Sibanye has its Kroondal mine. Watch this space!

Click here for more on safety stoppages.

Which brings me back to DoL. I sincerely hope that the Chief Inspector has taken cognisance of these pronouncements by the courts and will ensure that DoL inspectors act rationally and proportionally when they serve Prohibition Notices on employers. In the past I have bemoaned many a disproportionate Prohibition Notice served on employers – particularly those served on construction companies – which halt the entire construction operation while the accident is confined to a small area of the construction site.  

As you know OHS Act criminal matters are heard in the lower courts - invariably the Regional Court which outcomes do not generate Law Reports. In fact, I think the last time a OHS / MOS Act was heard in 1976 where it was concluded that an inspector of the (then) Department of Manpower id an expert witness for the State. (State vs Ras). This was necessary because only an expert can offer an opinion in court and the Inspector’s Report constitutes the Inspector’s opinion on contraventions of the OHS Act. (Obviously, the National Prosecuting Authority |(NPA) would have agreed with the Report in order for the matter to be placed on the court’s roll). As a result, we have to rely on pronouncements made by higher Court judges in civil matters or even labour disputes in the Labour Court for some guidance.

Potential criminal liability occurs when a duty, imposed by the OHS Act is infringed. These duties are not absolute but are tempered with reasonability and practicability which is defined in section 1 of the Act as follows:

"reasonably practicable" means practicable having regard to -

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

In Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others [2014] (LAC) Pikitup appealed against a Labour Court decision which justified a strike by municipal workers against the unilateral imposition of breathalyser testing for its drivers. While the appeal was dismissed, the Court acknowledged the appellant’s duty to ensure that safety standards were maintained in its workplace. However, it was not convinced that the breathalyser was the only reasonably practicable way to ensure the safety of the employees and others. It also pointed out that the fact that the appellant did not have breathalyser testing in place until it implemented that measure did not mean that it had until then been operating in contravention of the Occupational Health and Safety Act. Mandatory breathalyser testing for all drivers or employees is also not a requirement of the Act. The union’s demand was therefore justified and lawful.

More importantly the Court expanded upon the definition of ‘reasonably practicable’ and said the following:

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’. 

Reasonably practicable is a variable standard that must be determined objectively. The employer and to a lesser extent the employee as the duty holders (in terms of sections 8, 9 and 14 of the OHSA) must do a risk assessment and consider what can or should be done under the circumstances, considering their knowledge of the situation to ensure the health and safety of employees, co-workers and others who might be put in harm's way, because of their activities. They must then consider, given the circumstances, whether it is reasonable to do all that is possible to comply with their duty. In essence, this means that what can be done, should be done, unless it is reasonable in the circumstances to do something less, or in extreme circumstances, more.

The appellant (Pikitup), as stated above, had an alcohol and substance abuse policy in place before deciding on breathalyser testing. Does it mean that it operated in contravention of sections 8 and 9 of the OHSA before it introduced breathalyser testing? The answer is no. The absence of breathalyser testing surely did not mean that the appellant contravened the provisions of the OHSA. Mandatory breathalyser testing for all drivers or employees is also not a requirement of the OHSA. A policy that an employee will be tested for alcohol consumption where there are reasonable grounds to believe that he/she had consumed alcohol whilst on duty, can be reasonably practicable. Moreover, the demand that "there be no breathalyser test" may mean that the Union is of the view that the measure introduced by the appellant to avoid the risk is disproportionate to the risk, ie that the risk is so small that the preventative measure is not necessary. The Union can be convinced otherwise at the bargaining table. The demand was justified and would not necessarily result in a crime being committed by the appellant’. 

See also General Safety Regulation 2A

Dear Folks                                                                                    6 July 2016

 The respondent’s (Minister of Labour / Chief Inspector / National Prosecuting Authority & others) interpretation of section 32, in my view, undermines the constitutional values of transparency, openness and accountability in that it deprives interested parties their right to information held by the State. The refusal to disclose section 32 reports violates the right to human dignity provided for in section 10 of the Constitution, in that families and next of kin of workers killed in industrial accidents do not receive an authoritative report on the cause of their loved one's death to enable them to find psychological closure. Without access to the reports, employers and trade unions are hampered in their ability to ensure health and safety in the workplace. It is also not possible for unions to adequately protect their members' interest by advocating for reform and improvement of safety in the workplace which infringes the workers' right to fair labour practice provided for in section 23 of the Constitution’.

Harsh words indeed from Justice Matojane in the matter of Industrial Health Resource Group & Others versus Minister of Labour & others Gauteng High Court 2015.  One can only hope that this indictment of DoL’s stubborn refusal to furnish interested parties with an inspector’s report, after the conclusion of an investigation, will be translated into action and galvanise DoL to immediately amend the proposed OHS Amendment Bill to reflect the court’s verdict  - before the Bill is introduced in Parliament. Failure to do this will be unconstitutional and therefore unlawful.  The Bill has yet to be introduced by the Minister despite her going on record promising its introduction last year! Is anyone out there listening or will it take another court case at taxpayer’s expense to drive this point home?

It must be remembered that the draft OHS Amendment Bill will not herald an entirely new OHS Act but will only amend certain provisions that are either outdated or unconstitutional. And of course to drastically increase the penalties that may be imposed. The bulk of the Bill has been ‘copied & pasted’ from the current OHS Act. There are some innovations which appear to have been borrowed from the Mine Health & Safety (MHS) Act such as Administrative Fines of up to R50 000. Essentially an inspector will be empowered to fine employers if their OHS administration is not up to scratch and payment of the fine will negate a court appearance. It begs the question. If the Bill is trying to align itself with the MHS Act of 1996 (post constitutional legislation) then why deviate from the MHS Act’s provisions pertaining to inquiries and the disclosure of the inspectors’ reports?  Why are mining employers more privileged that employers who fall within the ambit of the OHS Act. Has it, as I suspect, something to do with the competence of DoL’s inspectors? As the learned judge observed ‘section 32(5) affords interested parties the right to participate in section 32 inquiries. If the reports are not made available to interested parties, they could never become aggrieved by anything contained therein, as they would not have had sight of its contents. It would be absurd to confer on interested parties a right of appeal against the finding of a report and at the same time deny them access to the report’. 

Draft Bill section 32. Formal inquiry.

(1) The chief inspector may, and shall when so requested, by a person producing prima facie evidence of an offence, appoint a presiding inspector to conduct a formal inquiry into any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the chief inspector could have resulted, in the injury, illness or death of any person.

(2) For the purposes of an inquiry referred to in subsection (1), a presiding inspector may subpoena any person to appear at a predetermined place on a day specified in the subpoena and to give evidence or to produce any book, document or thing which in the opinion of the inspector has a bearing on the subject of the inquiry.

(4)  Any inquiry under this section shall be held in public: Provided that the presiding inspector may exclude from the place where the inquiry is held, a person whose presence is, in the opinion of the presiding inspector, undesirable or not in the public interest.

(7)  An affidavit made by any person in connection with the incident in respect of which the inquiry is held, shall  at the discretion of the presiding inspector upon production, be admissible as proof of the facts stated therein, and the presiding inspector may, if so required, subpoena the person who made such an affidavit to give oral evidence at the inquiry or may submit written interrogatories to that person for reply, and such interrogatories and any reply thereto purporting to be a reply from such person shall likewise be admissible in evidence at the inquiry: Provided that the presiding inspector shall afford any person present at the inquiry the opportunity to refute the facts stated in such document, evidence or reply.

(10)  The evidence given at any inquiry under this section shall be recorded and a copy thereof shall be submitted by the presiding inspector together with his or her report to the chief inspector, and in the case of an incident in which or as a result of which any person died or was seriously injured or became ill, the presiding inspector shall submit a copy of the said evidence and the report to the chief inspector.

(10(A) The chief inspector shall submit the report to the National Prosecuting Authority within whose area of jurisdiction such incident occurred, within 90 days of the conclusion of the inquiry;

(12) Upon receipt of a report referred to in subsection (10), the National Prosecution Authority shall deal therewith in accordance with the provisions of the Inquests Act, 1959 (Act No. 58 of 1959), or the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as the case may be.

Section 32(10)(A) above is, in my view, unlawful and must be amended to align with the verdict in the Industrial Health Resource Group matter which,  incidentally, has not been appealed by the Minister and thus stands. I don’t know the machinations of the Portfolio Committees of Parliament and perhaps the Justice Portfolio Committee will address this issue.

I propose that section 32(10(A) read as follows: The evidence given at any inquiry under this section shall be recorded and a copy thereof shall be submitted by the presiding inspector together with his or her report to the chief inspector, and in the case of an incident in which or as a result of which any person died or was seriously injured or became ill, the presiding inspector shall, within 90 days, submit a copy of the said evidence and the report to the chief inspector, the employer and, upon request  any interested party or aggrieved party, health and safety representative, health and safety committee or registered trade union.’ This is in line with the similar provision in the MHS Act.

MHS Act. Section 72. Inquiry records and reports

(1) A person presiding at an inquiry must -

(a) record the evidence given at the inquiry, including any evidence given with the assistance of an interpreter;

(b) at the conclusion of the inquiry, prepare a written report of the findings, recommendations and any remedial steps;

(c) submit a copy of the report and the record of the inquiry to the Chief Inspector of Mines,

(d) supply a copy of the report and the record of the inquiry to the employer and to any health and safety representative, health and safety committee or registered trade union that requested the inquiry; and

(e) on request, supply a copy of the report and the record of the inquiry to any person who has a material interest in the inquiry.

(2) An inspector may instruct the employer of the mine concerned to prominently and conspicuously display a copy of the report or any portion of it for employees to read.

(3) The Chief Inspector of Mines may submit a copy of the report to the appropriate Attorney-General.

Which brings me to my next gripe. The deplorable manner in which DoL investigates incidents – particularly fatal incidents – utilising the lamentable section 31 Investigation.  I have banged on about this cop-out procedure for decades now and perhaps it will take another trial before DoL is compelled to align itself with the MHS Act where fatal incidents can only be investigated via the Formal Inquiry (equivalent of section 32 of the OHS Act). I personally have more than 17 fatal workplace incidents on my books dating back to 2006 which have not been properly investigated by DoL. The pattern seems to be that DoL inspectors will arrive relatively soon after a fatal incident has been reported, will take statements, throw their weight around and disappear into thin air! I can assume that these matters have actually been concluded and that the ‘visit’ by DoL constituted a section 31 Investigation. Imagine the quality of the reports, based on untested evidence that is sent through to the NPA. It is no wonder that a tiny fraction of prosecutions occur. In my previous life as an OHS Court prosecutor I would never have placed an untested version of a (fatal) incident on the court’s roll with the aim of obtaining a culpable homicide conviction. As campaigning lawyer Richard Spoor has said’ there are seldom any prosecutions. More worrying is the fact that the DPP is on record as having expressed “serious concern” about the standard of these reports. The poor quality apparently makes further action difficult, if not impossible’. Bear in mind that he is referring to reports complied after a section 32 Formal Inquiry and not the reports generated by a section 31 Investigation.

You may ask why there is once again a discrepancy between the OHS and MHS Acts. The MHS Act has been hailed as a positive post constitutional piece of OHS legislation with an emphasis on human rights and transparency. Surely the draft OHS Amendment Bill should emulate the MHS Act and afford aggrieved parties the right to information and a proper formal judicial inquiry into fatal incidents involving their loved ones. Employers too need closure as currently they are left in limbo for decades on end.

Accident report on workers must be disclosed – court. 11 August 2015.

 Eighteen years ago, 15 workers at the Sasol Secunda plant were burned to death in what was described at the time as a "catastrophic fire". What caused the blaze that killed them, how did they die and could they have been saved? These were questions the next of kin and their union wanted to know and felt they had a right to know. Over the years where workers have died in the industrial environment the labour ministry has refused access to reports following official investigations into such tragedies. Now, and thanks to a judgment on Friday in the Gauteng Division of the High Court, they and many other relatives and colleagues of workers who died while at work may at last find closure.  The judgment orders the ministry of labour to make available reports under the Occupational Health and Safety Act (OHSA) that are written after investigations into fatal industrial incidents.

In my view section 31 was really designed to be a ’pre-inquiry’ investigation or information gathering exercise along the lines of the MHS Act as regards fatal incidents.

OHS Act. Section 31. Investigations

(1) An inspector may investigate the circumstances of any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the inspector could have resulted, in the injury, illness or death of any person  in order to determine whether it is necessary to hold a formal investigation in terms of section 32 .

(2) After completing the investigation in terms of subsection (1) the inspector shall submit a written report thereon, together with all relevant statements, documents and information gathered by him, to the attorney-general within whose area of jurisdiction such incident occurred and he shall at the same time submit a copy of the report, statements and documents to the chief inspector.

(3) Upon receipt of a report referred to in subsection (2), the attorney-general shall deal therewith in accordance with the provisions of the Inquests Act, 1959 (Act No. 58 of 1959), or the Criminal Procedure Act , 1977 (Act No. 51 of 1977), as the case may be.

(4) An inspector holding an investigation shall not incur any civil liability by virtue of anything contained in the report referred to in subsection (2).

Section 31(2) provides the ideal cop-out for DoL in that inspectors may conclude a matter by submitting a report along with statements etc. to the chief inspector and NPA – without venturing into the formal inquiry. But what constitutes an investigation? What are the rules that apply? Is it just the collation of statements – often contradictory – or can evidence be tested via cross-examination. If the indeed the latter, then it surely constitutes a section 32 formal inquiry. Evidence must be (formally) tested using the law of privilege or it results in a travesty of justice. More importantly what criterion is used to determine whether a section 32 formal inquiry is appropriate? Judging by the Grayston Bridge Collapse, Stellenbosh and Tongaat Collapses, it would appear as if saturated media coverage coupled with the involvement of more than one employer in an incident, are some of the considerations. Currently section 31 favours employers, who seldom face prosecution for even serious crimes such as culpable homicide. (Remember that an inspector cannot recommend prosecution for the common law crime of culpable homicide. The NPA will consider such a charge if there is sufficient negligence in terms of the OHS Act and a fatality occurs). Fear of prosecution does drive OHS in South Africa anymore and my credibility is often on the line when I spell out, as I must, the worst case scenario to my clients post a fatal accident. Safety is driven by the vast majority of employers themselves assisted by a variety of professional safety practitioners and organisations. Google the UK HSE and see the huge penalties that employers face there!

Perhaps my entire argument above will become academic if the equivalent of section 31 in the draft OHS Amendment Bill is adopted as proposed. The wording in order to determine whether it is necessary to hold a formal investigation in terms of section 32’ has been omitted from the current section 31 and the investigation becomes a standalone procedure. The optional ‘may’ has been replaced by the compulsory ‘shall’. This is to be applauded but it still falls short of the values of transparency and fair administrative justice as espoused in the Bill of Rights. The Bill must be brought in line with the MHS Act which obliges fatal workplace incidents to be subjected to a formal inquiry. It is common cause that the mining inspectors are more experienced and competent than their DoL counterparts but I do suspect that standards there too have declined. The procedure followed by the Mine Health and Safety Inspectorate, while not perfect, is to assign a seasoned chairman to preside over every inquiry and to appoint a chief examiner to lead evidence and to cross question. The chairman controls the inquiry and is responsible for compiling the report to the Chief Inspector of Mines, the NPA, employers and other parties.  All interested parties are represented including the family of a deceased worker either through legal representation or through a family spokesperson. Evidence is tested and each party is afforded an opportunity to argue a matter. This sadly does not occur in a section 31 investigation and the draft Bill does not address this shortcoming! Alternatively DoL must outsource investigations, as it did in 2000, when seasoned former Department of Manpower inspectors formed a company specifically to preside over inquiries.

Draft Bill section 31. Investigations

(1)  An inspector shall investigate the circumstances of any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the inspector could have resulted, in the injury, illness or death of a person.

(1A) For the purposes of an investigation referred to in subsection (1), an inspector may subpoena any person to appear before the inspector concerned on a day and at a place specified in the subpoena and give evidence or to produce any book, document or item which in the opinion of the inspector has a bearing on the subject of the investigation.

(2) After completing the investigation in terms of subsection (1), the presiding inspector shall submit a written report thereon, together with all relevant sworn statements, documents and information gathered during the investigation to the provincial control inspector within whose area of jurisdiction such incident occurred, who will, after consultation with the chief inspector, submit the report to the National Prosecution Authority.

(3) Upon receipt of a report referred to in subsection (2), the  National Prosecuting Authority shall deal therewith in accordance with the provisions of the Inquests Act, 1959 (Act No. 58 of 1959) [or] and the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(5) An inspector conducting an investigation shall not incur any civil liability by virtue of anything contained in the report referred to in subsection (2).

The argument against the Minister of Labour, Chief Inspector & others pertaining to section 32 of the OHS Act must apply to a section 31 investigation. I cannot see a legally sound argument to the contrary.

                                          

Section 33 of the Bill of Rights. Just administrative action. 

1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

An administrative action means any decision taken, or any failure to take a decision, by-

a) an organ of state, when-

i) exercising a power in terms of the Constitution or a provincial constitution; or

ii) exercising a public power or performing a public function in terms of any legislation; or

b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect.

Dear folks                                                                                        21 October 2015

Many of you may have seen the two media articles below. They have been on my website for some time. Essentially these media articles contain an indictment, by the Gauteng High Court, of DoL’s (OHS Inspectorate) performance regarding investigations (?) and formal inquiries. While the reports seem to suggest that the court was confining its indictment to section 32 Formal Inquiries, the same principles must apply to section 31 Investigations since both are DoL inquisitorial procedures which generate recommendations to the National Prosecuting Authority (NPA) which could result in prosecution. The section 31 Investigation is the avenue normally chosen by DoL to investigate workplace incidents and I have on many occasions publicly lamented the quality of these investigations particularly in instances of fatal workplace incidents which often demonstrate a profound lack of understanding of evidential law by inspectors. Although section 31 Investigations are not restricted to workplace fatalities and can be utilised by DoL to investigate any workplace incident which has or could have caused injury, illness or death, it is  fatalities that  can result in the serious common law charge of culpable homicide. Companies as well as individuals can be convicted of culpable homicide – the negligent causing of the death of a person – but only individuals (natural persons) can be jailed. A conviction on a charge of culpable homicide results in a criminal record which could haunt persons for the rest of their lives and could potentially impact on employment or even international travel.

In my view a section 31 Investigation is not and will never be the appropriate forum to investigate fatal workplace accidents since, unlike the section 32 Formal Inquiry, the evidential ‘Rules of the Game’ are not spelt out and are open to abuse. Testing of evidence via cross-examination does not usually occur at section 31 Investigations and the collating of evidence via statements does not equip the NPA to make a sound decision. I believe it is for this reason that the 1996 Mine Health & Safety Act specifically obliges the Mining Inspectors to hold formal inquiries into fatal mining accidents. As mentioned above, DoL prefers to finalise matters via the section 31 Investigation – I guess due to a lack of competency – often wrongfully restricting the role that legal practitioners can play. Section 32 Formal Inquiries are also the exception to the norm, once again I assume because of competency issues at DoL, although they usually enjoy extensive media coverage. Examples are the Tongaat Mall Collapse, the Paarl Print Fire and the Secunda Explosion. The criteria which DoL uses to determine which type of workplace incident warrants a Formal Inquiry remains a mystery  but they seem to be confined to spectacular fatal incidents involving various employers.  Ironically enough, in terms of section 32, any person (a member of the public, injured party, family of a deceased) can request the Chief Inspector to conduct a Formal Inquiry and if there is prima facie evidence (sufficient evidence at face value) of an offence, the Chief Inspector is statutorily legally compelled to hold a Formal Inquiry.  Often an employer’s own Internal Investigation will point to prima facie evidence of an offence.

Over and above the vague format of section 31 Investigations, my real gripe with DoL over decades has been their unacceptable and stubborn refusal, post and Investigation or Inquiry, to provide interested parties, particularly legal practitioners, with the Inspectors Report. That is until the High Court intervened in August and ruled that non-disclosure of the Inspectors Reports undermined the basic constitutional right of transparency and accountability. He said the constitution provided that everyone had the right of access to any information held by the State. In withholding the information, it also deprived interested parties of their rights to dignity. The judge said it was “absurd” to say parties may appeal, while at the same time they were denied access to the report. The judge declared that the policy of the department to refuse access to a Section 32 inquiry report, in all instances and without regard to the circumstances of each case once the report is referred to the NPA, was inconsistent with the Occupational Health and Safety Act and the Promotion of Access to Information Act.

The absurdity which the Judge refers to is contained in section 35 of the OHS Act entitled ‘Appeal against decisions of inspectors’ and it provides that any person aggrieved by any decision taken by an inspector under a provision of this Act may appeal in writing within 60 days against such decision to the chief inspector, and the chief inspector shall, after he has considered the grounds of the appeal and the inspector's reasons for the decision, confirm, set aside or vary the decision or substitute for such decision any other decision which the inspector in the chief inspector's opinion ought to have take’. It is absurd to provide for persons to appeal a decision of an inspector while at the same time refusing to disclose that decision! This prejudicial scenario is further compounded by the fact that the NPA is advantaged by gaining sole access to the Inspectors Report (decision) and ultimately making a decision on a potentially challengeable Report! The NPA could issue a summons based on this Report and, if a successful challenge is then mounted via representations to the NPA, withdraw the summons which necessitates a court appearance.  

The question is how DoL will react to this High Court decision? An appeal, if indeed allowed, would be another waste of tax-payers money as it is doomed to fail. Will DoL now follow the route of the more constitutionally-sound Mine Health & Safety Act and legislate accessibility to the Inspectors Reports? The draft OHS Amendment 2015 presents an ideal opportunity and should be amended to provide for this before the Minister of Labour finds time to introduce it to Parliament for discussion.

‘Bills aimed at improving worker support set to be tabled this year. 7 May 2015

A NUMBER of bills to improve the benefits government provides to workers will be tabled in Parliament this year, Labour Minister Mildred Oliphant said in Parliament on Thursday. Introducing the debate on the labour budget, the minister said these bills included the Occupational Health and Safety Amendment Bill, which is currently under discussion in the National Economic Development and Labour Council.’

I propose that provision be made in the Draft Bill for the Chief Inspector to furnish all interested parties with a copy of the Inspectors Reports in both (the amended) section 31 Investigation and section 32 Formal Inquiry. Failure to do so could be unlawful. This must be done within 90 days after conclusion of the Investigation or Inquiry to coincide the Chief Inspector’s reporting obligation to the NPA. (Proposed section 32(10A). The chief inspector shall submit the report to the National Prosecuting Authority within whose area of jurisdiction such incident occurred, within 90 days of the conclusion of the inquiry).

I raised this issue with a very high ranking DoL official who responded that the ‘challenge’ in this regard is that the NPA, upon receiving the Inspector’s Report after an investigation or Formal Inquiry,  invariably refers a matter back to DoL for clarification pending a final decision and that disclosure to affected parties at this stage could prejudice the process. I don’t accept this argument as it deprives affected parties of their constitutional / statutory right to access and, if warranted, appeal the Inspector’s original decision. Perhaps the solution would be to follow the practice developed by Mining Inspectors whereby affected parties are given a copy of the Inquiry Transcript and legal representatives required to compile Heads of Argument -  prior to the matter being decided by the NPA. The NPA will then be able to consider the matter based on the transcript and Inspector’s Report as well as the Heads of Argument. Either way, a solution must be found whereby affected parties are kept in the loop and afforded the 60 day ‘window’ in which to lodge an appeal, if desired, to DoL before the NPA makes a final decision.  The draft OHS Amendment Bill 2015 must be brought in line with the High Court ruling and, by implication, the Constitution and the Promotion of Administrative Justice Act (PAJA). This point was conceded by the Chief Inspector on 19 October 2015 during his SAIOSH presentation on the draft OHS Amendment Bill.

Another important amendment to section 31 is proposed in the Draft Bill which hopefully will address the DoL’s lethargic approach to investigations. Currently section 31 reads as follows: ‘An inspector may investigate the circumstances of any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the inspector could have resulted, in the injury, illness or death of any person in order to determine whether it is necessary to hold a formal investigation in terms of section 32’. The proposed amendment reads An inspector shall investigate the circumstances of any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the inspector could have resulted, in the injury, illness or death of a person’.

Many workplace incidents including fatalities are not investigated by DoL. This constitutes a failure by DoL to fulfil its mandate and perhaps for this reason the optional ‘may’ has been substituted with the compulsory ‘shall’.  It is incomprehensible and perhaps even legally unsound for any unnatural (workplace) death not to be subjected to investigation either via a DoL Investigation / Formal Inquiry or an inquest. I suspect that where DoL fails to investigate fatal workplace incidents the matter is ‘closed’ via the so-called ‘Informal’ Inquest where a magistrate finalises the matter in an office without evidence being led and based on the SAPS docket which contains uninterrogated evidence.

In conclusion I recommend that section 31 be further amended to require Inspectors to investigate incidents and conclude their findings within 90 days. A copy of their Reports must also be made available electronically to all affected parties. Legal practitioners must also be allowed to interrogate any witness at an investigation. 

Accident report on workers must be disclosed – court. 11 August 2015.

Cape Town - Eighteen years ago, 15 workers at the Sasol Secunda plant were burned to death in what was described at the time as a "catastrophic fire". What caused the blaze that killed them, how did they die and could they have been saved? These were questions the next of kin and their union wanted to know and felt they had a right to know. Over the years where workers have died in the industrial environment the labour ministry has refused access to reports following official investigations into such tragedies. Now, and thanks to a judgment on Friday in the Gauteng Division of the High Court, they and many other relatives and colleagues of workers who died while at work may at last find closure.  The judgment orders the ministry of labour to make available reports under the Occupational Health and Safety Act (OHSA) that are written after investigations into fatal industrial incidents. One of the grounds that the ministry has advanced for not making the reports available is that they are sent to the Directorate of Public Prosecutions (DPP) to decide on whether there should be any prosecutions.   As campaigning lawyer Richard Spoor has pointed out, there are seldom any prosecutions. More worrying is the fact that the DPP is on record as having expressed “serious concern” about the standard of these reports. The poor quality apparently makes further action difficult, if not impossible. Such unexplained tragedies continued to pile up when, in April 2009 a fierce blaze destroyed much of the Paarl Print Works. Thirteen workers died and more than ten were injured.  The Industrial Health Resource Group (IHRG) of the University of Cape Town, were particularly concerned about the possibility that a widely used polystyrene roofing insulation might have played a part in the tragedy. IHRG director Nicholas Henwood noted:  “The fire spread rapidly, accompanied by clouds of dense black smoke, reducing visibility almost completely. It appears that the persons who died in the inferno were trapped by the flames and blinded by the smoke and could not find their way out of the premises in time to prevent their own deaths.” In a statement, he pointed out that this form of roof insulation was involved in a warehouse fire at the Duncan Dock in Cape Town in 1993.  “It was ignited by a stray firework set off in the harbour,” he added. IHRG, the families, and representatives of Cosatu-affiliated unions at the Paarl plant tried for two years to obtain copies of the report into the blaze before being told it had “not yet been finalised”.  And when, in July 2009, the report was finalised, it was sent to the DPP that was “not at liberty to disclose” the contents. Two more years of frustration followed, including an unsuccessful attempt to gain access to the report using the Promotion of Access to Information Act.  Frustrated, IHRG, together with representatives of nine families, represented by Spoor, Cosatu and two affiliated unions last year took the matter to the high court.  One of the unions involved, the Chemical Energy Paper Printing Wood and Allied Workers' Union, is the union still awaiting the report from the Secunda fire of 1997. Papers submitted to the court by the applicants also listed examples such as the manganese poisonings at the Assamang smelter in Cato Ridge in 2007 and the furnace eruptions at Assamang and Highveld Steel a year later that together claimed seven lives. All may at last gain at least some inkling of what happened and whether such loss of life and limb could be avoided in future. 

Judge rules against ‘absurd’ non-disclosure

Firefighters battle the last flames in the pre-press section of the Paarl Print Factory, in the Western Cape that was gutted by fire in April, 2009. Thirteen people died. MORE than six years after a devastating fire at the Paarl Print Factory in the Western Cape, which left 13 people dead and 10 injured, the victims’ families will at last have access to the findings of an inquiry into the blaze. The Department of Labour up to now refused to hand over the report, saying the Occupational Health and Safety Act did not allow for interested parties to have access to the report. The department contended that disclosure of the report to any person other than the chief inspector and the National Prosecuting Authority would violate the principles of co-operative governance enshrined in the constitution. It was further said that, because employees injured on duty or the dependents of those who had died as a result of injury on duty were not entitled to sue their employer for damages, they did not need access to the report. The families, together with the Industrial Health Resource Group of the University of Cape Town, turned to the Pretoria High Court to force the Minister of Labour, Mildred Oliphant, to make public inquiry reports regarding findings into workplace accidents. Judge Elias Matojane, in a groundbreaking judgment which will pave the way for others in a similar situation, ordered that interested parties may in future, on request to the presiding inspector, receive a copy of an inquiry report. The judge said the government’s interpretation of the act that it did not allow for a report to be handed over to interested parties, undermined the basic constitutional right of transparency and accountability. He said the constitution provided that everyone had the right of access to any information held by the State. In withholding the information, it also deprived interested parties of their rights to dignity. The judge said the families and next of kin of workers killed in industrial accidents would never be able to find closure if they were not able to gain access to the reports. “Without access to the reports, values also of employers and trade unions were also hampered in their ability to ensure health and safety in the workplace. “It will not be possible for unions to adequately protect their members’ interests by advocating for reform and improvement of safety in the workplace.” Judge Matojane said the reports would allow employees and unions to hold employers accountable for past and future conduct by ensuring that they comply with the recommendations and findings. In terms of the act, aggrieved parties may appeal against the findings of the reports. The judge said it was “absurd” to say parties may appeal, while at the same time they were denied access to the report. The judge declared that the policy of the department to refuse access to a Section 32 inquiry report, in all instances and without regard to the circumstances of each case once the report is referred to the NPA, was inconsistent with the Occupational Health and Safety Act and the Promotion of Access to Information Act.

Dear Folks     

'Secure in Comfort'        

Workers sue firm over lost fingers. 20 May 2015.

Four factory workers, from left, Vincent Moleya, Johannes Majimese, Karabo Morodi and Isaac Nkoana lost their fingers while working at the Rosslyn factory.   A machine operator who worked at a Rosslyn company which manufactures, among others, motor parts, is claiming R2.8 million from his former employer after he lost four fingers on his right hand when it was crushed in a pressing machine.  Vincent Moleya, 25, is blaming his former employer - Praga Technical Ltd - for his misfortune. But the company said he only has himself to blame for the accident.  Moleya and six other workers at this factory - who lost their fingers, allegedly while working with the pressing machines - have instituted damages claims against the company. Four of the machine operators have already issued summons, while two more are in the process of doing so. Each operator is launching his own application. These will be heard independently, as each case is based on different incidents.  Moleya’s case was due to start in the High Court in Pretoria on Monday, but it had to be postponed to a date still to be determined. This is because the trial is expected to now run much longer than anticipated and a judge will specially have to be allocated to deal with the matter.  Moleya’s hand was smashed when a metal sheet presser came down on it on August 12, 2013.  He said his employer was negligent for failing to have adequate safety measures in place to prevent such incidents. There should have been warning signs close to the press machine to explain the dangers in operating the machine.  The company also failed to adequately train the machine operators, he said.  As a result of his right hand being crushed in the machine, his ring, index and middle fingers, as well as his thumb, had to be amputated. Moleya said he is now disabled and not able to work.  He is claiming about R2m for loss of income, R500 000 for future medical expenses and R300 000 in general damages.  At the time of the incident he was employed by a labour broking company, which appointed him to work at the Rosslyn factory.  Denying liability, the factory said Moleya suffered the injuries due to his own negligence. He failed to adhere to the safety instructions and inserted his hand in the machine at a time when it was not safe to do so, it said.  It was claimed he was “horsing around” with a fellow worker, when he lost his balance and reached out for the machine to break a fall. The machine was already operating at the time and thus crushed his hand, the defendant said.  Several of the other machine operators who claimed they, too, were injured at this plant were in court to support Moleya. Most of them had several fingers missing. 

You may have noted with concern the article (above) which initially appeared in the Pretoria News on 20 May 2015. You may have felt secure in the comfort of section 35 of the Compensation for Occupational Injuries and Diseases Act (COID) which essentially statutorily indemnifies employers against civil suits by employees for damages arising from occupational injuries or diseases. In the event of a fatal workplace incident, dependants of the deceased are also barred from instituting civil action against the employer. The employer may be a corporate body or an individual as section 56 of the COID Act extends the indemnity to certain natural persons as well.

Many of you utilise the services of labour brokers to supply personnel who work under your control and directions. You remunerate the labour broker directly for this service and have no ‘contract of service’ with these workers. You are obliged, in terms of section 8 of the OHS Act to provide them with the same safe and healthy workplace as any other employee on your payroll. In fact, they are your employees as defined in section 1 of the OHS Act.

‘"employee" means any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person.’

So do the workers who lost their fingers at the Rosslyn factory and who are suing their former ‘employer’ for damages have a case? They were, after all, deemed to be employees of the employer in terms of the definition of an ‘employee’ in section 1 of the OHS Act and the employer had a duty of providing them with a safe and healthy working environment as per section 8 of the Act. (General Duties of Employers to their Employees). The answer is to be found in the Supreme Court of Appeal (SCA) decision in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck. (2007).

The facts are briefly that during an armed robbery at Crown Chicken’s business premises, Mrs Rieck, whose services as a cashier selling chickens to the public was obtained via a labour broker, was taken hostage by the robbers when making their getaway. Crown Chicken’s security personnel had fired shots at the getaway vehicle and that one of those shots had hit her in the elbow. The High Court found that the security staff had acted negligently and that Crown Chickens was vicariously liable for those actions. The grounds of negligence were that the security staff was aware that Mrs Rieck was in the getaway vehicle and must have realised that she could be injured if they shot at the getaway vehicle. The SCA concurred with this finding of negligence and vicarious liability and endorsed the High Court’s finding that Mrs Rieck was an employee of the labour broker – and not an employee of the client (Crown Chickens) – thus paving the way for a civil claim against Crown Chickens. 

The SCA focused on the definition of an ‘employer’ as defined in the COID Act.

"employer" means any person, including the State, who employs an employee, and includes -

(a) any person controlling the business of an employer;

(b) if the services of an employee are lent or let or temporary made available to some other person by his employer, such employer for such period as the employee works for that other person;

(c) a labour broker who against payment provides a person to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker.

It held that the definition of an employer contemplates that a person is an employer if he, she or it employs an employee in terms, obviously, of a contract of service. In order to ensure that all employees receive the protection of the Act, and to eradicate grey areas, the Legislature has expressly included certain categories of persons in the definition. Because of the rule that the State is not usually bound by its own statutes, the State is expressly included as an employer and, furthermore, because of the uncertainty that may be created when an employee's services are lent or let by an employer to another, the definition provides that in such circumstances, the "permanent" employer, rather than the person to whom the employee's services are let or lent, remains the employer for purposes of the Act. The definition makes it clear that, irrespective of where the employee's services are rendered, and who controls the employee's day-to-day conduct in the workplace, the labour broker remains the employer for purposes of the Act. This is logical for two reasons: firstly, the contract of service is entered into by the labour broker and the employee and there is no contractual nexus between the employee and the person to whom he or she provides services; secondly, the labour broker is the employer who pays contributions to the Compensation Fund, and not the person to whom the services are rendered. It appears almost as if the SCA regarded the ‘contract of service’ as the ratio decidendi (a Latin phrase meaning "the reason" or "the rationale for the decision) and the contribution to the Compensation Fund as obiter dictum.(Latin for a word said "by the way”, that is, a remark in a judgment that is "said in passing").

So let’s revert to the article at the beginning. Do the plaintiffs have a case? The answer must be yes provided they can prove, on a balance of probabilities, that the employer was negligent. Affirmati Non Neganti Incumbit Probatio. (The burden of proof is upon him who affirms - not on him who denies). From the article it would appear that the plaintiffs will be basing their claim of negligence on a number of section 8 OHS Act contraventions. Apparently they will claim that the company was negligent for failing to have adequate safety measures in place to prevent such incidents.  Further that there should have been warning signs close to the press machine to explain the dangers in operating the machine and that the company also failed to adequately train the machine operators. Perhaps the General Machinery Regulations – Safeguarding of Machinery – too? The company has denied the one plaintiff’s claim countering that he suffered the injuries due to his own negligence. That he failed to adhere to the safety instructions and inserted his hand in the machine at a time when it was not safe to do so and was “horsing around” with a fellow worker when he lost his balance and reached out for the machine to break a fall. (Section 14 of the OHS Act?).

All these incidents were reportable to DoL in terms of section 24 of the OHS Act. Were they reported as failure to report is a criminal offence. I must assume that these incidents were reported to DoL as big companies rarely fall foul of section 24 these days. That begs the question. Did DoL investigate these incidents in terms of section 31 of the OHS Act and, if so, surely a recommendation regarding negligence or the lack thereof was made and forwarded to the National Prosecuting Authority (NPA)?  In that case did the NPA prosecute or decline to prosecute the matter? Failure by DoL to investigate these incidents in my view would be tantamount to neglect of duty as these are serious permanent disabling injuries particularly as the newspaper article suggests a pattern of similar incidents. Sadly DoL, as law enforcement agency for OHS Act matters, often neglects these types of incidents to focus on incidents which have created media hype. Would a civil suit have been instituted if the NPA, acting upon a report from DoL, declined to prosecute? (Not that it always matters as the proof element in a civil matter is lower than in a criminal matter. Negligence on a balance of probabilities versus beyond a reasonable doubt).

Since the decision in Crown Chickens vs Rieck there has been a steady increase in the number of civil suits against employers brought on behalf of injured labour broker personnel. Not all have made it into the media spotlight. The boundaries of section 35 of the COID Act is also about to be tested (again) in a class action for damages resulting for diseases allegedly contracted at work. The statutory indemnity as contained in section 35 read with section 56 of the COID Act has been tried and tested in the Constitutional Court in Jooste vs Score Supermarket Trading CC (1996) and has not subsequently been diluted by the courts. Despite this decision emanating from the highest court in the land, an effort is under way in the Gauteng High Court to challenge the boundaries of section 35 of the COID Act with respect to occupational diseases.  Initiated by Richard Spoor, the civil action will rely heavily on another constitutional Court case (The Mankayi Case) which paved the way for civil action where employees were ‘covered’ by the Occupational Diseases in Mines and Works Act 78 of 1973 (“ODIMWA”). I predict an uphill battle for the claimants though as the validity of the statutory indemnity as contained in section 35 of the COID Act has been upheld on many occasions by the courts.

Sasol coal miners claim civil damages for disease. 8 April 2015.

A group of Sasol coal miners are claiming civil damages for disease, instead of industrial compensation, in 2015. The 22 current and former workers of Secunda have occupational diseases from exposure to coal dust, said Richard Spoor, veteran of occupational health class suits, reports Bloomberg. He filed a civil action at the South Gauteng High Court on 2 April. The South African highest court four years ago cleared the way for seeking civil damages for disease contracted at work, despite legally exclusive compensation mechanisms. The landmark case was a ruling that former miner Thembekile Mankayi could pursue a R2.7-m civil claim against AngloGold Ashanti, a company whose predecessor was formed in 1997 when Anglo American merged its gold mines. Compensation mechanisms differ in mining, construction and general industries (COID Act and Compensation Fund. However the legal principle is the same; employers contribute to a compensation insurance fund, and gain protection from civil suits. That protection has been breached in mining, and metallurgy could be next. Sasol Mining said it was assessing the suit, and it takes the protection of health and safety of employees and the employees of contractors and service providers very seriously. The miners worked at sites near Secunda in Mpumalanga province, some since 1971. Coal dust can cause pneumoconiosis, progressive massive fibrosis, and chronic obstructive pulmonary disease. The miners allege that “Sasol Mining failed to provide and maintain a working environment that was safe and without risk to the health of its employees, and failed to comply with relevant statutory and common law duties,” said Spoor. They allege that personal protective equipment (PPE) was not provided, and employees were not made aware of the danger and risk of coal dust. Sasol Mining replied that they “continuously adhere to the Mine Health and Safety Act, as well as all other applicable legislation. ‘We remain committed to promoting a healthy workforce through a proactive and strategic approach to occupational health.” Spoor had won a R490-m civil damages for disease settlement from Gencor in London twelve years ago after representing South African workers at the company’s asbestos mines. The Mankayi ruling has also made the Sasol civil damages for disease litigation possible, Spoor said. More coal-mining claims may follow.

The bottom-line is that there is real risk of civil action being brought against employers who use the services of labour brokers for occupational injuries and diseases. Risk managers need to take heed of this and determine a way forward to mitigate these risks. To quote the Public Protector, employers can no longer afford to  be‘secure in the comfort’ of section 35 of the COID Act. Lawyers in this country have taken heed of their USA counterparts and no longer wait passively for clients to approach them. Advertisements by legal houses beam out daily over the radio and television coaxing potential clients to come forward and claim damages for negligence albeit by the medical profession, road accidents or otherwise.

The real question is what can employers do to mitigate the risks of expensive civil suits brought by labour broker personnel?. The most obvious would be to refrain from using labour brokers. That is not always feasible. Third Party Liability Insurance covering labour broker personnel? Indemnification of some nature by the labour broker?  Indemnities are by their very nature legally controversial and should you try this route and a civil suit ensues, you will most probably end up spending vast amounts of money defending the Indemnity before a court even considers the merits of the civil action. (The contra proferentem rule is always a risk with Indemnities - A rule in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included. Contra proferentem rules guide the legal interpretation of contracts, and is typically applied when a contract is challenged in court.)  Perhaps re-negotiate the fee paid to labour brokers to cover the costs of Third Party Liability Insurance?

And as I was about to blot the ink on this article the Health Minister announced that government is planning another Fund to compensate miners suffering from lung diseases. Will the Fund be limited to miners and will contributions to the Fund also introduce a Statutory Indemnity along the lines of section 35 of the COID Act?

Plans for R1.5bn compensation fund for miners with lung disease. 29 May 2015.

The government is planning a R1.5bn compensation fund for miners suffering from lung diseases affecting 500 000 people, Health Minister Aaron Motsoaledi said. Companies including AngloGold Ashanti the world’s third-biggest miner of the metal, are participating in the project that’s being rolled out by the Department of Health. Compensation will apply to sufferers of tuberculosis, silicosis, and other illnesses, Motsoaledi said. Workers from other countries are also eligible to apply, he said. “Our goal is to compensate current and ex-mineworkers who have submitted valid and compensable claims,” he said told reporters in Carletonville, a gold-mining town 86km west of Johannesburg. “I’m here to pay back the money.” Lawyers representing sufferers of silicosis, a lung disease caused by inhaling dust from gold mining, say companies including AngloGold and Harmony Gold Mining are to blame for workers catching the disease because they operated without adequate ventilation for the past 60 years. South Africa is source of about a third of all gold yet produced globally. Other companies participating in Project Ku-Riha, which means compensation in Tsonga, are African Rainbow Minerals, Anglo American DRDGold, Gold Fields, Sibanye Gold and Village Main Reef, they said in a joint e- mailed statement. They have committed to a 5 million-rand funding program for the project. Motsoaledi didn’t immediately provide detail on where the remaining funds will come from.  The National Union of Mineworkers, Association of Mineworkers and Construction Union, Solidarity and UASA support the fund, the minister said.

 

 

Dear OHS Practitioners                                                        June 2014

 I have always espoused the importance of section 8 of the OHS Act particularly as it provides employers with a useful guideline as to what is required of them in discharging their duties vis-a-vis their employees and persons over whom they exercise control and supervision. Although entitled “The General Duties of Employers to their Employees”, section 8 only contains an employer’s duties for persons who may not be on the payroll such as labour broker personnel. In fact in section 1 of the OHS Act we have our own definition of an employee which can differ from the traditional perception of an employee.

An employee is defined as meaning any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person.

In other words if an employer exercises control and supervision over a third party, that third party is deemed to be an employee of the employer for purposes of the OHS Act – in particular section 8. Ironically enough the personnel recruited via a labour broker are regarded as employees of the labour broker for purposes of the COID Act. Unlike employees on behalf of whom the employer contributes towards COID and who prohibited from suing an employer for damages in terms of section 35 of the COID Act, workers recruited via labour brokers do enjoy the right to sue for damages. This was confirmed in Crown Chickens versus Rieck SCA.

Section 8 is not only an essential (pre-emptive) guide to OHS compliance regarding employees, it is also a useful guideline which can be utilised post an incident pertaining to employees. Should an employee be injured or killed at the workplace or in the course of employment, an employer is obliged to investigate the incident internally to determine the cause and to prevent a recurrence. The employer is then obliged to complete a rather bland document – the Annexure 1. In serious cases the employer is obliged to report the incident to DoL in terms of section 24 of the OHS Act. In theory the incident should then galvanise DoL into action and the incident be investigated - usually in terms of section 31 of the Act. There is no guarantee that this will happen and it could take years before the matter receives attention. Such delays seem to be the norm resulting in an inadequate investigation as many of the role-players will not be available anymore. Justice delayed is justice denied comes to mind!

Be that as it may, I always prep my clients to prepare for the worst in the event of a reportable incident. It has a downside in the sense that my credibility is often tarnished particularly if the matter disappears into thin air. Then again some cases take on a momentum of their own with serious criminal liability implications. DoL will undoubtedly get more teeth with the promulgation of the new OHS Act which will see penalties rocket into the millions of Rands and inspectors given fining powers. (Administrative Fines).

But I digress. As stated above an employer is only obliged to complete the Annexure 1 Form after an internal investigation is completed. The practice has, however, evolved – particularly with serious reportable incidents – for employers to investigate the incident and compile a comprehensive report which would ultimately be handed to the inspector conducting the investigation.  This comprehensive report will form part of the documentation which is forwarded to the National Prosecuting Authority (NPA). The inspector may not accept the report as gospel and should interrogate it particularly as employers – both natural persons (humans) and juristic persons (companies) enjoy the right against self-incrimination and are not obliged to say anything in the report which could come back to haunt them.

If the incident under investigation by DoL involves an employee, employers should use section 8(2)(a) to 8(2)(j) as basis for the comprehensive report.

(2) Without derogating from the generality of an employer's duty under subsection (1), the matters to which those duties refers include in particular -

(a) the provisions and maintenance of systems of work, plant and machinery that as far as is reasonably practicable, safe and without risks to health;

The comprehensive report should elaborate on the safe systems of work, plant or machinery that are in place. The nature of the incident – whether machinery, plant or general work – will dictate.

(b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

Elaborate, for example, on the engineering processes, machine guarding etc designed to protect employees.

(c) making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;

Elaborate in the report. Engineering processes, machinery safeguarding, safe Working / Operating Procedures, training records linked to an injured or deceased employee etc.

(d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures;

Elaborate and attach / include Risk Assessment(s). Although this subsection does not require written Risk Assessments, many regulations such as the construction or HCS regulations require obligatory written Risk Assessments.  Documented Toolbox Talks are valuable as proof of Issue Based Risk Assessments.

(e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;

This subsection is self explanatory, broad and essentially duplicates other employer duties.  Include all training records especially linked to the effected employee, SOPs etc. in the report.

(f) as far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d); or any other precautionary measures which may be prescribed, have been taken;

This subsection speaks to the product of a risk assessment.  Tangible proof of precautionary measures are usually contained in SOPs. Ideally tangible proof that they were communicated and understood by the effected employee.

(g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;

SOPs should incorporate those requirements of the Act and employers should elaborate in the report on the measures taken to ensure compliance with SOPs.

(h) enforcing such measures as may be necessary in the interest of health and safety;

This subsection is similar to the above. The report should elaborate and provide examples of enforcement where breaches have occurred. This could be general of nature and not necessarily linked to an effected employee. (Disciplinary Code).

(i) ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented;

I always maintain that supervisors are an employer’s first-line-of-defense.  They can make or break an employer case. If it can be shown (in the report) that supervisors were trained to fully understand the hazards, were given all the support they required and that they had the necessary authority to enforce the precautionary measures and an incident involving an employee occurs with their area of jurisdiction, they will have to please explain. Of course that does not automatically mean that supervisors will be liable in any way but it does assist the employer case. (Company / CEO / Section 16(2) Assignees / GMR2(1)s. Supervisors should be formally appointed in writing in terms of this subsection or GMR2(7)(a) and their acceptance will mitigate against any tendency on their part to deny they were adequately trained. (The argument being that they should have not have accepted the appointment if they felt unprepared or incompetent).

and

(j) causing all employees to be informed regarding the scope of their authority as contemplated in section 37(1)(b).

This subsection is really self-explanatory. But oddly enough it regularly raises its ugly head. Employers often take it for granted that employees know the limits of their authority and do not tangibly prescribe these limits. Don’t assume employees know the scope of their authority. Inform them tangibly so that you can prove it if necessary. Remember employees routinely turn on employees when things go wrong. Often it becomes a feeding frenzy!

Section 13 entitled rather misleadingly “The duty to Inform’ contains a very onerous employer duty of making employees conversant with the hazards and conversant with the precautionary measures. An employer cannot merely inform employees of the hazards. They must understand the nature of the hazard(s) and understand how to conduct themselves to protect t themselves against the hazard(s). This section also routinely creates problems for employers as employees (routinely) deny that they were made conversant with the hazards and precautionary measures. The comprehensive employer report must amplify and tangibly demonstrate the steps taken to satisfy this section.

It must be borne in mind that all the above employer duties are tempered with ‘reasonability’ and ‘practicability’ and that there is a definition or guideline in section 1 of the OHS Act of what should be taken into account when considering whether an employer discharged these duties within the bounds of reasonability and practicability. It is actually a defense in law and is closely linked to the common law definition of ‘negligence’.

"reasonably practicable" means practicable having regard to -

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

Finally it is important to have a legal practitioner – ideally with OHS law expertise – peruse the report to ensure it does not contain any unnecessary incrimination. There are also certain ‘buzz’ or ‘trigger’ words which lawyers use – such as ‘reasonably unforeseeable’ or ‘reasonably impracticable’ – which could trigger a favourable response from the NPA.

Dear Folks                                                                   May 2014

You may recall that I promised to write an article on the liability implications of the Tongaat mall collapse. I was going to base my observations on media reports but I think I may have been over optimistic particularly regarding their accuracy. More importantly the section 32 Formal Inquiry was postponed before there was enough (reported) substance to the matter. Having said that a transcript will be generated and I hope to get my hands on it after completion of the inquiry. The Presiding Officer, Phumi Maphaha, informs that he plans to call another four witnesses before concluding the matter and making his recommendation regarding prosecution to the National Prosecuting Authority (NPA).

What is clear is that various persons, both natural (humans) and juristic (companies) will be charged. It seems common cause that there was a litany of construction regulation contraventions by various parties including the client, designer and contractors. The client will also face other non OHS Act contraventions such as Contempt of Court as the eThekwini deputy mayor had obtained a high court order to stop the construction of the mall prior to the incident. The municipality has also conceded that it did not ‘keep tabs’ on the development to ensure the Court Order was enforced which in itself is scary in the sense that the incident would not have occurred had this be done. Perhaps this omission by the municipality is a contravention of some statute?  

When investigating a construction accident which results in fatalities and injuries it must be borne in mind that mere ‘administrative’ contraventions of the construction regulations do not necessarily result in culpable homicide or negligent injury (section 38(2) of the OHS Act) charges. The versari in re illicita principle prohibits this. In other words if an investigation into a fatal construction incident reveals that certain formal written appointments were not made as required by the construction regulations  - which is criminal in itself – it does not follow automatically that someone is liable on a common law charge of culpable homicide. A classic example would be if someone drives a vehicle on a public road without a valid driver’s license – a crime – and goes through a green traffic light and another party goes through a red light resulting in a fatal accident. The unlicensed driver is not automatically guilty of culpable homicide because of the criminal act of driving without a valid driver’s license.

In the construction regulations there must be a link or nexus between the failure to appoint a competent construction manager or supervisor and the result namely death or injury. In the Stellenbosch Collapse case I argued that our failure to appoint in writing the construction supervisor was not linked to the subsequent injuries and fatalities since his competence was established through evidence and that our only crime was not to formalise the appointment in writing – an offence on its own. All crimes have elements and to prove culpable homicide the prosecution will have to prove that there was an act or omission casually linked to a result (death) coupled with fault in the form of or culpa (negligence). Negligence is tested objectively using the reasonable person foreseeability test as criteria.

This may be the case in the Tongaat Mall Collapse case but, judging from media reports which scream headlines like ‘Engineer absent from mall inspections’, ‘No health safety audits at Tongaat mall’ and ‘Construction workers should not have been on the site of the unfinished Tongaat shopping mall yesterday,  it seems to suggest otherwise.

I have always lamented the fact that the vast majority of construction accidents are investigated via the section 31 Investigation. These investigations are usually too superficial and focus primarily on the apparent cause while neglecting the (often) various underlying causes. I have yet to represent a contractor in a section 31 investigation into a fatal construction accident where clients and other role-players are interrogated. The focus is invariably limited to contractors where a section 16(2) Assignee is interrogated along with the construction supervisor and employees. Most inspectors only demand to see a section 37(2) Written Agreement from the client and seem to regard the Written Agreement as an indemnity which it is not. An Indemnity only applies to civil law where damages are sought.  The opposite is true of the section 32 Formal Inquiry where all role-players are subpoenaed to testify and cross-examination of witnesses takes place. In the Stellenbosch Collapse case the principal contractor was condemned by the media, DoL and politicians and labelled as a rogue contractor even before the Formal Inquiry began. The collapse of the structure must have been his bad workmanship they argued. And at face value it did appear so. Yet because the matter was forensically or properly examined – as only a section 32 Formal Inquiry can do – it came to light that the primary cause of the structural collapse was the non compliant and substandard telescopic props which buckled under the weight of a slab that it was supposed to support - an offence in terms of section 10 of the OHS Act for manufacturers, importers and suppliers of articles (props). I actually argued in that matter that the ‘vilified’ principal contractor was actually the victim the saga!

According to media reports the Tongaat Mall Collapse case two workers died and twenty nine workers were injured. The extent of the injuries is not known to me but some may be incapacitated for life. Since the Presiding Officer’s mandate is restricted to the statutes (OHS Act) he cannot recommend culpable homicide charges. (Common / unwritten law). If he finds that the employer (contractor) of the dead and injured workers failed to provide them with a safe and healthy construction site he could make a finding of a contravention of section 8 of the OHS Act. If he found that the client or designer failed to ensure the safety of these individuals who were not their employees he could find a contravention of section 9. He could also recommend charges against all in terms of section 38(2) of the Act which punishes negligent injury –citing 29 counts which currently carry a maximum penalty of R100 000 or two years in jail or both for each count!

Section 38(2) ‘Any employer who does or omits to do an act, thereby causing any person to be injured at a workplace, or, in the case of a person employed by him, to be injured at any place in the course of his employment, or any user of plant or machinery who does or omission to do an act in connection with the use of plant or machinery, thereby causing any person to be injured, shall be guilty of an offence if that employer or user of plant or machinery, as the case may be, would in respect of that act or omission have been guilty of the offence of culpable homicide had that act or omission caused the death of the said person, irrespective of whether the injury could have led to the death of such person, and on conviction be liable to a fine not exceeding R100 000 or to imprisonment not exceeding 2 years or to both such fine and such imprisonment’.

As I said above. All crimes have elements and to prove a section 38(2) contravention the prosecution will have to prove that there was an act or omission casually linked to a result (injury) coupled with fault in the form of or culpa (negligence).  It would appear as if the law enforcement agencies are hesitant to make use of this unique crime as I seldom see a recommendation for section 38(2) contraventions even when there are injuries and negligence is proved. I maintain that if an employer is, prima facie, guilty of a section 8 contravention – failing to provide employees with a safe and healthy working environment or a section 9 contravention – failing to ensure their activities do not cause harm to non-employees and this results in injury,  then a section 38(2) contravention should follow automatically. Naturally an employer could argue that all reasonable precautionary measures were taken to ensure a safe and healthy working environment – which incidentally is a defense - but the definition of ‘reasonably practicable’ is essentially the definition of non negligence! So if you succeed with the one then you should succeed with the other.

 "reasonably practicable" means practicable having regard to -

 (a) the severity and scope of the hazard or risk concerned;

 (b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

 (c) the availability and suitability of means to remove or mitigate that hazard or risk; and

 (d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

I predict some serious charges emanating from the Tongaat Mall Collapse case. It may also be one of those rare cases where the client, designer (structural engineer) principal contractor and contractors incur liability in terms of the OHS Act and the common law (culpable homicide).

 Regards

 Raynard

Dear Folks                                                       

I thought it was perhaps time to rehash the rather tired topic of the so-called written appointments in terms of section 16(2) of the OHS Act. Although there has been no change to the wording of section 16(2), DoL has started enforcing, via audits, their own interpretation. Although I disagree with DoL’s interpretation and have motivated my stance many times – including on my website, suffice to say that employers / CEOs who deviate from their rigid interpretation can readily kowtow to DoL’s interpretation and achieve the same result.

Section 16. Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or any liability under this Act.

(4) or the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.

DoL maintains that only the ‘Direct Reports’ of the CEO can be assigned duties in terms of section 16(2) of the OHS Act. These appointments are to be regarded as Statutory Appointments. A statutorily appointed section 16(2) person can then make so-called Non-Statutory appointments further down the line and even a Non-Statutory appointee can make these Non-Statutory appointments.

They argue that the principle of delegare delegatus non potest rule applies meaning that the person to whom duties have been delegated cannot delegate those very same duties further. This advice was presumably obtained from DoL’s legal advisors who were tasked with interpreting the untested section 16(2) of the OHS Act. Decades ago when I studied law –Interpretation of Statutes – I was taught that one way to interpret a statute is to look at the wording of the draft of an Act. In this case the initial wording of the Draft OHS Act. Interestingly enough the draft read as follows:

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may delegate any duty, including the power of further delegation, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

So it is quite obvious that the legislator originally encouraged or endorsed a scenario where a CEO statutorily ‘delegates’ duties down to his/her first reports who in turn can make statutory delegations / appointments down the line. The idea was to have devolution of authority. The legal advisors of the (then) Department of Manpower then advised against usage of the word ‘delegate’ because of its rigid legal baggage – obviously with reference to the very same principle of delegare delegatus non potest which DoL relies on today. So the legislator opted for the word ‘assign’ which has no rigid legal baggage. In fact not one dictionary that I consulted defined ‘assign’ as ‘delegate’. “Assign’ means to:

1. to allocate or give;

2. to appoint;

3. to designate.

Knowing the initial intention of the legislator and knowing that ‘assign’ differs from ‘delegate’, one wonders how sound the legal advice is that DoL obtained. In my view the delegare delegatus non potest principle does not apply. Google even goes further and says an exemption to the delegare principle can be made if the delegator specifically authorises further delegation! One must also bear in mind that the CEO is not obliged to make assignments as the word ‘may’ and not ‘shall’ or ‘must’ is used in section 16(2). So section 16(2) appointments – the assignment has evolved into a written appointment although no mention is made in the sub section to written appointments unlike, for example, the GMR2(1) Competent Person –are not compulsory either. Obviously any prudent CEO will appoint persons to assist him/her in the duty of ensuring OHS Act compliance lest there be a vacuum leading directly to the CEO which would impact on criminal liability if the employer contravenes the OHS Act. By assigning/ appointing competent persons to assist the CEO who is charged with ensuring the duties of the employer are properly discharged, the CEO creates buffers and barriers to protect him/her against potential criminal liability. And this is only right as the CEO is usually too far removed from the realities of the workface. There is no hard-and-fast rule as regard CEO criminal liability in terms of the OHS Act or even common law (workplace fatalities) but this is generally the case unless a contravention or incident can directly be linked to an act or omission on the part of the CEO.

While I have in the past be advising clients to follow the devolution route, whereby a (statutory) section 16(2) can appoint another (statutory) section 16(2) person , I now recommend that we kowtow to DoL’s interpretation since inspectors are enforcing their interpretation via audits. As I said at the outset employers, who follow the devolution route, can achieve exactly the same result with hardly any sweat. In fact the route I recommend illustrates how contrived DoL’s interpretation really is. Only the ‘direct reports’ of the CEO can be statutory section 16(2) appointees according to DoL. These are persons who report directly to the CEO. Their appointment s are cross-referenced to section 16(2) of the OHS Act and are thus statutory appointments. Assumingly DoL feels these appointments carry more legal weight and liability implications. I am not so sure. I maintain that any person who is in charge of a situation which has OHS implications is de facto a human employer / section 16(2) person and an appointment in writing merely reflects reality and makes it de jure. It merely formalises reality and creates a structure which is ultimately headed by the CEO. I also believe that ‘acting subject to the control and directions of the CEO’ in section 16(2) must not be narrowly interpreted as the ‘direct reports’ of the CEO. Surely all employees act, directly or indirectly, subject to the control and directions of the CEO?

The solution is for the CEO to utilise section 16(2) for his/her ‘direct reports’. The appointment letter must reflect that it is a statutory appointment. The statutorily appointed section 16(2) person can then make non-statutory appointment s down the line. The appointment letter must reflect that it is a non-statutory appointment but it must be cross-referenced to section 14 of the OHS Act stating that the contents of the appointment letter, for example ensure that the duties of the employer are discharged in an area of jurisdiction, be regarded as a lawful order given to the appointee in the interests of health and safety. This appointment thus has force-of-law. So is there a difference between statutory and non-statutory appointments? Both refer to a statutory provision of the OHS Act. Perhaps we can label it a section 14(c) appointment? After all supervisors are appointed in terms of section 8(2)(i) which does not provide for an appointment . Section 8 requires employers to provide employees with a safe and healthy working environment and sub section 8(2)(i) merely expands on this duty by requiring, inter alia, proper supervision by a person trained to fully understand the hazards.

I think the bottom-line is that DoL should never have become involved with in-house appointments. Why make such appointments optional and then become prescriptive when employers /CEOs exercise the prerogative.

Section 14. General duties of employees at work.

Every employee shall at work -

(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;

(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;

(c) carry out any lawful order given to him and obey the health and safety rules and procedures laid down by his employer or by anyone authorised thereto by his employer, in the interest of health or safety;

(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer; and

(e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.

Recently I have been inundated with queries regarding the criminal liability impact of acceding to an appointment in terms of section 16(2) of the OHS Act. Many feel that it creates potential personal criminal liability which did not exist before. I have never been a disciple of the theory that an appointment creates personal OHS liability. I believe that if you accept a certain managerial position within a company, you are de facto a ‘human’ employer with the possibility of personal OHS criminal liability if something goes wrong in your area of jurisdiction. This should ideally be reflected in letters of appointment. An appointment merely formalises this situation or makes it de jure. It creates a structure which is ultimately headed by the CEO or section 16(1) individual. This structure is designed to ensure you have the necessary OHS support from above. Everyone has potential personal OHS criminal liability – albeit it workers (section 14) or the ‘human employers (mostly section 8).

Lastly. I have recently locked horns with a few DoL inspectors who fail to understand that there could be a difference between a CEO (corporate title) and CEO as per definition in the OHS Act. A CEO,Newsletter_section 16in relation to a body corporate or an enterprise conducted by the State, is defined in section 1 of the Act as meaning the person who is responsible for the overall management and control of the business of such body corporate or enterprise. The definition links a CEO to a body corporate ((Pty) LTD / Limited / CC) which means that a CEO / section 16(1) person can be found in subsidiary corporate bodies – not business units that are not (Pty) Ltd / Limited / CCs – and there is no need to look to holding companies for the section 16(1) person. Recently an inspector demanded that the CEO attend a section 31 Investigation for a subsidiary company in Port Elizabeth. The person who was in control of the business of the subsidiary corporate body held the (corporate) title of Operations Manager. He is the CEO as per definition in the Act.

Regards

Raynard Looch

KLASS LOOCH ASSOCIATES

Dear Folks 9 April 2013.

The draft construction regulations, promulgated in 2003, have been drifting around in various draft forms since 2009. A version entitled the Construction Regulation 2013 has landed on my desk or, should I say in my inbox. It does differ considerably from the initial draft and is most probably the final version.

Perhaps I am jumping the gun here so I will reserve a more in depth analysis, particularly the liability implications, for later. However, there are some drastic departures from the 2003 regulations as well as the initial draft which have far reaching implications for clients, the focus of my newsletter today. Other changes relating to principal contractors, contractors and even designers are more subtle with the introduction of new players such as the Construction Health & Safety Officer and the Construction Manager. The revised definition of a competent person, with its cross reference to registration with a statutory body approved by the chief inspector, is most probably one of the big the game-changers. The definition of construction work, which has routinely become an issue for me, has also changed with the omission of the leg ‘the installation, erection, dismantling or maintenance of a fixed plant where such work includes the risk of a person falling’ and I am currently locking horns with an inspector who maintains the cleaning of gutters is construction work as defined since it is maintenance to a building while I argue that the thrust of the definition points to an altering of the physical state of a building. (Interestingly enough maintenance of a building has also been omitted in the new definition of construction work). But I digress.

A good point of departure when analysing the construction regulations is to determine its scope. Regulation 2 states that these Regulations are applicable to all persons involved in construction work. The provisions of regulation 3 (Application for construction work permit) and regulation 5 (Duties of client) will not be applicable where the construction work carried out is in relation to a single storey domestic building for a client who is going to reside in such dwelling upon completion thereof. (Such construction work will still be subject to notification of construction work (Annexure 2) by the contractor if the construction work includes excavation work, working at a height where there is risk of falling, the demolition of a structure or the use of explosives to perform construction work).

Construction work in turn is defined as meaning any work in connection with the construction, erection, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure or the construction, erection, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway, sewer or water reticulation or the moving of earth, clearing of land, the making of excavation, piling, system or any similar civil engineering structure or any similar type of work.

Regulation 3 is another big game-changer which impacts considerable upon a client’s duties. A client who intends to have construction work carried out must after 12 months of the commencement of this regulation apply to the provincial director in writing for a construction work permit to perform construction work (Annexure 1) at least 30 days before that work is to be carried out if the intended construction work will exceed 90 days or will involve more than 900 person days of construction work or the works contract is of a value equal to and exceeding R 4 000 000.

The provincial director must then issue a construction work permit in writing within 30 days of the construction work permit application and must assign a site specific number for each construction site. The construction work permit number must be conspicuously displayed at the main entrance to the site for which the construction work permit number is assigned. I’m not sure if should comment too much on this aspect as my experience with bureaucracy has almost landed me in jail. (I was once forcibly removed by security guards out of a Home Affairs Office having told them to shove my ID Book somewhere....). DoL assures us that there will be no delay in granting permits.

I am concerned about the assessment of the information by officialdom which clients or, shall we say the client agent must submit and how this could impact upon the granting of the permit. Are the officials going to have the required construction work / risk assessment expertise to determine whether an application for a permit meets the required standard? I guess we shall just have to wait and see.

Before we go further I must expand upon the compulsory – as opposed to current optional -appointment of an agent. An agent is defined as meaning any competent person who acts as a representative for a client in managing the health and safety on a construction project for that client and who is registered with a statutory body approved by the Chief Inspector to perform the required functions. The statutory body is the SACPCMP. Where a construction work permit is required the client must appoint a competent person in writing as a representative / agent to act as his or her representative, and where such an appointment is made the duties that are imposed by these Regulations upon a client, shall as far as reasonably practicable, apply to the agent so appointed.

This is an interesting departure from the current construction regulations and impacts considerably on the potential criminal liability exposure of clients. Clients are firstly duty-bound to appoint an agent in cases where a permit is warranted. A client cannot appoint any Tom, Dick or Harry anymore despite the current requirement that a client must ensure the agent is competent. The assessment of competency by a client is now conveniently removed from the client and falls to the SACPMCP. Surely if an agent passes the competency test by the SACPMCP, a statutory body approved by the chief inspector and is accredited, the client is virtually ‘indemnified’ – although criminal indemnification, except by the NPA, does not exist in our law – from all client duty misdemeanours? I guess the only way a client can fall foul of the OHS Act or even common law, where a fatality occurs, is if there a link (nexus) to an act or omission on the client’s part, such as a client not providing the necessary resources and support to the agent? And this comes out in evidence during an investigation or inquiry by DoL post an incident or even a mere inspection. And that will pit agent against client. While some clients may see the mandatory appointment of an agent as a sort of ‘get-out-of-jail-free-pass’ for clients, it is stated in the regulation that the appointment of an agent does not derogate from the responsibilities and liabilities of the client. DoL has stated on numerous occasions that they will be focusing on clients when enforcing the construction regulations since the client sets the (OHS) tone for the construction work and control the purse strings. Perhaps the compulsory accreditation of agents by the SACPCMP has unintended consequences? Anyway the focus is invariably on contractors after a construction incident and the rather bland section 31 Investigation by DoL, if indeed held, will invariably not be ‘forensic’ enough to establish a nexus to clients or even designers. Perhaps the legislator should change regulation 5 (Duties of the client) to read ‘Duties of the Agent where Construction Permits are required’?

In instances where a permit is not required, for example, the construction work does not exceed 90 days / 900 person days / R4 million, notification by the contractor is required and the appointment of an agent is not mandatory save if an inspector requires it.

As mentioned above another concern is the competency of the officials to digest the (OHS) documentation that an agent must send upfront to support the application for a construction permit. I would be interested to know what criteria, if any, will be used to reject or accept an application. Perhaps some guidelines will be published by DoL to assist the agent upon whom this duty falls.

Application must be made in the form of Annexure 1 which oddly introduces another role-player, the Construction Health & Safety Manager. I see no mention of this individual in the definitions to the regulations and assume he/ she is an optional SACPCMP Accredited Person. Since there is provision in Annexure 1 for the applicant to name the Construction Manager (Block 5a) and the Construction Health & Safety Manager (Block 5b) they are indeed different individuals. Be that as it may the agent must prepare and submit with the application a documented baseline risk assessment for an intended construction work project and a suitable, sufficiently documented and coherent site specific health and safety specification for the intended construction work based on the baseline risk assessment. A letter of Good Standing (COID Act) pertaining to the principal contractor must be submitted as well as proof in writing that:

1. the designer has been given the health and safety specification;

2. that the designer has taken the prepared health and safety specification into consideration during the design stage;

3. that the designer has carried out all responsibilities as contemplated in regulation 6.(Duties of the Designer).

4. that the health and safety specification has been included in the tender documents;

5. that potential principal contractors submitting tenders have made adequate provision for the cost of health and safety measures;

6. that the principal contractor to be appointed has the necessary competencies and resources to carry out the construction work safely.

The agent must ensure that the principal contractor keeps a copy of the construction work permit in the occupational health and safety file for inspection by an inspector, the client and the client's agent where authorised or an employee. No construction work may be commenced or carried out before the construction work permit and number are issued and assigned. The unique number issued is also not transferrable.

Still polishing it.

Dear Folks September 2012

What is proper supervision as required by section 8 of the OHS Act?

I have often been asked at workshops what could be construed as proper supervision at the workplace since it is a requirement of section 8 of the OHS Act. Regrettably I cannot find any case studies pertaining to actual workplaces but have found one or two court cases that provide us with the principles that most probably would be used in determining what would be regarded as correct or proper supervision at the workplace.

In order to provide employees, as far as is reasonably practicable, with a safe and healthy working environment, section 8 of the OHS Act stipulates, inter alia, that work must be performed and plant or machinery used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented.

It is interesting to note that the Legislator does not utilise the words ‘constant supervision’ and, unlike the employer’s duty of making employees conversant with hazards, appears to only require employers to make supervisors understand the hazards. This may be semantics and it may not even be indicative of any agenda on the part of the Legislator but in my view conversancy is a stronger word, meaning to fully understand the full realm of a hazard including the precautionary measures to remove or mitigate the hazard. Be that as it may, a measure of supervision is required for an employer to discharge its duty in terms of section 8 of providing employees with a safe and healthy working environment. This duty is also not absolute but is tempered or softened with reasonability and practicability
. Section 1 of the OHS Act does give guidelines as to what should be considered when determining whether one is acting within the bounds of reasonability and practicability.

Dear Folks 24 July 2012
 

I am often confronted by individuals who stubbornly cling to the annoying misconception, sadly held by many in high corporate circles, that it is legally possible to avoid potential liability in criminal legislation by outsourcing or delegating (OHS) statutory duties.

I cannot emphasise enough that no-one can indemnify themselves against potential criminal liability.

One cannot dictate to the National Prosecuting Authority (NPA) who, in OHS matters at least, and based on the recommendations of the DoL and DME Inspectorates, decide on prosecution - either in terms of the common law (fatalities) or the statutes (OHS & MHS Acts). The provisions of the Criminal Procedure Act apply, inter alia, regarding corporate body prosecutions.

If, for example, a client, as defined in the construction regulations, is afforded certain statutory duties in criminal law, (the OHS Act) and that Act provides for a client to outsource all or some of these duties, the client remains potentially criminally liable for any failure to discharge these statutory duties. Evidence, for example, that the client appointed a competent agent to discharge its duties and provided the agent with all the necessary resources to discharge the (client) duties, would invariably exculpate the client in the event of a contravention of construction regulation 4. There are, however, no hard-and-fast rules as regards criminal liability and prosecutors can charge entities such as clients for considerations such as ‘Justice must be seen to be done’ only to see them exonerated though evidence!

Normally the prosecution would look for a link (nexus) to an act or omission of the part of someone / corporate body and an end result. If the nexus is too tenuous that would normally dictate against prosecution. Our Criminal Procedure Act even allows prosecutors to test matters in court where there is doubt as to potential liability. (Let them come state their case in court scenario)!

I suggest that all protagonists of the Criminal Indemnity School look to section 16 of the OHS Act that states :’

Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.’

The CEO always remains potentially criminally liable of contraventions of the Act even if he/she assigns/appoints competent persons to assist in ensuring compliance with the provisions of the OHS Act. Invariably, if the CEO can show reasonable involvement in OHS Act compliance, he/she would normally not be held personally accountable / liable and prosecutors would look lower down the corporate chain. Corporate liability is another issue.

Section 41 of the OHS Act specifically says, save two exceptions, that you can contractually manipulate the OHS Act which really means that if you have statutory duties in terms of the Act, those duties remain even if you contractually pass them onto other persons or entities. You remain potentially liable for transgressions and the evidence exculpates you. But it is not automatic!

Dear OHS Practitioners May 2012

One of the common denominator issues, along with section 16 and section 37(2), is General Machinery Regulation (GMR) 2. In particular the competency issue surrounding the appointment of the full time ‘employee’ who must be appointed in writing to oversee machinery for every premises where machinery is used.

The purpose of this newsletter is not to regurgitate the regulation, in particular the level of competency linked the KW formula. We have lived with this formula since 1988. I will rather focus of the burning issue of whether you can outsource this function – to persons not on your payroll – and what the boundaries of the appointed person’s responsibility and liability are.

The regulation (GMR2) states that this person (further down it mentions an employee) must be appointed In order to ensure that the provisions of the Act and these Regulations in relation to machinery are complied with.

In order to ensure that the provisions of the Act and these Regulations in relation to machinery are complied with, an employer or user of machinery shall, subject to this regulation, in writing designate a person in full time capacity in respect of every premises on or in which machinery is being used. Subject to the provisions of this regulation, an employee designated in terms of subregulation (1) shall be a competent person.......

Machinery is in turn defined as meaning any article or combination of articles assembled, arranged or connected and which is used or intended to be used for converting any form of energy to performing work, or which is used or intended to be used, whether incidental thereto or not, for developing, receiving, storing, containing, confining, transforming, transmitting, transferring or controlling any form of energy.

It is clear that the GMR2(1) ‘Machinery Supervisor” is responsible to ensure that machinery, as defined above, is safe to be operated. It has a mechanical / electrical slant. The duty of ensuring employees are trained to safely operate machinery should fall to the Employer whose human face is the section 16(1) or invariably the section 16(2) Assignee. In other words if there in an incident linked to machinery and it emerges from evidence that the machine was safe to be operated but the operator lacked sufficient training to operate it safety, the section 16(2) Assignees should be called to account and not the GMR2(1) Appointee. And vice versa. This is not always understood by the law enforcement agencies.

Employers also fail often to provide the GMR2(1) Appointee with a machinery-slanted support structure despite the regulation providing for this.

GMR2(7)(a)

An employer or user of machinery may designate one or more competent persons to assist a person designated in terms of subregulation (1).

Essentially this means that if an employer has a premises where machinery is used and, depending the sum of the power generated by machinery on or in the premises in question and the power derived from other sources, the correct category of competence person is appointed, this appointee may be assisted by a subordinate competent person or GMR2(7)(a) Appointee as it has become known.

The competency requirement for this appointment is having served an apprenticeship in an engineering trade which included the operation and maintenance of machinery, or has had at least five years' practical experience in the operation and maintenance of machinery, and who during or subsequent to such apprenticeship or period of practical experience, as the case may be, has had not less than one year's experience in the operation and maintenance appropriate to the class of machinery he is required to supervise. Qualifications are thus not the only requirement and 5 years general practical experience and 3 years on the class of machinery will suffice. DoL need not be notified of this in-house appointment unlike the requirements for the GMR2(1) Appointee.

The real burning issue is the outsourcing of this function to someone who is not on an employer’s payroll and not regarded traditionally as an employee. After all the regulation stipulates that only an employee in a full-time capacity may be appointed in terms of this regulation.

An employee is defined in the OHS Act as meaning any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person.

In other words if you have a contractor who is full time on the premises / in a full-time capacity and is working under your direction and supervision then that person meets the definition of an employee in the Act and may be appointed in terms of this regulation.

Dear Mr Looch,

I respectfully disagree with the statement marked in red in your newsletter (‘….the operator lacked sufficient training to operate it safety, the section 16(2) Assignees should be called to account and not the GMR2(1) Appointee’).GMR 4(1), in turn, defines that the ‘ employer … shall ensure that every person authorised to operate machinery is fully aware of the dangers attached thereto and is conversant with the precautionary measures to be taken or observed to obviate such dangers’.Surely the accountability of the employer and the CEO or his designate as you describe it below is not debatable, but, it is my respectful submission, that GMR4(1) read with GMR2(1) places an onus (and personal accountability) on the person of the GMR 2(1) as well. It may be that the employer’s and CEO’s accountability are primary (although I feel for accountant CEO who relies on the [expensive] Certificated Engineer to ensure ‘engineering compliance’), but, to my opinion, the legal provisions define that the GMR2(1) Appointee must be called to account.

Kind regards,

JNR Lapere


Dear Dr Lapere

Thank you for the response.Normally I write these newsletters into a vacuum. Liability is a tricky. No hard-and-fast rule. In my (former) OHS prosecutor days I would still would go for the (human) employer but nothing prevents a prosecutor from pursuing the GMR2(1) as well. Sometimes prosecutors have to decide who to utilise as a witness and who to prosecute.I must add there is a tendency today for the NPA to go primarily for the corporate body.
Regards

Raynard

Click here to access the Open Letter written to the Chief Inspector regarding the manner in which inspectors conduct investigationsi.t.o. section 31

Dear Folks

I did promise in my last newsletter that I would address the (often) thorny and misunderstood section 37(2) Written Agreement. I think I said it had evolved into a monster.

I actually wrote an article on it some ago along with section 10 of the OHs Act and section 21 of the MHS Act. I stick to the article which is attached but can add some additional comments. Click on
http://www.klasslooch.com/6201/24722.html

The most common misconception is that once such an Agreement has been concluded the Employer / Principal is indemnified from any potential criminal liability which may emanate from the provisions of section 37. Firstly there is no such thing as a criminal indemnity. Indemnities are a civil law creation whereby parties can contract out of civil liability. Most of you will be familiar with indemnities particularly signposting at gyms and parking lots whereby owners refuse to accept liability for injury and damage. Parents are often required to sign indemnities for school outings and, although not my forte, I recently presented a workshop on the topic to various private schools. You will also find them on the back of entrance slips when entering workplaces. I have seen some terrible Indemnity signposting in my life and often wonder if a legal practitioner actually advised on the wording. While I digress and just for fun tell me what is wrong with this indemnity? Click on http://www.klasslooch.com/180556.html

As I mentioned there is no such thing as a criminal indemnity. One cannot dictate to the National Prosecuting Authority (NPA) on criminal matters and the OHS Act is criminal law. So hopefully that is laid to rest.

The second issue I have with the Section 37(2) Written Agreement is that it has evolved into a long cumbersome contract – along the lines of a civil law contract – often 40 pages long with almost the entire OHS Act being regurgitated. It is unnecessary in my view to repeat the Act in the Written Agreement. The mandatary is supposed to know the Act. Use the Agreement more as a cover page to introduce your own particular OHS requirements while at the same time creating an arrangement to ensure the mandatary complies with the provisions of the Act. Contractors are wary and irritated by these unnecessarily of these long ‘civil law official-like’ Written Agreements drawn up by attorneys who usually fail to understand the rationale behind the Written Agreement.
I suggest something short and sweet along these lines.

Another misconception is that the Written Agreement is compulsory and that the failure to conclude one is somehow a contravention of the Act. As you see from the attachment the Written Agreement is merely encouraged to demonstrate reasonable OHS behaviour of the part of the Employer / Principal and helps by a third to combat the presumption-in-law that potentially creates vicarious liability for the ‘sins’ of the mandatary / contractor.

Finally is a Written Agreement not superfluous when undertaking construction work? I think so but see no harm in it being utilised perhaps to introduce an employer / client’s Health & Safety Specifications or a principal contractors Health & Safety Plan which must incorporate the client’s specifications. The constructions regulations are so prescriptive in that require inter-action between the various role-players which, if complied with, will in any case meet the requirements of section 37 and automatically rebut the presumption –in-law that presumes an Employer to have committed the offences of the construction mandatary. Remember section 37 existed long before the construction regulations were promulgated.

I think I did mention that I plan to resuscitate my open OHS workshops in JHB, PE, DBN and CT later this year as I have loads of new information to share with you. The last time I did it was in 2009! I still enjoy in-house OHS workshops as they can be more tailored to suit your needs. My fee structure is one my website at
www.klasslooch.comor click on http://www.klasslooch.com/5201/12201.html

Dear OHS Practitioners

Much of my time has recently been consumed by the draft amendments to the construction regulations. The window for comment has closed and we await either the promulgation or an amended set of draft regulations. I am quite sure how it works but wonder how much of the comments will be included.

Without going into too much detail, I anticipate problems with overall authority at construction sites. It was quite obvious from the duties that are placed on clients that the majority of clients will need to appoint an agent to discharge these duties. Also that the agent will have to have extensive OHS construction experience. In fact the agent has more duties than the client. The client is empowered to stop any construction on a site which deviates from the client’s H & S Specifications or principal contractor’s H & S Plan or any activity which poses a threat to the health and safety of persons. Such deviation or threats assumedly will be detected during audits which must be conducted at least every 14 days. The client thus has overall authority and must stop work if such deviations or threats occur and may overrule any objections from contractors. It suggests that the clients have specialised construction expertise lest construction work be unnecessarily stopped resulting in a stand-off with contractors. The client is also duty-bound to investigate any fatality or permanent disabling injury and to submit a report to the inspector who is conducting an investigation in terms of section 31 of the OHS Act followed by a report within 30 days of remedial steps. (Not section 24 as construction regulation 4(3) reads). It is unclear whether the client must wait to be directed by an inspector before investigating and reporting these incidents or whether the inspector will direct the nature/ thrust / contents of the report. (Where a fatality or permanent disabling injury occurs on a construction site, the client must provide the provincial director with a full report as directed by the inspector who is conducting the investigation under section 24 of the Act, and must include the measures that the client intends to implement within 30 days to ensure a safe construction site as far as is reasonably practicable).

This means that if an incident occurs involving a contractor, the contractor must investigate the incident as per General Administrative Regulation 9 and merely record the findings on Annexure 1. Unlike the client the contractor is not obliged to submit a full report to the inspector including the 30 day remedial deadline. There is no explicit prohibition on a joint client / contractor investigations and I assume if this is done, a full investigation report will have to be submitted to the inspector. Perhaps the inspector can direct a joint investigation?

In all likelihood a client will routinely have to appoint a competent agent to discharge its duties. An agent is defined a as any competent person who acts as a representative for a client in managing the overall construction work performed for the client. The agent sounds more like a project manager in terms of this definition. Is there a difference? The regulations make no provision for the appointment of project managers although there is reference to project management in construction regulation 5(b)(vi) where agents are obliged to (audit) debrief the client’s project management and principal contractor before leaving the premises after a safety management system audit. Perhaps a client should merely fall back on section 16(2) when appointing project managers – if indeed there is a difference between an agent and project manager.

While most of the duties of a client can be transferred to an agent, I find it odd that an agent’s duties actually exceed that of a client. Clients who do not appoint an agent appear not be obliged to conduct safety management system audits. (Clients must merely ensure that the health and safety plan is implemented and maintained on the construction site and that periodic health and safety audits at intervals mutually agreed upon between the client and principal contractor are conducted - but at least every 14 days). These audits by agents must include inspections, surveys, monitoring, incident investigations, complaints and audit debriefing.

To avoid overlapping duties, to control personalities/egos, I recommend that contracts between clients and principal contractors / contractors be used to regulate some of these blurry situations listed above. Call me a pessimist but I anticipate problems.

More on the draft construction regulations to follow.

Dear OHS Practitioners

I continue to look at aspects of the OHS Act Working Documen6t which will form the foundation of the new OHS Act. After the prolonged debate surrounding section 16 of the OHS Act, in particular the assignment of duties emanating from the CEO in terms of section 16(2), I’m sure many of you will be curious as to the future scenario. Will the proposed new Act place more onerous duties on the CEO, clarify the manner in which the CEO creates a team to assist in his or her duty of ensuring compliance with the Act and finally lay the delegation vs. assign debate to rest. Will it oblige an entirely new system resulting in a massive OHS organisational restructure?

The good news is that no real major changes are proposed. The CEO will still be the person ultimately responsible to ensure compliance as it currently is the case with both the OHS and MHS Acts. However, via an almost innocuous subsection, CEOs may find themselves more easily in trouble than before. That is to say if a CEO does not decide to transfer all his or her OHS obligations to another member of the Board, something which the current MHS Act does allow in section 2A(3). That Act as well as the Bill essentially provides for two CEOs. One, the CEO in the traditional sense or overall CEO, and, the other, the CEO for OHS purposes only! Section 11(4) of the *Bill reads ‘If the employer or person conducting a business or undertaking is a corporate body, the responsibilities of the chief executive officer in terms of sub-sections (1) and (2) may be performed by a member of the board of the body corporate, designated by the board’. The innocuous provision I mentioned requires explicit overseeing and monitoring by the CEO something which neither of the existing OHS statutes (explicitly) requires. Most CEOs would, however, find it condescending to be told how to properly assign or delegate duties but it is something that SHE advisors and auditors may need to take into consideration when providing advice or auditing. Monitoring and overseeing are the foundations of a proper delegation or assignment but some CEOs may fall foul of the Act if they, particularly after an incident, could not provide any tangible proof of such monitoring or overseeing. As with any delegation or assignment of duties, the further removed the CEO is from the workface, the less monitoring would be appropriate to demonstrate reasonable monitoring. The Bill has omitted the requirement of both the OHS and MHS Acts that the assignee act subject to the control and directions of the CEO but, in my view, the monitoring requirements includes the control element and even goes further.

Like the OHS and MHS Acts the Bill does not oblige a CEO to assign any responsibilities but unlike the current situation, if a CEO opts to assign, then it must be done in writing, a practice which in any case has become the norm. Naturally a CEO would grasp the opportunity of utilising this provision, not only to cushion his or her potential criminal liability but also to establish a functioning Employer Health and Safety Structure which ultimately is headed by the CEO. Interestingly enough the Bill does not require an assignment to a person who acts subject to the (direct?) control and directions of the CEO!

Perhaps equally condescending is the provision in section 11(2)(b) which provides that the CEO must ensure that any person who is assigned any responsibility has the means and capacity to comply with that responsibility. As with any delegation or assign of duties, it would ‘upfire’ if, for example, post an incident, it appears that a CEO assigned duties to an incompetent person or failed to provide them with sufficient resources to discharge the duties.

The bottom-line is that you can still adopt the cascading or devolution approach whereby the CEO assigns his or her duties to an individual who in turn assigns down the line. It remains an in house arrangement and is no one else’s business except yours. SHE practitioners and auditors should avoid recommending rigid or impracticable structures, particularly those who belong to the delegatus delegare non potest school which contains an Administrative Law restrictive requirement preventing a delegator from providing for further delegation. I stick to my assessment of section 16(2).

Public companies should take cognisance of the introduction of a new appointment namely that of the Health & Safety Director in
section 12 of the Bill. This individual will have far more onerous health and safety duties than the CEO including reporting functions to the Board on health and safety matters. Failure to perform these more prescriptive health and safety functions may cause the Health & Safety Director to end up in court. This individual may not be the CEO and his or her appointment will not necessarily relieve the CEO of any potential criminal liability in terms of the new proposed Act.

OHS Bill Working Document.
Section 11. Responsibilities of chief executive officer

(1) The chief executive officer of every employer or person conducting a business or undertaking is responsible for ensuring that the employer, business or undertaking complies with its obligations in terms of this Act.

(2) The chief executive officer –

(a) may assign in writing any responsibility of the chief executive officer in terms of sub-section (1);

(b) must ensure that any person who is assigned any responsibility has the means and capacity to comply with that responsibility;

(c) must oversee and monitor the manner in which that person performs the assigned responsibility.

(3) An assignment in terms of sub-section (2) does not derogate from the responsibility of a chief executive officer in terms of sub-section (1).

(4) If the employer or person conducting a business or undertaking is a corporate body, the responsibilities of the chief executive officer in terms of sub-sections (1) and (2) may be performed by a member of the board of the body corporate, designated by the board.

(5) This section does not relieve an employer or person conducting a business or undertaking of any of responsibilities imposed upon it by this Act.

OHS Act Section 16. Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or any liability under this Act.

(4) For the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.

MHS Act Section 2A. Chief executive officer charged with certain functions

(1) Every chief executive officer must take reasonable steps to ensure that the functions of the employer as contemplated in this Act, are properly performed.

(2) Without derogating from any responsibility or liability of the chief executive officer in terms of subsection (1), the chief executive officer may entrust any function contemplated in the said subsection to any person under the control of the chief executive officer, which person must act subject to the control and directions of the chief executive officer.

(3) If the employer is a body corporate, the functions of the chief executive officer contemplated in subsections (1) and (2) may be performed by a member of the board of the body corporate designated by the board.

(4) Subsections (1), (2) and (3) do not relieve an employer of any duty imposed on employers by this Act.

(5) Every person appointed in terms of section 3 or 4(1) must perform their functions subject to the control and direction of the chief executive officer or the person contemplated in subsection (3).

OHS Bill Working Document. Section
12. Appointment of health and safety director

(1) Every company, excluding a private company, must appoint one of its directors as a health and safety director.

(2) The health and safety director appointed in terms of sub-section (1) must –

(a) monitor on a regular basis –

(i) the implementation and effectiveness of the company’s health and safety management systems;

(ii) the health and safety performance of the company;

(b) ensure that the company’s management systems provide for effective reporting and monitoring of the company’s health and safety performance;

(c) report to the board on –

(i) any significant health and safety failure and on recommendations for changes to the company’s health and safety management systems;

(ii) the health and safety implications of any decisions of the board.

(3) The person performing the functions of the health and safety director may not be the chief executive officer or any person to whom a function of the chief executive officer in terms of section 11 has been assigned.

(4) The appointment of a health and safety director does not affect any duty or liability in respect of health and safety imposed on any director in respect of health and safety in terms of this Act or any

Dear OHS Practitioners

Many of you have been wondering about the future of the OHS Act in view of the fact that a draft National Occupational Health & Safety (NOH&S) Bill has been floating around for some time. The NOH&S draft Bill envisaged lumping the OHS and MHS Acts together in one OHS Act with one OHS Authority, comprising the current MHS Inspectorate and DoL’s I&ES, as the enforcement body. An undertaking was made in this regard to the International Labour Organisation (ILO) by means of a treaty. A treaty is a binding international contract. It now appears that South Africa is going to renege on that treaty and abandon the idea of a national OHS Act. The MHS Act will remain as is and the current 1993 OHS Act will be repealed. My information is that the review and ultimate publication of a draft may be fast tracked although I have my doubts as to whether we will see a draft this year. (We are still waiting for the amendments to the construction regulations to be promulgated).

The new Act will be almost identical to the draft Bill save that mines will be omitted. All references to the National Occupational Health & Safety Authority will merely be deleted and replaced by the Chief Inspector. Fortunately most of us have a good idea what the new Act will entail since the draft NOH&S Bill was leaked about two years ago. I have even presented workshops on the draft Bill and written numerous newsletters on it which I will regurgitate in time.

I personally am disappointed. Not necessarily because the Department of Mines successfully resisted attempts at integration but because the Authority would have had a (semi) autonomous status along the lines of the UK’s Health & Safety Executive (HSE). OHS should be removed from the clutches of the Department of Labour (DoL) which has virtually destroyed the effectiveness of the Inspectorate since 1996. Numerous attempts to rectify the failed transformation exercise which saw an exodus of experienced inspectors have in turn failed and no amount of new legislation will rectify the situation. In fact I doubt a new Act will have any impact unless the standard of inspectors and thus enforcement is drastically improved. You may recall that DoL desperately turned to outsourcing investigations and inquiries a few years ago, the irony being that these outsourcing companies consisted entirely of former inspectors. These inspectors should have been retained at all costs in order to mentor the new recruits. Perhaps more than any other profession the key to competent inspectors is retention since experience is vital.

But it seems as if the problem is not merely confined to DoL. The Mining Audit which former President Mbeki ordered also revealed that the National Prosecuting Authority (NPA) is to blame for poor performance. It revealed that out of 218 MHS Act cases, probably mostly fatal accidents, where charges of culpable homicide could be brought, only 4 had been concluded since 2004! Unlike the OHS Act, the MHS Act requires a (formal) inquiry into any mining fatality which generates a recorded transcript. This, coupled with a more experienced Inspector’s Report, is a luxury for any prosecutor - yet they seem reluctant to touch OHS criminal matters. NUM invariably has legal representation which also provides the prosecutor with a tested version of events. You can only imagine a prosecutor’s dilemma when confronted by an OHS Act section 31 Inspector’s Report. (One of the positive spin-offs of the proposed new Act will be that an inspector will be compelled to furnish the employer with a copy of the Report – something I have moaned about for decades).

I have copied the chapters of the draft / discussion document which are relevant. (I have omitted the chapter pertaining to the Authority since it no longer will be applicable).

I read between the lines that a proposal is may be on the table to penalise employers for OHS crimes with a percentage of the profit in addition to a fine. Certain employers may require a permit to operate along the lines of the old Factory Registration Certificate that existed decades ago. Contraventions of the Act could result is Permits being withdrawn.

Administrative Fines, proposed by inspectors, will be introduced in lieu of prosecutions and this could prove problematic given the experience of most inspectors.

You may wonder why the statutory crime Corporate Homicide is necessary given that corporate bodies may be convicted of the common law crime of culpable homicide. The potential of a culpable homicide charge for companies will remain since Corporate Homicide will be a lesser charge but the introduction of a statutory homicide charge, perhaps for the first time in our criminal law history, will allow inspectors - also for the first time - to recommend homicide charges. As the name suggests, it will be limited to corporate bodies and inspectors will not be able to recommend homicide charges against natural persons. Only the NPA will be able to do this post a fatal workplace accident.

I will keep you briefed on developments.

I am proud to be associated with a new 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
http://www.saiosh.com/

Regards

Raynard

TABLE OF CONTENTS

CHAPTER 1

1. What is the objective of this Act?

2. To whom does this Act apply?

3. Application to sectors with specific health and safety legislation

4. What is work?

5. What is a workplace?

6. Who is a worker?

7. Who is a self-employed person?

8. Who is an employer?

9. Who is a person who conducts a business or undertaking?

10. Interpretation

11. Responsibilities of chief executive officer

12. Appointment of health and safety director

CHAPTER 2

13. Application

14. Duties of employers

15. Duties of person who conducts a business or undertaking

16. Duties of self-employed persons

17. Duties of persons in control of workplace

18. Duties of persons in control of machinery or plant

19. Duties of persons who share workplaces

20. Duties in respect of articles used at workplaces

21. Duties in respect of design or construction of workplaces

22. Duties of persons in respect of hazardous substances

23. Complying with duties in terms of Part One

24. Health and safety management system

25. Duty to identify hazards and prevent or minimise risks

26. Employer to provide health and safety training

27. Duty to ensure adequate supply of health and safety equipment

28. Appointment of persons

29. Employer to investigate accidents and other occurrences

30. Costs of examination

31. Record of hazardous work

32. Record of medical surveillance

33. Duties for health and safety of persons at work

34. Worker’s right to leave dangerous working place

35. Workers not to pay for safety measures

36. No discrimination against workers who exercise rights

37. Workers’ right to information

38. Defences

CHAPTER 3

39. Application of this Chapter

40. Which workplaces must have health and safety representatives and committees?

41. Immunity from liability and protection from discrimination

42. With whom must employer consult or negotiate?

43. Subject matter of consultations or negotiations

44. Collective agreements in terms of this Chapter

45. Who may be a representative?

46. How do employees elect representatives?

47. What are the rights and powers of representatives?

48. How must the employer assist representatives?

49. When must employer notify representatives?

50. When may workers elect full-time health and safety representatives?

51. Establishment of health and safety committees

52. Committee procedures

53. Rights and powers of health and safety committee

54. Duty to support committee

55. Disclosure of information

56. Disputes concerning this Chapter

57. Disputes concerning disclosure of information

58. Disputes concerning full-time health and safety representatives

59. Minister’s power to make regulations

CHAPTER 5

85. Appointment of inspectors

86. Entry into places

87. Power to question and inspect

88. Inspector may be accompanied

89. Duty to assist inspector and answer questions

90. Duty to produce documents required by inspector

91. Inspector’s power to deal with dangerous conditions

92. Inspector’s power to order compliance

93. Instructions to be publicised

94. Right to appeal inspectors’ decisions

95. Right to appeal Chief Inspector’s decision

96. Appeal does not suspend decision

97. Initiating investigations

98. Chief Executive may designate assistant in investigation

99. Duty to answer questions during investigation

100. Reports on investigations

101. Initiating inquiries

102. Inquiry in respect of matter that has been investigated

103. Chief Inspector may designate assistant in inquiry

104. Inquiry to be public

105. Right to participate in inquiry

106. Powers of person presiding at inquiry

107. Duty of persons summoned or instructed

108. Inquiry records and reports

109. Chief Inspector may order further inquiry

110. Enhancing effectiveness of inquiry

111. Inquiry and inquest may be conducted jointly

112. Review of decision

CHAPTER 6

113. Power of Minister and Chief Inspector to regulate health and safety

114. Regulations

115. Incorporation of standards into regulations

116. Codes of practice

117. Chief Inspector may prohibit or restrict work or declare health hazards

118. Workplace health and safety plans

119. Exemption from all or part of this Act

120. Publication of draft for comment

CHAPTER 7

121.
Corporate homicide

122. Negligent occupational injury

123. Negligent causing of injury by any person

124. Imputation of criminal liability

125. Commission of offence by employee or mandatory

126. Safety equipment not be interfered with

127. Breach of confidence

128. Hindering administration of this Act

129. Falsifying documents

130. Failure to attend when summoned

131. Failure to comply with this Act

132. Penalties

133. Magistrates’ Court has jurisdiction to impose penalties

134. Proof of facts

135. Recommendation to impose administrative fine

136. Decision in respect of administrative fine

CHAPTER 8

137. Delegation and exercise of power

138. Serving documents

139. Minister’s power to change Schedules

140. Repeal and Amendment of laws

141. Transitional arrangements

142. Act not effected by agreement


SCHEDULES

SCHEDULE 1: Matters on which the Minister may make regulations

SCHEDULE 2: Maximum fines or period of imprisonment

SCHEDULE 3: Acts amended or repealed by this Act

SCHEDULE 4: Transitional provisions

SCHEDULE 5: Definitions


Ever since the construction regulations were promulgated in 2003, employers / owners of structures have struggled with the interpretation of construction regulations 9(4) and 9(5). Only recently did the real implications of a rigid interpretation dawn on me and so I have decided to approach DoL for their opinion / interpretation.

With this in mind I thought some of you risk managers which risk an opinion. I have published the draft of the letter to DoL on my website on
http://klasslooch.com/43601.htmlin the hope that we can get a debate going. I have had an OHS Forum button on www.klasslooch.comfor some time now but feel perhaps now is the right time to revive it. I expect to hear from Eddy, Basie and Sivi!

Construction Regulation 9 (4) Any owner of a structure shall ensure that inspections of that structure upon completion are carried out periodically by competent persons in order to render the structure safe for continued use: Provided that the inspections are carried out at least once every six months for the first two years and thereafter yearly and records of such inspections are kept and made available to an inspector upon request.

Construction Regulation 9(5) Any owner of a structure shall ensure that the structure upon completion is maintained in such a manner that the structure remains safe for continued use and such maintenance records shall be kept and made available to an inspector upon request.

"competent person" means any person having the knowledge, training, experience and qualifications specific to the work or task being performed: Provided that where appropriate qualifications and training are registered in terms of the provisions of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), these qualifications and training shall be deemed to be the required qualifications and training.

"structure" means -

(a) any building, steel or reinforced concrete structure (not being a building), railway line or siding, bridge, waterworks, reservoir, pipe or pipeline, cable, sewer, sewage works, fixed vessels, road, drainage works, earthworks, dam, wall, mast, tower, tower crane, batching plants, pylon, surface and underground tanks, earth retaining structure or any structure designed to preserve or alter any natural feature, and any other similar structure;

(b) any formwork, false work, scaffold or other structure designed or used to provide support or means of access during construction work; or

(c) any fixed plant in respect of work which includes the installation, commissioning, decommissioning or dismantling and where any such work involves a risk of a person falling two meters or more.

I won’t repeat the draft letter save if you cannot access it but the dilemma revolves around the following:

1. How in depth must these inspections be?

2. What level of competency is required?

3. Do the regulations only apply to structures than have been completed post 2003 when the construction regulations were promulgated?

Of course the cost factor is of major concern especially if the intention is that structures be thoroughly (forensically) tested. Very few owners of structures will have the expertise to fulfil this requirement particularly if the intent is a thorough forensic inspection. They would in variably have to outsource this function or recruit specialists to perform this task. But then again owners of structures can only act within the bounds of reasonability and practicability and the cost factor surely forms part of the definition / guideline.

"reasonably practicable" means practicable having regard to -

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

Perhaps designers should be given a statutory duty of compiling a checklist for owners upon completion? (Don’t shoot me Basie)!

Are owners absolved of any duty of ensuring a structure remains safe for use which were erected before the promulgation of the construction regulations –that is to say - if the duty of inspection at annual intervals only applies post 2003? No. Owners, as controllers of the safety of a structure, have a common law duty of ensuring the structure remains safe as well as a broad based (section 8) duty to employees and to the public (section 9) particularly if employers are owners.

There have been some interesting court cases lately as well. In
Engineering Council of SA & another v City of Tshwane Metropolitan Municipality & another [2008] (T), the Gauteng North High Court ruled in favour of a whistleblower who informed the Department of Labour that the Tshwane Metro had lower standards to allow unqualified / under qualified persons to perform hazardous electrical tasks. This despite being protected by section 26of the OHS Act entitled Victimisation Forbidden. The Tshwane Metro dismissed him for writing a letter to the Department of Labour without authority. The High court ruled in his favour but the Tshwane Metro, using taxpayers’ money, decided to take the matter to the Constitutional Court. The case will continue on 4 May 2010 but, judging from remarks made by the judges as reported in the media, is seems likely that safety will prevail over other (equity) considerations and section 26 will prevail.

In Chartaprops 16 (Pty) Ltd & another v Silberman 2008 SCAMrs Silberman, whilst at a shopping mall owned by Chartaprops, (the first appellant), the Mrs Silberman (respondent) slipped on a substance on the floor, and had injured herself. The second appellant was an independent contractor ( cleaning company) which the Chartaprops had contracted to keep the floors clean. Mrs Silberman respondent successfully sued both appellants for damages in the High Court , leading to the appeal. The Supreme Court of Appeal (SCA)ruled that the Chataprops had tasked the cleaning company appellant (independent contractor) with going over the floor at intervals of no more than five minutes. As owner of the mall, it was required to take no more than reasonable steps to guard against foreseeable harm to the public, which it had done by engaging an independent contractor.

The SCA found that the independent contractor had done what was required of it, and held Chartaprop liable for the damages and not the independent contractor. Does it amount to a civil version of
section 37of the OHS Act?

The formal inquiry into the Paarl Print fire in which 13 people died and which occurred on 17 April 2009 is currently under way. From media reports it seems as if the union (Ceppwawu) legal representative is focus on training for emergency situations. I imagine he is focusing on the section 8 duty placed on employers to ensure employees are trained into the pre cautionary measures against fires as well as Environmental Regulations for Workplace 9 ‘Fire precautions and means of egress’.

In the next newsletter I will discuss the implications of another challenge to
section 35of the COID Act which prohibits civil suits by employees against their employers. The Constitutional Court was quite clear in Jooste v Score Supermarket Trading that this prohibition is constitutional. But what is an employee is covered by the Occupational Diseases in Mines and Works Act (Odimwa) which provides for once-off compensation for occupational diseases. Click here

Dear Folks

As my first newsletter of 2010, I would like to take this opportunity of wishing you all a safe, healthy and profitable new year. Also to apologise for not pumping out this or any newsletters sooner but nature, in the form of a direct lightening strike, took care of my computers and all other forms of communication for a while. Since I live on a (Melville) koppie and my telephone pole is the highest point on the koppie, I have come to the conclusion that lightening regularly strikes numerous times in the same place. I now have surge plug upon surge plug upon surge plug so let’s see whether I can beat the elements. I shouldn’t moan as I could be living in Haiti plus I have upgraded my computers to such a degree that and I must have the most advanced small office systems around. Computer upgrades are, however, not for the fainthearted and it seems as if e-mail addresses and Distribution Lists always go fuzzy during these upgrades.

I am almost back on track with all these lists and thought you may wish to hear less about me and more about some things OHS. In criminal law - the OHS Act – you all know that you can be punished for the wrongdoings of your independent contractors or mandataries. That provision is found in section 37 of the OHS Act which, in turn, has spawned the much misunderstood section 37(2) Written Agreement between an employer and a mandatary. Section 37 of the OHS Act also applies to employees and essentially presumes employers to have committed the sins of their mandataries and employees unless they demonstrate good OHS behaviour.

But that is criminal law which differs from civil law where normally the delicts or unlawful acts or omissions of an independent contractor, which cause prejudice or damage, are attributable to that independent contractor. In other words, it seldom happens that principals are held (vicariously) liable to pay damages when their independent contractors do or fail to something which is unlawful and which results in a civil action for damages. This is particularly true of specialist independent contractors who work completely independently of the principal employer.

But this could be something of the past. Could the criminal vicarious implications of section 37 of the OHS Act become the norm in civil suits? Civil suits hit your pockets far more than the relatively puny fines metered out by the criminal courts in OHS matters. (That is to say your criminal case actually gets placed on the court’s roll). The answer is yes and no.

In Chartaprops 16 (Pty) Ltd & Another v Silberman (Supreme Court of Appeal) the court found the principal, a shopping mall, liable for damages caused to Mrs Silberman who slipped on a substance at the mall. This despite the fact that the mall had contracted a specialist cleaning company to keep the floors clean. Chartaprops, through its Centre Manager, kept a regular check on the cleaning company’s performance. Although not a unanimous decision, the SCA overruled the High Court’s finding that both the mall and cleaning company were liable – the mall vicariously through the cleansing company’s failure to timeously remove the culprit slippery substance. The SCA dismissed the whole idea of vicariously liability along the lines of section 37 of the OHS Act and found that the mall actually failed in its duty of ensuring a safe shopping experience for shoppers despite outsourcing the cleaning functions.

I attach the full Law Report although they never make for easy reading and so it won’t be necessary to copy and paste every important pronouncement by the learned Judges. As with Langely Fox Building Partnership (Pty) Ltd v De Valence where the principal was also held liable for damages resulting from an independent contractor’s actions, it seems to me as that we are not really moving away from the normal principle that independent contractors are responsible / civilly liable for their own actions which cause prejudice to others save where:The public is involved as it seems as if the courts feel a greater degree of care is required of principals.
 

The principal employer supervises or gets involved in the independent contractors work.
 

The hazard or threat posed to the public was severe enough to cause injury.
 

The hazard was objectively speaking reasonable foreseeable.
 

An indemnity or disclaimer whereby the independent contractor holds the principal harmless where harm is caused to others is one way to protect yourself as a principal from unnecessarily haemorrhaging money stemming from the unlawful actions of an independent contractor. Public liability Insurance policies have a way of indirectly punishing you like all insurance claims.

Click here

Click here

Many of you have asked me in the past which OHS legislation applies, the MHS or the OHS Act when, for example, construction work is being performed on mining ground. In other words when mining or undertaking a ‘works’ as defined are not being performed. Many have asked which inspectorate would be involved should there be an incident in the scenario mentioned above.

I have just managed to get hold of the attachment which is a Memorandum of Understanding between the Departments of Labour and Mineral & Energy. It is more-or-less self-explanatory.

What it does not really tell us is which Inspectorate will preside over the proceedings where, for example, an incident -let's say a fatal incident - occurs while construction work is being conducted on mining ground. Section 65 of the MHS Act demands an Inquiry along the lines of a section 32 Formal Inquiry of the OHS Act into any mining fatality, unlike its OHS counterpart where fatal incidents may be investigated more informally in terms of section 31 of the OHS Act. Inquiries or formal inquiries are far more in depth and rigid, unions actively participate through high-powered legal representation, families often have their own legal representation and all, including the presiding officer have the right to cross examine. The proceedings are also recorded. Legal argumentation post a formal inquiry have also become the norm. My last MHS Act Heads of Argument comprised over 40 pages as one has to analyse all the evidence, comment on its veracity, quote precedents etc. (There are no real OHS or MHS Act precedents but, if a fatality occurs, the common law in the form of a potential charge of culpable homicide, comes into play and our Law Reports are riddled with culpable homicide precedents. My sources inform me that an investigation or inquiry into an incident on mining territory, where the OHS Act has jurisdiction, will be led by the Mine Health & Safety Inspectorate and that the 'investigating' inspector from DoL will be called as an ‘expert’ witness. I relish this. Imagine subjecting the DoL Inspector to gruelling cross-examination! As we all know, the present crop of DoL Inspectors leave a lot to be desired. My guess is that they will have to rely on the few real experts that remain within DoL. So it may not be that easy. Would NUM demand to be represented?
 

I have also stumbled upon some interesting material for my next newsletter. It is based on the USA Constitution (Fourth Amendment – Right to Privacy, not having your property searched etc.) and the powers of their OHS inspectorate. An interesting case has ruled…….. You will have to wait. All I need tell you is that the USA Fourth Amendment to their Constitution is similar to our Section 14 of the Bill of the rights which reads…’ Privacy. Everyone (including juristic persons i.e. companies / employers) has the right to privacy, which includes the right not to have-their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.

Their OSHA inspectors have similar powers to ours. The question I pose now. Are the powers of an inspector as contained in section 30 of the OHS Act constitutional bearing in mind that the OHS Act preceded the Constitution? Bear further in mind that the Constitution always prevails over other legislation.

The Presidential Safety Mining Audit : 'An indictment of the National Prosecuting Authority (NPA)?

Fused MHS & OHS Act jurisdiction.

OHS Prosecution & the Inspector's Report.

Consistent Precautionary Measures.

Volunteers, compensation, civil suits & Indemnity Clauses.

Fatal Workplace Accidents : Heads of Argument.

To work or not to work.......safely.

Steps preceding a DoL Investigation / Formal Inquiry.

'Steps preceding a DoL Investigation / Formal Inquiry.

The Draft National Occupational Health & Safety Bill, 2005 : 'Investigations and Inquiries'.

Employees Right to sue Employers.

The NOH&S Draft Bill : 'The Health & Safety Management System'.

The CEO & the Health & Safety Director.