In this opinion piece I intend to address two longstanding concerning issues which emanate from the Department of Employment and Labour’s (DEL) conduct. Firstly I will tackle the concerning manner in which a section 31 Investigations are routinely conducted, in particular the routine flouting of the audi alterem partem rule. Secondly the stubborn refusal to furnish interested parties, including employers, with the Inspectors Report albeit from a section 31 Investigation or section 32 Formal Inquiry.
It must be accepted that a section 31 investigation is a judicial procedure and that the audi alterem partem rule applies. This is a fundamental principle of justice requiring a judicial officer, arbitrator or administrative official who must decide a dispute or make a decision that will affect someone's rights, to 'hear the other side' - to give all those affected by the decision the chance to state their case and be heard. Of concern is the practice of private interrogations of witnesses under the guise of a section 31 investigation where adverse evidence (to the employer) is elicited without the employer being offered an opportunity to rebut such evidence. Inspectors routinely justify private interrogations by referencing section 29 of the Occupational Health and Safety Act.
OHS Act. Section 29. Functions of inspectors
(1) An inspector may -
(a) without previous notice, at all reasonable times, enter any workplace or premises which are occupied or used by an employee or on or in which an employee performs any work or any plant or machinery is used, or which he believes to be such workplace or premises;
(b) question any person who is or was on or in such premises, either alone or in the presence of any other person on any matter to which this Act relates.
In my view section 29 only pertains to routine inspections and not judicial procedures and should not be used to justify private interrogations. I would also argue that to use this section to justify this practice is unconstitutional and in conflict with a host of case studies on the audi alterem partem rule. It is also important to note that the Mine Health and Safety Act, a post (interim) Constitution piece of legislation, does not contain this provision and that it limits the functions of inspectors to monitoring or enforcing compliance, in other words routine inspections as opposed to quasi-judicial procedures.
MHS Act. Section 50. Inspectors' powers.
(1) An inspector may for the purposes of monitoring or enforcing compliance with this Act -
question any person on any matter to which this Act relates;
The argument also raised by inspectors is that employers do have an opportunity to challenge any negative testimony, elicited during the section 31 Investigation, at the subsequent section 32 formal inquiry since a section 31 investigation precedes the Formal Inquiry. It is common cause that only a handful of section 31 investigations evolve into a formal inquiry. Section 31 is routinely used to finalise the matter and provides for the inspector to compile a report to the National Prosecuting Authority essentially by-passing the Formal Inquiry.
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).
The prejudicial impact of this procedure lies in the fact that the NPA may be provided with unchallenged testimony in direct conflict with the audi alterem partem rule. Naturally I would have less of an objection to private interrogation of witnesses by an inspector if indeed a section 32 formal inquiry was subsequently held where rebuttal of adverse evidence via cross examination was allowed.
As mentioned above I am also of the opinion that the failure of an inspector to furnish interested or affected parties with a copy of the report to the National Prosecuting Authority (NPA) is in conflict with section 33 of the Bill of Rights and thus unconstitutional. I submit that it is for this reason that the Mine Health and Safety Act, which was promulgated after the enactment of the interim constitution, explicitly obliges the inspector, upon request, to furnish interested parties with a copy of the recommendations prior or at the same time as submission to the NPA.
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.
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.
The inspectors’ report is in my view an administrative action and failure to provide an employer with it prior to submission to the NPA adversely affects the employer’s rights. Employers are deprived of the opportunity of using other legal mechanisms at their disposal to challenge the report and are prejudiced by the fact that the NPA may issue a summons without the benefit of legal representations on behalf of the employer which could influence the NPA’s decision. This would be particularly prejudicial in cases where a section 31 investigation has been held and the employer is deprived of the opportunity to challenge evidence elicited during private interrogations of witnesses. The decision (inspector’s report) is an administrative action which must be reasonable and procedurally fair and that natural and juristic persons who may be adversely by the outcome of the decision have the right to written reasons. (The Inspector’s Report). In view of this, the failure to furnish the effected parties with the inspector’s report is in conflict with section 33 of the Bill of Rights.
As you know I have advocated for many years that inspectors furnish employers and other interested parties with their report the moment it is finalised. I also know that the counter argument has always been that these reports enjoy some sort of inter departmental privilege. This argument is flawed and has been dismissed by the courts since it contrasts glaringly with the Constitution and the Promotion of Administration of Justice Act. I believe for this reason the Mine Health and Safety Act compels inspectors to furnish employers and other interested parties with a copy of their report upon request. I also have no doubt that (an unnecessary) application to obtain a copy of an inspector’s report in terms of the Promotion of Access to Information Act (PAIA) would be successful. Currently we are advised that we can obtain a copy of the inspector’s report but only from the NPA – which has invariably already issued a summons - or via an application in terms of the Promotion of Access to Information Act No. 2 of 2000 (PAIA) to the Department of Employment and Labour. The prejudice to employers in this approach lies, as mentioned before, in the fact that employers can often only access the report after a summons has been issued. Successful representations to the NPA, after a summons has been issued still necessitates a court appearance in order to have the matter withdrawn.
This opinion has been corroborated by the judgement in Industrial Health Resource Group and others v Minister of Labour and others [2015] (GP). Justice Matojane dismissed the argument by DEL that interested parties / employers are not automatically entitled to the Inspector’s Report and, if they wished to access the Report, must utilise the PAIA.
MATOJANE J: ordered
1. It is declared that the persons referred to in section 32(5)(c) of the Occupational Health and Safety Act 85 of 1993 ("OHSA"), are entitled, on request to the presiding inspector, to be furnished with a copy of the report contemplated in section 32(9) of OHSA, into any inquiry held in terms of section 32 of OHSA.
2. It is declared that the policy of the Department of Labour 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 National Prosecuting Authority is inconsistent with OHSA, the Promotion of Access to Information Act 2 of 2000, and the Constitution of the Republic of South Africa, 1996, and is accordingly unlawful and invalid.
3. The Minister of Labour is directed to provide, within five days of this Court order, the second to tenth applicants with access to the presiding inspector's section 32 inquiry report, into the fire that occurred at the Paarl Print facility, in Paarl, on 17 April 2009.
The Promotion of Administrative Justice Act 2000 defines an “administrative action” as meaning any decision taken, or any failure to take a decision, by—
(a) ~ 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, extremal legal effect, but does not include—
(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), m, (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution; 5
(bb) the executive powers or functions of the Provincial Executive, including the powers or functions referred to in sections 121(1) and (2), 125(2)(d), (e) and m, 126, 127(2), 132(2), 133(3)(b), 137,138, 139 md 145(1) of the Constitution; (cc) the executive powers or functions of a municipal council; 10 (old) the legislative functions of Parliament, a provincial legislature or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special 15 Tribunals Act, 1996 (Act No. 74 of 1996), and the judicial functions of a traditional leader under customary law or any other law;
(ff) a decision to institute or continue a prosecution. (Not applicable to inspectors as they recommend prosecution i.e. they do not institute prosecution).
(gg) a decision relating to any aspect regarding the appointment of a judicial officer, by the Judicial Service Commission;
LIABILITY IMPLICATIONS FOR CLIENTS, CLIENT DEVELOPERS AND OWNERS OF STRUCTURES EMANATING FROM CONTRAVENTIONS OF THE CONSTRUCTION REGULATIONS 2014.
In terms of construction regulation 11 of the OHS Act owners of structures have a fixed legal duty of maintaining the structure to ensure it is and remains safe for continued use. This infers that an owner must put measures in place to discharge this duty. Statutory criminal liability emanates from failing to discharge a fixed statutory legal duty. The opposite of a duty is a right. If owners of structures have a duty to ensure a structure is safe, the occupants of the structure have a right to a safe structure. Civil liability emanates from the infringement of a right and if this right is infringed, a successful civil suit for damages is may be instituted against the owner. If tenants and other third parties suffer injury or death as a result of the owner’s failure to ensure the structure is and remains safe for occupancy, a criminal prosecution will be instituted against the owner in terms of the Occupational Health and Safety Act No.85 of 1993 or the common law (culpable homicide) in the event of fatalities. A criminal conviction is not a prerequisite for a successful civil suit but will greatly assist.
An owner’s failure to conduct periodic inspections and keep records of the inspection as required by the construction regulations is in itself a criminal offence even in cases where there is no threat to health and safety of persons. If, however, this omission can be linked to an incident such as a collapse of the structure, resulting in injury and death, a criminal conviction is virtually guaranteed and a plaintiff in a civil matter for damages will have a solid case. A criminal prosecution can be brought against juristic persons as well as natural persons and, if the latter are directors of companies, they may be removed from the Board of Directors in terms of the Companies Act upon conviction.
Where an owner of a structure engages a contractor to perform construction work, the owner becomes the client with comprehensive duties as listed in construction regulation 5. (Barring the exemptions regarding the permit to perform construction work and the SACPCMP accredited agent). Similarly where the registered owner of land intends to develop the property on which a structure or structures are to be erected, irrespective as to whom the eventual owner may be, such owner will be regarded as the client and will be required to fully comply with the statutory requirements of the Occupational Health and Safety Act. If a client fails in their statutory duties as contained in construction regulation 5 and a link can be established between the clients’ omission and a result (injury or death), a prosecution against the client would in all likelihood be instituted as well as opening the way for a civil suit for damages against the client. For example. An owner of a sewerage works engages a contractor to perform construction work at the works. The owner now becomes the client as defined in the construction regulations. The client fails to inform the contractor in the his Health and Safety Specifications / Baseline Risk Assessment of the potential risk of hepatitis B - which immunisation could have prevented – and a worker contracts hepatitis B and dies. There would a prima facie case of various contraventions of the construction regulations, the Occupational Health and Safety Act in general and the common law (culpable homicide). The worker’s dependants could potentially sue the client for damages as well. The appointment of a competent Construction Health and Safety Agent by the client could, however, buffer the client against both civil and criminal liability. This appointment will become obligatory in certain circumstances from August 2015.
Owners of structures routinely employ a facility managing entity or individual to discharge, inter alia, their construction regulations duties. These entities or individuals are regarded as either employees or mandataries of the owner. Their acts or omissions can result in criminal liability being imputed onto the owner in terms of section 37 of the Occupational Health and Safety Act. A civil suit is also possible against an owner for their unlawful conduct which causes harm or damage to third parties. An owner may be a juristic or natural person and the same principles apply.
MURDER MOST FOUL. 16 March 2011.
In what may be a first in SA OHS criminal trial history, an owner of a cable swing company and two employees have been charged with murder after a woman died of her injuries during a tandem jump in Graskop on 3 October 2009. The accused have pleaded not guilty to murder, maintaining that they had no intention to kill Mrs Jo-Ann Samuels. The trial commenced last week at the Graskop magistrates court and was postponed after hearing the evidence of her husband who miraculously survived when the cable swing smashed into the rocks at the bottom of the valley.
According to media reports it is suspected that one of the winches or a gear feeding the rope had broken. Forensic evidence pertaining to the integrity of the equipment used will be presented later either by the SAPS or Department of Labour but it must have been potent enough for the Occupational Safety Court Prosecutor to initiate the charges of murder with additional or alternative charges under the OHS Act. The charges under the OHS Act are not reported but they could include charges under the Driven Machinery Regulations, section 9 of the Act in that the activities of the accused caused harm to both the deceased and her husband. Other charges could be wilful or reckless endangerment, misusing safety equipment and causing injuring negligently. The latter is a unique crime limited to the OHS and MHS Acts since it is not a crime outside these statutes to negligently injure persons.
It is highly unlikely that the accused had a direct intention to kill Mrs Samuels and the question must be asked why the accused are being charged with murder as opposed to culpable homicide, the usual common law crime which may follow a fatal workplace accident. There are various forms of intention (dolus) in law. In instances where an accused does not have a direct intention to kill, the prosecution can rely on a foreseeability test known as dolus eventualis where it is argued that accused should have foreseen the possibility of death. It differs from the test for culpable homicide, the negligent killing of a person, in that it is not a objective test. (The reasonable Person Test).
The state is also relying on dolus eventualis in the Jub Jub drag race trail where the accused are also charged with murder of a number of school children died after being hits by their vehicles. It is not the easiest of charges to prove since the prosecution cannot rely on the objective Reasonable Person Test and essentially must prove a state of mind. Failure to prove murder could anyway result in a culpable homicide conviction since the latter in a competent verdict in any murder case.
The trial continues.
Dear Subscribers
Firstly compliments of the season to you all. I hope 2011 will be a great year for you personally and for your employer.
The public hearings on the Labour Relations Amendment Bill, 2010 are about to commence and I am sure that you are curious to know what the implications, if any, are from the Occupational Health and Safety Act perspective. If the Bill is passed as published, and there is much speculation in the media about this, it would de facto mean the end of labour brokering as we know it. I won’t pursue the Labour Relations Act implications as it is not my forte.
The Supreme Court of Appeal (SCA) ruled in Crown Chickens v Rieck that a labour broker assignee was indeed the employee of the labour broker and not the client paving the way for a potential flood of civil suits for damages against clients where assignees are negligently injured or killed at the workplace. Mrs Rieck succeeded in her claim for this very reason since section 35 of the COID Act prohibits employees or their dependants from suing employers for workplace injuries, illnesses or fatalities. Clients will only in certain limited circumstances be allowed to make use of fixed term contracts and the vast majority of workers supplied by labour brokers will become employees of the client / employer. The client / employer will be obliged to contribute to, inter alia, the compensation commissioner and UIF. The irony of this proposed amendment is that most workers supplied by labour brokers and who thus currently enjoy the right to sue the client will be deprived of this right in exchange for more rights in terms of the LRA. The SCA essentially ruled that the entity that pays the compensation premium is regarded as the employer.
So from a civil liability perspective the proposed amendments could be construed as positive. From the criminal law perspective, the OHS Act and common law (when a fatality occurs) nothing will change. I have always preached that employers who try to differentiate between genuine employees and labour supplied by labour brokers as regards workplace safety and health are in for a rude shock! It would make nonsense of the OHS Act if employers provided their genuine employees with a safer and healthier work environment to the detriment of labour supplied via a labour broker. In any case such labour would resort within the definition of an employee as per section 1 of the OHS Act.
"employee" means, subject to the provisions of subsection (2), 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”.
Oddly enough the proposed amendment to the LRA has opted for the OHS Act definition of an employee yet the version published is not identical and could open up a can of interpretational worms down the line.
“ employee means any person employed by or working for an employer, who receives or is entitled to receive any remuneration, reward or benefit and works under the direction or supervision of an employer’.
So section 8of the OHS Act (The General Duties of Employers to their Employee) applies to all workers albeit temporary, permanent, fixed term or supplied via a labour broker. Even if someone could evolve a contrived argument against the applicability of section 8 in cases of labour broker assignees, section 9
You will recall that in a previous newsletter I touched on Monjane v RAF 2007 T which, via a Road Accident Fund (RAF) matter, reinforced the prohibition on civil suits for damages by employees against employers as contained in section 35 of the COID Act. And by now you are all familiar with the celebrity Constitutional Court challenge to that provision as contained in Jooste v Score Supermarket Trading (Pty) Ltd. You will, however, be surprised how many people are still unaware of the fact that an employee, as defined in the COID Act, cannot sue their employers for damages if they are harmed due to the employer’s negligence. I routinely pose this question at OHS Legislation Workshops and am surprised at the response. Even more so when I ask whether procured labour, via a labour broker, have the right to sue for damages should their client / employer cause them harm in a negligent fashion. Naturally you know the answers since you read my newsletter where, in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck [2007] (SCA), the Supreme Court of Appeal ruled that such procured labour indeed enjoy the right to sue.
Well the ink is scarcely dry on another Law Report where section 35 of the COID Act was, inter alia, discussed. In Van Wyk obo Van Wyk v Daytona Stud Farm (Pty) Ltd & others [2007] (C) the plaintiff's minor daughter was seriously injured in an incident which occurred while she was being conveyed on a trailer drawn by a tractor driven by a driver on the employer’s farm. The child was at the time, working in the orchard with other children who lived on the farm.
The employer contended that the child was an employee at the time and that the injury sustained by her was an occupational injury as defined in section 1 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and that by virtue of the provisions of section 35(1) of the Act, the plaintiff (guardian of the injured child) was precluded from suing the employer. The court ruled that the employer and the driver of the tractor were both negligent in allowing the children to be conveyed on the tractor in a manner which was dangerous. The court declined to attribute any contributory negligence to the child as she lacked the maturity to know any better. On the question of whether the plaintiff's claim against the employer was excluded by the provisions of section 35(1), the court questioned whether the child was capable of and did conclude a valid contract of service and, secondly whether, if she did conclude a contract of service, such contract was void ab initio by reason of the statutory prohibition against the employment of a child under the age of 15 years or school-leaving age. The employer and driver were thus declared liable for the plaintiff's damages.
Naturally if the injured child was ‘legally’ an employee, she would not have been able to sue. I recall reading an article emanating from DoL about this incident and wonder if an investigation or inquiry was held? The Cape High Court did find negligence but in civil matters such negligence only need be proved on a balance of probabilities as opposed to the stronger onus of proof, placed upon the State in a criminal matter, to prove negligence beyond a reasonable doubt. Let’s look how, in theory at least, the matter could have or may even have been handled from a criminal or OHS Act perspective. Since she was not an employee, section 8 would not apply. It contains the duties of employers to their employees although I could argue that it is broad enough to cover non employees such as persons over whom employers exercise supervision. Section 9, on the otherhand, which prohibits employers from causing harm to persons through their activities, would be an ideal charge. And then there is that unique, often misunderstood OHS and MHS Act crime, namely the crime of negligently injuring persons. Section 38(2) states that a
What happened in that case is that Monjane (Monjane v RAF 2007 T) was injured by a vehicle negligently driven by his own employer while walking on a public road. He sustained injuries and a claim was lodged against the Road Accident Fund (RAF). The driver was insured by the RAF who then became the plaintiff in the matter. It was also an occupational injury which is compensable in terms of the COID Act. In terms of section 35 of the COID Act it is accepted that the injured party is prohibited from lodging a civil claim for damages against his employer and must turn to the Compensation Fund for relief. This prohibition was challenged as unconstitutional and the challenge rejected in Jooste v Score Supermarket Trading (Pty) Ltd.
Like the COID Act, the RAF contains provisions which limit the liability of owners and drivers of vehicles and prejudiced parties are limited to claiming from the RAF. You claim from the RAF and not the individual. The idea being to limit the amount of civil suits.
Claim for compensation lies against Fund or agent only.
When a third party is entitled to claim from the Fund any compensation in respect of any loss or damage resulting from any bodily injury to or death of any person caused by or arising from the driving of a motor vehicle by the owner thereof or by any other person with the consent of the owner, that third party may not claim compensation in respect of that loss or damage from the owner or from the person who so drove the vehicle, or if that person drove the vehicle as an employee in the performance of his or her duties, from his or her employer, unless the Fund or such agent is unable to pay the compensation.
So it would appear as if the RAF must compensate Mr Monjane? Not so argued the RAF. There is a provision which states that the RAF shall not be obliged to compensate any person for any loss or damage which neither the driver nor the owner of the motor vehicle concerned would have been liable and we know that section 35 of the COID Act makes the owner / driver not liable. The learned Judge, however, disagreed and ruled that this was surely not the intention of the law. He ruled that the injured could claim against either the Compensation Fund or the RAF. He stated ‘In my view, the plaintiff is entitled to claim against the defendant (RAF) and also claim against the Compensation Commission provided that he cannot be compensated for more than he is entitled to. If he claims from the Fund and is adequately compensated he cannot be heard to wish to claim against the Commissioner as well’
So the RAF took the case of appeal to the SCA. It upheld the appeal and ruled, inter alia, that ultimately a line must be drawn where it is essentially a question of policy for the legislature to decide. Section 19(a) of the Road Accident Fund Act 56 of 1996, read with section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993, indicates where that line has been drawn: an employee who sustains an "occupational injury" in the context of a motor accident will have no claim under the Road Accident Fund Act 56 of 1996 if the wrongdoer is his or her employer. It is a well-established rule of construction that the legislature is presumed to know the law, including the authoritative interpretation placed on its previous enactments by the courts. Monjane can therefore only claim from the Compensation Fund.
I recently stumbled upon a US Supreme court decision which limits the powers of their OHS Inspectorate. The Supreme Court has effectively limited any inspections and searches of business premises without a warrant. The rationale being that such searches and inspections were in violation of the US Fourth Amendment in the Bill of Rights which prohibits unreasonable searches and seizures without a warrant. Essentially an inspector would only be able to inspect a workplace or seize an item if armed with an administrative warrant or the employers allows it.
It makes one wonder what the situation would be in South Africa considering that the OHS Act was promulgated before the Bill on Rights in the Constitution was enacted? The US Fourth Amendment to their Constitution is almost identical to our constitutional Right to Privacy as well as their OHS Inspectors functions’ and powers . This limitation even applies where there is probable cause, in other words, an inspector has a reasonable belief that an OHS crime has been committed. Although silent on the powers of the inspectorate post an incident, a warrant would not be required since the workplace would constitute a potential crime scene. Employers would obviously be obliged to allow to allow emergency teams and investigators to enter the workplace.
Section 36 of the Bill of Rights to the SA Constitution entitled ‘Privacy’ stipulates that everyone, including a juristic person or company, 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.
The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
Section of the OHS Act 29. Functions of inspectors stipulates that an inspector may -
(a) without previous notice, at all reasonable times, enter any workplace or premises which are occupied or used by an employee or on or in which an employee performs any work or any plant or machinery is used, or which he believes to be such workplace or premises;
(b) question any person who is or was on or in such premises, either alone or in the presence of any other person on any matter to which this Act relates;
(c) require from any person who has control over or custody of a book, record or other document on or in those premises, to produce to him forthwith, or at such time and place as may be determined by him, such book, record or other document;
(d) examine any such a book, record or other document or make a copy thereof or an extract therefrom.
(e) require from such a person an explanation of any entry in such a book, record or other document;
(f) inspect any article, substance, plant or machinery which is or was on or in those premises, or any work in or on those premises or any condition prevalent on or in those premises, or remove for examination or analysis any article or substance or a part or sample thereof;
(g) seize any such book, record or other document or any article or substance or a part or sample thereof which in his opinion may serve as evidence at the trial of any person charged with an offence under this Act or the common law: Provided that the employer or user of the article, substance, plant or machinery concerned, as the case may be, may make copies of such book, record or document before such seizure;
(h) direct any employer, employee or user of plant or machinery (including any former employer, employee or user of plant or machinery) to appear before him at such time and place as may be determined by him and question such employer, employee or user either alone or in the presence of any other person on any matter to which this Act relates;
(i) perform any such other functions as may be prescribed.
(2)
(a) An interpreter, a member of the South African Police or any other assistant may, when required by an inspector, accompany him when he performs his functions under this Act.
(b) For the purposes of this Act an inspector's assistant shall, while he acts under the instructions of an inspector, be deemed to be an inspector.
(3) When an inspector enters any premises under subsection (1) the employer occupying or using those premises and each employee performing any work thereon or therein and any user using plant or machinery thereon or therein, shall at all times provide such facilities as are reasonably required by the inspector to enable him and his assistant (if any) to perform effectively and safely his or their functions under this Act.
(4) When an inspector removes or seizes any article, substance, book, record or other document as contemplated in subsection (1)(f) or (1)(g), he shall issue a receipt to the owner or person in control thereof.
On the other hand, the Mine Health & Safety Act was promulgated after the (interim) Constitution was in force and reads:
MHS Act. Section 50. Inspectors' powers.
(1) An inspector may for the purposes of monitoring or enforcing compliance with this Act -
(a) enter any mine at any time without warrant or notice;
(b) enter any other place after obtaining the necessary warrant in terms of subsection (7); and
(c) bring into and use at any mine, or at any place referred to in paragraph (b), vehicles, equipment and material as necessary to perform any function in terms of this Act.
(2) While the inspector is at any mine or place referred to in subsection (1), the inspector may, for the purposes of monitoring or enforcing compliance with this Act -
(a) question any person on any matter to which this Act relates;
(b) require any person who has control over, or custody of, any document, including but not limited to, a plan, book or record to produce that document to the inspector immediately or at any other time and place that the inspector requires;
(c) require from any person referred to in paragraph (b) an explanation of any entry or non-entry in any document over which that person has custody or control;
(d) examine any document produced in terms of paragraph (b), and make a copy of it or take an extract from it;
(e) inspect -
(i) any article, substance or machinery;
(ii) any work performed; or
(iii) any condition;
(f) inspect arrangements made by the employer for medical surveillance of employees;
(g) seize any document, article, substance or machinery or any part or sample of it; and
(h) perform any other prescribed function.
(3) A n inspector may instruct any employer, manager, employee or any other person who performs an activity regulated by this Act or any former employer, manager or employee or person who formerly performed an activity regulated by this Act, to appear before the inspector to be questioned on any matter to which this Act relates.
(4) before an inspector may seize any document under subsection (2)(g), the employer or manager of the mine may copy it.
(5) An inspector may remove any article, substance or machinery or any part or sample of it from any mine or place referred to in subsection (1) for examination or analysis.
(6) When an inspector seizes or removes any item under this section, the inspector must issue a receipt for that item to the employer or manager of the mine or place involved.
(7) A magistrate may issue a warrant contemplated in subsection (1)(b) only on written application by an inspector setting out under oath or affirmation the need to enter a place other than a mine to monitor or enforce compliance with this Act.
(8) For the purpose of this section, 'mine' does not include any home, or residential quarters, situated at the mine.
The legislator obviously took cognizance of the Right to Privacy which already existed in the Interim Constitution when describing the powers of mining inspectors in the MHS Act and must have felt that there was not constitutional conflict. A warrant, issued by a magistrate, would therefore only be required for entry into a place not defined as a mine. It is not quite clear if the warrant would allow for seizure of articles or other information which could be construed as confidential or private. I know that the right of seizure has been curtailed in other instances and perhaps a test case could settle this. I doubt whether an employer would be able to challenge the seizing of articles for evidential or forensic purpose and, in the event of fatal workplace accident, the SAPS will also be involved and nothing could prevent them seizing articles for evidence or forensic testing.
The situation should thus be similar for the OHS Act. An inspector can enter the workplace at any reasonable time and inspect the premises with or without reasonable cause. Prior notification is not required but the time of inspection must be reasonable. An after hour inspection could be ruled to be unreasonable. You are obliged to co-operate with the inspector but always retain the constitutional right to remain silent if you feel the response may incriminate you. I would argue that you have the right to remain silent even if the response could incriminate your corporate body employer. I would even venture to say that you could refuse to answer a question that incriminates a co-worker and through that individual the corporate body is incriminated. Once again a test case would be required. A warrant would most probably also be required to enter a place other than the workplace. This could be in the case where documents required by the inspector are stored at someone’s home or any other storage facility.
In the next newsletter I will look at the powers of the inspectorand the their right to close down dangerous workplaces or sections of the workplaces. This right has become very controversial since it is open to abuse. It is often used more as a punitive measure in stead of its real objective of prohibiting work in an area until it has been rendered safe. Click here
Privacy. Everyone 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.
Application. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court — in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)
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Dear Subscribers
After undertaking a numbers of OHS legislation roadshows, it is still apparent that employers are not taking full advantage of those provisions in the OHS Act which create vital employer rights. As you all know, liability is created when a statutory or common law duty is infringed coupled with negligence. The broad duties of employers to their employees is found in section 8 of the OHS Act – in my view the most important section in the Act – while employers duties to non employees or persons is found in section 9 of the OHS Act. Conversely, the duties of employers are the rights of employees and persons. If, for example, employers have a duty of providing employees with a safe and healthy working environment, then employees have the right to a safe and healthy working environment.
Infringement of a statutory duty or even common law duty such as the duty of care required to prevent a charge of culpable homicide if an employee dies at the workplace, does not necessarily mean that a criminal offence has been committed. Although section 8 of the OHS Act requires employers to do various things in order to protect employees, every duty is tempered with ‘reasonability’ and ‘practicability’. In other words an employer may fail in a duty as listed in section 8 of the OHS Act but still escape prosecution if it could be shown that in was reasonably impracticable to discharge that duty. In fact the OHS Act gives an indication of what would be considered to be reasonable practicable when an inspector or court decides whether an employer has contravened either sections 8 or 9 of the OHS Act.
(xliv) "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;
But the real point I want to make is that employers have rights too. Unlike employees however, employers need to earn these rights by training their employees into their statutory duties. And the point of departure is section 14 of the OHS Act. It contains five simple duties but, once employees are conversant with them, they provide employers with five very important rights! Employers should copy section 14 verbatim out of the Act, translate it if necessary into other applicable languages, have each employee sign acknowledgment and place it in their personal files. But don’t stop with section 14. There are other person (employee) duties that can be added including the applicable person (employee) duties as contained in the regulations.
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.
Other duties that should be included are:
Section 15. Duty not to interfere with or misuse things
No person shall intentionally or recklessly interfere with, damage or misuse anything which is provided in the interest of health or safety.
Section 38.
(1) Any person who -
(l) tampers with or discourages, threatens, deceives or in any way unduly influences any person with regard to evidence to be given or with regard to a book, document or thing to be produced by such a person before an inspector under section 32 ;
(m) prejudices, influences or anticipates the proceedings or findings of an inquiry under section 32 or 33;
(n) tampers with or misuses any safety equipment installed or provided to any person by an employer or user of plant or machinery;
(o) fails to use any safety equipment at a workplace or in the course of his employment or in connection with the use of a plant or machinery, which was provided to him by an employer or such a user;
(p willfully or recklessly does anything at a workplace or in connection with the use of plant or machinery which threatens the safety or health of any person, shall be guilty of an offence and on conviction be liable to a fine not exceeding R50 000 or to imprisonment not exceeding one year or to both such fine and such imprisonment.
Once employers have been trained employees into their broad based (section) duties, they should then focus on duties placed on persons (employees) conducting specific (regulation) duties. For example, if an employee is working with hazardous chemical substances, they should be trained into their duties as listed in HCS regulation 4. As with the broad based section duties, I recommend they be given a copy of their specific regulation duties and, after they have signed it, place it in their files.
Hazardous Chemical Substance Regulation 4. Duties of persons who may be exposed to hazardous chemical substances.
A person who is or may be exposed, shall obey a lawful instruction given by or on behalf of the employer or a self-employed person, regarding -
Probing the Prosecutor's mind. A construction accident.