Commuter with no ticket can’t claim for injuries after fall from train, says judge. 2 February 2023.

Pretoria - No ticket, no claim. This was the verdict of the Gauteng High Court, Pretoria, in a damages claim by a train commuter against the Passenger Rail Agency of SA (Prasa) after he was pushed off a moving train and injured himself. Mamelodi resident Gabriel Bhiya instituted a damages claim against the rail agency, arguing it had a duty towards him to ensure his safety while he was a paying commuter travelling on its trains. Bhiya testified that he was a regular commuter on a morning train from his home in Mamelodi East to Midstream, Centurion, where he was employed. In October 2016 he was in possession of a ticket when he boarded the train at the station at Mamelodi on his way to work, he said. At one stage he stood up and moved towards the door to disembark at Pinedene Station. The train was full. Some passengers were sitting; others were standing. The train stopped on the platform at Pinedene Station, however, the doors did not open and the train moved away from the platform. Bhiya said that a short distance further, the carriage doors opened. In an attempt to steady himself, or for physical support to remain standing, he tried to lean against fellow passengers. He was not able to and was pushed through the open carriage doors. He fell to the ground and injured his left arm and shoulder. A Prasa officer came to his assistance and Bhiya said he showed the man his train ticket. He was told to put the ticket back in his pocket, before he was taken to hospital. His sister testified that she later took his belongings from the hospital, which included his train ticket. According to her, she later went to Prasa’s office to obtain forms so that he could lodge a claim. She said she showed them the train ticket, before placing it in the boot of her car. The ticket had meanwhile disappeared and she said she had no idea where it was. She later said she could not recall if she did take the ticket at the hospital or whether she showed it to the officials. She could also not recall whether, if she did show it to the officials, they had handed it back to her. Acting Judge SK Hassim said she was not persuaded that the sister’s evidence that she could not recall what happened to the ticket was true. “She had taken pains to safeguard the plaintiff’s ID document and the ticket when he was in hospital. “She returned his cellphone to him after he was discharged from hospital, but kept the ID document and the ticket with her for safekeeping. Against this background, I cannot accept that she cannot recall what happened to the ticket,” the judge said. The Prasa official who assisted Bhiya on the scene testified that the latter told him that he had never had a ticket in the first place.

Woman, 28 dies in forklift freak accident on KWV-site. 27 January 2023

On Wednesday a freak accident with a forklift claimed the life of a 28-year-old woman on the KWV site in Paarl. Paarl police spokesperson, Captain Louise du Plessis, confirmed the incident and identified the victim as Roché Fortuin. In an official press release issued by KWV, it is confirmed that “a female worker of a third-party supplier was run over by a forklift shortly after 11:30”. “We believe the person died from her injuries shortly after impact. This was confirmed when the on-site nurse could not detect the victim’s pulse,” the statement said. According to Du Plessis, eyewitness accounts of the tragedy reported that neither the forklift operator nor Fortuin were aware of each other in the moment that led to the impeding danger that would claim her life. “The operator only realised what had happened once he stopped the forklift after impact and, upon inspection, saw that the victim was trapped underneath the machine,” explains Du Plessis. Emergency services were also quickly on the scene and pronounced her dead. All other operational activities were halted for the rest of the day and personnel were sent home. “We will ensure that the close relatives of the victim receive the necessary support, as well as the KWV employee who drove the forklift.” The Paarl Post reached out to various role players after an anonymous tip from the public informed the newspaper that a woman ended up beneath a forklift on the KWV premises and died. KWV says the accident will be investigated, with their full support, by the police and the Department of Labour.

DEPARTMENT OF LABOUR PROBES DEATHS OF EIGHT PEOPLE IN NC AMID HEATSTROKE SCARE. 27 January 2023.

CAPE TOWN - The Department of Employment and Labour on Thursday said further investigations were underway to determine the exact circumstances surrounding the deaths of eight people in the Northern Cape. Minister Thulas Nxesi visited three farms in Kakamas in the province this week. It's understood that seven of the eight people believed to have died of heatstroke were farm workers. Nxesi said his visit alongside the Northern Cape's MEC for Department of Agriculture Environmental Affairs Land Reform and Rural Development Mase Manopole was not to investigate farmers. The MEC's spokesperson Zandisile Luphahla: "Minister Nxesi said even though they have received a preliminary report, there are further investigations underway which will pave the way on what actions should be taken to determine if there was negligence. MEC Manopole said farmers should prioritise the performance of regular medical [checkups].”

PROBE INTO BOKSBURG EXPLOSION MAY TAKE LONGER, SAYS LEGAL EXPERT. 27 January 2023

JOHANNESBURG - Tuesday marks a month since the tragic Boksburg explosion and legal analyst Mpumelelo Zikalala suggested that investigations into the tragic blast may take longer than expected. He said police have to ensure they have sufficient evidence to establish a strong court case against the accused parties. Forty-one people were killed when a gas tanker exploded near the Tambo Memorial Hospital on Christmas Eve after it was wedged under a railway bridge. The blast has left scores of people with critical injuries and damaged municipal infrastructure. Zikalala said although investigations into the Boksburg explosion were taking a long time, it is important for the State to not rush the matter to court. He said this is to avoid the case being dropped again like it was when the gas tanker driver was released from jail due to insufficient evidence. Zikalala said the police will have to first establish who to charge and prove that the party could have reacted better to mitigate the impact of the blast. "It's one of those things that cannot be done within the quickest amount of time. However, they should have gone to the victims to tell them how long it would take to investigate and go to court." Meanwhile, the police have opened another docket that has been handed over to the senior State prosecutor who will determine whether the information in the docket was presented fairly and is fit for the court.

Picnic nightmare: Woman who fell into pit at holiday resort wins damages case. 27 January 2023

The Free State High Court has found a resort needs to pay for damages after a woman was injured when she fell into a hole. The court found the resort could not rely on the disclaimer notices to avoid liability. This because the resort was deemed to be grossly negligent as the hole was not cordoned off, nor were there warning signs. Disclaimer notices cannot be relied on to avoid liability in instances where there has been recklessness or gross negligence. This was the finding of the Free State High Court in Bloemfontein in a case where a plaintiff sought damages after she was injured at Wawielpark Holiday Resort on 25 December 2012. According to the judgment penned by Judge Johannes Daffue, the plaintiff and her family visited the resort on Christmas Day as day visitors. In her testimony, the plaintiff said she and her family picnicked near the banks of the Vaal River at the resort, which was packed with holidaymakers. While at the picnic spot, a thunderstorm broke out. After covering picnic items with a blanket, the plaintiff sought shelter underneath a tree close to the river. As she was about to reach the tree, she fell into a hole. The hole was deep, and she had difficulty getting out because she had sustained deep lacerations to her right foot and leg. She testified that she screamed for help while blood was spurting out from her injuries. Eventually her one son-in-law found her and helped her out of the hole. He removed his shirt to dress the wounds, but it did not help. While assisting the plaintiff to the car, an unknown person, who said he was an employee at the resort, assisted in getting the plaintiff to the car. He was later relieved by the plaintiff's other son-in-law. She was taken to a hospital, where her wounds had to be cleaned and sutured. During the trial, the plaintiff, her husband and son-in-law gave evidence. Daffue pointed out there were contradictions between their evidence, but some of the discrepancies were not material and could have arisen due to the 10 years between when the incident happened, and the case being argued in court. These contradictions included how far their picnic spot was from the hole and what time the thunderstorm started. Four days after the incident, the plaintiff's husband and son-in-law returned to the resort to take pictures of the hole, which was about 600mm deep and 800mm x 800mm in length and width. The images indicated that a broken glass bottle, nappies and a newspaper were in the hole. According to the judgment, the defendant did not deny the existence of the hole, and despite the denial in the pleadings, did not deny during cross-examination of any of the witnesses, the plaintiff was not at the resort with her family. There was also no evidence by the defendant that the hole had been cordoned off. However, the defendant's advocate did ask the court not to believe the plaintiff and to make a negative credibility finding against her. The court accepted the plaintiff's version. Daffue said:

The defendant, acting through its directors and/or employees, acted grossly negligent in either digging the hole, or allowing the hole to be left open without cordoning it off properly to prevent patrons to fall in it, and/or providing any warning signs to warn patrons of the imminent danger.
"Contrary to what was stated in the further particulars, the huge hole dug in the ground which caused the plaintiff's injuries, was either dug by the defendant's directors and/or employees to be used as an unprotected garbage pit, or if that was not the case, it was not detected and left open over a period of four days between 25 and 29 December 2012 when the first photos were taken. "In my book and bearing in mind the hundreds of patrons that visited the resort during those days, this constitutes gross negligence, if not recklessness. "If the hole was not there in the first place, no injuries would have been sustained by the plaintiff. If the hole was properly cordoned off to avoid a person from falling into it, the same would apply." After finding there was gross negligence, Daffue moved to the disclaimer notices. He said there were two notice boards. The plaintiff and her husband would have driven past the first, which was in three languages. The plaintiff said she did not see the first notice board at the first set of gates at the resort, which were open at the time and not manned by anybody. The court found the first disclaimer was not properly displayed and that the defendant did not have a valid defence in terms of the first notice board. The second notice board, in Afrikaans, was positioned at the second set of gates, where one has to stop and pay. The plaintiff also said she did not see this notice board, but the court found it was properly displayed and there was actual or quasi-mutual assent proven in respect of the second declaimer. In the second disclaimer - only in Afrikaans - patrons entering the resort accept it to be an express condition of their visit that the resort would not be held liable for any damages sustained as a result of fire, theft, flooding of property or physical injuries, whether fatal or otherwise, the court pointed out. "The wording is clear: it exempts the defendant from liability in express and unambiguous terms," Daffue said. However, he added that the defendant did not expressly seek indemnity in the second disclaimer against gross negligence or recklessness of its directors and/or employees. In any event, such a clause in the disclaimer would be contrary to public policy and unenforceable, Daffue said. "Whatever the nature of the disclaimers relied upon by the defendant, and even if I am wrong in the conclusions arrived at earlier, they cannot indemnify it against liability in this case. It would be against public policy to allow a resort such as the one run by the defendant to escape liability on the basis of either of the disclaimers and specifically the second one," he ruled. "The defendant cannot rely on the disclaimer defence in circumstances where I have found that it, acting through its directors and/or employees, was grossly negligent which caused the injuries sustained by the plaintiff," he added. The court subsequently ordered the defendant was liable to pay the plaintiff's damages to be proven or agreed upon arising from the injuries sustained by her on the defendant's premises. Daffue also ordered that the resort pay the costs of the action, inclusive of the trial costs.

Labour dept to help injured workers, families of deceased after fatal incident at Astral facility. 27 January 2023.

Government will help workers injured during an incident at Astral Foods' facility access compensation benefits. The incident which took place last Sunday claimed the lives of two and saw five others hospitalised. Employment and Labour Minister Thulas Nxesi visited the families and the facility on Friday. The Department of Employment and Labour said on Friday it would be helping workers injured during an incident at an Astral Foods’ poultry facility to access compensation benefits. Similar efforts would be made for the families of the two workers killed in the incident which took place last Sunday at Astral’s County Fair facility in Klipheuwel, Agter Paarl. Speaking to News24 after a visit to the facility and the families of the two deceased workers, Employment and Labour Minister Thulas Nxesi said the department would also be "looking at the company" to make sure it was complying with regulations. "We have met with the management at County Fair and we have been able to listen to what they are saying. All we could say at this stage is we have indicated there is an investigation that is already going on by our inspectors and we have been told them about the prohibition of that area where the accident happened until such time that everything has been cleared and there is no danger there." He said the department would allow the investigation by its inspectors to take its course. "It is unfortunate that lives have been lost and we will go and pass on our condolences to the families," he said. Astral, which is SA’s largest poultry producer, said on Thursday that the incident took place at 13:00 while the men were working at the waste disposal plant, "which is separate to the main plant and which does not have any septic pits". The affected employees developed breathing difficulties, with two of them succumbing to their injuries. A further six were sent to hospital for observation, with five being kept overnight on Sunday. All employees have been discharged from hospital, and the cause of the breathing difficulties is under investigation, the company said. Asked whether part of the site had been closed down, Astral Foods referred News24 to an earlier statement which stated that the "pit has been declared safe in conjunction with the fire department following the incident". That same statement issued on Thursday said that a thorough cleaning of the area had been undertaken and that any preventative action determined from the investigation would be immediately implemented.

Boksburg Tanker Explosion 24/12/2022: an initial technical analysis and lessons learned. 10 January 2023
Courtesy of Motlatsi Mabaso CEng MIChemE. Managing Director, MMRisk (Pty) Ltd

The appropriate place to start is by conveying my deepest and most sincere condolences to the families of those who lost their lives in the much publicised Boksburg Liquefied Petroleum Gas (LPG) road tanker explosion which took place on 24th December 2022 in Johannesburg, South Africa. There are countless witness accounts and media presentations conveying the extreme loss suffered, including for those families who lost more than one family member in the incident. At the time of writing, at least 18 people had lost their lives; many others were injured.

In conducting this initial technical analysis of the incident we will have the benefit of hindsight and there will be a lot of shoulds, woulds and coulds… The purpose of this article is to extract learnings from initial information available via media reports, eyewitness accounts and amateur video footage of the incident.https://sitebuilder.konsoleh.co.za/.cm4all/uproc.php/0/pictures/.Blast
Lessons from such incidents are vital if we are to prevent these tragic incidents from recurring.

HOW THE INCIDENT OCCURRED:
The following sequence of events was compiled based on information available in the public domain:
1. Just after 6h00 on the morning of 24th December 2022 a road tanker (assumed to be full and carrying a cargo of approximately 30 tons (60,000 litres) of LPG approaches a low bridge and becomes lodged under the bridge while attempting to drive under it. In an attempt to move, damage to the tanker roof occurs from direct contact with the bridge above it leading to a leak (reports suggest a pressure relief valve was the point of damage).
2. The point of damage becomes the location from which flammable vapour petroleum gas is released from an initial pressure of approximately 4 bar gauge as per the vapour-pressure curve for a 50-50% mix of butane and propane. The release leads to a loud hissing / whistling noise which attracts the attention of nearby residents who start to approach the tanker to take a closer look.
3. The friction between bridge and the tanker shell becomes the ignition source and a small initial flash fire or vapour cloud explosion takes place (not the main event). The small initial flash fire / explosion attracts even more bystanders to the area.
4. The small initial flash fire / vapour cloud explosion results in burn-back to the leak source resulting in the formation of a jet / torch fire whose flame engulfs the tanker leading to direct heating of the liquefied petroleum gas inside the tanker. Eye witness accounts suggest that the torch fire lasted in the region of 45 minutes before escalation occurred.
5. Due to the heating effect of the torch fire on the shell of the vessel, the LPG begins to boil; the boiling results in an increase in pressure inside the vessel (due to more vapour being present as the LPG boils). At some point in time the pressure in the tanker exceeds its design pressure and a violent explosion took place as the tanker failed catastrophically and petroleum gas left the tanker rapidly and ignited in a large fireball BLEVE (Boiling Liquid Expanding Vapour Explosion) (this is the main event).

SIMULATION OF THE INCIDENT:
The main event was simulated by MMRisk (Pty) Ltd using DNV Phast version 8.23 (a software package which performs calculations of extreme fire, gas dispersion and explosion events such as the one which occurred). A number of assumptions were made including prevailing weather conditions.
The injuries and fatalities observed on the day were likely as a combination of exposure to high thermal radiation levels as well as significant amount of explosion overpressure. These exposures were modelled and the results are shown below.
Results (1): thermal radiation effects
The figure below illustrates the impact associated with the thermal radiation as a result of the BLEVE fireball. A description of the zones shown is provided in the paragraphs which follow.

Estimation of thermal radiation effects as a result of the Boksburg Tanker Explosion (BLEVE) 
Zone A: Inside the BLEVE fireball, extensive damage to structures and vehicles was observed, as well as severe (and fatal) injury to people within that radius.
Zone B: Inside this zone there would have been some impact on structures and people, but to a lesser extent.
Zone C: There would have been limited impact.
Zone D: This can be considered a relatively ‘safer’ zone for initial evacuation of bystanders. This distance is approximately 320 metres and is relatively consistent with the ‘emergency response distance’ of 306 metres described in the Emergency Response Guidebook 2020 (US Department of Transportation, Pipeline and Hazardous Materials Safety Administration). It must be noted that the figure we have identified is not meant to be definitive: further evacuation distances may still have been applied by the emergency services in line with their relevant procedures and guidance.
Results (2): Blast overpressure effects
Over and above thermal radiation release, the BLEVE event would have generated blast overpressure and missiles which would affect people and buildings / vehicles nearby. The figure below illustrates various zones of blast overpressure and their associated damage.

Estimation of blast overpressure effects associated with the Boksburg Tanker Explosion (BLEVE) event
Zone X: In this zone significant (almost total) destruction was observed. The bridge itself sustained significant damage; however, it acted as a blast wall would, absorbing a significant amount of thermal radiation and blast overpressure released in a vertical direction. It must also be noted that the flammable vapour present in the vicinity of the release was confined on 4 planes (top and bottom and on two sides). This confinement would have resulted in accelerated flame speeds in the directions along the road leading to and from the bridge. This in turn would have resulted in greater damage.
Zone Y: In this zone moderate to heavy damage would have occurred with a significant probability of death for those exposed.
Zone Z: The hospital was reported to have sustained minor structural damage (damage to ceilings, crack formation).

INITIAL CONCLUSIONS:

The role of the driver: The role of the driver is important when analysing the cause(s) of this incident. His motivations, incentives, operating conditions (fatigue?), psychological wellbeing and decision-making must be thoroughly interrogated to prevent similar incidents from occurring in future.

The role of the logistics company: Assuming that a route risk assessment was undertaken by the logistics company transporting the fuel, the company should have had technology available to realise that the truck had deviated from its route. If this particular road leading to that particular bridge was part of the truck’s designated route, then such route analysis must have not been done thoroughly and other routes the company uses must be evaluated and risk assessed.

The state of infrastructure in South African municipalities (general): Google Earth imagery of the bridge before the incident suggests that a bridge height sign was present, however, it may not have been in the best condition (faded). In other instances such height markings and other road signage are not present due either to theft, damage or lack of maintenance.  The state of infrastructure in many South African municipalities tends to have deteriorated in recent years and this may have had some effect on decisions made leading up to the event (for example, was the driver avoiding another road with potholes?)
Emergency response by the Emergency Services: When performing risk assessments involving this type of equipment (e.g. Major Hazard Installation Risk Assessments), BLEVEs are commonly considered as a potential eventuality. BLEVEs are always going to be preceded by some direct heating event on a pressurized vessel.  Appropriately trained emergency response personnel should have recognised the potential for a BLEVE event and rather than try and douse the flames, perhaps the most appropriate response of the emergency responders should have been to evacuate those present to a distance beyond Zone D in the above figures.  For those they couldn’t evacuate, remaining indoors would increase their chances of survival from thermal radiation effects (although there is the potential of building collapse during an explosion event).

Blunt Labour Court ruling states Concourt did not legalise cannabis use  8 December 2022

Employers have the right to enforce zero-tolerance policies outlawing the use The decriminalisation of cannabis for private use does not include the workplace, a Johannesburg Labour Court judge has ruled. Judge Connie Prinsloo, in a recent ruling, said submissions by the National Union of Metalworkers of South Africa (Numsa) that the Constitutional Court had ruled that cannabis was no longer a “drug” but just a “plant or a herb” were wrong. She said the Concourt “Prince” judgment in 2018 did not offer any protection to employees against disciplinary action should they contravene company policies or disciplinary codes. She said the apex court had not said cannabis was no longer a drug, as the union had argued, but had merely allowed for its personal consumption, in private, by adults. The case before Judge Prinsloo was a review of the dismissal of two PFG Building Glass employees in October 2020 who had tested positive for cannabis while on duty. The National Bargaining Council for the Chemical Industry had found their dismissal to be fair. The union said it was unfair since cannabis was not a drug according to the Constitutional Court. The company, through its witnesses, presented evidence that being under the influence of alcohol or drugs within the workplace was an offence for which dismissal was the prescribed sanction for the first offence. This was because the company took workplace safety very seriously and it had a moral and legal duty to ensure that the working environment was safe. On site, there was gas, large forklifts, extremely hot processes and dangerous chemicals used to make heavy glass which could potentially cut or crush someone. The company followed the Occupational Health and Safety Act and had a zero-tolerance policy towards alcohol and drugs. Referring to evidence at the bargaining council, Judge Prinsloo said it had been suggested by the employees that the company was “sticking to the old stigmatisation” of cannabis, whereas the Constitutional Court, in the Prince judgment, had said it was “just a plant … a herb” and could be legally possessed and used. Company representatives, however, said it was still recognised as a drug and an employee was not permitted to be on-site under the influence of alcohol or drugs. One of the dismissed employees, Mr Nhlabathi, testified that he had used cannabis three days before he reported to work on the day he tested positive. He said he had been employed since 2016 and had “been smoking dagga and doing his job properly”. He disputed that the alcohol and drug policy related to cannabis but only to “alcohol and substances”. His colleague, Mr Mthimkhulu, also relied on the Constitutional Court judgment that “dagga was a herb and not a substance”. Both claimed they were not aware that they could be fired for testing positive for cannabis. Judge Prinsloo said the arbitrator had accepted that the company had a zero-tolerance policy and that it treated cannabis as a drug because it was a “mind-altering substance”. The arbitrator had said the Prince judgment did not overrule the provisions of the Occupational Safety Act. Judge Prinsloo said it was evident that the union and the employees had confused issues relating to the decriminalisation of the use of cannabis in private and the rights of employers to take disciplinary action against an employee who contravened a disciplinary code. The Prince judgment declared specific provisions of the Drugs and Trafficking Act to be inconsistent with the right to privacy and therefore invalid to the extent that they made the use or possession of cannabis in private, by an adult person, a criminal offence. The Constitutional Court had held, however, that it was common cause that cannabis was a harmful drug. “The court did not interfere with the definition of a drug, nor did it declare dagga to be a plant or a herb,” Judge Prinsloo said. “The applicant’s understanding of the judgment was either very limited or totally wrong,” she said. The company was entitled to set its own standards of conduct and dismissal was an appropriate sanction, she said, dismissing the review.

Free State dam disaster: Criminal case to be opened against Jagersfontein Developments. 3 November 2022

In the wake of a devastating tailings dam wall collapse in the Free State, the Deputy Minister of the Department of Water and Sanitation, David Mahlobo, will open a criminal case against Jagersfontein Developments on Friday. The department said the criminal case pertains to contraventions of the National Water Act. In September this year, the wall of Jagersfontein Developments' tailings facility collapsed, causing one death and injuring scores of people.  The department said the incident also caused pollution to the environment and water resources and has threatened people's livelihoods. "As a result, DWS took a decision to implement administrative enforcement measures and issued a directive dated 12 September 2022 in terms of Section 20 of National Water Act," the department said. "This directive pertains to the release of a substance (slime/mine process waste materials) that pollutes or has the potential to pollute or have a detrimental effect on a water resource and contains the required actions that the responsible person had to undertake in order to remedy the effects of the incident. " The administrative enforcement is a parallel enforcement action to the criminal case, the department said.

Amendment Bill fails to recognise safety practitioner profession. Engineering News.

The continued failure to recognise the safety practitioner profession is yet another disappointing aspect of the of the poorly drafted Occupational Health and Safety (OHS) Amendment Bill 2020, says law firm Klass Looch Associates managing member, advocate Raynard Looch. “Unlike the Mine Health and Safety Act (MHSA) and even the construction regulations in the current OHS Act, the draft Bill is silent on the aspect of statutory appointments of safety personnel. “In the MHSA, the appointment of safety officers is obligatory, and the construction regulations provide for the obligatory appointment of a construction health and safety officer who is accredited by the South African Council for the Project and Construction Management Professions.” Recognised by the South African Qualifications Authority as a professional body with which to register occupational health and safety professionals in South Africa in terms of the National Qualifications Framework Act, 67 of 2008, the South African Institute of Occupational Safety and Health (Saiosh) hoped that the draft Amendment Bill would address this issue. It remains a mystery why the Department of Employment and Labour (DEL) did not address the vacuum in statutory appointments, as it has been aware of the problems that this vacuum poses for decades, Looch highlights. Critically, nonmandatory Section 16(2) assigned persons and the CEO which appoints them are usually too far removed from the realities of the workplace to properly discharge their statutory duties without managerial and supervisory assistance, requiring employers to resort to so-called in-house appointments. “Therefore, managers and supervisors are an integral and essential part of an employer’s health and safety management system and deserve statutory recognition,” states Looch, who served on the technical committee appointed by Saiosh to review and submit comments on the recently published OHS Amendment Bill. Saiosh has made recommendations to fill the vacuum through the introduction of another statutory appointment for all managers and supervisors in the form of a Section 16(3) appointment, which aligns with UK OHS legislation. However, this is not the only concern with the OHS Amendment Bill. “It is riddled with inconsistencies, incorporates legal elements in some provisions which are removed in others, has incoherent penalty schedules and vague definitions, and controversially also seeks to equate the penalties for regulation contraventions, which are promulgated by the Minister of Employment and Labour, with those sections of legislation adopted by Parliament.” The latter could be argued to be irrational, as purely administrative contraventions and serious injury offences would carry the same maximum penalty of R5-million, he elaborates. The draft also seems to venture into the realm of strict liability, which has been rejected by all superior courts, suggesting a harsher approach towards the country’s employers. The yardstick to determine whether an employer has adequately discharged its duties in terms of the OHS Act has, thus, been deliberately deleted in the draft Amendment Bill, holding South African employers to a higher standard than that promoted by the International Labour Organization's Occupational Safety and Health Convention, 1981 (No 155), which South Africa has endorsed. Therefore, should the current version of the Amendment Bill be promulgated, employers will be unable to argue that they did everything within the bounds of reasonability and practicability to avoid incidents. Most of South Africa’s large and blue-chip employers have long pre-empted many of the provisions in the draft Amendment Bill by using the current OHS Act only as a minimum standard, notes Looch. Consequently, they have embraced internationally recognised safety systems and voluntarily allocate large budgets to their safety departments. “The problem with compliance often rests with small- to medium-sized enterprises, dysfunctional municipalities and even . . . public works, and public service providers in general. The DEL, in particular the Minister, who is a political deployee, often uses his platform to decry general compliance levels in tandem with the Tripartite Alliance for obvious reasons,” says Looch. Enforcement of the OHS Act is also an issue, with the DEL usually opting to investigate serious and/or fatal incidents informally without a set of established legal rules, despite the Act providing for formal inquiries where evidence is led and tested along the lines of any commission of inquiry. Conversely, under the MHSA, fatal mining accidents must be subjected to formal inquiries and cannot be informally investigated. Thereby, Saiosh has proposed that the draft OHS Amendment Bill be reworked to ensure that all fatal workplace incidents are subject to a formal inquiry. “This would theoretically provide the National Prosecuting Authority (NPA) with a tested record and/or transcript of evidence to consider in deciding whether to prosecute. In practice, the NPA has no appetite to prosecute OHS incidents, as the OHS Special Courts have either been dissolved or figuratively decimated,” states Looch. Incidents, such as the Paarl Print fire, in the Western Cape, the Tongaat Mall collapse, in KwaZulu-Natal, and the Grayston Bridge collapse, in Gauteng, never resulted in prosecution, despite damning findings and recommendations by experienced DEL inspectors, he adds. While the OHS Act does provide for this function to be outsourced, Looch believes that this is hindered by budgetary constraints.

https://www.engineeringnews.co.za/article/amendment-bill-fails-to-recognise-safety-practitioner-profession-2022-09-23/rep_id:4136

Takealot failing to comply with health and safety regulations: department. 3 October 2022

The department of employment and labour says Takealot has failed to comply with the Occupational Health and Safety Act. Online retail company Takealot has not been complying with the Occupational Health and Safety Act at its warehouse in Kempton Park, Gauteng, the employment and labour department says. The department’s inspection and enforcement services inspectors found parts of the facility posed a danger to workers. “Takealot’s breach of a number of labour laws at the warehouse were uncovered on Tuesday during the department’s joint 'mega blitz' inspections which started on Monday. The department conducted physical and administration inspections at the company and also engaged with employees. The company was found in contravention of several regulations in terms of the act:
ergonomics;
pressure equipment;
general administration;
hazardous chemical agent;
driven machinery; and
general safety.
He said management was also served with a notice direction to improve clinic facilities, create demarcated driveways inside the warehouse and improve warehouse risk assessment specification. The company was issued with three prohibition notices, which prevent them from:
allowing contractors onsite with stepladders without non-skid rubber,
storing chemicals in a general storing area or racks in that they are flammable and can have adverse effects on the health and safety of employees; and
deducting money from employees for protective safety shoes.
The department granted Takealot 60 days to get its house in order.
The inspection was led by the department’s inspector-general Aggy Moiloa, who told Takealot management the department was willing to help them comply with labour laws. “We don’t take pleasure in seeing you being squeamish. We don’t want that because we hardly ever subscribe to 'the stick approach', unless we are pushed to the limits — and if you push us, you are going to see that,” said Moiloa. Compliance orders were issued after inspectors also found that Takealot was not complying with the:
Unemployment Insurance Act;
Compensation for Occupational Injuries and Diseases Act; and
Basic Conditions of Employment Act.
The department inspected 19 workplaces on Tuesday, where contraventions were found mostly in occupational health and safety. “It’s been a trend [of contraventions] throughout the country. The compliance levels range from 18% to just under 40%,” said Moiloa. About 11 undocumented foreigners and two employers were arrested at the Takealot warehouse in Kempton Park and three people were arrested in Pretoria on Tuesday. The department said there were outstanding cases in the Silverton area, where home affairs immigration agents were still verifying documents. The joint operation, also involving the department of home affairs' immigration services and the police, continues.

Minerals Council intervenes as mining fatalities escalate. 3 October 2022

The Minerals Council South Africa has convened a special board meeting to address, urgently, a regression in the mining industry’s safety performance and to implement a range of interventions to ensure safer working environments. The move comes after the industry recorded an alarming eight fatalities in August, bringing the total number of deaths to 36 compared in the year to date. This marks no improvement from the same period in 2021, in which the industry also recorded 36 deaths. This, the Council said, is "deeply disappointing" after the industry’s safety interventions delivered an encouraging performance in the first seven months of the year, with record safety achievements in fall of ground and trackless mobile machinery-related fatalities. "Given our unwavering commitment to the goal of zero harm, the industry’s August safety performance – the worst month of the year – was a red flag we could not ignore, and which demanded an immediate proactive response," the Council said, adding that it had called a special board meeting on 9 September to agree revitalised safety interventions in the sector as it heads into the final three months of the year – a period historically associated with an increasing number of fatalities. "The Minerals Council is committed to zero harm and will continue to collaborate tirelessly with the Department of Mineral Resources and Energy, organised labour and other stakeholders to ensure every mineworker returns from work unharmed," the Council said.

Bank of Lisbon blaze: 4 years after 3 Joburg firefighters died, the families still wait for answers. 18 July 2022

Nearly four years have passed since the fire that raged through the old Bank of Lisbon building in Johannesburg, killing three firefighters, but the findings of four investigations into the blaze have still not been released. Last October, Gauteng Premier David Makhura pledged to release reports on the four investigations conducted by the police, the City of Johannesburg, the provincial government and the Department of Labour. But he has not done so.bOn 5 September 2018, a building that housed the health, human settlements and cooperative governance departments was engulfed in flames. Allegations at the time were that the fire was caused by an electrical fault that started on the 23rd floor of the building. Simphiwe Moropane, 28, Mduduzi Ndlovu, 40, and Khathutshelo Muedi, 37, died while battling the blaze. News24 reported at the time that Moropane died after falling from a ledge while trying to get some air. Ndlovu and Muedi were trapped in the building and died due to a lack of oxygen. The Bank of Lisbon building in Johannesburg, in which three firefighters lost their lives last year while battling a blaze, is no more. It was imploded in a controlled explosion on Sunday morning. News24 spoke to Ndlovu's father, Sbusiso Ndlovu. "We still haven't received a report explaining what happened that day, let alone received money. My son died in 2018 and four years later, no one has said anything. How do I continue to live on as a parent, knowing that no details about the incident have been made public?" he asked. He added: I'm still in pain, and it hurts to hear the endless excuses for why the report hasn't been released. "For years, I've been answering phones and telling people how I'm feeling, giving them stories, but what has all these stories gotten me? Nothing," he said. The Muedi family expressed similar sentiments. "We have not been given any report. This shows how our government makes promises they can't deliver. I have no hope in them," said Muedi's father, Israel Muedi. He added: It's sad to know that promises have been broken. It took me two years to find closure and I can say I have accepted things the way they are even though the sad part is that we will never know what really happened. DA Gauteng Health MEC Jack Bloom said he was concerned about the delay and the shifting of the date of the reports' release. In his latest response to the legislature, Makhura said his office was coordinating with agencies to ensure that all investigations were complete. He added that two reports had been received and two were still outstanding. "The South African Police Service has indicated that their case was handed in at the Johannesburg Magisterial Court on the 25th of January 2022 and is still awaiting the decision of the magistrate of the Inquest Court. The Department of Labour has requested to submit the report in the month of July 2022," he said, "As soon as all the reports are received, the Office of the Premier will provide them to the Gauteng...legislature". Bloom argued that Makhura should make public the two reports he had already received. He described the delays as "gross incompetence or a deliberate cover-up" and said he would continue to push for all the reports to be made public. 

The end of mandatory vaccination? Not so fast. 16 July 2022

Each case must be weighed on its own merits, and mandatory vaccination may still be applicable if an employer conducted a risk assessment which led to the conclusion that implementing such a policy was a reasonable safety measure, writes Bradley Workman-Davies. A lot of attention has been paid in the media recently to the position adopted by trade union federation Cosatu in relation to employers who have adopted a mandatory vaccination policy. In particular, Cosatu has painted Standard Bank's dismissal of approximately forty employees who had been dismissed on the basis of their refusal, in accordance with Standard Bank's mandatory vaccination policy, as victimisation, and has demanded that Standard Bank reinstate dismissed employees. Standard Bank has recently withdrawn its mandatory vaccination policy. Cosatu's position is premised on its stance that the national state of disaster is no longer in place. In addition, the South African Society of Bank Officials (SASBO) has adopted the position that it is better to encourage vaccinations as opposed to imposing them. Cosatu and SASBO also appear to have been encouraged by a recent CCMA ruling, which found that the dismissal of an employee for failure to comply with the employer's mandatory vaccination policy was unfair. This CCMA award also determined that a mandatory vaccination policy was unconstitutional. The CCMA case in question is Baroque Medical v Tshatshu, a June 2022 award by the CCMA which deviated from all previous CCMA awards. Arguably this award overstepped the boundaries of the jurisdiction of the CCMA, which in the case of determining whether an employee's dismissal is fair (among some of its other functions, but none of which are to interpret Constitutional rights) must solely concern itself with whether the employer had a fair reason to dismiss the employee, and whether it followed a fair procedure in doing so. In Tshatshu, the CCMA commissioner held that only government has the right to formulate a vaccination policy, and not an employer. The requirement of the employer to vaccinate being held to be unconstitutional, the dismissal of the employee was accordingly found to be unfair. However, this award is problematic for a number of reasons, not least of which is that it deviates from all previous CCMA awards on the topic, but fundamentally errs by purporting to give the CCMA commissioner the power to make a constitutional ruling. This is a function reserved, properly, for the Constitutional Court itself. As such, any reliance by Cosatu and SASBO on this ruling would be dangerous ground. In addition, in June 2022, the Minister of Labour and Employment published a Code of Practice for managing exposure to Covid-19 in the workplace, which replaced the previous code published on 15 March 2022. Both codes, however, entitled an employer to implement a mandatary vaccination policy after conducting a risk assessment in respect of its particular workplace and workforce profile.  As such, the current legislative framework still entitles employers to conduct this assessment and in fact, if there are sufficient health and safety factors pointing towards the prevalence of Covid-19 being a risk to health and safety in the workplace, for reasonable safety measures - which may include the mandatory vaccination of employees - to be put in place. Employers should take comfort that if they have followed the Code (whether the old or new code, or any previous legislation under the National State of Disaster) and conducted a risk assessment which led to the conclusion that the implementation of a mandatory vaccination policy was or remains a reasonable safety measure, any dismissal of employees for failure to comply has generally been accepted by the CCMA as fair, and the recent case is an anomaly and whose findings on unconstitutionality are not binding. For as long as Covid-19 remains a hazardous biological agent, as recognised by the new Code, mandatory vaccination policies may be viewed as a reasonable measure to ensure the health and safety of employees. Each case, as always, must be assessed on its own merits. Bradley Workman-Davies is a Director and Labour Law specialist at Werksmans Attorneys. Views are the author's own. 

Woman and nephew die after falling into maize silo in Standerton. 4 July 2022.

A Standerton woman and her 12-year-old nephew died after plunging into a maize silo, said Mpumalanga police on Sunday. The incident happened on Friday evening. “According to the report, on that dreadful day the boy somehow fell inside the silo which contained maize at Groenvlei farm near Standerton. Subsequent to that, his aunt, Jackie Rautenbach, tried to pull him out but also fell inside,” said Brig Selvy Mohlala. “The woman's husband, who was a few metres away is said to have heard loud screams for help and rushed closer to the scene but it was sadly too late to save their lives. On the arrival of the paramedics the two were unfortunately certified dead,” Mohlala added. An inquest docket has since been opened but police pointed out that no foul play was suspected. The deceased woman and boy were identified as Jackie and Kerneels Rautenbach. Kerneels was a pupil at Laerskool Standerton. The school paid tribute to him and his aunt on their Facebook page. “Our hearts are hurting, our words are few. Kerneels Rautenbach, in your short time with us on earth, you have touched many hearts. You will always be remembered for the beautiful boy with the most beautiful heart. Our Stannies are going to miss you. Rest in peace Kerneels. Heartfelt sympathy and condolences to the Rautenbach family. About Jackie, the school said: “Our Stannies convey our heartfelt condolences to the Rautenbach family, with the passing of Jackie Rautenbach. Jackie was a mom to one of our grade 5 learners. Rest in peace Jackie. You were so brave.” Mpumalanga police commissioner Lt-Gen Semakaleng Daphney Manamela expressed her sadness at the incident. 

Over R2m recovered from labour non-compliance cases in Western Cape. 1 July 2022

The department of employment and labour inspection and enforcement services in the Western Cape has recovered a total of R2 563 440 during inspections conducted in the 2021-2022 financial year. According to principal inspector Desmond Brown, of the 30 252 inspections conducted, 8 809 workplaces were found to be noncompliant and of those, 804 were referred for prosecution. Brown was speaking on Wednesday during the Unemployment Insurance Fund media briefing in Cape Town. He said that in terms of compliance with the Employment Equity Act, of the 227 workplaces inspected, 143 were found to be noncompliant and 10 were referred for prosecution. “The 14 374 inspections conducted in relation to the Basic Conditions of Employment Act [BCEA] and National Minimum Wage Act [NMWA] revealed that 554 workplaces inspected were noncompliant and of those, 79 were referred for prosecution resulting in the recovery of R712 472.24 on BCEA and R649 665.48 for NMWA,” he said. With inspections conducted in terms of compliance with the Unemployment Insurance Act legislation, Brown revealed that of the 2 428 inspections, 1 195 were found to be noncompliant and of those, 257 were referred for prosecution with the inspectorate recovering R579 762.21. Compliance, in respect of the Compensation for Occupational Injuries and Diseases Act was sitting at 638 cases of noncompliance in the 1 189 workplace inspections conducted. Monies recovered amounted to R621 540.07. Department of employment and labour inspectors and employer auditors are responsible for administering the Unemployment Insurance Act and Compensation for Occupational Injuries and Diseases Act. Chapter 10 of the Basic Conditions of Employment Act gives powers and functions for inspectors to promote, monitor and enforce compliance with labour legislation. “It is the duty of inspectors to advise employees and employers of their rights and obligations; conduct inspections; investigate complaints; endeavour to secure compliance by securing undertakings or issuing compliance orders; contravention notices; [issue] prohibition notices and referral to court,” Brown said. 

Tavern tragedy: Experts find traces of carbon monoxide in victims' bodies. 29 June 2022

Carbon monoxide poisoning has emerged as the likely cause of the death of 21 teenagers at Enyobeni Tavern in Scenery Park, East London on Sunday. Sources close to the investigation believe the children - aged 13 to 17 - were killed by toxic fumes that emanated from a petrol generator that was suspected to have been used inside the tavern. Preliminary results of post-mortem examinations conducted on the victims found traces of carbon monoxide. The final autopsy results are expected to be announced on Wednesday or Thursday. A well-informed investigator said police crime scene experts found a petrol generator inside the venue where hundreds of young revellers partied from Saturday night into early hours of Sunday morning. It's understood the petrol tank was empty when it was found. The Eastern Cape health department has confirmed forensic experts are doing a further analysis of samples the department sent to the University of Cape Town.  A source told News24 that analysts at UCT's forensic pathology laboratory are finalising their work after having gone through the victims' stomach contents. Eastern Cape health spokesperson Yonela Dekeda confirmed that samples were sent to Cape Town but declined to answer further questions, saying the matter is under police investigation.  She said the results would be sent to the police. Dekeda added that the fact that the samples were sent to Cape Town did not mean there was a lack of capacity in the Eastern Cape. "This is merely part of the routine work, that samples would be taken to Cape Town for further analysis, especially when there is an intervention at a national level," Dekeda said. The health department said it treated and discharged 16 survivors at its Empilweni Gompo Health Centre on Sunday. Police Minister Bheki Cele has deployed a high-level delegation of crime scene experts from head office to support the Eastern Cape crime scene investigation teams. Eastern Cape police spokesperson Brigadier Thembinkosi Kinana declined to comment on the preliminary results and said the matter was still being probed. The investigation into the incident is still ongoing. No new information is available at this stage and no arrest made. A statement will only be released once there is a development. The 12 girls and nine boys died mysteriously after attending a party at the Scenery Park venue where free rounds of alcohol, wifi and photoshoots were promised to attendees. Scenery Park police were called out at about 04:00 on Sunday, following reports of lifeless bodies at the tavern. Upon their arrival, they found 17 dead people inside the double-storey building. They later established that two other people died at a local clinic, another died in hospital and another died en route to a hospital. Scenery Park is divided into two municipal wards - Ward 5 and Ward 7, each represented by its own councillor. The settlement, which is a combination of state-built houses and shacks, is one of the most underdeveloped areas in the Buffalo City Metro (BCM). Speaking at a community meeting in Scenery Park on Tuesday, South African National Civic Organisation (Sanco) regional treasurer, Nomthunzi Mbiko, said one of the reasons teenagers in the area go to taverns is because the municipality does not build recreational facilities for them in the area. "That is unacceptable from our local government. We will go door to door, visiting all the victims' families to do a needs assessment and take the report to the metro so they can help the families accordingly. They must give financial support," Mbiko added. She also said Sanco would fight any government attempts to set up a "useless and wasteful" commission of inquiry into the mass death of the youth because commissions are open to corruption. "Too much money is spent on these inquiries, which benefit certain individuals. We say away with that," Mbiko added. She was addressing around 120 community members at the scene of the tragedy on Tuesday. 

The owner of the tavern is an employer and, prima facie, there is a contravention of section 9 of the OHS Act. Shouldn't DEL investigate as well? RHL

Leicestershire company fined £2m and co-owners jailed after yard workers drown in tanker full of pig feed. Sky News. 17 June 2022

Yard worker Nathan Walker died after climbing into a tanker at Greenfeeds Ltd in Leicestershire, while 'hero' colleague Gavin Rawson died after jumping in to rescue him, Leicester Crown Court heard. The co-owners of a food waste recycling company have been jailed and the firm fined £2million after two employees drowned in a road haulage tanker full of semi-liquid pig feed. Nathan Walker, 19, died after climbing into the tanker and getting into trouble at Greenfeeds Ltd in Normanton, Leicestershire, on 22 December, 2016 - 15 days before his first child, a son, was born. Fellow yard worker Gavin Rawson, 35, lost his life after bravely jumping in to rescue the teenager 'with no thought for his own safety', Leicester Crown Court heard. Co-owner Gillian Leivers, 60, was jailed for 13 years while her husband, Ian Leivers, 59, was handed 20 months behind bars. Gillian Leivers showed a "blatant disregard for a high risk of death" while in charge of staff at the company, which had no safe method of working, no training, no risk assessments and no records Workers expressed concerns about potential dangers but were ignored. The company - which produced bio-fuel and pig feed from recycled materials but is now in liquidation - was convicted of corporate manslaughter following a six-week trial at the court. Gillian Leivers, from Newark, Northamptonshire, was also found guilty of a separate health and safety offence and banned from being a company director for 15 years during a sentencing hearing on Thursday. Passing sentence, Mr Justice Fraser told her: "Your negligent conduct was both continued and repeated over a long period of time. "It was obvious that the yard staff hated cleaning tankers internally, and made complaints to you about it, including requesting breathing apparatus that was not provided. "You simply ignored these issues. You showed a blatant disregard for a very high risk of death resulting from your negligent conduct. I am also of the view that your behaviour was motivated by avoiding the cost of implementing proper safety measures." Both men were pulled from the tanker after a saw was used to cut holes in the sides but they died at the scene of the tragedy. A post-mortem concluded they died after drowning in the animal feed, having been overcome by toxic fumes and a lack of oxygen. Hailing Mr Rawson's courage, the judge said: ""He must have seen Nathan from the top hatch, and with no thought for his own safety, bravely entered the tanker in order to rescue him. "That courageous decision cost Gavin his life. He suffered the same fate as Nathan almost immediately, becoming overcome by the gas and losing consciousness. "The method that had been adopted at Greenfeeds for years, which the senior management knew and indeed approved, was simply climb in, clean the tanker; take your chances," the judge added. Ian Leivers was found guilty of a Health and Safety at Work Act breach as a director of Greenfeeds Ltd. Transport manager Stewart Brown, 69, from Mansfield, was sentenced to a year in prison, suspended for two years, for failing to take reasonable care for the health and safety of others. 

Draft report suggests friends given outdoor heater for tent. 20 May 2022

Gas still in cylinder after deaths

A preliminary report into the deaths of renowned scientist Ndoni Mcunu and her friend S'phumelele Mnomiya has suggested that they were given an outdoor heater to use inside their hotel tent. They were also not given a manual on how to use the heater, the report from the labour department noted. The pair died in their sleep from a suspected gas leak while holidaying at the Cradle Boutique Hotel in Krugersdorp last month.  After a Sowetan inquiry into the status of the department's investigation, it sent the preliminary report on Wednesday but later withdrew it for further editing. A final report is to be completed in 90 days, the department said. The report revealed that the two women were given an outdoor gas heater to warm themselves during their Easter weekend stay in their luxury tent at the hotel west of Joburg. The department also said the two guests were not shown how the heater worked. “The gas heater is designed for outdoors but in this instance it was used inside a tent where ventilation is restricted. This could be a contributing factor under investigation. The induction of clients or tenants on the safe use of equipment was not confirmed. The manual was not made available,” read the report. The luxury tent was in the campsite of the hotel. “There was no[t] enough ventilation inside the tent. The tent is divided into two, the sleeping area and the bathroom. The bathroom is the only area that has floor opening and the roof but the sleeping area was sealed,” said the report. The gas heater was taken to the Liquefied Petroleum Gas Association of SA (LPGSA) for further investigation. “The finding shows that several attempts to switch on the heater failed but the gas was not closed on the cylinder... the gas cylinder was still having gas during the preliminary investigation.”  The two had checked in on April 15 and requested a blanket and a gas heater from the tent manager the same day. They were found dead the next morning after not pitching up for breakfast. The hotel has since been given a prohibition notice by the department to cease the usage of outdoor gas heaters in tents while investigations continue. Spokesperson for the Cradle Nature Reserve, Charmain Naidoo, said they disagree with the department's findings. “This is a preliminary report with which we do not entirely agree. The matter is still under investigation and we are co-operating with the department of labour. We are therefore not in a position to comment,” she said. Zikhona Ntshingila from the LPGSA also said they would not comment while investigations are still taking place. Nobuntu Hlazo-Webster, spokesperson for the Mcunu family, said they are still waiting for investigations to conclude. “At this point, the family have only learnt via the media that a report has been released. Neither SAPS nor Cradle Boutique Hotel have contacted us regarding this case. Once we receive the report we will study it and respond accordingly,” said Hlazo-Webster. Mnomiya family spokesperson Aurelia Nxumala could not be reached for comment. Mcunu, the founder of organisation Black Women in Science, and Mnomiya were friends for more than 20 years after meeting at primary school in KwaZulu-Natal. 

The incoherent and illogical new government Covid-19 regulations are the real state of disaster. 23 March 2022.

By Marc Mendelson, Shabir A Madhi, Jeremy Nel, Glenda Gray, Regina Osih and Francois Venter.

 On 15 March 2022, the government published new draft regulations relating to the surveillance and control of notifiable medical conditions and public health measures at points of entry to South Africa, allowing 30 days for comment. These draft regulations are seemingly an ill-conceived and misdirected attempt to continue preventing SARS-CoV-2 infections and appear to be oblivious to the new realities of Covid-19, two years into a pandemic.  Despite the low coverage of Covid-19 vaccinations in South Africa and failure to vaccinate the targeted 40 million people (or administer 40 million doses of vaccine) by the end of 2021, there has been evolution of widespread population immunity and resultant protection, particularly against severe Covid-19 and death in South Africa. 

Click on  https://www.dailymaverick.co.za/article/2022-03-22-the-incoherent-and-illogical-new-government-covid-19-regulations-are-the-real-state-of-disaster/

Labour Court dismisses Solidarity challenge to firm’s Covid vaccination policy. 16 March 2022

Case provides clarity on when a company vaccination policy will be lawful. On Monday, the Labour Court in Johannesburg delivered its first judgment on when a Covid vaccination policy in a workplace will be lawful. In December 2021, a company called Ernest Lowe sent a letter to its employees which said that the company would implement a Covid vaccination policy from January 2022. The company said that it would not force any employee to be vaccinated or to disclose their vaccination status. However, if any employee refused to be vaccinated, they would have to provide a negative Covid test every week if they wanted access to the company’s premises. One employee, Johetta van Rensburg, told the company she was not willing to get vaccinated. She said that she was willing to provide a weekly test to show she did not have Covid but would only do this if the company agreed to pay for the weekly tests. The company refused. The company told Van Rensburg that she would not be allowed onto the premises without a negative test every week or proof of vaccination. She would also not be paid for the time she was not allowed on the premises because the “no-work-no-pay” principle would apply. The company also told her that disciplinary steps may be taken. Van Rensburg approached her trade union, Solidarity, who wrote a letter to the company. Solidarity said, among other things, that requiring her to be vaccinated or to provide a negative Covid test every week was unlawful and breached her employment contract. Solidarity said this was because her employment contract did not require her to be vaccinated. Her contract also did not require her to provide weekly negative tests. Solidarity also said the company did not consult her or Solidarity on the Covid vaccination policy, and that the company had failed to consider reasonable alternatives to mandatory vaccination. The company’s lawyers disagreed. They told Solidarity that the company had a duty under the Occupational Health and Safety Act to take all reasonable steps to provide a safe and healthy working environment for its employees and to protect customers who come onto its premises. Many customers would not do business with the company if employees were not vaccinated. The vaccination policy was necessary to ensure the company could properly operate and would not have to retrench, their lawyers said. In January 2022, Van Rensburg arrived at the company’s premises without a negative Covid test and without proof of vaccination. She was told to immediately leave the premises. After she was turned away, she consulted a doctor who gave her a “Covid-19 vaccination exemption form”. The form recommended she not be vaccinated because she suffered from cardiac arrhythmia. [We have confirmed that this is very unlikely to be a valid medical reason to be exempt from having a Covid vaccination. – Editor] Solidarity’s lawyers then wrote to the company again and said that she should be given an exemption from the vaccination policy because of her illness. The company’s lawyers told Solidarity that Van Rensburg had to provide them with specialist cardiologist report before they would consider her request. Their lawyers also repeated that the policy was not unlawful. When Van Rensburg failed to give the company a cardiologist report, the company told Solidarity and Van Rensburg the policy would remain in place and she would not receive an exemption. Solidarity then started urgent proceedings in the Labour Court to declare the vaccination policy unlawful.

Court proceedings

Solidarity argued that the vaccination policy was unlawful because it violated Van Rensburg’s employment contract. This was because there was no clause in her contract which required her to be vaccinated or to provide weekly negative tests. This meant the company unilaterally changed her terms and conditions of employment by imposing a mandatory vaccination policy. Solidarity also argued the company failed to comply with the Occupational Health and Safety Act and directions issued by the Minister of Labour. This was because the company did not conduct a risk assessment, did not consult its employees on the vaccination policy, and failed to take steps to respect the constitutional rights of employees who chose not to get vaccinated. The company argued the vaccination policy was not mandatory. This was because any employee who refused to vaccinate was not prevented from coming to work. Unvaccinated employees were still allowed to come onto the premises, but only when they can produce a negative Covid-19 test. The company also said it did not violate Van Rensburg’s employment contract and that it had held extensive consultations with employees on the vaccination policy. Acting Judge Molatelo Makhura said that the case required the court to consider two issues: whether the vaccination policy breached Van Rensburg’s employment contract, and whether the vaccination policy failed to comply with the Occupational Health and Safety Act or the health and safety directions issued by the Minister of Labour.

Not a breach of contract

The judge said that Solidarity could not refer to any clause in Van Rensburg’s employment contract which was breached by the vaccination policy. Solidarity also could not tell the court which term of her contract was unilaterally changed by the vaccination policy. Because Solidarity could not explain how the vaccination policy breached the employment contract, this challenge to the vaccination policy had to be dismissed, acting Judge Makhura said. Judge Makhura said that the Occupational Health and Safety Act requires every employer to take reasonable steps to provide a safe and healthy working environment for its employees and non-employees, such as customers and suppliers. Justice Makhura said that the Occupational Health and Safety directions issued by the Minister of Labour permit employers to make a mandatory vaccination policy when certain requirements were met. However, in this case, it was not clear whether the company had imposed a vaccination mandatory policy and whether those requirements applied. The Labour Court said the company made it clear in December 2021 that it would not force employees to be vaccinated. The policy simply said employees who refused to get vaccinated must provide a weekly test to the company which showed they do not have Covid. The vaccination policy did not say that unvaccinated employees would never be allowed onto the company’s premises, the court said. Solidarity also did not argue that testing was not a “necessary or reasonably practicable measure to mitigate against the risk of Covid” or that requiring a negative test was unlawful. “The closest they have come to complaining about the testing in these proceedings is in relation to the expense of the weekly PCR test, which they say “can be regarded as an unjustified hardship.” Acting Judge Makhura said that because the vaccination policy was not mandatory, it was unnecessary to determine whether the company had complied with its duties under the directions to conduct a risk assessment or consult trade unions and employees on the policy. The Labour Court dismissed the case and ordered each party to pay their own legal costs. 

Lengthy investigation finds the cause of fire at Rheinmetall Denel Munition. 9 March 2022

The building where the fire originated stored a paste that is used in RDM’s manufacturing process.  Months after a fire broke out in the N86 building of the Rheinmetall Denel Munition (RDM) plant in Somerset West, an internal investigation has finally found the cause. The fire in October last year was found to have been caused by an electrical fault in the light fixture of the building. There were no injuries when the fire broke out. The building where the fire originated stored a paste that is used in RDM’s manufacturing process. The evidence showed an electrical fault in a light fitting started the fire, leading to melted material from the light fitting falling down on to the stored material, causing it to ignite. The investigation also found no explosion. Instead, the flashover as a result of the two materials coming into contact with each other caused pressure to build up in the building, which then saw the roof dislodged, while still keeping the walls intact. RDM CEO Jan-Patrick Helmsen said the internal investigation found that the emergency response was immediately activated and all systems were in place to contain the fire. “While this electrical fault could not have been predicted or planned for, we are using what we have learnt from this to implement measures and systems aimed at preventing a repeat of this incident.” This echoes the comments he made when the fire originally broke out, prior to finding the cause thereof. He said RDM would do more to prevent another such incident happening, and possibly causing further damage. “The safety of our people is of utmost importance to us. In addition to the 70 people employed at our Somerset West site to develop, implement and monitor health and safety protocols, everyone at RDM has a role to play in ensuring that we create a safe and healthy workplace.” 

For jugdment click on link below.

https://www.groundup.org.za/media/uploads/documents/solidarity_v_ernest_lowe_2022_lc.pdf

Labour court dismisses bid to stop mandatory Covid-19 jabs. 4 February 2022.

Urgent application by Solidarity challenging a company’s policy struck off the roll

An urgent application by trade union Solidarity challenging a Pretoria-based company’s policy on mandatory Covid-19 vaccinations was struck off the labour court roll in Johannesburg on Thursday. The union approached the court on an urgent basis on behalf of members Wynand Fransua Coertzen and Stephanie Christensen who are employed by human and industrial relations solutions provider Seesa as software developer and legal adviser respectively. Solidarity wanted the court to issue an order declaring unlawful the refusal by Seesa to allow Coertzen and Christensen to continue with their duties. Other relief sought was for the court to declare the company’s mandatory vaccination policy and admission policy unlawful; and prevent Seesa from starting a retrenchment process against Coertzen until it complied with “a lawful procedure”. The company’s policy on mandatory vaccinations states that due to operational needs and occupational health and safety obligations “it concluded that vaccination will be mandatory for all employees”. Labour court acting judge Tameshnie Deane struck the urgent application from the roll and ordered Solidarity to pay Seesa’s costs. In a statement on Thursday Seesa said it welcomes the judgment. “Our main priority remains the health and safety of all our staff and clients. Seesa will continue to impartially advise clients according to the relevant directives and legislation, irrespective of their stance on mandatory vaccination,” it said. Solidary head of communication Morne Malan said that only the urgency of the urgency was dealt with by the labour court but would not say when the matter would be heard “as we are still waiting for confirmation from the court”. The judgment follows recent rulings by the Council for Conciliation, Mediation and Arbitration (CCMA) in which it upheld as fair a company’s decision to dismiss an employee who refused to get vaccinated. In another ruling on January 25, the CCMA ruled that a private security company’s decision to suspend Gideon Kok was not an unfair labour practice. Kok was suspended from duty on November 1 after refusing to take a Covid-19 jab. Kok’s employer is a private security company working with Sasol, which requires a 100% vaccination rate for all employees, contractors and suppliers at its workplaces. In a statement on Wednesday, Gerhard Papenfus, CEO of the National Employers Association of SA (Neasa), which represents 1,800 businesses employing 65,000 workers, took exception to the CCMA awards being portrayed as “blanket permission to dismiss employees for refusing to be vaccinated”. The decision to dismiss was bad in law and would be reviewed by the labour court. “The fact remains that CCMA awards do not create precedent, [are] not binding and [are] subject to review by higher courts, which, in all probability, will set these decisions aside,” Papenfus said. “The fact that the government has, to date, not implemented mandatory vaccination legislation is a telltale sign of the complexities surrounding this issue and the limitation of rights. The government rather decided to pass the buck to employers to drive its vaccination initiative, while the government is exempted from any liability or pushback in this regard.” Papenfus added that should employers force employees “by way of coercion or threat of dismissal to be vaccinated against their will, or dismiss those who refused to do so, they may well face class action lawsuits or liability claims down the road, should the courts determine that their actions were unlawful and unconstitutional”. In its founding affidavit, which Business Day has seen, Solidarity said it was approaching the labour court in the interests of Coertzen and Christensen “whose employment prospects and career opportunities stand to be prejudiced and unlawfully infringed upon as a consequence of Seesa refusing its employees access to the workplace due to their vaccination status purportedly imposed by a mandatory Covid-19 policy”. Christensen consented in the end to getting vacinated on December 20 and is set to receive her second dose on January 31, according to the affidavit. When she reported for duty on January 4, she was denied entry, with the national manager saying “had she obtained the vaccine earlier it would not have been a problem”. Meanwhile, Coertzen was informed on December 30 that because he had elected not to be vaccinated, he would not be allowed access to Seesa’s premises on January 3, no further instructions to perform work would be provided to him and he would not be remunerated. He was presented with a retrenchment notice on January 14. 

Mandatory vaccine policies will survive a constitutional challenge — legal expert Halton Cheadle. 12 November 2021

Labour law and constitutional law expert Halton Cheadle said on Wednesday night that he believed a challenge to the constitutionality of a mandatory vaccination policy in the workplace and even retrenchments on these grounds will in all likelihood survive scrutiny by the Constitutional Court — and a growing body of international jurisprudence backed him up on this. Mandatory workplace vaccination policies will most likely survive a constitutional challenge, legal expert Halton Cheadle said during a South African Medical Research Council webinar on the issue — he also believed it was legally possible to fire an employee who refused to get the vaccine. He said he believed that mandatory vaccines for Covid-19 will not infringe constitutional rights — and even if it did it would be found to be justifiable. He said there were many “misleading and grandstanding” claims about constitutional rights allowing people to refuse the Covid-19 vaccine. Cheadle said employers who followed the correct procedures, including providing extensive counselling and opportunity, could legally dismiss employees who refused to be vaccinated against Covid-19. Employees could also be required to provide a weekly negative Covid-19 test at their own cost. When asked if an employee could be fired for refusing to get vaccinated against Covid-19, Cheadle said the simple answer was yes. “The more difficult answer is the human resources complications and issues that this raises.” He said if one looked at the way the United States’ federal government and New York City dealt with healthcare workers and police officers who refused to be vaccinated, they were simply told that they were not entitled to come to work if they were not vaccinated or could not provide a negative Covid-19 test — and they would not be paid. He said the situation was similar to what an employer would do at present if an employee did not wear a mask or showed signs of Covid-19. “Just say sorry — off you go,” he said, adding that while employees could take sick leave, there was a limit to how much sick leave one could take. “Either get vaccinated or pay for a test — or it would be no work no pay,” he said. Cheadle said that if an employee could work for some time because of their refusal to be vaccinated or provide a negative Covid-19 test, employers could retrench them for a lack of capacity. He said the situation was similar when a person employed to be a driver lost their driver’s licence. “They are no longer capable of working.” He said before this happened, however, employers had to exhaust every avenue to persuade their employees to be vaccinated. “No right is absolute,” Cheadle said, adding that fundamental rights could be limited if there was a compelling public purpose and if the limitation was proportionate to the right to be protected. He said in terms of the Occupational Health and Safety Act, employers had to take “reasonable and practical steps” to maintain and ensure a safe working environment. This requirement, he said, also applied to mines in terms of the Mine Health and Safety Act. He explained that given the “overwhelming evidence” of the efficacy of the Covid-19 vaccines, he had little doubt that a court would see this as a necessary measure to create a safe working environment. He said the court would also consider what the legal position was in other open and democratic societies and any analysis of whether a limitation on human rights was justified would include the scrutiny of comparative legislation and legal authorities. He explained that the European Court of Human Rights had held that mandatory vaccinations were allowed for the protection of the population against diseases that posed a serious risk — and there had been similar decisions in France and Italy. He said the court would also ask how invasive a mandatory vaccination policy would be — and he believed this ground of constitutional attack would also falter. He said the vaccine was free and employers should provide transport to vaccination sites.  “What is the difference between a jab in the arm and a pill? If we look at the infringement [on human rights] it really isn’t particularly compelling. If the Constitutional Court had to deal with this, it would seem to me that they would have no difficulty whatsoever to determine that it is constitutional,” Cheadle said.  He said that the European Court of Human Rights and the Italian Court had both ruled that if a government wanted to make vaccines mandatory there had to be some compensation for those who suffered adverse effects. He said the South African government had established a compensation fund for claims and compensation was also provided for in terms of the Compensation for Occupational Injuries and Diseases Act. “It is a really important part of the argument,” he said, but added that the statistics showed that this would affect maybe one or two people per million. “Murders and traffic accidents impact 350 to 400 per million people,” he said. Professor Glenda Gray, the president of the SAMRC and the co-investigator in the Sisonke Trial that provided early access for healthcare workers to the Johnson & Johnson Covid-19 vaccine and now for booster shots, said vaccines were developed for individual benefit, but also had huge public health, educational and economic benefits. She said more and more data was becoming available showing that there was a link between the reduction in viral load through vaccination and decreased transmission. She said that naturally acquired immunity, through infection, would wane and did not protect against future infection, but people who had Covid-19 and then were vaccinated had shown an immune response similar to someone having received a booster shot of the vaccine. Gray said that a Covid-19 infection could lead to death while vaccines had been shown to be efficacious at preventing death. She said mandatory vaccination policies seemed to have an impact globally by boosting immunisation rates. She added that the mass resignations feared in the US as a consequence of mandatory vaccination policies had not materialised, with the departure of people refusing to get vaccinations estimated at around 4.7%. “People are not voting with their feet,” she said. “We have to vaccinate against the pandemic and address vaccine hesitancy,” Gray said. Dr Tracey Naledi, a deputy dean at the University of Cape Town’s Faculty of Health Sciences, said in September the deans of the country’s health faculties published a joint public statement recommending that there should be a mandatory vaccination policy for health sciences students and health workers and further recommended that healthcare workers had booster shots. “The rationale for the recommendation for mandatory vaccinations was to save lives, to make sure that we reduce morbidity and to protect the health system,” she said, adding that about 40% of health workers had contracted Covid-19 in the past. She explained that from a teaching perspective, with health sciences in particular, practical bedside teaching was important in preparing health workers who would be fit for purpose. These, she said, were the reasons why the deans of the country’s medical schools argued for the mandatory vaccination of health sciences students. “Since then, many of the universities have taken this even broader than just health sciences students,” she said. She said while discussing a mandatory vaccination policy for UCT, they received more than 1,000 questions during webinars that had been presented on the subject. “We are busy collating answers to these,” she said. She said while the university’s council has approved the policy in principle, a panel had been appointed to provide guidance on who would be excused from this policy and what would happen if a student or staff member chose not to vaccinate. “We want to ensure that there are no unintended consequences. There is a public health rationale — but we must also be mindful of consequences,” she said. Gray said that serious adverse reactions to the vaccine were rare events that occurred in between three and four cases for every million vaccines. She said the risk of similar complications caused by Covid-19 were much higher. “Billions of vaccines have been given at a global level — there has been no safety signal. South Africa is no different to the rest of the world,” she said.  

Employee fired for racist Facebook rant loses court bid. 12 October 2021

Rulings deem it irrelevant that the statement was made after hours or that the employee was unaware of company’s social media policy. An employee at Clover has failed in his bid to be reinstated to his job after he was dismissed for a Facebook posting in which he said that all white people should be killed. While initially denying that he had made the post, Nhlanhla Christopher Makhoba later said he did it because he loved the ANC and its president [Zuma at the time] and he believed they were under verbal attack. In a recent ruling, Durban Labour Court Acting Judge Narini Harilall said it did not matter that he posted the comment outside of work hours nor that he was unaware of the company’s social media policy. What mattered was that any South African should know that racial utterances are unacceptable and companies need not remind their employees of this. Given that Clover was a multicultural company and it had a duty to protect all its employees, Makhoba’s public statement had a bearing on the employment relationship, she said. Evidence before the court was that Makhoba was a general worker with ten years’ experience when he posted the comment in 2017 on Eyewitness News’s Facebook site. It read: “Whites mz be all killed”. One comment subsequently read: “Nhalnhla Makhoba, are you saying that whites must be all killed in your personal capacity or as an employee of Clover. Don’t even know how you became a team leader with that hate-filled violent mindset of yours.” The company instituted disciplinary proceedings against him. He was charged with two offences: making a racist comment on social media and acting contrary to the interests of the company. At the disciplinary hearings, he denied posting the comment, claiming his Facebook page had been hacked. However, the company led evidence disproving this. He was dismissed. Aggrieved, he challenged his dismissal in the Commission for Conciliation, Mediation and Arbitration (CCMA). There, before Commissioner Richard Lyster, he admitted that he had posted the comment but claimed it was a “political matter” that needed a political resolution. He said he had posted it outside working hours, it was not directed at any person employed by the company, and he was not aware of the company’s social media policy. Lyster ruled that his dismissal was both substantially and procedurally fair. Lyster said that in a country like South Africa, which had suffered hundreds of years of racism, it was grossly offensive to call for one race group to be killed. “Anyone who lives and works in this country must be presumed to be aware that to call for the killing of people of a particular race group is a shocking form of misconduct,” Lyster said. “That is no excuse for calling for people to be murdered. The ANC has always stood for a non-racial democratic society. “The fact that he made it while he was at home is entirely irrelevant. “It was undisputed that the company employs people of all races … It cannot be expected to continue to employ someone who publicly calls for the killing of all members of one race group.” On review, Acting Judge Harillal agreed. She said it was settled law that an employee could be held responsible for actions taken outside of working hours and that there was a standard of ethical behaviour. “An employer has a responsibility to provide a safe workplace for all its employees and it cannot do so where an employee’s conduct threatens the safety of others. “In the present case, his conduct goes further than to incite racial hatred — it calls for the killing of persons belonging to a particular group,” the judge said, noting that one witness had referred to the post as “calling for white genocide”. “While he claims to love his president [Zuma] and felt him under attack, I can see nothing in the extracts that show that he was even mildly provoked to make the comment he made,” the judge said. On top of this, he had been dishonest and had shown a lack of remorse. She dismissed the review application 

Here's how employers can deal with unvaccinated workers. 12 October 2021.

It’s likely that the first cases about mandatory vaccine requirements will land in court soon, says an employment expert at law firm ENSAfrica. In dealing with an unvaccinated employee, employers could probably first see if there is an alternative arrangement available for the employee where he or she does not have to be vaccinated - like working from home. If that is not possible, then the employer could say it has to terminate the employment as the employee cannot contractually perform the requirements of his or her job. South African employers may be able to terminate the employment of their unvaccinated staff on the grounds that the employee cannot contractually perform the requirements their jobs. It's likely that the first cases about the issue will start to land in court soon, as employees refuse to comply with mandatory vaccine requirements, says Irvin Lawrence, an employment expert at law firm ENSAfrica. "It is still new territory in terms of retrenchment law, but we have started seeing employers considering various ways of dealing with employee resistance to being vaccinated. This may include the possibility of resorting to retrenchment. I think it will become a big topic going forward and will raise some Constitutional challenges as some employees claim it is their right not to take a vaccine," Lawrence told Fin24 after his presentation. He found a New Zealand court case which dealt with the situation where an employee refused to be vaccinated. The employee then wanted a retrenchment package. "Occupational health and safety measures and directives dictate that employers should do a risk assessment and determine whether a certain part of their workforce must be vaccinated to perform certain jobs, regardless of what their reasons are for not wanting to be vaccinated. The possibility of dismissing those employees then arises," says Lawrence. "One school of thought says such a dismissal must be by way of retrenchment, while another view is to treat it like a case where an employee has become incapacitated to do a specific job due to a disability sustained - like in the case where someone is injured." Although the New Zealand court did not decide on this aspect, Lawrence finds it telling that the court did, however, rule that the  employee in question, whose job required vaccination, was not entitled to a retrenchment package upon her dismissal. This was because the job itself did not change but merely the requirements for the incumbent. The employee simply chose not to be vaccinated and became "incapacitated", forcing the employer to dismiss her. "I think employers in this kind of situation will probably first see if there is an alternative job available for the employee where he needs not be vaccinated - like working from home. If that is not possible, then the employer will say it has to terminate the employment as the employee cannot contractually perform the requirements of his job," says Lawrence. He also raised two other retrenchment law developments to take note of. The one is where a South African court found that, due to the impact of Covid-19, a company's retrenchment consultation and facilitation process did not need be suspended until lockdown levels eased because of the availability and access to virtual consultations. The court also noted the risks of consulting with a large number of people physically at one time. Using virtual platforms were found to be in order and an acceptable part of the new order. The other case is where a South African court ruled that an employee who had worked past retirement age, was legitimately entitled to a subsequent voluntary severance calculated from his original date of starting work at the company. Reaching retirement age did not interrupt the employee’s continuity of sercie and severance entitlement. 

Mandatory workplace jabs should weigh up operational needs and workers' rights: legal expert. 17 September 2021

Employers who want to implement mandatory vaccinations at their workplaces should conduct a risk assessment and take the constitutional rights of employees into account. This is according to Jose Jorge, a director and sector head at Cliffe Dekker Hofmeyr, who was speaking at the company’s annual employment law webinar on Thursday. In June, labour minister Thulas Nxesi issued a directive regarding vaccination in the workplace. He said employers should find a “reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds”. “The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business,” the communication reads. Jorge said: “We are sitting with a number of our clients who intend to implement mandatory vaccination. As an employer, you have to conduct a risk assessment and decide if you are going to make vaccination mandatory.” Looking at their operational requirements should help employers decide if they want to make vaccination mandatory, Jorge said. “If you are in an environment where there is less social distancing, it [mandatory vaccination] is something you should consider. If you operate in health care and in an environment where you can’t social distance, then it is something you might want to consider,” Jorge said. He said mandatory vaccination might not be required where employees are office bound. A risk assessment, Jorge said, involves identifying those employees who, because of the work they do, are at a high risk of Covid-19 transmission and must be vaccinated; and those who have comorbidities. “You have to develop a plan and outline the measures you can implement in respect of vaccinations. You must consult with trade unions and the health and safety committee. “You have to identify the employees who are at risk and make a call on whether you want to implement mandatory vaccination.” It was, however, important when an employer developed their plan to take into account the rights of employees to bodily integrity and the right to freedom or religion. “Inform employees about the dangers of Covid-19 and the benefits of the vaccines and their side-effects. You have to assist employees to registers on the EVDS,” Jorge said. In cases where employees refuse to vaccinate, employers should counsel them, and where impossible to convince them to vaccinate, take steps to accommodate the worker. “If it’s medical, it’s necessary to take steps to accommodate the employee by allowing them to work in an isolated environment [within the office] or remotely. "The complication is that you have so many competing constitutional rights. It’s a balancing act.” 

See https://https://www.dailymaverick.co.za/article/2021-09-15-the-scar-of-science-i-cherish-why-i-support-a-covid-19-vaccine-requirement-at-uct-part-one/

And   https://www.dailymaverick.co.za/article/2021-09-15-the-law-and-the-greater-good-why-i-support-a-covid-19-vaccine-requirement-at-uct-part-two/

Health department supports mandatory vaccinations for some industries. 9 September 2021

The health department wants mandatory vaccination in certain industries. But while jabbing was important, acting director-general Nicholas Crisp said forcing vaccination by law was the wrong approach.  Crisp made these comments during a televised debate Newzroom Afrika aired on Sunday that included deputy justice minister John Jeffrey, Discovery Health CEO Ryan Noach and public health lawyer Safura Abdool Carrim. Jeffrey repeated President Cyril Ramaphosa’s answer to the National Assembly on Friday. He had said: “No-one should be forced to be vaccinated. Instead we need to use the available scientific evidence to encourage people to be vaccinated to protect themselves and the people about them. “At the same time‚ our occupational‚ health and safety laws require that we ensure a safe working environment. This situation poses challenges for employers who want to keep their workers safe from Covid-19‚ while respecting the rights of those who don’t want to be vaccinated.” Jeffrey listed provisions in the constitution for bodily integrity plus the right to freedom of religion and belief. “Rights must be read in conjunction with one another,” Jeffrey said. He predicted that legal debate over workers’ right to refuse jabs and employers’ duty to ensure health and safety in the workplace would reach the top court. “It’s a balancing issue and ultimately I think it will be up to the court,” Jeffrey said. He speculated it was likely the Constitutional Court would rule in favour of employers. The panel mostly agreed that offering incentives for getting the jab was the preferred tactic, rather than using the strong arm of the law to compel people to immunise. “What this is really about is creating an environment where people want to get vaccinated,” said Carrim. She raised the incentives of easier travel and entering certain places — including those which are high risk — along with “soft” measures like public education in a multipronged approach to making living with the pandemic more manageable. “It is not an issue of shoving vaccines into people’s arms but is possibly a question of incentivising people,” said Jeffrey. He mentioned trends in other countries which required vaccination for health workers and made admission to nightclubs contingent on presenting proof of vaccination. “Already some of our rights in the constitution are limited, such as the right to travel,” he noted. Ramaphosa had said while it was unclear whether SA would be hit by another wave of infections‚ those who refused inoculations put others at risk‚ which would adversely affect the economy. “If we can vaccinate a large enough proportion of our population‚ particularly the adult population‚ by December‚ we can avoid another devastating wave of infections and restrictions on the economy,” he said.  Discovery’s Noach said only in cases where the company cannot accommodate workers refusing vaccination against Covid-19, the two will have to split. “It is critically important that we make every effort to find that reasonable accommodation,” he said. Noach said the business spent weeks engaged in robust debate, including consulting with legal advisers, before deciding to introduce mandatory vaccination. “We’re convinced that all of our employees should easily have been able to obtain vaccines by the end of the year,” he said. Noach reported where employees’ concerns were “legitimate and rational” Discovery would “make every effort” to accommodate them without putting other staff at risk. “It is only where we are unable to find reasonable grounds that we will land up having to part ways,” Noach said during the broadcast discussion on compulsory jabs. He explained that most Discovery employees resistant to immunisation were “unsure and a bit frightened of vaccination”, while a much smaller second group were “diametrically opposed” to vaccination based on myths Discovery considered unfounded grounds for refusal. “There is a group of employees who feel this is unfair. We look forward to engaging with them,” said Noach. 

Should companies make Covid-19 vaccinations mandatory? 4 September 2021

Discovery CEO Adrian Gore said the policy will not infringe on the employee's legal, health and religious reasons for refusing to get vaccinated. Mandatory vaccination in the spotlight after Discovery Group announced on Thursday that it is considering implementing a policy that will make it mandatory for employees to get jabbed against Covid-19. CEO Adrian Gore said the policy will take effect from January 1 2022. He cited the need to ensure a safe workplace as a reason for this implementation.  Gore said the policy will not violate the rights of employees who may want to refuse the jab.  “This process will consider the employee’s health, religious and other legal rights and seek to balance these with the rights of all employees across the group. We will do our very best to accommodate each employee as we recognise that each case is different. This announcement has been rejected by trade union Cosatu. The union said on Thursday that mandatory vaccinations will be weaponised against employees who do not want to get vaccinated. Spokesperson Sizwe Pamla said the union will discuss the matter further with companies owners. “We reject the idea because it is a weapon that will be used to discriminate against those who hold different beliefs from mainstream. We prefer that dialogue is used and not coercion to convince workers and South Africans to vaccinate. “We plan to engage them and hopefully it will not result in any head-on confrontation. But all options are on the table if dialogue doesn’t work,” said Pamla.  The department of employment and labour released a consolidated direction on occupational health and safety measures in June, which says that employers should not coerce employees into vaccination. “The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s businesses,” said minister Thulas Nxesi.Employers are required to ensure that workplaces are safe and adhere to the Occupational Health Safety Act. “If the employer decides to make it mandatory once the risk assessment has been conducted, it must then identify which employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe Covid-19 disease or death due to their age or comorbidities,” said Nxesi. In July, the SA Human Rights Commission (SAHRC) head Buang Jones called on South Africans who have been threatened with dismissal or eviction for refusing to get vaccinated, to come forward. He said the commission had been inundated with complaints regarding mandatory vaccinations. He said the commission will explore the legalities around the issue. 

Employment and Labour Minister issues new direction with regard to vaccination in the workplace. 14 June 2021

​Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds. This is contained in the new consolidated direction on occupational health and safety measures in certain workplaces which was gazetted by the Minister of Employment and Labour, Thulas Nxesi.

"The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business," reads the guidelines. Constitutional grounds could be the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediateallergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine. The Consolidated OHS Direction now requires an employer to include in its risk assessment whether it intends to make vaccinations compulsory. This is a three-step enquiry:

 Firstly, it must make that assessment taking into account the operational requirements of the workplace. This means that the Direction does not make the vaccinations mandatory, but every employer must take into account its general duties under the Occupational Health Safety Act, 85 of 1993 to provide a working environment that is safe and without risk to the health of his employees and persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

 Secondly, if the employer decides to make it mandatory once the risk assessment has been conducted, it must then identify which of its employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe COVID-19 disease or death due to their age or comorbidities. In other words, not every employee poses such a risk – for example workers who work from home or whose work is such that they do not come into close working contact with other workers or the public.

 Thirdly, having identified the employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees as and when COVID-19 vaccines become available in respect of those employees, taking into account the Guidelines set out in Annexure C of the June 2021 version of the Direction. Given the phased nature of the National Vaccination Programme based on criteria determined by NDOH from time to time, an employer may only make it an obligation once the employee becomes eligible under the programme for vaccination and has been registered on the Electronic Vaccination Data System and given a date for vaccination.

 "What is critical is that we need to balance the needs and to take the dictates of collective bargaining and the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions," said Minister Nxesi.

This might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask. 

Coega Steel slapped with prohibition notice after not reporting furnace explosion. 4 September 2021

The Department of Employment and Labour (DEL) has placed a prohibition notice on Coega Steel, following a furnace explosion that it failed to report. The prohibition notice follows an anonymous tip-off, which included pictures of a Ceoga Steel employee with burns on their hands and face. The incident allegedly happened on 22 August, during a night shift. "The life-threatening incident, which left employees traumatised, revealed that a total of five employees were injured on the day. All these employees sustained multiple burns all over their bodies from face, neck, chest, head, hands [and] ankles due to the explosion," the DEL said in a statement. After finding that Coega Steel had not complied with health and safety regulations, the DEL's inspectors gave the company a prohibition notice, ordering it to halt production at its furnace department where the explosion had happened. Apart from failing to report the incident and starting operations immediately after it happened, the DEL said Coega Steel had not taken steps to ensure that there is no re-occurrence of a similar explosion. The department has also directed the company to assist the employees who were left traumatised by the incident. The DEL’s Eastern Cape head of department, Nomfundo Douw-Jack, said investigations into the explosion are being conducted. She noted a high rate of fatal incidents in the iron and steel, agriculture, chemicals and construction sectors, and said the department will ensure that employers who go against regulations are "brought to book". 

How did a warehouse storing toxic and flammable chemicals, some of it banned in other countries, quietly move in next door to a school, a Makro superstore and a wetland without anyone knowing? 20 August 2021.

The agrochemical giant UPL seemingly sidestepped crucial regulatory defences against environmental and health hazards at its warehouse in Durban – something for which residents, wetlands, rivers and beaches have paid the price since the facility was set alight on 12 July during civil unrest. One immediate consequence was that firefighters called to extinguish the blaze – in the middle of widespread chaos – were unaware they were walking into a hazardous chemical fire, which put their lives at risk and hampered firefighting efforts. The contents of the warehouse were largely kept secret until amaBhungane revealed an inventory detailing the massive quantities of extremely dangerous materials stored there. Amongst the chemicals stored were several banned in other countries, including at least 26,000kg of Masta 900, an insecticide containing the “very potent neurotoxin” methomyl, which is banned in India where UPL is headquartered, and for which “contact with skin, inhalation of dust or spray, or swallowing may be fatal”. The question is: how was such a dangerous facility allowed to set up shop alongside a busy Makro and 400m from a school?  Given the contents of the facility and the fallout from its destruction, it is hard to grasp how UPL got away with not conducting the environmental and risk studies legally prescribed by the National Environmental Management Act (Nema) and the Occupational Health and Safety Act (OSHA).  

https://www.dailymaverick.co.za/article/2021-08-19-united-phosphorus-limited-chemical-disaster-a-gaping-legal-loophole-or-jaw-dropping-negligence/

R2m damages claim for plumber’s death. 12 August 2021

Cash-strapped Matlosana Municipality in Klerksdorp is facing a R2 million damages claim after a plumber who had to assist in fixing a broken pipe was literally buried alive under sand. The incident happened after the wall of a trench he was working in caved in. Tshehla Famen Khabu, who lost his life in 2013, was the only breadwinner of his family. His wife and three children claimed loss of support against the municipality, the plumbing company which employed Khabu, as well as against the company which supplied the equipment with which the excavation was made. However, Gauteng High Court, Pretoria, Judge Nicolene Janse van Nieuwenhuizen found the municipality to be vicariously liable for 100% of the damages. This is because the municipality was in charge of the entire operation that day and only hired the services of the plumbing contractor. The municipality also had an expert on site at the time who had to make sure that all went well and that safety measures were in place. GS Poultry chicken abattoir operated adjacent to the site. During its operations, GS Poultry caused chicken waste to wash into the sewerage drainage system, which led to a constant problem of blocked drainpipes. The municipality is responsible for the proper functioning of the sewerage system in this area. It engaged the services of GTC Plumbing, Khabu’s employer, to do the plumbing work on site. During the execution of the construction work, Khabu was in the excavation site when one of the walls caved in and buried him. One of the workers testified that he first got into the bucket of the excavator’s arm and was lowered into the trench to measure the pipe. His boss and the municipal officials who were in charge of safety stood at the edge of the excavation area, but neither of them stopped him from entering the trench. After he got out, Khabu was lowered into the trench and he tried to clear the mud around the pipe itself. But before he could even expose the pipe, the soil caved in on him and he was buried. Desperate steps were taken to save his life but were in vain. The court was told Khabu was in a hurry to enter the trench and get the work done, as he was a huge Orlando Pirates soccer fan and there was a game on that afternoon. The court, however, found that he should not have been allowed to be lowered into the trench in the first place as it was unsafe. It was said that the municipality official’s responsibilities on the day was to make sure that the site was safe and that nobody got injured. The official allowed two people to enter the trench while it was clearly not safe, the judge said. The court heard evidence that the soil was wet and the excavation looked unstable. The widow’s lawyer, JP Rudd, said that once they had received all the reports regarding the loss the widow had suffered, they would approach the municipality for a possible settlement. 

Did DEL conduct an investigation? Surely there should have a criminal prosecution? 

Government report calls for national policy on occupational safety and health. 2 August 2021

SA’s current legal framework said to be complex and fragmented The government needs to develop a national policy and strategy on occupational safety and health (OSH) to instil a culture of compliance with health and safety regulations across all sectors of the economy, a report has found. The report said though SA had a comprehensive legal framework on OSH, it was “fairly complex and fragmented”, with the main legislation falling under three government departments and other regulatory agencies. Four main pieces of legislation under three departments govern OSH. These include the Occupational Health and Safety Act (OHSA) and the Compensation for Occupational Injuries and Diseases Act (Coida) under the employment & labour department; the Mine Health and Safety Act (MHSA) under the department of mineral resources & energy; and the Occupational Diseases in Mines and Works Act (ODMWA) under the department of health. “The emphasis is now more than ever on the implementation of the recommendations,” the report said. The recommendations include developing an integrated data collection system on occupational injuries and diseases that will inform national policy and strategy on OSH. The report also recommended that the government capitalise on opportunities brought about by Covid-19 to instil an OSH culture across all sectors of the economy and government departments. The report titled “The Profile of Occupational Health and Safety SA”, which was launched virtually by employment & labour deputy minister Boitumelo Moloi on Friday, was commissioned by the department of employment & labour and the International Labour Organisation (ILO), a UN agency that deals with social justice and sets international labour standards. “As a member of the ILO, SA has an obligation to develop a national OSH policy and a national OSH strategy,” the report said. The deputy minister said during 2019 more than 28,000 inspections were conducted with fewer than 300 inspectors, and inspections showed poor compliance with OSH protocols by the wholesale & retail, manufacturing, and iron & steel sectors. In 2019/2020, the construction sector was 83% compliant, agriculture 74%, chemical 67%, iron & steel 62%, wholesale & retail 53%, and manufacturing 44%. Moloi said the application of OSH legislation in SA was “poor” and its enforcement was often reactive. Since the onset of the coronavirus pandemic, the employment & labour department had been sending its inspectors to workplaces and factories to check compliance with OSH protocols aimed at curbing the spread of Covid-19 and fining or closing down non-complying establishments. The report stated that from 2016/2017 to 2019/2020, the employment & labour department received 578,276 claims for occupational injuries and diseases. In the 2019/2020 financial year, the Western Cape led with 24,543 claims, followed by Gauteng, SA’s economic hub and most industrialised province, with 20,629 claims, and KwaZulu-Natal with 10,472 claims. Moloi said claims against the Compensation Fund had been rising over the years, accounting for just over R4bn in 2016/2017, with medical costs accounting for 61%-71% of the claims. Black Business Council CEO Gregory Mofokeng said: “Incidents in the workplace remain high. We undertake to comply with the provisions of all relevant legislation. We would like to mobilise resources for training and awareness of OSH. We are supportive of all measures to make sure that workplaces are safe.” Business Unity SA (Busa) director Deidre Penfold said there was a need to improve OSH regulations in the country to prevent incidents and improve the safety of employees in the workplace. Fedusa general secretary Riefdah Ajam said the country should not be left wanting in terms of international best practices on OSH. A strategy and policy on OSH should be a non-negotiable, she said. Aggy Moiloa, the employment & labour department’s inspector-general, said: “This report is the first of its kind. It will be produced every three years as we seek to improve the plight of employees in the workplace.” 

Gordhan reveals how container terminal truck driver was crushed to death. 1 August 2021  

The spreader on a container gantry - the orange device in this file photo - crushed a truck driver at Cape Town container terminal when the hoist brakes failed in March 2021, a Transnet investigation has found. A Cape Town harbour worker frantically tried to warn a truck driver about a crane falling on his cab, public enterprises minister Pravin Gordhan has revealed. In a parliamentary answer about a fatal incident at Cape Town container terminal in March, Gordhan said the driver did not hear the operator of the mobile gantry sounding his horn. The 52-year-old driver was crushed to death when the gantry spreader — the apparatus that is used to lift containers — fell on his cab. Replying to a question from DA MP Ghaleb Cachalia, Gordhan said a Transnet investigation had identified at least three factors that led to the incident:

The port equipment co-ordinator responsible for the rubber-tyred gantry did not “timeously convey” an instruction that the machine should be stopped after the alarm was raised;

Bolts on the hoist's brake pads were not correctly tightened during a refurbishment nearly four years earlier; and

The machine's maintenance regime “did not trigger the need to check the torque settings of the brake pads and ensure that any loose bolts were detected and repaired accordingly”.

As a result of the March incident, said Gordhan, “Transnet has tracked and ensured implementation of the control measures identified in the internal investigation in order to avoid the reoccurrence”.

The aftermath of the March 2021 incident in which a container gantry fell on a truck driver's cab, crushing him to death. The investigation revealed that the operator of the rubber-tyred gantry reported an unusual sound from the brakes on the day of the incident. A maintenance worker recorded the sound and played it to his supervisor, who said the machine should be stopped immediately. “The responsible equipment co-ordinator was called to stop the machine [but] did not timeously convey the instruction to ... the operator,” said Gordhan. “The hoist brake shoe was loose and eventually dislodged as the operator was positioning the equipment. The spreader lowered by itself, resulting in the braking system not responding. “This resulted in the spreader falling on the truck cabin positioned under the crane waiting to be loaded. “The operator panicked and attempted to warn the driver by continuously hooting, however the driver did not hear the warning.” In an earlier answer about the incident, Gordhan told Cachalia that all rubber-tyred gantries at the container terminal were immediately stopped after the incident for brake inspections to be done. Risk assessment and standard operating procedures were updated in response to the incident, and Transnet “further intensified the quality controls in the procurement of safety-critical equipment parts”. 

Employment and Labour on new direction with regard to vaccination in the workplace.

Employment and Labour Minister issues new direction with regard to vaccination in the workplace.

Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds. This is contained in the new consolidated direction on occupational health and safety measures in certain workplaces which was gazetted by the Minister of Employment and Labour, Thulas Nxesi.

“The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business,” reads the guidelines.

Constitutional grounds could be the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine.

The Consolidated OHS Direction now requires an employer to include in its risk assessment whether it intends to make vaccinations compulsory. This is a three-step enquiry:

Firstly, it must make that assessment taking into account the operational requirements of the workplace. This means that the Direction does not make the vaccinations mandatory, but every employer must take into account its general duties under the Occupational Health Safety Act, 85 of 1993 to provide a working environment that is safe and without risk to the health of his employees and persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

Secondly, if the employer decides to make it mandatory once the risk assessment has been conducted, it must then identify which of its employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe COVID-19 disease or death due to their age or comorbidities. In other words, not every employee poses such a risk – for example workers who work from home or whose work is such that they do not come into close working contact with other workers or the public.

Thirdly, having identified the employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees as and when COVID-19 vaccines become available in respect of those employees, taking into account the Guidelines set out in Annexure C of the June 2021 version of the Direction. Given the phased nature of the National Vaccination Programme based on criteria determined by NDOH from time to time, an employer may only make it an obligation once the employee becomes eligible under the programme for vaccination and has been registered on the Electronic Vaccination Data System and given a date for vaccination.

“What is critical is that we need to balance the needs and to take the dictates of collective bargaining and the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions,” said Minister Nxesi.

This might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask.

Media enquiries:
Sabelo Mali: MLO to the Minister
Cell: 082 729 5804 

Businesses told they can fire workers who refuse Covid-19 vaccines – but it’s not that simple. 21 June 2021

As South African companies consider mandatory vaccine policies, employers are encouraged to explore a range of options to accommodate workers who reject the jab. But one option could be to part ways with such employees, they have been told. Workers may object to taking the vaccine for religious, constitutional, and medical reasons. If they can't be accommodated in the workplace, then employers may consider terminating their employment based on operational requirements and incapacity grounds. South Africa's labour department recently updated its guidelines for dealing with Covid-19 in the workplace, which now requires companies to declare whether they plan to make vaccinations compulsory. At the National Economic Development and Labour Council (Nedlac), government and the private sector agreed that workers' refusal to take the Covid-19 vaccine should not justify a dismissal. But, last week, Business for South Africa (B4SA) told businesses that the revised guidance does not bar employers from firing workers who reject the vaccine. "There is nothing contained in the Revised Occupational Health and Safety Direction which prohibits an employer from dismissing an employee who has been identified as high risk and who has refused to be vaccinated (and cannot be reasonably accommodated)," B4SA told its constituents. "… but employers are encouraged, before considering such action, to seek legal advice given the complexities of such a dismissal," said B4SA. Before considering a dismal, employers must have first conduct a risk assessment of their workplace to determine the category of employees which it requires to be vaccinated on a mandatory basis, Riola Kok, a professional support lawyer at law firm CDH's employment practice, said. According to Kok, there are two main reasons you could get fired for refusing to be vaccinated if you are a high-risk employee and cannot be accommodated in the workplace. After considering the employee's reasons for refusal, such as medical, religious, constitutional, and cultural, the employer is mandated to assess whether it is necessary for the employee in question to be inoculated and whether they fall under a high-risk category where vaccinations are required. Dealing with dismissals on a case-by-case basis will determine the fairness of the termination and the employee's role, work environment, the alternatives they have or have not been provided, and their reasons for objection should be taken to account, Kok said. Workers can be dismissed based on the operational requirements of the employer which would lead to standard retrenchment, Kok said. "A dismissal for operational requirements, being a standard form retrenchment, [could mean] you no longer fit into the organogram because you refuse to be vaccinated where all the employees in this category are required to be vaccinated," Kok said. The company could argue that a particular Covid-19 high-risk category, because of the vaccination requirement, has had to undergo a restructuring and disqualifies workers who refuse the vaccine, she said. "In a situation where this is an employee that we've identified must be vaccinated due to their job role, the vaccine is available to be administered and there's a refusal and you require somebody in that position, then the employer would need to go the operational requirement route," she said. Workers can also be dismissed for incapacity where an employee can simply no longer perform the tasks required of them, or because of medical reasons. "It may also be an incapacity issue; it could be a medical incapacity or simply that you are unable to perform the work to the level that is required of you," Kok said. "And there again the employee may need to be taken through the ordinary incapacity process, which includes a discussion with the employee to let them know where they are falling short of the standard," said Kok. In this case, the company is required to assist the worker in improving in carrying out the functions of their job role.   "… and if there isn't any improvement, then you would have an incapacity hearing thereafter a dismissal," she said. "Where you have employees, for example who don't really require the vaccine because of the nature of their job; they're not interacting with the public, they're not even interacting perhaps with other employees, because they sit in an office and they can self-isolate… there's simply no need, in relation to that employee, to make vaccinations mandatory," said Kok. 

Denel explosion: First witness takes stand as public inquiry into blast that killed 8 kicks off. 4 May 2021

Day one of the public inquiry into the 2018 blast at the Rheinmetall Denel munitions plant, which killed eight people, started on Monday. The inquiry, spearheaded by the Department of Labour, follows mounting pressure from the victims' families. Testimony from a former worker at the plant revealed there was an urgency to mix explosive products on the day of the incident. More questions than answers have surfaced surrounding the 2018 blast at the Rheinmetall Denel munitions plant in Somerset West in the Western Cape, which killed eight people. The first day of the public inquiry heard testimony from a former worker who revealed there was an urgency to mix explosive products, and staff members had to work overtime. Three witnesses were called to testify before the inquiry, spearheaded by the Department of Labour, following mounting pressure from the victims' families. Among the witnesses was former operator Fernando Jacobs who worked at the plant for six years. On the day of the explosion, Jacobs said he had worked in the N16 building where the explosion took place. The building was used to blend large volumes of propellant from smaller sub-lots. At the time of the incident, sub-lots of single-base propellant were being blended into one homogenous final lot. Propellants had been safely blended at the facility without incident since it commenced operations in the 1980s. Jacobs said he had been on his way to the facility when the explosion occurred. "I had to take heating repellents to the facility for it to be blended. I heard a sound, like an inhalation sound, and then there was a bang." He told the inquiry there were a lot of explosives at the premises on the day. According to Jacobs, there was a limit capacity of explosives in the facility of 2 500, but on the day of the incident, they were over the limit by one ton.  Questions were also raised about why explosives were carried by deceased employer Nico Samuels in his vehicle and why a lighter was found on the premises. "He had to use a diesel-driven car when transporting explosives; that's the proper way, it was the first time I saw him take his car," Jacobs testified. The legal representative for the families, Winston Erasmus, asked him if there was any urgency to mix products on the day. Jacobs replied: "Yes. They didn't explain why there was such a rush but I could see everyone was in a hurry. We all required to work overtime’. 

Man with Covid-19 who continued to work on-site rightfully dismissed, says Labour Court. 4 May 2021

Judge criticises employer for poor enforcement of physical distancing despite safeguards being in place. An assistant butcher at national meat supplier Eskort Limited, who defied Covid-19 regulations and went to work even though he had tested positive for the virus, has been dismissed. This is the recent decision of the Labour Court in Johannesburg in which Judge Edwin Tlhotlhalemaje overturned a previous ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA), that Stuurman Mogotsi be reinstated with a final written warning. The judge said the case raised a topical issue surrounding the fairness of the dismissal on account of gross misconduct and gross negligence. “The facts of this case are, indeed, extraordinary. They are indicative of the need for more to be done at both the workplace and in our communities, ensuring that employers, employees and the general populace are sensitised to the realities of this pandemic; and to further reinforce the obligations of both employers and employees in the face of it, or event of an exposure,” the judge said. Mogotsi, who was a member of the company’s in-house Coronavirus Site Committee, was dismissed last year after being found guilty of gross misconduct for failing to disclose that he had undergone Covid-19 testing and was waiting for his results. A second charge, of gross negligence, related to the fact that he put the lives of his colleagues at risk by reporting for duty after he had tested positive. He took the matter to the CCMA. The evidence there was that he used to travel to work and back daily with a colleague in his private vehicle. The colleague fell ill and was admitted to hospital where he tested positive for the virus. At the same time, Mogotsi also started to feel unwell. He consulted his wife, a traditional healer, who booked him off work. But he only stayed off two days. He took a test and was informed of the positive result on 9 August 2020. The next day he went back to work. He was observed in video footage hugging a fellow employee, who had a heart condition. He was also seen walking in the workshop without a mask. Mogotsi claimed that he had informed management about his contact with his colleague who was eventually hospitalised “but he was not given any clear directive as to what to do”. He claimed he was now being victimised. He said he did not know that he needed to self-isolate. While the CCMA commissioner said his conduct was “extremely irresponsible”, the company had deviated from its own disciplinary code and procedure in dismissing him and he should rather be given a final warning. Reviewing the matter, the judge said the commissioner’s findings were “entirely disconnected (from) the evidence” and that the disciplinary code was merely a guideline. He said Mogotsi’s conduct was not only irresponsible and reckless but was “inconsiderate and nonchalant in the extreme”. “He ignored all health and safety warnings, advice, protocols, policies and procedures of which he was fully aware given his status as a manager and as a member of the committee. “Through his care-free conduct, he placed everyone he had been in contact with at great risk. “In the midst of all the monumental harm he caused, and which was clearly foreseen, he could only come up with the now-often used defence that he was victimised.” The judge said Mogotsi had shown no contrition and the trust relationship between him and the company had broken down. He further questioned the company’s seemingly non-adherence to its “fancy Covid-19 policies”, when it allowed Mogotsi, “a maskless hugger”, onto the shop floor. “Does a basic principle such as social distancing mean anything to anyone at the workplace? All these questions need to be addressed in light of Mogotsi’s version that after (his colleague’s) tests results were made known, business continued as usual hence he continued reporting for duty. “It is one thing to have all the health and safety protocols in place and on paper. These are however meaningless if no one, including employers, takes them seriously.” 

Mr Mogotsi also contravened section 14 of the OHS Act by failing to obey a lawful order given by the employer in the interests of health. RHL.

A litany of alleged failures leaves Johannesburg’s crucial hospital shuttered. 21 April 2021

The response to the fire at Charlotte Maxeke Academic Hospital, the second-largest tertiary hospital in the Southern Hemisphere, has been hailed as a collaborative effort between public and private actors that saved lives and limited damage to property. But it’s raised questions about the City of Johannesburg’s ability to respond to fires and whether state institutions are prepared for such emergencies. “As far as cooperation was concerned, we couldn’t have asked for a better day,” said Wynand Engelbrecht on the response to the fire that broke out at Charlotte Maxeke Academic Hospital on Friday, 16 April. Engelbrecht worked as the City of Johannesburg’s fire chief in Midrand and also served as a former force commander in Sandton. Three years ago, he launched Fire Ops, a small private firefighting brigade that operates in a number of Johannesburg areas. Fire Ops leaders heard of the fire at Charlotte Maxeke on social media and sent three of their vehicles, which are smaller than the usual fire engine but have high-tech equipment, to help. Engelbrecht has become somewhat of a media go-to on Joburg fires, and in interviews, he has hailed the city’s “sterling work” at the hospital. The fire at Charlotte Maxeke saw public and private organisations collaborate to extinguish the blaze and evacuate more than 800 patients to other facilities. Firefighters worked tirelessly over Friday and Saturday and healthcare workers, NGOs, private ambulance services and volunteers ensured there was no loss of life as patients were shuttled to other hospitals. Paramedics wheel a stretcher bed and an empty incubator towards the hospital entrance in preparation for evacuating the remaining patients on Saturday night, 17 April. Inspecting the damage on Tuesday, Health Minister Zweli Mkhize called the fire “a crisis with a happy ending”. Joburg Public Safety MMC Mally Mokoena thanked the city’s Emergency Management Services (EMS) and acknowledged stakeholders including Fire Ops, Tshwane Emergency Services and Gift of the Givers.  Engelbrecht told Daily Maverick that the response was, actually, “a disaster”. Joburg EMS divisional chief Synock Matobako did not respond to questions sent by Daily Maverick. The City of Johannesburg’s lack of fire engines has been well documented and attempts to procure more vehicles have repeatedly been marred by irregularities. At any one time, the city reportedly has between four and seven fire engines available to service its 30 fire stations and millions of residents. The cities of Ekurhuleni and Tshwane have agreed to provide support in the case of emergencies. According to Engelbrecht, only one fire engine was deployed to Charlotte Maxeke, the second-largest tertiary hospital in the Southern Hemisphere. That engine had to drive up and down the road to ferry water from an off-site hydrant because the hospital’s hydrants were not either not working or lacked the necessary connections. If two fire engines had been deployed, they could have taken turns to replenish their water supplies and continuously fight the fire and limit its spread, claimed Engelbrecht. EMS’s Matobako told SABC that the firefighting equipment inside the hospital had no water. “We seem to be finding a trend; it is like a trend that is happening with most of the buildings that we respond to,” he said. Firefighters prepare to put on oxygen equipment ahead of entering a section of the building on Friday night, 16 April. Gauteng health communications head Motaletale Modiba told 702 that the provincial Department of Infrastructure audited the hospital in October or November 2020 and found its fire hydrants were in working order. At the time of writing, representatives from the Gauteng Department of Infrastructure and the national Department of Labour had not responded to inquiries about audits of the hospital’s compliance with health and safety laws. Engelbrecht’s Fire Ops had ten staff members on the scene while the city’s EMS team included around 30 members. ngelbrecht said there were obvious failures in both the hospital’s preparation for an emergency and how EMS fought the blaze.The fire started at around 11.30 on Friday morning at a hospital dispensary store. Initially, it only affected a car park but it soon threatened to spread. The decision to evacuate patients was only taken on Friday evening and the last patients were only evacuated on Saturday morning. Dr Suhayl Essa, who works at the hospital, told Sunday Times that staff initially thought the fire was under control but they were called in on Friday night to assist with the evacuation. He helped move patients out of the antenatal unit and said it was full of smoke. “There were patients lining the corridors,” Essa told Sunday Times. “We were effectively triaging patients, selecting those we needed to be transferred urgently.” Engelbrecht said the hospital did not have an adequate emergency plan, which should have dealt with how to handle patients on oxygen and in isolation wards for Covid-19. He claimed hospital and provincial government officials only took the decision to evacuate after he raised the alarm. “It was a sad sight to see. It wasn’t an evacuation, it was running for your life,” he said, having also witnessed smoke-filled wards. Scores of ambulances are seen on Friday night, 16 April, as they wait to load patients during the evacuation. Engelbrecht rubbished claims that the hospital could reopen within a week. The effect of the smoke, he said, would leave equipment, curtains and walls covered in soot and could cause structural damage, he said. “It will be criminal and negligent to move those people back into that hospital.” Mkhize said structural engineers are currently assessing the damage. He said patients would not return “until we are certain that the place is structurally safe and that the areas that were damaged have been corrected”. The cause of the fire is still under investigation. Premier David Makhura said he expected to receive a report on the cause by the end of Tuesday but it’s unclear whether he received the report or when it might be released. Mkhize said an estimated R40-million in hospital supplies, mostly personal protective equipment (PPE), were lost during the blaze. The response to the fire and the hospital’s alleged lack of preparedness has raised further questions about the province’s ability to maintain its infrastructure and the city’s ability to respond to emergencies. In a statement, the National Education, Health and Allied Workers’ Union said, “The fact that the fire raged on for many hours proves that occupational safety measures are not adequately adhered to at the hospital. “Workers go to work to sell their labour-power, not to sell their lives.” The Public Servants Association warned the provincial government to “not gamble with the lives by resuming hospital business without a health and safety clearance certificate”. The DA’s Jack Bloom said, “The devastating fire at the Charlotte Maxeke Johannesburg Hospital is the fourth hospital fire in Gauteng in six years, and past inspections of Gauteng public hospitals have revealed widespread lack of compliance with the Occupational Health and Safety Act.” He continued: “Previous fires took place at Carletonville Hospital in February this year, at Bheki Mlangeni Hospital in May 2019, and Tambo Memorial Hospital in May 2015. Another fire started at the head office of the Gauteng Health Department in the Bank of Lisbon building in September 2018.” An empty hallway of the hospital shows stretcher beds that were used to evacuate more than 600 patients. Firefighters battled from Friday night, 16 April, for more than 24 hours to control the situation. Three firefighters died in the Bank of Lisbon blaze in downtown Johannesburg. The building did not meet health and safety standards. Shortly before that fire, the premier’s own offices were flagged for failing to meet health and safety standards. In 2017, the Department of Labour inspected seven Gauteng hospitals for biohazard and other safety issues. Each one failed to meet the required safety standards. Charlotte Maxeke was not one of the seven inspected facilities. In a statement in February 2021, the DA’s Alan Fuchs called on Makhura to release the criminal investigation report into the Bank of Lisbon fire.  “The reason for lack of safety standards in Gauteng’s building assets is that the Department of Infrastructure Development does not possess the skills nor resources to implement the legislation required to maintain the conditional integrity of the infrastructure,” said Fuchs. Days before the fire at Charlotte Maxeke, nine people died in a blaze at the Gazine informal settlement, near Johannesburg’s Kwa Mai Mai Market. According to Engelbrecht, the City of Johannesburg should have more than 100 fire engines. A recent court ruling ordered a service provider to deliver a number of vehicles and the city has said it is launching another procurement process to purchase more fire engines. Engelbrecht claimed that Joburg’s EMS response call centre handles emergency calls poorly, the city lacks a range of crucial equipment, such as the “jaws of life”, used to extract people trapped after car accidents, response times are too slow and that firefighters are demoralised. “Those are symptoms of a disease,” he said, pointing the finger at city executives and the procession of acting fire chiefs who are rotated through the top job. “They do not have a grip on the department,” he added. While it remains closed, Charlotte Maxeke Academic Hospital has diverted major services to various healthcare facilities around the province. 

Holiday chalet’s owner liable for drowning of small child in flood. 9 April 2021

A decade after their three-year-old son disappeared in flood water, a couple has finally received justice. Cameraman Daniel Black was swept away in the flood, but survived. His little boy disappeared. More than 10 years after their three-year-old son drowned after being swept away by flood waters, his family has secured a court victory against the owners of the chalet in North West where they were on holiday. Mahikeng High Court acting judge Monare Makoti has ruled in favour of Daniel and Belinda Black in their bid to hold Tino Erasmus, the owner of Kingfisher Lodge, liable for their loss. Daniel was a cameraman for the SABC show 50/50 at the time. While on a shoot he came across the three chalets on Erasmus’s farm. Kingfisher Lodge was situated on the banks of the Groot Marico River and guests could fish from its deck.  Belinda made contact and booked the family in for a holiday for the week of December 13 to 19 2010. The rains came late on their third night. In an interview with local media after the flood, Belinda said when they woke up at midnight the bedroom was ankle-deep in water. The mattress on which their two children, Eric, three, and Jennifer, 18 months, were sleeping was bobbing in the water. They each grabbed a child and tried to get to higher ground. Daniel was swept away by the raging water and Eric disappeared from his arms. His body was found the next morning by rescue workers. In their claim, they said Erasmus had breached his duty of care and been negligent by constructing the chalet within the 100-year floodline, “a dangerous area”. He had also failed to take steps to prevent dangerous events from occurring or to inform them of the dangers of flooding. Erasmus denied this. He said the flood was a freak of nature, adding that there were flood warning signs at the entrance to the farm which absolved him of liability for injuries, damage or loss.  The judge took note of photographic evidence which showed the chalet was built on the bank about six metres above the normal water level. It had a wooden balcony which almost overhung the river course, the main attraction for the Black family because the children could fish while standing on it. Of the three chalets, it was closest to the river course. Only Belinda testified at the trial because the family had relocated to the UK. She said when they arrived that Monday, weather conditions were fair and she did not notice any warning or exemption notices at the gate. They were only told to be careful when crossing the river’s low-water bridge. When shown a sign warning of “occasional flooding”, she said it was not there when they got to the farm that day. There were light showers on Tuesday and intermittent heavy rain on Wednesday, but the family was able to take a walk at one point. The violent storm and subsequent flooding started at about midnight and they struggled for several hours for their safety. Their expert, aquatic scientist Willem Kriege, said the rainfall for that year, or even that day, was not higher than normal.  He testified that the chalet was built within the area of the 100-year floodline, that there was no escape route should flooding occur and no mechanisms for an early warning of rising water.  He said it was not a “freak event”, but one that could be expected about every 18 years, and insisted the chalet had been built in a dangerous area. The fact that he makes the chalets available for use by the public can only mean that he owes a legal duty for their safety.  Erasmus said he bought the farm in 1998 and built the chalets in 2002. Before this he had asked the municipality about floodlines and whether he had to submit plans. He was told he did not. He had also consulted the previous owner about the high-water mark. He denied he had built the chalets in an unsafe area “because for over 40 years” flooding had never been experienced. The judge said “it is beyond doubt” that he created a situation of danger by building the chalet on the bank of the river. “The fact that he makes the chalets available for use by the public can only mean that he owes a legal duty for their safety. “It cannot be denied that the risk of flooding always existed and was foreseeable, which is why he was concerned about flood levels before he built the chalets.” Makoti said this was proved by Erasmus: he had put up a warning sign on the bridge about occasional flooding and had testified that when he realised the bridge had washed away that evening, he was immediately worried about the safety of his guests in the chalets. Regarding the alleged “disclaimer notices”, the judge said Belinda had disputed they existed. On top of this, it appears they would not have been visible when the gate was open. “Only if the (Blacks) can be said to have become aware of these notices could it be said they have contractually exonerated (Erasmus) from liability. I struggle to find how that could be the case if one of the notices was obscured by the gate and the other illegible.” The judge said it would be unjust and against the notion of fairness and justice to deny the Blacks judicial redress. He said Erasmus was liable for any proven damages suffered and ordered him to pay the family’s legal costs. 

Employees can be fired for flouting Covid-19 regulations, experts say. 24 March 2021 

Legal advisors say employers can discipline workers who flout rules outside of work - but only if they have relevant policies in place. Employers can discipline employees who flout Covid-19 regulations outside of work, but they must have policies in place in their employment document. Employers can discipline workers who flout Covid-19 regulations outside of work, and this could even result in dismissals. However, they can only exercise this liberty if they have policies in place, or health and safety-related misconduct offences in their employment document. This is the view of labour expert Justin Hattingh, a senior legal advisor at Strata-g Labour Solutions. “While employers are obligated under the Occupational Health and Safety Act to provide a safe and healthy working environment, staff members must also comply to those regulations and ensure they assist the employer in keeping everyone at the workplace safe and healthy,” Hattingh said. He said where employers can prove someone has been reckless after hours and exposed other employees at work, there could be a basis to act against them as that kind of conduct materially impacted on the employment relationship and the duties and responsibilities of both parties. He said employers need to have policies in place to deal with those who flout Covid-19 regulations. Hattingh said employers who dismiss employees on the grounds of flouting Covid-19 protocols, without the necessary policies in place, could possibly be found to have done so unfairly. Most employers do not have any sort of occupational health and safety-related offences in their codes of conduct. “These codes do not need to be specific to Covid-19 but need to explicitly state that any breach of occupational health and safety is not tolerated.” He said employers cannot simply assume employees will act according to regulations without being aware of what amounts to misconduct. Hattingh said labour policies need to follow the relevant code of good practice in the Labour Relations Act and ensure substantive fairness by educating employees regarding the rules present in the workplace. “Short of disciplining employees, employers must explain to their staff that if they don’t comply with regulations and then become ill, they won’t be able to work and could potentially be placed on unpaid leave. That would affect them from an economic point of view.” Labour law expert Jonathan Goldberg of Global Business Solutions agreed. He said if an employee was seen at a party outside of work where more than the number of people allowed for a gathering had been exceeded, thereby flouting lockdown regulations, their employer could take disciplinary action against them. “However, the employer must make sure employees know what they are doing is wrong before action can be taken against them,” Goldberg said. Attempts to get comment from the employment and labour department were unsuccessful on Tuesday night. 

Court rules an employee attacked at work can sue her employer. 10 March 2021

‘On the facts of this case, the assault took on racial and gendered overtones’ – Judge Wallis.

A former senior manager in the office of the Mpumalanga Premier has been given judicial authority to sue her former boss for damages for physical and psychological injuries she suffered when attacked by protestors while she was at work. The Premier and the Director-General attempted to raise a “special plea” in the matter brought against them by Catherine May Churchill, former chief director for policy and research. They argued that they should not be held liable, and she should put in a claim with the Compensation Fund. The High Court agreed, but the Supreme Court of Appeal (SCA) overturned that ruling and declared the premier and the DG liable. Being attacked at work are not ordinarily “things that go with the job”, said the court. Churchill is claiming about R7.5 million in damages, the bulk being compensation for loss of income calculated from June 2017, when she resigned because of “intolerable work conditions”, to the date of her retirement, on the basis that she will never be able to work again. The final amount will still have to be determined by a high court. The SCA judgment, penned by Judge Malcom Wallis (with four judges concurring) details the events of that day in April 2017. There was a protest organised by the National Education, Health and Allied Workers’ Union (NEHAWU). Some of the participants were employees and had access cards. A group of about 20 to 30 entered the building. Churchill’s assistant said she was afraid. Churchill had to take a document to a colleague and told her she could leave once she got back to the office. But when she got back, the assistant had left and locked the door. She swore in frustration. One of the protestors took umbrage, believing she was swearing at them and challenged her. She retreated to a colleague’s office, who tried to hold the door closed, stopping the protestors from entering. She hid behind the door and telephoned her husband saying she was not safe and he must come and fetch her. The protestors found her there. “Three men lifted her up above their heads and carried her out of the office up two flights of stairs. She was pleading to be put down. Someone called her a piece of white s**t,” Judge Wallis said. In the foyer, she was put down in the middle of the crowd and her shoes were removed. People pushed, shoved and punched her while jeering and shouting “voetsek” and “get out”. One of her shoes was thrown at her and she was chased out of the building. Her husband, who had heard everything because she had kept her cellphone on, was waiting outside. The ordeal lasted three-quarters of an hour. Judge Wallis said an agreed medical report reflected that she suffered physical injuries and, more importantly, psychological injuries that had left her with Post Traumatic Stress Disorder. She had tried to return to work “but the situation was intolerable”. Regarding the special plea, Judge Wallis said the Compensation for Occupational Injuries and Diseases Act only applied if the “accident” arose out of, and in the course of an employee’s employment. “Formulating a single test to determine whether injury arose out of the injured party’s employment is neither feasible nor desirable. In this matter, her employment had brought her within the zone of the hazard giving rise to the injuries. But was the risk incidental to her employment; the answer was an emphatic ‘no’,” he said. “The respondents argued that the risk was foreseeable, because it was a regrettable reality that protest action can lead to aggressive incidents. “There are of course jobs which give rise to risks, security personnel come to mind, But assault in the workplace, by fellow workers, is not something that ordinarily arises. “On the facts of this case, the assault took on racial and gendered overtones. It is difficult to see on what basis, as a general proposition, attacks on a person’s dignity and bodily integrity are incidental to their employment. “In simple language, they are not things that ‘go with the job’,” Judge Wallis said. The court ruled that Churchill’s injuries did not “arise out of her employment” and her appeal must succeed. 

Can you force your employees to be vaccinated against Covid? 25 January 2021

The constitution provides for protection for employers and employees in this unprecedented situation. Workplaces were a place of terror in 2020 due to the physical and financial dangers posed by Covid-19. The slow rollout of vaccines means we can expect 2021 to be just as bad, if not worse. Covid-19 is spreading much more rapidly now than ever before, too many people are still resisting the necessary safety measures and the economy continues to weaken seriously. The fact that SA’s government is severely hamstrung by anti-growth agendas does not inspire confidence that it can rescue the economy. And, to make matters even worse, money for state aid to businesses and workers has run out. This poses a major threat to those businesses that have managed to survive so far. The only light at the end of the long, dark tunnel is a vaccine, but it’s slow rollout has dulled that light significantly. As a result, when the long-awaited vaccine is finally made available, business managers will want to ensure that it is are administered optimally and that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in dire economic straits and have very lean staff compliments. Should even 10% of staff refuse to be inoculated and several of those employees fall ill, management will face increased pressure, making it more difficult to run the company effectively, as employees take sick leave or self-isolate. In addition, clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors. For these reasons many employers will want to develop policies that require all employees to be vaccinated. However, the enforcement of such policies will be very problematic. There are constitutional reasons for this. Section 12(2)(b) of SA’s constitution gives every person the right to “... security in and control over their body”.  In addition, section 15 gives everyone the freedom of religion. Thus, forcing an employee to be vaccinated under pain of disciplinary measures could, in certain circumstances, be argued to be in violation of the constitution. However, employers who are determined to enforce compulsory vaccinations could use sections 11 and 24 of the constitution in their defence. Section 11 gives everyone the right to life. As Covid-19 has caused so many deaths, vaccine objectors may pose a risk of spreading a deadly disease to people with whom they come into contact, and so their right to life would be infringed. Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. The Occupational Health and Safety Act stringently obligates employers to ensure a safe workplace.   These potentially conflicting constitutional provisions make forcing  employees to accept vaccination highly contentious, with the bulk of advice on this issue leaning towards a cautious approach. Employers should be aware of section 36 of the constitution, which provides that, under certain circumstances, the constitutional rights of people may be limited when taking into account factors such as the nature of the right and the importance of the purpose of the limitation.  In addition, the table of non-derogable rights in the constitution includes neither the right to freedom of religion nor to security or control over one’s body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough. The challenge will be to convince a court that, under the circumstances, the rights of an individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such the provision of a safe workplace. Enforcement of a Covid-19 vaccination is a new issue so there is no court precedent. In the end, an employer who considers forcing employees to get inoculated will first have to get expert advice on whether prevailing circumstances would justify such a drastic step. There would, at least, need to be a clear and present danger to workplace employees who are not vaccinated. For labour relations and legal reasons, it would be prudent to get employees to agree to be vaccinated through the use of education and non-coercive persuasion. Where this fails, and where it is viable, the employer could consider arranging for objectors to work from home or place them in locations that reduce the risk of transmission, while also enforcing the normal workplace safety restrictions.  

Astron Energy refinery bosses summoned to explain recent incidents. 14 October 2020

Cape Town - The provincial standing committee on local government has summoned the management of the Astron Energy refinery in Milnerton as well as the province’s disaster risk centre to explain “the root causes of recent incidents” at the site. In the last three months there have been two serious incidents, including a still unexplained fatal one in July where two employees died and seven were injured. In last month’s incident, nobody was harmed after a product spill on a section of the transfer pipeline between the Milnerton Refinery and the residential Acacia Park area. Questioned about a pledge he made to investigate the matter after the first incident, committee chairperson Derrick America said: “I look forward to receiving briefings from Astron as well as disaster risk management in October.” “This will assist us in understanding the root causes and ventilate options for future preventative measures, providing peace of mind to residents,” said America. “We note the recovery of employees previously injured and welcome the Disaster Risk Management’s swift responses to assist.” America said a date was yet to be finalised for the session. The EFF’s provincial chairperson Melikhaya Xego, who is also on the committee, urged Astron to “act responsibly and bring an urgent solution to this life-threatening problem.” “The incidents not only put the oil business at risk but were also a health hazard that posed serious threat to the lives of the residents, businesses around and as well as motorists,” said Xego. Meanwhile, Astron’s corporate affairs manager Jill Koopman said an investigation into the incident was ongoing. “Astron Energy worked with the relevant City of Cape Town authorities and Eskom to successfully contain a product spill that occurred on a section of the transfer pipeline between the Milnerton Refinery and Eskom Acacia Park, on Tuesday, September 22,” said Koopman. “The leak has been brought under control and clean-up operations are progressing well.” “There is no health and safety impact on the surrounding community as a result of this incident.” Regarding the July 2, incident Astron’s media spokesperson Suzanne Pullinger, said at the time: “We are committed to a full investigation of the incident, in co-operation with all the relevant authorities, to learn the cause and to take steps to prevent any re-occurrence.” “All seven injured in the incident are out of hospital and recuperating well, three of them already back at work,” said Pullinger. “The investigation team continues to make good progress and looks to complete its remaining activities in the coming weeks. Various projects have been initiated to plan for the safe restart of the refinery but it is too early to determine when that will be.” 

Probe continues into fire at Astron Energy refinery in Milnerton. 13 August 2020.

Cape Town - The investigation into a fire at the Astron Energy refinery in Milnerton continues and it is too early to determine when the refinery will be able to resume full operations, parent company Glencore’s chief executive Ivan Glasenberg has said. Speaking during a virtual news conference question-and-answer session that followed Glencore’s presentation of half-year results, Glasenberg said: “It’s under investigation. There will have to be repairs to the plant. We’re uncertain of exactly when the plant will come back on stream. It's too early to determine when the refinery will be able to resume full operations but we continue to import products to ensure no interruption to supply.” A statement from Astron’s media adviser, Suzanne Pullinger, gave more detail: “The investigation into the incident is well under way, with an external lead and combined team of internal and external subject matter experts. All relevant state bodies and authorities have been engaged.” At the same time, two employees who were injured in the fire have been discharged from hospital and are recovering at home. Pullinger also said: “The company continues to support the families of the two employees who tragically lost their lives and all other employees who were impacted.” When the incident occurred, chairperson of the provincial standing committee for local government Derrick America said: “I will invite the relevant safety officials and Astron management to brief us on how the issue arose, ways it can be prevented in future, and what critical lessons can be learnt for the benefit of all.” 

Women, including nurses, most affected by Covid-19 at work: Compensation Fund. 9 July 2020

The majority of claims lodged with the labour department's Compensation Fund in all nine provinces so far are from women — with nurses on the front line bearing the biggest brunt of contracting Covid-19 at work. Department spokesperson Teboho Thejane said more than 80% of claims lodged were from women. Thejane said the fund has received a total of 941 claims to date with the highest number coming from the Western Cape, which has recorded 657 claims. Of the 941 claims, 533 are from women. In the Eastern Cape, 99 claimants are women out of a total of 127 claims received. In KwaZulu-Natal a total of 98 claims were received with a total of 92 women affected. A total of 46 out of 54 claimants were women in Gauteng. Limpopo and North West have recorded two claims each, both of which were from women, while Mpumalanga has recorded one claim, also from a woman. Thejane said to date the fund has paid out R202,172.35 in medical aid costs. He said other claims were received through Rand Mutual and Federated Employers, bringing the overall total to 1,435 claims received. “We are aware that our front line workers like nurses and other medical staff have been affected by the pandemic. We would like to send the appeal for employers to ensure that workers are adequately protected and are given the necessary protective gear to do their jobs,” employment and labour minister Thulas Nxesi said. “Our figures show that most affected employees are nurses who are paying the ultimate price so that we get a second chance and survive the pandemic,”  Nxesi said the department’s inspection and enforcement services have “upped” their in-loco inspections to ensure that workers are protected and that Covid-19 safety regulations are followed. According to Nxesi, compliance rates were hovering at 57% for the private sector and 47% for the public sector. He said the public sector has been served with a total of 88 prohibitions [shutdowns], 363 contraventions and 87 improvement notices while the private sector has seen 45 prohibitions, 339 improvement notices and 1,210 contraventions. “Equally, workers should refuse to work under dangerous conditions,” said Nxesi. “Just this week, a company that flouted labour laws and did not adhere to lockdown regulations was found guilty and fined. It was the workers in that company who blew the whistle and both employer and employee have a responsibility for health and safety, albeit with differing roles.” 

Milnerton refinery to launch probe into explosion which left two dead. 3 July 2020.

Astron Energy said on Thursday it would conduct a full investigation into an explosion at its Milnerton oil refinery which left two dead and seven injured. “It is with great sadness that Astron Energy can confirm that two Astron employees died in an incident at the company’s Milnerton refinery this morning. “Seven other individuals were injured, two of whom remain in hospital where they are receiving treatment for their injuries,” the company said in a statement. It said all steps  were being taken by the company to support the families, friends and colleagues of the two individuals who lost their lives and those who were injured. “The incident which occurred just after 4am has been contained and the plant is now stable and all work has been stopped.” Astron Energy said the City of Cape Town fire services and emergency services remained at the scene on Thursday afternoon. It said there was no danger to surrounding communities and there is no immediate threat to fuel supplies because of the incident. “This is a terrible tragedy. Our thoughts are with the families of all those affected,” Astron Energy CEO Jonathan Molapo said. Molapo said the company's priority was to support those affected and to continue to ensure that the plant was completely safe. “We will conduct a full investigation of the incident,” Molapo said. Police said two people — a man and a woman — were killed in the explosion. 

Covid-19 patients no longer need to test negative to resume work. 9 June 2020.

Labour & employment minister Thulas Nxesi has issued new regulations on Covid-19 that scrap the requirement that employees who have been diagnosed with the disease can only return to work after testing negative for the virus, a move that is hoped will alleviate pressure on the state laboratory. The National Health Laboratory Service (NHLS) has been unable to keep up with demand for testing as SA’s Covid-19 epidemic deepens, due to a global shortage of test kits and reagents, leading to such extensive delays that the Western Cape is rationing tests. The new directive on Covid-19 and health and safety in the workplace, which was published in the Government Gazette last week, says employees who have been diagnosed with Covid-19 can return to work after they have self-isolated for 14 days and undergone a medical evaluation confirming they are fit for duty. Employers are required to monitor the person after they return to work, and the employee is required to wear a surgical mask for 21 days from the date of diagnosis. A key change is that the regulations defer to department of health guidelines on Covid-19 for isolating, testing and assessing the risk of transmission to colleagues should a worker be diagnosed with the disease, said the department of labour’s chief inspector for occupational health and safety, Tibor Szana. The regulations also scrap the requirement that employers wash and iron cloth masks provided to workers to reduce the transmission of Covid-19, shifting the onus for caring for the masks to employees. National Institute of Occupational Health (NIOH) executive director Spo Kgalamono said the previous requirement for a negative Covid-19 test before resuming duty did not make sense, as people can test positive for the disease long after they stop being infectious. A 14-day isolation period is sufficient, she said. Mass workforce testing is of limited value, as people who are healthy one day could be infected the next, she said. The NIOH is a division of the NHLS. The regulations, which have emerged from discussion at the National Economic Development and Labour Council (Nedlac), also contain new provisions to protect employee’s rights to refuse to work in an environment that poses an "imminent and serious risk" of exposure to Covid-19. Trade union federation Cosatu welcomed the regulations, saying it has been closely involved in drafting the new rules. "In particular we pushed hard for the right for workers to refuse dangerous or unsafe work and to be protected from dismissals and their wages from being deducted. This was critical as many workers have concerns with the levels of readiness of their employers," said Cosatu’s parliamentary co-ordinator, Matthew Parks. "Too many essential workers have been infected [including] nurses and doctors, retail workers, police and correctional services officers, largely because employers have failed to ensure adequate health and safety plans have been put in place," he said. Cosatu welcomes the appointment of 500 extra labour and health inspectors by the department of employment & labour, he said, but the number should be increased further to ensure worker safety. 

Employer non-compliance; a Covid-19 wake-up call – Prof Runciman. 26 May 2020.

Here’s a welcome clarion-call based on verifiable facts about SA’s employer health and safety compliance history – and not a moment too soon with workers due to return en-masse next month. This respected social change academic is calling for stronger law enforcement by the Department of Employment and Labour – and its inspection capacity enhancement. That’s because existing research shows employers are notoriously slack in complying with health and safety laws, not to mention registering their workers for unemployment insurance; the former surely a greater moral crime in our existing context? One third of employers don’t comply with either – and that’s based on recent inspections by one tenth of the department’s inspection capacity, meaning we’re probably seeing the tip of the iceberg. Surely, this is one bit of enforcement the majority of South Africans can back? It would be great to hear a motivated counter-argument. Pleas by the Director General of the department for employers to do the right thing seem to have fallen on deaf ears. The author says that as things stand, re-opening of the economy will put workers lives in jeopardy. What part of Ubuntu don’t these employers understand? Story, courtesy of The Conversation. – Chris Bateman

Why easing the lockdown threatens to put workers in South Africa at risk

In South Africa demands from business and trade unions to relax restrictions on the economy are growing. This comes even after President Cyril Ramaphosa said that most of the country may move to lower level restrictions before the end of May. Gauteng, the powerhouse of the economy, is likely to follow in June. For those unable to work from home, being able to return to work is likely to come as a welcome relief. People unable to work because of lockdown restrictions are overwhelming concentrated in low-paid jobs. This includes jobs like domestic work and non-essential manufacturing.

But steps need to be taken before these workers can return.

The country’s occupational health and safety directive sets out what’s expected before a workplace can reopen. It must undertake a risk assessment and develop a written plan for how it will operate under the necessary health and safety restrictions. These measures must include appointing a COVID-19 compliance officer, ensuring social distancing in the workplace, screening and testing in workplaces with more than 500 workers. In addition, sanitisers, masks and other protective equipment must be provided. Workplaces with over 500 workers must submit these plans to the Department of Employment and Labour and to their internal health and safety committee. There are at least 1.8 million employers in South Africa. It would be impossible for the department to inspect every workplace to ensure its compliance with the occupational health and safety directive. This system, therefore, relies on voluntary compliance by employers. But, sadly, high levels of noncompliance with basic labour laws are a common feature of the South African labour relations landscape. This is not peculiar to the conditions of lockdown but is indicative of a wider culture of noncompliance among employers in the country.

Culture of noncompliance and a lack of enforcement

Data from the labour department’s inspectorate shows that just over a third of the employers it has inspected since the beginning of the lockdown have not been compliant with occupational health and safety measures designed to protect workers. Commenting on the high levels of noncompliance, the inspector general, Aggy Moiloa, said ‘We are shocked that many organisations are still struggling to comply with the OHS Act. It should be every organisation’s habit’. But a quick look at the data for previous years shows that this level of noncompliance is normal and should not have come as a surprise. Last year, the department reported to the employment and labour parliamentary portfolio committee that, on average, over a third (37%) of the employers inspected had not been compliant with the occupational health and safety act. Similar levels of noncompliance with basic labour law are also seen in the high percentage of employers that have failed to register their workers for the Unemployment Insurance Fund. But the rate of noncompliance that the department has reported is likely to be just the tip of the iceberg as only a fraction of the inspectorate has been used under the lockdown. As of November 2019, the department employed just under 1,800 inspectors. But the minister has stated that only 170, less than 10% of the inspectorate’s capacity, have been used for occupational health and safety inspections during lockdown. This may be because, ordinarily, inspectors have different competencies and not all inspectors may be trained in carrying out occupational health and safety inspections. On 1 May 2020, the inspector general told the employment and labour parliamentary portfolio committee that a further 500 inspectors would be employed within a week. Even with an additional 500 inspectors, this would still only represent a third of the inspectorate’s total capacity. Even if more inspectors are employed there is a need to increase the number of inspections carried out by each inspector. During the first 30 days of lockdown 2,226 inspections were conducted. This averages out to each inspector conducting 13 inspections over 30 days, about one inspection every two days. This rate of inspection seems particularly slow given that much of the economy was shut during this period. Throughout this crisis, the labour department has called on employers to show “social solidarity” and to do the right thing by their workers. But this seems to have fallen on deaf ears. The labour minister has had to plead with employers to pay money to workers that they should have received from the Unemployment Insurance Fund COVID-19 Temporary Employer/Employee Relief Scheme. Indeed, the fact that employers seem unable to do the right thing by their employees has led the department to open up the scheme to allow workers to apply directly without having to wait for their employer to apply. The department’s own inspections demonstrate that a significant section of employers are not voluntarily ensuring adequate health and safety precautions in the workplace. The inspector general has said that its inspections are driven by reports from employees who must be the “first line of defence”. But, under the current conditions of economic uncertainty and retrenchments looming, many workers will be too fearful of losing their jobs to report their employers.

What needs to be done

The Department of Employment and Labour needs to take a stronger and proactive role in ensuring compliance through strong enforcement. It needs to use the full extent of the inspectorate’s capacity to ensure compliance with the necessary health and safety measures is enforced. Without this, any further reopening of the economy will put workers’ lives in jeopardy. 

 Covid-19 workplace compliance is only 60%, saysCovid-19 workplace compliance is only 60%, says labour department. DM. 13 May 2020.

The labour deparment has already signalled it plans to hire 500 more inspectors. There are only 200 now, according to a recent briefing from Labour Minister Thulas Nxesi. Clearly, the government and the wider public have concerns about the pandemic, and everyone needs to get used to new rules of economic engagement. Yet, one wonders if there is not an overzealousness on the part of inspectors. In what must be a warning shot about coming battles over Covid-19 policy, the labour department says only 60% of companies are complying with regulations to stem the pandemic’s spread. This is the finding of 2,789 inspections carried out between 30 April and 8 May. The kicker is that SOEs and other government entities scored only 50%. What a shocker. In a brief statement on Tuesday 12 May, the labour department made clear its displeasure with the rate of compliance as many companies and businesses attempt to reboot under the already stifling rules of lockdown Level 4. It said that its inspectors had found “that two of every five inspected organisations [were] not complying with the Occupational Health and Safety Act (OHSA)”. Or 60%, the majority, are compliant, which is more to the point. “During the inspections, it was found that 1,237 organisations were not compliant, resulting in the issuance of 1,463 notices comprised of Contravention Notices; Improvement Notices and Prohibition Notices. Of these inspections, 411 were conducted at government and or state-owned enterprises where the rate of compliance was at 50%,” it said. So, one of the silver linings here appears to be that government is realising just how shoddily run SOEs and other arms of government are. And the tone suggests that non-compliance will not be tolerated by this arm of government, which can probably wield a sledgehammer now if it saw fit – or anyway thinks it can. “Given the fact that the virus is spreading substantially, it is of great concern especially at those employers where there are long queues or people congregating. This is especially prevalent at government-related workplaces,” Inspector-General Aggy Moiloa was quoted as saying. “We are shocked that many organisations are still struggling to comply with the OHS Act. It should be every organisation’s habit. No wonder we still have so many workplace accidents. Progressive organisations invest in the wellness of their employees,” Moiloa said. The use of the term “progressive” is probably instructive here, and not in the US liberal/political sense of the term. “The department is gearing up for more inspections as more organisations are starting to increase their operations with the result that more employees are anticipated to gradually start working again,” it said.  It has already signalled it planned to hire 500 more inspectors, which had been budgeted for in 2019 but it somehow did not get around to hiring then. There are only 200 now, according to a recent briefing from Labour Minister Thulas Nxesi, so their ranks are set to swell. Clearly, the government and the wider public have concerns about the pandemic, and everyone needs to get used to new rules of economic engagement. Yet, one wonders if there is not an overzealousness on the part of inspectors. Some struggling businesses may have hoped to get cut some slack. And according to more than one company, the rules are confusing and shifting. The result in many cases is also no doubt over-compliance.   Anyway, a genie is out of a bottle now that is going to be very hard to put back.  Stay tuned as this may also suggest bigger fights around policy within Cabinet, the National Command Council, and the ANC. BM 

Cosatu worried about government’s ‘lethargic’ handling of worker compensation bill. 18 March 2020

Labour federation Cosatu has welcomed the approval by the cabinet of a bill proposing the inclusion of domestic workers in the compensation for occupational diseases and injuries. The Compensation for Occupational Injuries and Diseases Amendment Bill provides for the inclusion of domestic workers as employees qualifying for benefits under the act and for the improvement of compensation benefits for employees in general. The draft amendment bill also proposes a rehabilitation and reintegration framework for workers returning to the workplace. Cosatu parliamentary co-ordinator Matthew Parks said on Tuesday the federation welcomed the “long-delayed approval”. He noted that there were about 800,000 domestic workers in SA, who he said were among the most exploited and abused workers. “To date they have not been allowed to claim for injuries on duty,” said Parks. “This is unconstitutional and immoral. The South African Domestic Services and Allied Workers Union (Sadsawu) has done sterling work in championing the rights of domestic workers. This matter was won at the Supreme Court in 2019 and is now before the Constitutional Court.” He said Cosatu was confident that the Constitutional Court will find in favour of domestic workers. Exactly a week ago, the top court heard an application for confirmation of orders by the North Gauteng High Court in May and October 2019. This came after Sylvia Mahlangu successfully challenged the exclusion of domestic workers from the Occupational Injuries and Diseases Act (Coida) at the high court. Sylvia is the surviving daughter of deceased domestic worker Maria Badanile Mahlangu, who worked for the De Clercq family for 22 years. On March 31 2012, Maria drowned in her employer’s pool during the execution of her duties. The De Clercqs offered the bereaved family less than R5,000, prompting Sylvia to approach the department of employment & labour to lodge a grievance. The department advised her that she was not entitled to any compensation as a result of her mother’s death, leading to her mounting a legal challenge on the constitutionality of the act. The court declared a section of the act constitutionally invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”. In October, the same court further ruled that the declaration of invalidity must be applied retrospectively to provide relief to domestic workers who were injured or died at work before the granting of the order. On behalf of Sylvia and the Sadsawu, the Socio-Economic Rights Institute of SA (SERI) approached the top court to confirm the two orders granted by the North Gauteng High Court in 2019. Chief justice Mogoeng Mogoeng reserved judgment. Parks said they condemned the “lethargic speed at which government and parliament have moved to deal with this matter”. He said the bill was processed by the National Economic Development and Labour Council (Nedlac) in June 2018: “Almost two years later, despite repeated commitments to do so, government has still not tabled it in parliament. This has resulted in thousands of injured domestic workers being left unprotected and uninsured.” He called on the department of employment & labour to ensure that the bill was tabled in parliament within 30 days. 

Pick n Pay up: man wins damages after shelf rips open his bicep. 17 March 2020

A Hartbeespoort customer sued a branch of the store after a dodgy shelf left him badly injured. Bradley Stearns has a ripped bicep – but not in a good way. The Pick n Pay shopper was left with a bloody injury after a store shelf collapsed. Stearns has successfully sued the managing company of the Hartbeespoort branch of the supermarket giant over his injury. The incident took place at the store in April 2017. For the past three years he has been fighting against Robispec – the company that managed the store at the time – to have his medical fees and damages paid at the High Court in Johannesburg. Last Monday, Judge Pieter Meyer ultimately sided with the 51-year-old Stearns, saying the store had failed to properly label the potential danger of the dodgy shelf that caused the injury. It would, in his opinion, not have taken six years since its installation to collapse; it was, in his words, ‘an accident waiting to happen’. According to the judgment, when Stearns arrived at the shop on April 3 2017, he was walking at a leisurely pace with his trolley, and turned into one of the aisles. “On entering that aisle, [Stearns] took a wide turn with his shopping trolley because of the presence of [a] gentleman [who was packing shelves] and the trolley. In executing the wide turn, he bumped the right front side of his empty shopping trolley slightly against a steel tube attached to a rack [known as a ‘power-wing’], on which batteries were hanging on display,” the judgment read. “As he bumped the rack, it started falling, and he lunged forward over his shopping trolley and reached out to grab the rack to prevent it from falling onto the floor. The CCTV footage shows that he then bent backwards, grabbing his left arm. “The rack nevertheless fell onto the floor in a forward direction across the aisle in front of him with a slight angle away from him. The plaintiff [Stearns] immediately felt pain in his left arm; his bicep was torn,” Meyer said. It was shelving expert Peter Nkosi who ultimately helped swing the case in Stearns’s favour. Nkosi had been employed as a shelving installer at Storeworks for years as a project manager and, after inspecting the rack in question, said certain racks in the store were improperly installed. “He testified that the power-wing rack system is a safe one to use, and he further gave evidence as to the way the rack was designed and meant to be installed,” said Meyer in the judgment. Nkosi also said the racks were poorly maintained. What started out as a bit of water up the bum has ended in a R500k lawsuit. “Although it was not possible for him to say how long it will take a rack in the condition, the rack in question is depicted in the photographs to fail. It would, in his opinion, not have taken six years since its installation to collapse; it was, in his words, ‘an accident waiting to happen’,” Meyer continued in reviewing Nkosi’s testimony. A representative from the store told the court there had never been an incident such as that since the store opened in 2011 but conceded the accident should not have happened. The judge believed there was no way for a reasonable person to know bumping a trolley with minimal force into such a shelf could cause it to fall, and that Robispec’s insinuation that the accident had been caused by Stearns’s negligence was “unreasonable”. The store management’s claims that it had put up notices with “disclaimer clauses” about possible injuries – which read: “Pick n Pay will not be held responsible for any loss, damage or injury sustained on its premises” – were also not enough, the judge said. “I accept that the notices were prominently displayed, but I am not, in all the circumstances, satisfied that the steps taken by the defendant to bring the disclaimer to the attention of customers were reasonable and that a contract subject to its terms was concluded by [Stearns] when he entered the store on the morning in question,” said Meyer. “A disclaimer should be pertinently brought to the attention of a customer and not by way of an inconspicuous clause,” he said. Because of that, he said Robispec was responsible for Stearns’s injuries, and ordered they were liable for damages that would have to be determined at a later hearing. He also ordered that the company pay for the costs of the proceedings.

Enock Mpianzi death: Nyati Bush Lodge had 12 life jackets that were not issued, report reveals. 5 March 2020.

The damning report into Enock Mpianzi's drowning broadly found that the school principal, Malcolm Williams, seven educators who accompanied over 200 boys to camp, the department and lodge were negligent and reckless. He added that educators should have stopped the activity when they saw that water currents were strong and that there were no life jackets. "The explanation given by Mr Knoetze that the learners were meant to stay in the shallow water and not go into the river and that life jackets are only issued for tubing is found to be callous and false," the report reads. It also found that the groups of pupils who were at the river without life jackets were at risk of injury and drowning due to the nature of the river, which was evident in the fact that the rafts the boys had assembled disintegrated resulting in the boys being swept away. Many of the boys had to be rescued further down the river, while others were beyond the island. Mpianzi's body was found 1.8 kilometres downstream on Friday, 17 January. The law firm also outlined that, during the investigation, it also learnt that there were more than two other deaths at the lodge and recommended that further investigations be done into previous incidents - particularly those of Portia Sowela, Thuso Moalusi, Tumi Mokomane and Mellony Sias - to establish the progress of police investigations in the deaths and whether Nyati was at any fault. Touching on the school's legacy and issues, Harris said the 2018 HNM report, which was commissioned by the department following sexual assault allegations at the school, also found that there was insufficient supervision and presence of teachers at Grade 8 camps. He said following that finding, the school should have been on high alert on future trips, but it seemed not to have been the case.  Harris said the report found that the school governing body (SGB) and school management team (SMT) failed to give serious consideration to the findings and recommendations that were contained in the 2018 report. "Accordingly, the SGB and SMT are found to have contravened the requirement to ensure adequate supervision of the Grade 8 camp, arising from their responsibility to respond to the school's legacy and also enforce the provisions of the school's safety policy." 

My take.

The Occupational Health and Safety Act No. 85 of 1993 as amended regulates the activity which took place at the lodge on the day in question. Both the school and the Lodge owed the pupils a duty of care as embellished in the Act. Both the school and the Lodge owners are employers who have statutory duties of care to persons other than their own employees (leaners). Section 9 of the Act, entitled General duties of employers and self-employed persons to persons other than their employees, is particularly relevant and reads:

 ‘Every employer shall conduct his undertaking in such a way as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety’.

As a Service Provider to the school, the Lodge offered activities such a river rafting and should have assessed the hazards involved in such activities – particular as young people were involved – and communicated the risks involved to the supervisors present. The supervisors / teachers of the school should have utilised the risk assessment and also communicated the risks to the learners involved. The risk assessment is the point of departure and must be fully understood by all persons in a position of authority and must include precautionary measures to mitigate the potential risks of rafting on rivers which can be unpredictable. An assessment should also have been made as regards the swimming abilities of the learners and life jackets should have been supplied free-of-charge as required by General Safety Regulation 2(2) which reads:

 ‘The employer shall take steps to reduce the risk as much as practicable, and shall provide free of charge and maintain in good and clean condition such safety equipment and facilities as may be necessary to ensure that any person exposed to any such condition or situation at a workplace or in the course of his employment or on premises where machinery is used is rendered safe’.

 Not only should the Lodge and by inference the school, have ensured that life jackets (safety equipment) were provided to the learners free of charge but the leaners should also have been trained into the safe usage of the life jackets."

Damning report into M1 highway bridge collapse that killed two. 3 December 2019

Incompetence, missing bolts and all-round negligence cited as grounds for prosecution, but no individuals have been implicated. A temporary structure for the building of a pedestrian bridge over the M1 highway was kept together by luck rather than engineering skill. At about 3.25pm on October 14 2015, that luck ran out, as 120 tons of steel crashed on to the highway during afternoon traffic. The collapse cost the lives of two people and injured 19, but could have been prevented, an investigation report by the department of labour shows. The findings, especially those made against the main contractor, Murray & Roberts Construction (MRC), are damning. The department recommends that four institutions be prosecuted, but it does not hold any individual responsible. The report about what really led to the accident has been kept under wraps until now. The department has refused to release the report, but the Johannesburg Development Agency (JDA), which appointed MRC, provided it to City Press’ sister publication, Rapport, on request, because it is in the public interest. According to the report, the MRC entrusted the project to a candidate engineer, Oliver Aadnesgaard, as site engineer and to Hein Pretorius as contract manager. Both were inexperienced and lacked the expertise for this specific project. As a candidate engineer, Aadnesgaard should have worked under the supervision of a registered engineer, but Pretorius was not registered with the Engineering Council of SA and had no experience in building bridges or erecting temporary structures. Contrary to the contract, MRC failed to appoint an engineer for the design of the temporary steel structure that collapsed. In addition to designing the structure, the engineer was also meant to supervise its erection and to ensure that it was done according to design, in addition to doing regular inspections. Instead, MRC only used the general arrangement drawings provided by the supplier of the scaffolding, Form-Scaff. The drawings were only meant to determine the number of components needed, so that Form-Scaff could calculate the price, and was never intended to be a formal design for the erection of the temporary structure. The consequence is that MRC never worked out what load the structure would be able to carry and, therefore, whether it would be strong enough to remain standing. In addition, MRC never planned the sequence in which the building would take place. “It is like building a table and wanting to put up the tabletop before the legs. They erected a heavy, unstable structure across the road, without fully installing the elements Form-Scaff planned to stabilise it,” said Gregory Harrington, a structural engineer who was previously employed by MRC and who followed the case closely. To top it all, MRC did not even follow Form-Scaff’s informal “design”. Important parts of the structure were omitted completely. Construction of two anchor points – a pylon on the west side and a pier on the east side – had not even commenced at that point.

Some of the other deviations include:

At the median support, in the middle of the highway, which the entire structure effectively rested on, 21 of 33 diagonal supports had been left out.

On both the east and the west side of the highway, reinforcements to the scaffolding were omitted.

The deviations from Form-Scaff’s sketch weakened the structure to such an extent that it could not withstand the force of the wind on the afternoon it collapsed. That is why it collapsed, the department found.

According to the report, the quality of work on the parts that were erected was poor, and various connectors were not even tightened properly. MRC began erecting the temporary structure a few days in advance. On October 13, the last quarter of the bridge deck plate was put in position. During the investigation, it came to light that 95 bolts meant to keep the parts together were missing. The company admitted that it had done no risk analysis before giving the green light for the road underneath the structure to be opened to traffic on October 14. If a competent person had done such an inspection and an analysis, the shortcomings would have been recognised and corrected, the report found. This could have prevented the disaster. During the department’s investigation, Aadnesgaard did not want to say who gave the go-ahead for the road to be opened, but the report indicates that he may have been the one to do so. At the time the contract was awarded, the JDA appointed Nemai Consulting to ensure that safety requirements at the site were met. The department criticises Nemai’s representative, Roxana le Roux. She recorded some of the shortcomings but failed to put a stop to the work until these were corrected. In addition, Le Roux was not registered with the relevant regulatory body. In the report, the department recommends the prosecution of the MRC, the JDA, Form-Scaff and Nemai Consulting for various contraventions of both construction regulations and the Occupational Health and Safety Act. No individuals have, however, been singled out for further legal steps to be taken against them.

THE CONSEQUENCE IS THAT MRC NEVER WORKED OUT WHAT LOAD THE STRUCTURE WOULD BE ABLE TO CARRY AND, THEREFORE, WHETHER IT WOULD BE STRONG ENOUGH TO REMAIN STANDING.

But Willem le Roux, attorney for the JDA and an expert in occupational safety at law firm ENSafrica, said the National Prosecuting Authority (NPA) was not bound by the decision and could prosecute any person that it believed was responsible. However, the testimony before the department may not be used in court and the NPA will have to build the case from the start. The listed Murray & Roberts group has since sold its construction affiliate but still retains liability for the events. In a statement to shareholders, the group said it did not agree with various of the department’s findings, but would not elaborate on this when contacted for comment. JDA spokesperson Susan Monyai said a presentation about the department’s report was made to the JDA board on Friday. The board is taking legal advice as it differs with the findings regarding the JDA. 

The full Report - with findings and recommendations - should be made public. All interested parties are in any case entitled to the Report after a scathing finding by the judge in Industrial Health Resources Group v Minister of Labour 2011 against the obsolete and unconstitutional practice by DoL to refuse to make the Report available to all interested parties. Yet DoL still resists making their Reports available. The MHS Act, in line with the Constitution, provides for these Reports to made available. I predict most of the contraventions will be found in section 10 of the OHS Act. Section 10 is duplicated in many of the provisions of the construction regulations of 2014 and carries more (legal) weight. RHL

3 trapped workers rescued from underground diesel tank in KZN. 28 November 2019

Three workers were rescued from an underground collection tank, believed to contain diesel and oil, near Wilton Crescent, Umhlanga Ridge, Durban on Thursday morning. The workers were cleaning the tank when they were overcome by gas. At 10:32 on Thursday morning, Netcare 911 responded to the scene, spokesperson Shawn Herbst said. SA Police Service Search and Rescue, Durban Metro Police Search and Rescue and Ethekwini Fire and Rescue Services set up a rope and ladder system with breathing apparatus to enter the tank. "All three patients had difficulty breathing and required advanced life support interventions to stabilise them. "Once treated the patients were transported by various ambulance services to hospital for further treatment," Herbst said.  All necessary authorities were on scene. 

Metros / Municipalities routinely flout General Safety Regulation 5!  RHL.

DENEL EXPLOSION VICTIMS' FAMILIES AWAIT PROBE RESULTS BEFORE DECIDING NEXT MOVE. 5 November 2019.

A widow said the families were now waiting for the outcome of the Labour Department and police investigations before deciding on what to do next. The family of a worker killed in an explosion at a Denel facility said it would await the outcome of two external probes into the tragedy. Eight employees were killed in the blast at the arms manufacturer’s Somerset West site in September 2018. Rheinmetall Denel Munition (RDM) recently released the findings of its internal probe. More than a year after the explosion, experts found the cause to be a combination of human error and an electrostatic electricity risk. It was found that a component in the propellant mixing process did not meet the required quality standards. The RDM probe found workers tried to compensate for this by adding extra graphite to the propellant mixture. RDM CEO Jan-Patrick Helmsen said that this, coupled with the electrostatic electricity build-up, ignited the mixture. "Investigators believe this would have been highly unlikely for the deceased to foresee." Lawrencia Samuels, the widow of Nico Samuels who died in the ensuing blast, said the families were now waiting for the outcome of the Labour Department and police investigations before deciding on what to do next. RDM said the factory had been declared safe.

R6bn needed to fix 32 Gauteng hospitals to be safety compliant. 4 November 2019

Gauteng hospitals are in such bad condition that it will cost about R6bn to make them compliant with the Occupational Health and Safety Act. Democratic Alliance Gauteng health spokesperson Jack Bloom said the poor state of the 32 hospitals meant that none of them can be part of government’s National Health Insurance as they needed to be accredited by the Office of Health Standards Compliance. Bloom said the amount of R6bn was revealed in a presentation by the Gauteng health department to the Gauteng legislature’s health committee on Friday. Bloom said all these hospitals needed expensive building alterations, ranging from R11m for the Rahima Moosa Hospital to a “whopping” R810m for the Chris Hani Baragwanath Hospital. He said critical areas included general machinery regulations, electrical installation regulations, fire-fighting equipment, lift regulations, storage, exits, stairs and aisles. “There is very little funding for this in the three-year Medium Term Expenditure Framework, but the department was submitting proposals for R1.7bn for the 10 worst hospitals in the province,” Bloom said.

A year later, and still no answers on Denel explosion that killed eight. 3 September 2019

Cape Town - Exactly a year after the explosion that killed eight workers at Rheinmetall Denel Munition (RDM) in Somerset West, there is still no clarity on what happened. While it is on record that the Department of Labour concluded its investigation in June this year, the report has yet to be made public. At the time, Western Cape provincial inspector David Esau said: “We can confirm that our investigation has been completed; we have submitted to our national inspector who will decide on whether prosecution will take place or not.” However, on Monday the department responded to enquiries about the long-awaited report. “With reference to the enquiry, the department is prohibited to disclose the information about their investigation to any person, as per Section 36 of the OHSA, if it is not for proper administration of the act, the purpose of the administration of justice or the request by the health and safety representative of the involved organisation.” Meanwhile, in answer to a query about the investigation, RDM public relations officer Ruby Maree said: “We are still awaiting the outcome of the investigations by the Department of Labour and the SAPS. "RDM’s own investigation (with external support) to identify the root cause is also still ongoing. “We will share all information and be transparent about all findings as soon as the final results are available.” Chinaman Melani, provincial secretary of the Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union, said that despite the department having locked them out of the investigation, he had recently been tasked by the union's legal team in Johannesburg to follow-up on the matter and had heard through the grapevine that the department would be releasing its report “soon”. Pastor Adrian Manuel, the clergyman who held a prayer service for the families of the eight workers killed in the explosion a year ago, has announced a remembrance service to be held today. In a post on Facebook, Manuel said, “We will be holding a remembrance service with the families of the eight brave men who lost their lives in the Denel explosion.” He said the Denel day of remembrance would be graced with dignitaries from provincial government, the City of Cape Town, spiritual leaders and guest artists.

South Africa’s “Vision Zero” Duty Of Care Or Jail Term. 26 July 2019

“Vision Zero” is the latest safety slogan as introduced by South Africa’s Minister of Employment and Labour, Minister Thulas Nxesi while addressing about 1 000 delegates at the Occupational health and safety conference at Emperors Palace, Gauteng. He said business and organised labour have key roles to play to achieve the Vision Zero. “We have to work with organised business to ensure compliance and to assist them to act as responsible citizens. This is especially the case in the majority of workplaces – which remain unionised,” he said. The Minister said unions and shop stewards also need to rise to the occasion to safeguard the conditions of their members and to report non-compliance. “That also means inspectors have to respond timeously and effectively to compliance”, he said. The Minister said it was crucial for inspectors to be adequately capacitated to provide the services the Department offers. He said achieving Vision Zero means moving towards a trained health and safety officer in every workplace. In high-risk sectors – such as mining and construction – this has assisted in reducing the statistics for injuries and fatalities. The Department, through the Chief Directorate for Occupational Health and Safety provides a suite of services, which can be tailored to individual sectoral needs. These include:

To develop and amend regulations, policies and guidelines

To work with stakeholders and to provide training

To conduct specialised inspection and incident investigation as required

To administer special projects – such as the Iron and Steel project, and

Most importantly to train Inspectors – including technically specialised Inspectors for specific sectors.

The Minister said: “We require OHS inspectors of a high calibre who have been fully trained and are fully operational to service the clients of the Department through the OHS Act and its 21 Regulations and numerous incorporated Standards. The OHS Inspector will need to display competence in the following areas: qualifications, knowledge, skills and the right attitude and passion towards the work that he/she has applied for – together with the requisite experience. And of course, the level of inspection will vary from the highly technical to the more general OHS issues. There is a specific role to support and advise SMMEs where resources are more limited – but compliance is still required”. Department of Employment and Labour Director-General, Thobile Lamati said not much has been done to prepare people for 4th industrial revolution. He asked the question, “How do we respond to new risks and opportunities brought about by 4th industrial revolution?” Lamati said health and safety was not about safety management systems but, “about duty of care “. Lamati said inspector’s responsibilities were misunderstood. When incidents happen people ask where were inspectors? He said inspectors cannot be expected at each and every workplace. The Director-General said over the years the Department has observed that self-regulation does not work. He said the intention has been to focus on sectors that do not have systems. He said the amended OHS Bill would be prescriptive. He also said in the amended OHS Bill for the first-time workers would refuse to work in dangerous work environments. He said there will also be a push for the passing of the bill into an Act this year. Lamati said inspectors have a responsibility to ensure that labour legislation should not be an exercise in ethics, “But it actually works “.  He said there was a need to establish a credible labour inspection system – and this was vital to ensuring of safe work environments and decent work. He said the Department has expectations of an effective labour inspection that faces the challenges of the labour market. 

According to the Department’s Chief Inspector, Tibor Szana, they are “on the verge” of employing 500 occupational health and safety (OHS) inspectors, in a move that will have major change in the workplaces. A similar comment was made about the new OHS Bill a few years ago. Szana said this major change would require of the Department of Employment and Labour to broaden its scope of work by also focusing on the small, medium and micro enterprises (SMMEs) and the informal sector. “In the next 10 years health and hygiene will never be the same. We are clear what we are about to do. When we look back this will be a major turning point. We will be leveraging on the use of technologies to fulfil our objectives,” Szana said, opening the door for a long-awaited move away from pre-historic paper-based systems and methods. “We are doing all these to prepare for challenges that will be posed by the fourth industrial revolution.” Szana said the health and safety profession was on the throes of major changes. He said there were some 21 regulations governing the health and safety environments and these would be of no value if the high accident environments persist. He said while the world of work is changing, the next 10 years will matter. Department of Employment and Labour Inspector-General, Aggy Moiloa, delivering the opening address said decent work cannot be achieved without sound, safe and healthy environments. Moiloa said every occupational incident is preventable. “Workers have a right to work in environment that is not harmful.  Decent work cannot be achieved without sound, safe and healthy environment, and when that gets compromised productivity levels suffers,” Moiloa said. She cautioned that safety should not be done as a ‘by the way’, adding that employers should not be lured by the ‘short cut syndrome’. 

A special message was also given for the ailing construction sector. 

The Director of Construction, Explosives and Major Hazards Installations (MHI), Phumi Maphaha says he wants to see a jail term as a form of sanction to violators of occupational health and safety (OHS) in the construction sector as it would send a strong message to contractors who are cutting corners. Maphaha was making a presentation on the findings of structural collapse incidents. He said according to 2016 statistics there was an average of 12 500 construction sites in South Africa, involving some 1,4 million workers. He said the sad part was that the industry was responsible for a substantial number of fatalities. According to Maphaha moves are afoot to not only inspect construction sites, but to visit managers in their offices, “Most of incidents that occur could have been prevented in the boardroom”. Maphaha warned that if a structure collapses the constructor was usually be the first person to blame, emphasising that, “if a structure collapses there is someone to blame”. Maphaha warned designers to move away from slender column designs. He said designers were doing this at a risk. Building slender columns would be playing at safety, he said this was contributing to a lot of structural collapses. He said there was a need to go back to a drawing board and do things the right way. He said it was imperative that at conception stages of construction, there was proper health and safety practitioners to discuss issues.

Courtesy SheqAfrica.com

Inquiry into fatal Durban building collapse nears completion. 22 July 2019

Four workers were killed and four others injured during the Imperial Logistics Construction structural collapse in March 2018. The collapse of the Imperial Logistics Construction building resulted in the deaths of four people. Four other workers were injured. An inquiry into the collapse of a building in the south of Durban last year that left four people dead is set to conclude next week, the department of employment and labour has said. The collapse of the Imperial Logistics Construction building resulted in the deaths of Bhekuyise Moses Sibiya, France Mokhuthu Sekalu, Constandino Mapukula and Siyabonga Bhane. Four other workers were injured. The department said on Monday that affected parties would be submitting and/or delivering their heads of argument from July 31 to August 1 at the KwaZulu-Natal Master Builders Association offices in Westville. Over 20 witnesses have appeared before the inquiry, which started hearing testimony in February. “The inquiry was appointed following an incident on March 28, 2018, in which Echo Prestress, a precast roofing company, was busy with the final installation of the concrete precast roof slab. At approximately 12.30pm, the precast concrete structure collapsed resulting in the deaths and injury of workers,” said the department’s assistant director for communications in KwaZulu-Natal, Nhlanhla Khumalo. The collapse caused structural damage to an adjacent building and damages to a heavy duty vehicle that was stationed on the public road along the perimeter fence of the facility. The department is investigating the incident in terms of the Occupational Health and Safety Act and regulations. Khumalo said that should anyone be found to have contravened the Act or its regulations, a recommendation to prosecute would be made to the National Prosecuting Authority.

The ‘war’ on occupational injuries and diseases can be won through partnerships – DoL. 17 July 2019.

Despite the efforts by the Department of Labour to prevent occupational injuries and preserve the health of workers in workplaces, occupational injuries and diseases continue unabated. To deal with spate of occupational injuries and diseases, the Department of Labour’s Occupational Health and Hygiene (OHH) Directorate within the branch Inspection and Enforcement Services (IES), is to host the National Occupational Health and Safety (OHS) Conference this month. The conference will be held at Emperors Palace in Ekurhuleni, Gauteng Province. The conference will be held 24-26th July 2019. It will be held under the theme: "Strategic co-operation to promote decent work and achieve ‘Vision Zero’ in occupational injuries and diseases". Department of Labour Chief Inspector Tibor Szana said the hosting of the conference was an exciting moment. Szana said this conference will be coming with continuing professional development points for several sectors to ensure the foster of compliance with healthcare standards. The Department is hosting the conference to advocate the work performed by the Department to ensure safe working places. The conference is also being held to promote the worker’s health in the advancement of Agenda 2030, that seeks to advance sustainable development goals. The conference will bring together great minds that will share experiences and solutions in the OHS environment amidst the dawn of the fourth industrial revolution. "I believe we are winning the war, from where we were, to where we are … undoubtedly. There are changes in the industry. There are more inspections performed in the construction sector per year than any other sector. However, this war can only be won through the partnerships that we have and those that we still need to put in place wherever and whenever it may be necessary, hence the theme for the conference," Szana said. He said there was no possibility of the Department winning this war on its own, "that is precisely why we are constantly engaging our partners on matters that mutually affect us. One failure in any area taints the entire industry. We need to hold hands in partnership to succeed. Health and safety is about ensuring a sustainable work environment where workers are kept out of poverty and unemployment through the type of work environment provided to every worker". The conference will be addressed by: Employment and Labour Minister Thulas Nxesi; Employment and Labour Deputy Minister Boitumelo Elizabeth Moloi; Department of Labour Director-General Thobile Lamati; International Labour Organization Director Dr Joni Musabayana; Department of Labour Inspection and Enforcement Services Deputy Director-General Aggy Moiloa; and Compensation Fund Commissioner Vuyo Mafata. During the three-day conference there will also be breakaway sessions to reflect on a number of subjects. The breakaway sessions will discuss: gender aspects in OHS; psychological conditions after an occupational injury; health effects on people living close to electrical power lines; disability prevention and re-integration at work; applying ergonomics to promote a positive culture in occupational health and safety; electromagnetic radiation in the explosive industry; social security system; health impact of shift work; ignition risks due to optical radiation; mental health at work; impact of aging workers on OHS; ionizing radiation health effects and protective measures; emerging psychosocial work hazards: the new world of work; OHS in the informal sector: African perspective and construction health and safety. On the second day the breakaway session will focus on: control of gases use in refrigeration and air-conditioning plants; the role of epidemiological research in preventing occupational diseases; integrated worker health and well-being in construction industry; addressing occupational diseases in SA; health effects when using gas appliances inside houses; impact of HIV/AIDS and TB in the world of work; management of noise induced hearing loss in the iron and steel sector; occupational health in the chemical industry; bio risk safety management; protection of workers against noise and vibration; respiratory disorders at work; the role of education and training to vibration.

Three construction workers killed after trench collapses in Cape Town. 9 July 2019.

Three construction workers were killed after a trench collapsed in Cape Town. Emergency services worked into the night to recover the bodies of three construction workers who died after a trench collapsed on them in Cape Town. The three men were buried under sand when an excavated area along a construction site caved in next to Sandown Road in Table View just after 5pm on Monday. Cape Town fire and rescue service spokesperson Jermaine Carelse said emergency services were called to the scene. Sections of the road were closed off to traffic. "Upon arrival it was found that three persons were trapped in a trench as a result of the walls caving in‚" said Carelse. "Fire services‚ metro and other agencies worked tirelessly throughout the night to recover the bodies. "The bodies of three adult males were eventually recovered and the scene was handed over to SAPS‚" he said added.

Labour minister: We'll use UIF, Compensation Fund to help beat unemployment. 11 July 2019

Minister of Employment and Labour Thulas Nxesi told reporters ahead of his budget vote that his department would leverage the Unemployment insurance Fund and the Compensation Fund as agents in job preservation and skills development for the unemployed. Nxesi tabled his budget vote on Wednesday morning. It was the department’s first budget vote since President Cyril Ramaphosa announced that it would be reconfigured to put job creation at the core of its mandate. The UIF buffers the impact of unemployment through contributions occupants make while they are gainfully employed. The CF offers compensation to workers who lose a job or the ability to work due to occupational injuries and disease. "We provide coordination and seek to collaborate and align our efforts with other departments and agencies both to create jobs and to ensure that our people get the skills required in the marketplace," said Nxesi.

Reskilling

Nxesi said after the department's reconfiguration, government had no excuse to stand by while jobs continued to dwindle. He said passive mechanisms could be used to give the unemployed skills to empower them for the job market. "The UIF exists to protect from the impact of unemployment and to help create jobs. "You can't say you want to create jobs and allow the jobs bloodbath. We are talking about reskilling workers so they are not adversely affected by changes in the labour market, such as the fourth industrial revolution," Nxesi said. He did not go into detail on how the two funds would be used for the job preservation and skills development.

Occupational health and safety

Nxesi did, however, say the department would plough more resources into mechanisms to monitor work conditions around the country. "This financial year, we will appoint an additional 500 occupational health and safety officers. This will go some way to improving the safety of workers in the workplace," Nxesi said. He said that the department would not be able to meet the requirements for inspectors in every workplace on its own and that unions and the media were critical social partners in ensuring decent work conditions. "It's impossible to place an inspector in every single workplace. That is why we rely on shop stewards and the media to ensure accountability. If you look at the base nationally there are 1.7 million employers. The ratio of inspectors to employers is one to 20 000. It’s impossible," said Nxesi.

 Imperial Logistics Construction Structural collapse inquiry to resume. 18 June 2019.

Freightmax section 32 Formal Inquiry. 18 June to 21 June 2019. Postponed to 31 July & 1 August 2019 for argument.

The Imperial Logistics Construction Structural collapse inquiry appointed by the Department of Labour to investigate the causes of the collapsed building in Jacobs, Durban, is set to resume on 18 June 2019 at the KwaZulu-Natal Master Builders Association offices, 40 Essex Terrace, Westville. Expected to take the stand when the inquiry reconvene is Demo Salerno, a construction site Principal Agent. Salerno, was in March when the inquiry last sat, supposed to take the stand when the inquiry adjourned after it was realised that other parties’ legal representatives would require additional time than was allocated to interrogate the witness. To date, 23 witnesses have been interrogated – with building inspector from eThekwini municipality, expert witnesses (engineers), and the Chief Executive Officer of Imperial - Steven Smith. At least four witnesses will now be expected to testify before the inquiry concludes its work. The Section 32 inquiry started gathering testimony on 23 February 2019. The third session will start from 18-21 June 2019. The Jacobs structural collapse led to the deaths of four workers: Bhekuyise Moses Sibiya, France Mokhuthu Sekalu, Constandino Mapukula and Siyabonga Bhane. Four other workers were injured. This follows an incident on the 28 March 2018, in which Echo Prestress, a precast roofing company, was busy with the final installation of the concrete precast roof slab. At approximately 12H30, the precast concrete structure collapsed resulting in the deaths and injury of workers. This fatal collapse caused structural damage to an adjacent building and damages to a heavy duty vehicle which was stationed on the public road along the perimeter fence of the facility. Since then, the Department of Labour’s inspectors issued a prohibition notice to Imperial Logistics, prohibiting it from any further work until the circumstances and root causes surrounding the collapse were investigated. The Section 32 hearing has been appointed by the Department of Labour Chief Inspector, Mr Tibor Szana to investigate levels of compliance with the Occupational Health and Safety (OHS), and negligence that caused occupational injuries and deaths of workers. Mr. Sandile Kubeka a Department of Labour Specialist: Occupational Health & Safety is the Presiding Inspector of the Formal Inquiry. He is assisted by Mr Lennie Samuel, a Forensic Investigator from the Department of Labour’s Inspection and Enforcement Services (IES) branch. The affected parties in the Jacobs building collapse incident include: Imperial Logistics, Tilt Up SA, Talmac Engineering, ECHO Precast, Bedrock Construction, Archi Studio, JDF Construction, Moedi Engineering, Benrob Construction, and ECHO Prestress. The Department of Labour is investigating the incident in terms of the Occupational Health and Safety Act and its regulations. If anyone is found to have contravened the Act or its regulations, a recommendation to prosecute will be made to the National Prosecuting Authority.

I am representing the Insurer of one of the principal contractors. Argument to take place on 31 July to 1 August 2019. Open to the public. MBA Building Westville Durban. RHL.

Stoned or sober MPs must sharpen their pencils. 2 June 2019

In September last year deputy chief justice Raymond Zondo ruled in the Constitutional Court that it would not be a criminal offence for an adult to use or be in possession of cannabis in a private space. The court then gave the national legislature 24 months to rectify constitutional defects in the Drugs and Drug Trafficking Act of 1992 and the Medicines and Related Substances Control Act of 1965 to bring legislation relating to cannabis in line with its ruling. The caveat to the right-to-privacy order is that it's not unlimited, and in the nine months since the ruling many recreational and medicinal users, as well as cannabis entrepreneurs, have been finding their own ways of dealing with the grey areas until the law is rewritten. However, those on a downer as a result of the ruling are employers who have been traversing a tightrope in balancing employee rights with workplace safety in the context of labour law. Unlike with alcohol and harder drugs, the effects of cannabis on an employee's ability to perform their duties are not clearly stipulated, and workplace testing - the use of urine, hair and blood analysis - is contentious. Traces of cannabis can be detected for up to six months after use, which has caused a headache for employers, many of whom have a zero-tolerance approach to illegal drugs. A widely criticised ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) that upheld the dismissal of three employees who had traces of cannabis in their urine samples shows parliament must act swiftly in changing the legislation. The CCMA found that the men - whose jobs included sharpening knives and working at a weighbridge - admitted smoking weed on their day off. It based its findings on the employer's zero-tolerance drug policy and agreed that the men had dangerous jobs and therefore could not be intoxicated at work. In the absence of a sound legal framework, employees who light up in privacy face the risk of incurring their boss's ire at work the next day. Parliament needs to act urgently, and not wait for the deadline of September next year to change the law.

New hope for domestic workers’ rights with landmark court ruling. 26 May 2019

The rights of South Africa’s approximately one million domestic workers was at the centre of a landmark court ruling last week. Last Thursday, the Pretoria high court handed down an order declaring the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act (COIDA) is unconstitutional. Domestic workers have been excluded from the Act — which compensates employees, or their survivors, for work-related injuries, illnesses or death — since it was enacted in 1993. According to Statistics South Africa’s quarterly labour survey for the first three months of 2019, there were over one million domestic workers in the country. The matter was brought to the court in 2016 by Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria, who died at her employer’s home in Pretoria while she was working. In an affidavit to the court, Mahlangu said her mother was washing the top windows outside a bedroom located next to the pool when she slipped from the step ladder on which she was standing and fell into the pool. According to Mahlangu, her mother was only earning R2 500 a month at the time of her death. Her mother’s employers allegedly gave the deceased’s family less than R5 000 after her death. Mahlangu said she approached the department of labour to enquire about compensation for her mother’s death, which left her and her son “financially destitute”.  But Mahlangu was told that she could not get compensation as a result of her mother’s death. In October last year, Labour Minister Mildred Oliphant published the proposed amendments to COIDA to cover domestic workers. In a replying affidavit to the Pretoria high court, the labour department’s compensation commissioner, Vuyo Mafata, said the reason for the delay in extending coverage to domestic workers by COIDA was to provide the department “an opportunity to develop its institutional capacity to administer” such coverage. In another affidavit, Mahlangu refuted this, saying that the labour department has had “well over twenty years in order to develop the institutional capacity referred to”. “It defies logic and compensation that the department can think this is a legitimate factor to be considered when evaluating whether or not the exclusion of domestic workers passes constitutional muster,” the affidavit reads. The Socio-Economic Rights Institute, which represents Mahlangu in the litigation, will further be arguing that the declaration of invalidity must be applied retrospectively. This would provide relief to Mahlangu, or the families of other domestic workers who were injured or died at work prior to the granting of the order. Mahlangu was supported in her application by the South African Domestic Service and Allied Workers Union (Sadsawu).  Sadsawu, along with the United Domestic Workers of South Africa, embarked on a campaign called ‘Domestic Workers Rising’ in an effort to petition government to recognise, protect and advance the rights of domestic workers. Domestic Workers Rising said in a statement following the high court order: “Whilst we celebrate the inclusion of domestic workers in COIDA, the journey is still long as we look toward a positive ruling on retrospectivity.” “We remain, resolute and determined to usher in a new era for the domestic workers movement in South Africa. We forge ahead with the struggle for equality, equity and justice for all domestic workers,” the statement added.

Former Sasol Coal miners claim more than R80m for coal-related illnesses. 26 April 2019

Twenty-two former underground miners are claiming more than R80 million in damages from Sasol Coal after they contracted serious lung and other diseases as a result of years of inhaling coal dust while working in underground coal mines. They are arguing that Sasol Coal was negligent in failing to take adequate care to maintain healthy working conditions underground, in violation of several health and safety laws. Even if it was not negligent, the miners say the company bears the liability of their ill-health and loss of income for being unable to work. The miners are represented by Richard Spoor, the attorney who last year reached a R5 billion settlement with seven gold mining companies for miners afflicted with silicosis contracted after years of breathing silica dust in underground mines. In papers before the Johannesburg High Court, 12 of the miners say they were dismissed from employment because they contracted lung-related illnesses which made them unable to continue working. They are claiming for the loss of income, aggravated by their inability to find alternative work due to age, illness, low educational levels and lack of qualifications. The largest individual claim is R10.2 million, and the smallest is just under R1 million. “The plaintiffs have suffered permanent physical impairment. Such impairment includes shortness of breath, generalised weakness, chronic chest discomfort, tiredness and disturbed sleep,” states the miners’ particulars of claim before the court. One of the principal hazards to which they were exposed was noxious coal dust that causes lung diseases such as Coal Workers’ Pneumoconiosis (CWP) and Chronic Pulmonary Disease (COPD). These diseases can lead to respiratory symptoms such as a persistent cough and shortness of breath, resulting in a reduced ability to perform physical tasks. These can eventually develop into Progressive Massive Fibrosis (PMF), which reduces life expectancy. If coal miners with CWP or COPD are further exposed to coal dust, the severity of the disease is likely to increase. The miners argue that Sasol Coal should have known of these health hazards, and through dust sampling and measurement should have been aware of the quantities of coal dust to which miners were exposed. Routine medical surveillance, if undertaken, would have established whether miners were at risk from the levels of dust in the underground mines. In its reply, Sasol argues that the matter has prescribed – meaning it is now too late to bring before the court. The Prescription Act requires such matters to be brought within three years of the alleged offence. Summons was served on the company in April 2015, more than three years after most of the miners had left Sasol’s employ. Sasol’s court papers show several of the miners were dismissed for illegal strike action, and some had received medical compensation once their conditions had been diagnosed. One of the miners has since passed away. In other cases, workers’ medical conditions were deemed not severe enough for compensation. Some of the miners had previously worked at other mines, which may have aggravated their medical conditions. In other cases, Sasol denies the miners suffered from any lung disease, and no occupational diseases were diagnosed, so no benefits were paid out on their dismissal. Sasol also questions some of the medical assumptions on which the miners base their claim, adding that CWP seldom causes significant disability. It also denies that COPD is developed by everyone who breathes coal dust. The company argues that it provided proper mine ventilation to reduce dust particles to acceptable levels, and all workers were given adequate protective gear. To reduce the risk to miners’ health, remote-controlled mine machinery was employed, allowing operators to control the machines from a safe distance. It further argues that the miners have not been able to identify any act or omission that caused their injuries, and that the company took reasonable measures to address and reduce the risk of harmful exposure to dust on its mines. Sasol also argues that in the event of dust hazards, the miners themselves would have been negligent in not noticing, avoiding and reporting the hazard (to which the miners reply that the harmful dust is invisible to the eye, and therefore almost impossible to detect). Should the court find Sasol Coal guilty of negligence, the corresponding negligence of the miners should reduce the amount of damages to be paid, says Sasol. The Mine Health and Safety Act (MHSA) sets out the health and safety obligations on mine operators, who are expected to provide a work environment that is safe and does not pose a risk to workers’ health. Mines are also required to periodically measure the health dangers and investigate every serious illness so that the causes can be isolated and mitigated. It is also claimed that the company failed to properly ventilate the mines. The miners argue that Sasol violated mining legislation by failing to ensure its mines were safe and healthy. Expert medical reports show several of the miners on pain medication for lung-related complaints and other diseases. The reports suggest dust masks were available only some of the time while working underground. The Sasol mines named in the court papers are Bosjesspruit, Brandspruit, Middelbult, Syferfontein, Twistdraai and Sigma. The case is about to enter the pre-trial stage where the opposing parties will narrow down the areas of dispute. If settlement is not reached before then, the matter will likely go on trial in 2020.

Expert witness called to testify at inquiry into deadly Durban building collapse. 20 February 2019

Last year four people were killed and four others injured when a two-storey building collapsed onto an articulated truck. An expert witness, Robert Wilkens from Benrob Construction, has been called to testify at the inquiry investigating the cause of a building collapse which killed four workers in Durban, said the department of labour on Wednesday. In March 2018, four people were killed and four others injured when a two-storey building, which was under construction on the premises of Imperial Logistics, collapsed onto an articulated truck that was stationary on the public road along the perimeter fence on 11 Milner Street in Jacobs, Durban. Workers of a precast roofing company, Echo Prestress, were busy with the final installation of the concrete precast roof slab when the precast concrete structure collapsed, resulting in the deaths and injury of workers. They were identified as Bhekuyise Moses Sibiya, France Mokhuthu Sekalu, Constandino Mapukula, and Siyabonga Bhane. Since then, the department of labour’s inspectors issued a prohibition notice to Imperial Logistics prohibiting it from any further work until the circumstances and root cause surrounding the collapse have been investigated. The Section 32 inquiry appointed by the department’s chief inspector, Tibor Szana, is investigating the levels of adherence to occupational health and safety standards, and the alleged negligence which caused occupational injuries and the death of workers. The inquiry first sat in January where six expert witnesses were quizzed. Of the total of 22 witnesses lined to testify before the Commission, six have already done so and additional witnesses may be called in to testify based on information presented at the inquiry. Witnesses that have testified to date include witnesses from Imperial Logistics, JDF Construction, Bedrock Construction, Talmac Engineering, and Tilt Up Systems. Wilkens will testify when the inquiry resumes for a second session from March 4-15. The affected parties in the Jacobs building collapse incident include Imperial Logistics, Tilt Up SA, Talmac Engineering, ECHO Precast, Bedrock Construction, Archi Studio, JDF Construction, Moedi Engineering, Benrob Construction, and ECHO Prestress.

Incorrect reporting by The Citizen. Robert Wilkens is not an expert witness but owner of the crane that was being operated at the time of the collapse of the structure. I am involved in the section 32 Formal Inquiry. RHL

No weed at work. City Press. 30 September 2018

So what do you do if an employee comes to work high?

Do exactly what you would do if they came to work drunk – the Occupational Health and Safety Act and the Mine Health and Safety Act still apply. Employees should not be misled into believing the Constitutional Court’s decision to legalise the private use of dagga entitles them to behave in previously unacceptable ways, such as smoking dagga during breaks or arriving at work stoned. Employers still have to enforce health and safety policies and rules, and, according to the law, may not “permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace”. Last week’s ruling won’t open any floodgates allowing people to smoke it whenever they want to, and it doesn’t give workers the right to be stoned at work. The ruling only permits users to smoke marijuana in their homes, back yards, apartments or on their balconies. Most companies have developed substance abuse policies and procedures, especially in high-risk industries such as the construction and mining sectors. By law, employers may not permit anyone who appears to be under the influence of alcohol or drugs to remain at work. And employees certainly aren’t allowed to bring dagga to work, or to offer it to anyone. Employees under the influence of dagga are still dangerous and it is still illegal, according to the Occupational Health and Safety Act. Even a prescription for medical marijuana doesn’t entitle an employee to drive a car while impaired or compromise their or anyone else’s safety. Employers still have the right to conduct a test for dagga and hold employees accountable in the case of a positive result. But so much depends on how a company conducts its drug testing regime (some have adopted a zero-tolerance drug policy), and on what its substance abuse testing policy and procedures say. Human resources and health and safety professionals are up against an ill-defined wall. But if you are an employer, there are still some things you can do, including:

. Declare your workplace “drug free”;

. Update company policies and provide training on all workplace policies to ensure workers clearly understand what they can and cannot do;

. Policies for alcohol or substance abuse should immediately also include dagga;

. Ask employees with prescriptions for medical marijuana to disclose this to prevent undue prejudice and related disciplinary processes; and

. Consult employees and workplace forums on the implementation of workplace policies and procedures to avoid legal challenges.

Natalie Skeepers is an independent governance risk and compliance specialist.

In my view the use and cultivation of dagga for private use in a (undefined) private space does not impact in any way on General Safety Regulation 2A. The focus of the regulation is intoxication or impairment of facilities which impacts on individuals working safely. If you are stoned at the workplace it is a criminal offence and if you possess dagga at the workplace it is also criminal. Also to offer or partake. The real issue is the presence of THC in the bloodstream. You can be perfectly sober but still have traces of THC in your bloodstream. Employers must decide how they will deal with this in their Codes of Conduct when conducting random blood sampling. What employers will have to grapple with is the fact that previously the presence of THC is the blood pointed to illegal or criminal activities whereas now the opposite may be true. RHL

If there's a fire at your work, these are your legal rights. 10 September 2018

In the aftermath of the Joburg fire, a lawyer tells us what workers are entitled to if their employer hasn't complied with safety standards. The recent fire in a government building in central Johannesburg led to the deaths of three firefighters who were attempting to put out the blaze.  The situation raises a number of legal considerations for workers in situations where their health and safety may be compromised by an employer. The lives, health and safety of employees working in the building were also put at risk. The latest reports are that the building is only 21% compliant with applicable health and safety regulations, and as such, employees are being allowed to stay at home until such time as compliant premises are made available.  The situation raises a number of legal considerations for workers in situations where their health and safety may be compromised by an employer. Primarily, all employees are protected by health and safety legislation. The Occupational Health and Safety Act, 85 of 1993 (OHSA), provides at a high level that “every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”.  The OHSA sets out in detail, through General Safety Regulations, the specific obligations imposed on all employers to ensure workplaces are safe, free from hazards, and that hazard assessments are conducted to ensure real-time knowledge and assessment of risks that may expose employees to unsafe working environments. Any employer who fails to comply with these requirements would be in breach of OHSA and subject to fines or penalties. More particularly, employees who are affected by incidents such as the recent fire would be entitled to the continuation of the employment relationship, notwithstanding that they may be unable to work due to the closure of the premises. As such, even if they are not working, or not at work, this is due to no fault of their own, and they are considered to be tendering their services in the normal course. If the employer is unable to utilise those services, for reasons such as the closure of the premises, it must still pay the employees their usual salaries and benefits in the normal course. Employees may agree to take unpaid periods or leave, or to take annual leave, but these interim measures cannot be imposed on employees in such circumstances without their consent.  Employees should also be aware that whistleblowing to the relevant regulatory authorities may be an option. If injuries have been sustained and medical certificates can be provided to the employer, paid sick leave will be available to the employees as well. In addition, if any employees have sustained injuries in the fire, or in any other circumstances in which injury results from the employee performing duties in the course and scope of their employment, these injuries should be compensable in terms of compensation fund legislation.  Reports of any injuries should be made by employees to their employer as soon as possible after the injury was sustained so that the employer can notify the compensation fund. At that point, the Compensation Fund steps in legally to assume liability for the claims. Employees should be aware of their rights and their employer’s obligations to ensure they are not exposed to unsafe working conditions.  To the extent that recalcitrant employers are negligent or refuse to comply with their obligations, employees should also be aware that whistleblowing to the relevant regulatory authorities may be an option to force action before unfortunate incidents such as the recent fire take place.

Bradley Workman-Davies is a director at Werksmans Attorneys

Labour department to probe deadly Joburg fire. 7 September 2018

The deadly fire that engulfed a government building in Johannesburg will now be subject to an investigation by the department of labour. On Thursday, the department's spokesperson, Teboho Thejane, said they would launch their own probe in order to find out what might have caused the fire. "The department of labour will leave no stone unturned and all those who are found to have flouted the law will be dealt with accordingly," Thejane said. The fire that broke out on the floor occupied by the Gauteng health department resulted in the deaths of three firefighters and the injury of eight more people on Wednesday. Thejane said employers were responsible for ensuring the safety of their workers, however, the department had the powers to inspect workplaces and enforce the law. On Wednesday, infrastructure development MEC Jacob Mamabolo warned against speculation on the cause of the fire. But Mamabolo said a report by his department had confirmed that the building failed to comply with health and safety standards. Thejane said no employer, including government, would be spared from facing legal consequences if found to be flouting occupational health and safety laws. He said while his department oversaw the inspection of workplaces and enforced labour laws, they also had to take action against themselves at some point. "If you remember a few years ago we issued a prohibition order against ourselves at one of our Johannesburg offices. We felt we cannot subject our workers to an unsafe and unhealthy situation," he said. In 2013, Sowetan published a series of reports on the state of buildings occupied by government departments in the Johannesburg CBD. The Public Servants Association instituted a court case against the labour department in connection with the Johannesburg Labour Centre, housed in the Nedbank Mall building in Commissioner Street. Two surveys reflected that employees had symptoms of "sick-building syndrome", such as headaches and allergies.

Joburg fire: 'Paper and boxes were stuffed in ducts'. 7 September 2018

Johannesburg Emergency Management Services acting fire chief Arthur Mqwa says the government owns the building where a deadly fire claimed the lives of three firefighters on Wednesday. The building, at Pixley ka Isaka Seme Street in the Johannesburg CBD, does not comply with emergency services regulations. Mqwa said the deadly fire managed to spread to lower levels because the floors were not sealed and there were papers and boxes in the ducts. "Our heroes passed away trying to save people in the building. They rescued 13 people. When we arrived at the building the fire doors to the emergency routes were open and they were not supposed to be open. "The fire spread through the ducts and went down … because there were papers and boxes in those ducts. What I am trying to say is that the building was not sealed. It did not comply with the EMS (Emergency Management Services) by-laws," he said. Mqwa said they were receiving assistance from the City of Ekurhuleni and the OR Tambo district municipality to fight the flames that continue to engulf the building. Member of mayoral committee for public safety Michael Sun said firefighters were going through a tough time. He said the City was forced to cancel a contract with the only fire engines suppliers they relied on because it was corrupt. "It is no secret that the City of Johannesburg has been suffering for years. We will prioritise procurement of fire engines," he said.

Provincial govt directly to blame for tragedy at Gauteng Health building – PSA. 6 September 2018

There were ‘no fire marshalls to assist people to get out of the building, nor a working fire alarm, nor trained health and safety teams’. As recently as 17 August 2018, the Public Servants Association warned the Gauteng provincial government that none of the government buildings in the province meets the Occupational Health and Safety Regulations, and specifically warned that the Gauteng Health head office was a hazardous environment. “The GPG did not take these warnings seriously, resulting in today’s tragedy [in which three people died]. The PSA puts the blame directly on the GPG as it ignored warnings and neglects the maintenance of departmental buildings to a stage of total dilapidation,” said PSA acting general manager, Tahir Maepa. “A PSA official was on the 22nd floor of the building when the evacuation call came. There were no fire marshals to direct or assist people struggling down the stairs. There is no working fire alarm in the building and many people on lower floors did not know about the fire until they were alerted by people fleeing the building,” said Maepa. The PSA on many occasions also brought it to the GPG’s attention that there is no trained health and safety teams in these buildings. “Government has neglected the maintenance of many buildings with dire consequences.” The PSA is currently busy with a court application regarding the National Department of Health’s head office in the Civitas Building in Pretoria that also does not meet Occupational Health and Safety Act requirements. The Ministers of Health and Public Works attended a meeting with the PSA on 15 August 2018 where it was confirmed that the Civitas Building should be vacated, and employees be provided with a workplace that is safe and free from health risks. “The PSA was surprised yesterday when the National Department of Health gave an ultimatum that employees must work under the same conditions of the unsafe building, instead of resorting to addressing members’ health concerns. It seems the department is set on ignoring the health and safety of its employees in violation of their constitutional rights,” the association said in a statement. In view of today’s tragedy, the PSA demands that the Minister of Health immediately closes both the Gauteng Health head office building and Civitas Building. “In an effort to protect the lives of employees and other people, the PSA has instructed its attorneys to institute an urgent application to compel the Department to provide a working environment that is not harmful to the union’s members’ health and wellbeing,” said Maepa.

RHL. Without pre-empty an investigation into this tragedy, I would focus on the Electrical Installation Regulations and Environmental Regulations (EWR 9 - 'Fire precautions and means of egress' of the OHS Act and the Johannesburg Emergency Services By-Laws. The training that the firefighters received and the equipment they are given should also be scrutinised.

Denel deaths highlight lax enforcement. 5 September 2018

SA has been too relaxed about the enforcement of occupational health and safety standards for too long, with more people getting killed while on duty as a result. No matter the amount of noise following incidents of workplace deaths and injuries, the trend will continue because no-one — not employers, workers or the department of labour, whose mandate it is to protect workers — pays enough attention to the issue. For a country that has on paper reformed its toxic and dangerous workplace practices post democracy, the lack of vigilance is ludicrous. The explosion at the Rheinmetall Denel Munition factory in Somerset West that left eight people dead this week was tragic, but it will not be the last such devastating occurrence. Trade unions, parliament and other interested parties have called for an investigation, as though the country does not have a government entity that is mandated to expose workplace dangers before they claim lives. There is also still a shortage of labour inspectors nationally, and nothing has been done to rectify the situation. This leaves workers on their own, with trade unions often absent from the factory floors, offices and mine shafts where physical and mental injuries continue to claim many lives. Under the leadership of minister Mildred Oliphant, the department has been too concerned with hosting public gatherings to get employers in line regarding the application of the law, leaving workers to fend for themselves. Even employees of the department of health know first-hand that no-one cares. Some of their colleagues went on strike recently over an unsafe workplace in Pretoria. Fearing the building’s dilapidated roof would collapse, they staged walkouts and other forms of protests in August, but no-one rushed to their aid. There is also still a shortage of labour inspectors nationally, and nothing has been done to rectify the situation. This leaves workers on their own, with trade unions often absent from the factory floors, offices and mine shafts where physical and mental injuries continue to claim many lives. Workplaces have to conduct regular occupational health risk assessments to identify, among others, chemical, biological, physical and psychosocial risks, but this is rarely done, as occupational health and safety expert Lauren Frost wrote as far back as 2016. Many employers simply ignore safety regulations without consequences — until there is a tragedy. Health and safety committees are supposed to be established and quarterly fire drills carried out to prepare workers for emergencies, but these often fall by the wayside. If asked where the emergency exit is, the average worker would probably not know. And this is unlikely to change as long as SA does not have an effective labour department dedicated to ensuring the mental and physical health of workers. The Occupational Health and Safety Act is in line with international standards. It holds that employees and employers must share the responsibility of ensuring workplaces are safe, but evidence suggests the latter all too often cut corners, endangering lives, while the former do not know enough about their own rights to demand better conditions. Not so long ago an industry colleague moaned about leg pain as he limped into a media briefing. It turned out he had tripped while at work, and while he complained about medical costs, he had no idea he could have instituted a claim against his company. Workers who are knowledgeable about their protections are often too scared to confront their bosses because they fear reprisals. However, it is also the department’s duty to dispatch inspectors to workplaces randomly and on request by workers, keeping the identity of complainants confidential. In May the cabinet approved the Occupational Health and Safety Amendment Bill, which seeks to strengthen the current legislation by introducing greater protection for workers. It will also require workplaces to carry out mandatory risk assessments, but given the status quo, it seems unlikely these good interventions will see the light of day.

• Mahlakoana is political and labour writer.

RHL. Some inaccuracies but more-or-less on point. The draft OHS Amendment Bill may have been approved by DoL but hasn't been promulgated for comment yet. 

Denel has seen 4 other safety incidents in past 10 years. 4 September 2018

Rheinmetall Denel Munitions CEO Norbert Schulze says there was also leakage at one of the tanks on this site, but that had no effect on workers or the surrounding area. Police vehicles at the Rheinmetall Denel Munitions facility in Macassar, Cape Town, after an explosion at the facility killed at least 8 people and injured more on 3 September 2018. Amid a probe into a fatal blast at Denel's Macassar site on Monday, it's been revealed there have been four safety incidents at Rheinmetall Denel Munition sites over the past 10 years. On Tuesday, officials addressed the media following the explosion that's believed to have killed at least eight people. Experts will visit the exact location on Tuesday of the incident to determine more specific details. Rheinmetall Denel Munitions CEO Norbert Schulze says the explosion has destroyed the entire unit and has damaged blast walls around it. Schulze says there have been three other incidents there and at another site in the past 10 years. “One of the incidents was a fire which we had in one of the places here, we had three people injured and one fatality. We had the second case in Arlington in one of the plants, which is a chemical plant of ours, and it caused damage to the building but no damage to people.” He adds there was also leakage at one of the tanks on this site, but that had no effect on workers or the surrounding area. Management says the site will only be accessible from later on Tuesday. Schulze added: “We are still looking into getting into the place, we’re not able to access the site at this point in time. It is not safe yet and safe means we’re looking at all the possibilities around like the falling stones, rocks and the propellant which is still there.” State Security Minister Dipuo Letsatsi-Duba has also visited the arms manufacturing depot to interact with families affected by the tragedy. “We came here to give support to the families.”

Holding mine bosses to account will reduce deaths. 1 September 2018

As thousands of delegates across more than 18 affiliates from the Congress of South African Trade Unions (Cosatu) are busy consolidating mandates from two million members for the upcoming national congress, expectations of the congress resolutions should remain the same - dealing with arrogant employers. The National Union of Mineworkers (NUM), for example, will be pushing hard for the congress to resolve on holding mining bosses accountable for health and safety in the mining sector. The union is on record calling on the mineral resources department to amend section 92 of the Mine Health and Safety Act, which refers to the penalties that could be applied when safety standards are not adhered to. It is the union's belief that holding mining bosses accountable for safety will be the key to bringing down the death rate in South Africa's mines. The mining industry now sits at about 60 fatalities. One mine death is one too many. To reduce mine deaths and accidents, the NUM demands mining houses be slapped with a fine in the event of an accident. This should be done even before inspections are conducted. Apart from the hefty upfront payment of a fine, the NUM also demands an inquiry to establish whether mine managers should be liable. The NUM has on numerous occasions called for the Mine Health and Safety Act to be amended to allow for the prosecution of mine bosses if workers are killed underground. Mine owners must be held personally liable for lives lost underground. Perhaps if this is done, we will begin to see an end to fatalities. Mining bosses who are found to be negligent for fatalities must be arrested, prosecuted and sent to jail. The issue of mine health and safety has long reached crisis proportions and requires desperate intervention. The NUM is again of the view that section 23 of the Mineral and Petroleum Resources Development Act (MPRDA) (sic) which grants mineworkers the full right to refuse to work in dangerous operations needs to be strengthened. Currently, workers stand the risk of being charged by supervisors for failing to execute a lawful instruction. The most serious fatality incidents in 2018 varied in nature from falls of ground following a seismic event, employees entering areas that should be off limits, and underground fire. The NUM is looking forward to maximum participation by delegates at the Cosatu 13th national congress. It will also be in the best interest of the union to see delegates using the platform to strengthen unity in the federation. We want to see a stronger Cosatu going forward. The congress should also be a stage where delegates share notes on how to push forward the struggle of the working class. An injury to one is an injury to all.

Should read section 23 of the Mine Health & Safety Act. (MHS Act). I should mention that there is currently nothing in the MHS Act or Criminal Procedure Act preventing personal criminal liability.

Mining ministry closes Mpumalanga office over alleged corruption. 1 September 2018

Mineral Resources Minister Gwede Mantashe has established a team to probe allegations in Mpumalanga, Limpopo and North West. The mineral resources department today announced that it had taken a decision to close its Mpumalanga regional office from Monday until further notice following feedback received from clients on the challenges they face at that office, relating mainly to backlogs in the issuing of licenses and allegations of corruption. In July, Mineral Resources Minister Gwede Mantashe established an investigative team to probe allegations in Mpumalanga, Limpopo and North West. This stemmed from feedback received by the department during provincial engagements on the Mining Charter where allegations of double-granting of licenses; second, allegations of improper application of Section 54 of the Mine Health and Safety Act and, last, the backlogs in the issuing of licenses were made. An official was suspended pending an investigation after abuse of power by allegedly issuing section 54 notices and demanding financial compensation in return for their lifting. The department said that the closure of the office will allow the investigation team set up by Mantashe an opportunity to do its work in the region and provide feedback to him in due course. “As such, all administrative processes related to that office will be handled from the head office until further notice,” it said. “The online application system [South African Mineral Resources Administration System] SAMRAD will also be closed for Mpumalanga applications. Applications for renewals and graduation of prospecting rights to mining rights should therefore be submitted manually to the Department’s Head Office in Sunnyside, Pretoria.”

Lily mine disaster report says prosecute. 26 August 2018

The department of mineral resources (DMR) has submitted a report that contains recommendations to the National Director of Public Prosecutions (NDPP) for a decision for prosecution related to the mine accident that killed three workers at Lily mine in Mpumalanga in 2016. Ayanda Shezi, spokesperson for the department, said anyone with material interest in the report should request it from the National Prosecuting Authority (NPA). This week, City Press obtained the DMR report, which delves into the Lily mine accident in terms of the Mine Health and Safety Act (MHSA). “The report that you are referring to contains only the remedial steps which are required to be taken by the owner of Lily mine to prevent the accident from happening again [according to the MHSA]. Another report that contains recommendations for prosecution was submitted to the NDPP for a decision. The ultimate decision on whether to prosecute or not rests with him,” Shezi said. Shezi declined to say who the DMR has recommended for prosecution, while the NPA said it was studying the matter and could not say who could face the law if it decided to proceed with prosecution. Joseph Mathunjwa, president of the Association of Mineworkers and Construction Union (Amcu), the majority union in the gold sector, said Amcu was not aware of another report. He said it was bizarre that the DMR produced a separate report, because previous reports of mine accidents included all recommendations. NPA spokesperson Monica Nyuswa confirmed that the NPA had received the DMR’s report. “The Occupational Health and Safety prosecutors of the NPA, based in Pretoria, are [looking into] this matter,” she said. “Even though the DMR report recommends a prosecution, further investigations are still necessary to make a proper determination on what should be the final decision on a possible prosecution or otherwise in this matter.” The DMR report found everything wrong with how management failed to prevent workers’ deaths. “From the evidence led in the inquiry, it is clear that the recovery of the three missing employees is almost impossible due to the severity of the collapse,” reads part of the report. “Furthermore it can be concluded that their recovery alive is unlikely due to the time that has gone past since their disappearance on the day of the accident.” On February 5 2016, an entrance at Lily mine’s shaft collapsed and buried three workers: Yvonne Mnisi, Pretty Nkambule and Solomon Nyirenda. They were working in a container, serving as a lamp-room, which plunged underground. The 76 workers who had already entered the shaft were rescued. The DMR instructed Vantage Goldfields to close the mine, at least until the workers’ bodies were recovered. Various rescue missions were undertaken and had to be abandoned after conditions were deemed too dangerous. The bodies were never recovered. The DMR’s report has dashed any hope that the bodies of the three workers can be recovered. Lily and its sister mine, Barbrook, were eventually placed under business rescue late in 2016. The DMR conducted an inquiry into the accident. Its final report was concluded on March 12 this year and given to management and Amcu only on August 8. Amcu said it welcomed the inquiry’s findings but expressed concern that the report did not recommend any criminal prosecution against Lily mine’s management, whereas in previous cases involving mine workers, the department had been harsh. “Amcu welcomes the findings of the report with regard to the causes of the accident. The report’s findings substantially reflect Amcu’s considered views into the causes of the accident, as argued in both the inquiry proceedings and in Amcu’s written submissions to the presiding officer,” said Mathunjwa. “Amcu is, however, unsatisfied and disappointed by the lenient recommendations made in the report. Amcu strongly believes that criminal prosecution against the mine management – in particular, the persons that were employed in terms of section 3(1) and 4(1) of the MHSA at the time of the accident – should have been recommended by the presiding officer,” Mathunjwa said. Mathunjwa said mine-related accidents attributable to negligent conduct by employers would not stop until mine management started being criminally prosecuted. “Similar recommendations have been made in section 72(1)(b) reports against general mine workers. For example, following the death of [a worker] on May 11 2017 in a mine-related accident at Lonmin, Karee 4B shaft, the presiding officer in that inquiry recommended criminal prosecution against the miner whose negligent conduct the presiding officer found to be the proximate cause of [the worker’s] death. There seems to be a reluctance from the DMR to make similar recommendations against management, as is evidenced in the Lily mine report,” he said. Mathunjwa also expressed concern at the report having made no mention of financial compensation for the three trapped workers’ families. The report makes scathing findings against Lily mine management and notes the fact that there had been 10 pillar collapses of falls of the ground that had occurred before the February 2016 accident, which mine management did not report to the DMR’s principal inspector of mines. “Despite this warning, it is unfortunate that the employer at Lily mine chose to ignore [it]. The employer at Lily mine failed to comply with the provisions of the MHSA in that the said employer failed to report the following dangerous occurrences to the principal inspector of mines,” the report found. One of the report’s findings is the failure of Lily mine management to take into account the input of rock engineer Rudi Kersten regarding the location of the main access to the underground workings at the mine. Kersten had recommended that the mine’s permanent access be developed approximately 100m south of the western extremity of the open pit. The safety act obligates employers at every underground mine where a risk of rock bursts, rock falls or roof falls exists, to ensure that the input of a competent person is properly considered and integrated into mine design, planning and operations. The report said no evidence was presented to confirm that the crown pillar was supported to prevent it from falling or collapsing. “It is also a fact,” reads the report, “that, with regard to any roof of any underground excavation, if left unsupported, its chances of falling are greater than when supported by means of an effective support system. “From the evidence presented in the inquiry, it is a fact that the mine was not designed for safe operation, as provided for in [the act]. “The main reason that led to the collapse of the portion of the main pillar is that the crown pillar was not supported to prevent it from collapsing,” adds the report. In February 2016, the container with the three workers inside stood on a 15m-thick crown pillar between the floor of the mine’s main open pit and the roof of level four. The mine has 12 levels underground. The gold mine, which is situated in Louisville outside Barberton, was owned by Australian company Vantage Goldfields, until black-owned minerals and investment company, Siyakhula Sonke Corporation Flaming Silver SPV bought a 74% stake in the business in March this year.

Mining industry to tackle 'unacceptable' rise in deaths. 20 August 2018.

The Minerals Council of South Africa launched a National Day of Safety and Health in Mining, calling the "current crisis" unacceptable. The initiative will see all 66 mining companies who are members of the industry body holding safety and health days at their operations over the coming month. There have been 58 mining deaths in 2018 alone, up from 51 in 2017, which was also an increase from the 2016 fatality figures. Sibanye-Stillwater has accounted for 20 of these deaths and faces the wrath of trade unions and the Department of Mineral Resources. CEO Neal Froneman said the high number of fatalities at their operations has been "traumatic".   "We’ve stumbled as an industry. We’ve definitely stumbled, but our resolve is clear and evident in terms of getting back on track and breaking through the barrier and getting back down to our zero-harm targets," Froneman told the media after the launch on Friday.  Under apartheid, scores of people died every year in unsafe working conditions in the mining industry. The Minerals Council of SA, previously the Chamber of Mines, points out an 80% improvement in safety over the last two decades and the industry is working towards goal of zero-harm by 2024. Trade unions have blamed mining companies for pressuring miners to work in unsafe conditions and putting profit over lives. But Minerals Council Vice President: Andile Sangqu said there wasn't one single reason behind the rise in fatalities, as the accidents have been of a different nature: falls of rock, underground fires and employees entering unsafe areas. Froneman, who is also a Vice President of the Minerals Council, said that improving safety was a combination of continuously engineering out risk and changing people’s attitudes to encourage them to withdraw from unsafe conditions. According to Chris Griffith, CEO of Anglo-American and head of the CEO's zero-harm forum, mining bosses are required to be visible to set the example from the top down and show that it’s not about production at all costs.  He said that some of the successful changes made include reducing miners’ exposure when entering a workplace for the first time after blasting and introducing bolts and nets inside mining stopes. The Association of Mineworkers and Construction Union (AMCU) has demanded that mines invest in seismic detection technologies, but Froneman says that there are no instruments currently on the market to foresee vibrations and earthquakes. Seismic activity can lead to falls of ground, a contributing factor to mining deaths underground. Froneman said that the layout and engineering of mines must be able to withstand seismic activity and ensure no workers are harmed. The highest number of fatalities are in the gold and platinum sectors, as these are labour intensive, and mining companies in the gold sector work on narrow tabular reefs where no practical mechanisation has yet been developed to replace human beings. Companies in the two sectors; Lonmin, Impala Platinum] and Gold Fields are planning to retrench more than 27 000 workers within the next three years. However, Dr Sizwe Phakathi, the head of safety and sustainable development, doesn’t believe the rise in mining accidents is related to the looming job losses. Phakathi pointed to Lonmin, which is planning to retrench 12 600 workers over the next three years, while the company has managed to avoid any fatalities for over a year. Chief Inspector at the Department of Mineral Resources David Msiza said the industry could not continue to talk about zero-harm but not show demonstrable results. "We do receive complaints that employees are being victimised after withdrawing from unsafe conditions," Msiza said. 

Ramaphosa says SA will tighten mine safety laws following latest deaths. 17 July 2018

President Cyril Ramaphosa says that South Africa will tighten its mine safety regulations to hold mine operators accountable for accidental deaths in the industry. During an interview on TV news channel eNCA on Monday night, the president responded to the deaths of six miners in an underground fire at a copper mine in Limpopo. Ramaphosa says 54 miners have been killed in the country’s mines, so far, in 2018. Meanwhile, the parents of one of the miners who died at the Palabora Mining Company say they’re hurt and angered by management’s lack of transparency on the death of their son. Sean Mashego’s body was burnt beyond recognition. He was identified by his work access card which was found in the pocket of his overalls. The 26-year-old victim’s mother, Kedibone, says when she was told that her son was trapped underground, they [mine management] said there was hope the men would make it out alive as there were safety rooms underground. But she says the story quickly changed as she was told that her son had died. “After some time, they called us, as families, to tell us they had failed, and our children had died.” Mashego says after mine management told her that her son suffered smoke inhalation, she was called to identify his body but could not have been prepared for what she saw. “My child was not the person I knew, he was burnt beyond recognition.” Mashego says they would like to bury her son this week but will have to wait for a post-mortem to be conducted.

Mine bosses must be held 'personally liable' for deaths‚ says Numsa. 16 July 2018.

The National Union of Metalworkers believes one of the best ways to decrease mining accidents and fatalities is to hold mining bosses liable. “We reinforce calls made by our federation SAFTU (South African Federation of Trade Unions) for the Mine Health and Safety Act to be amended to allow for the prosecution of mine bosses if workers are killed underground‚” said Numsa’s acting spokesperson‚ Phakamile Hlubi-Majola‚ on Tuesday. “They must be held personally liable for lives lost underground. Perhaps if this is done‚ we will begin to see an end to fatalities underground‚” she added. Hlubi-Majola was reacting to the death of six mineworkers at the Palabora Mining Company which specialises in copper mining in Limpopo. They died after an underground fire.  “Mine safety remains a huge problem in our country‚” Hlubi-Majola said. “One death underground is far too many and we have seen shockingly high levels of fatalities in the sector in recent years‚” she added. She alleged that the mining industry did not value the lives of African mineworkers. “The only permanent solution to this crisis is for mines to be nationalised. These are strategic assets which should be placed under the democratic ownership of the working class. They should not be profit-driven and used as vehicles to enrich the elite minority‚” Hlubi-Majola said. “Instead‚ they should operate for the benefit of the working class majority and society in general.” The Economic Freedom Fighters also called for action. “The EFF reiterates that mineworkers remain the spine of the South African economy. There should be great safety underground and in the entire mining field to ensure that our people are never swallowed at the belly of the earth‚ digging the gold that never transforms their lives‚” said spokesperson Mbuyiseni Ndlozi in a statement. “We hope there will be an investigation that will lead to those responsible being held accountable as per mining regulator‚” he added. Mineral Resources Minister Gwede Mantashe visited the mine on Tuesday. He had earlier called for mining companies to take care of their workers. “We reiterate our call to mining companies to prioritise the safety of mineworkers at all times‚” he said. “It is unfortunate that yet again‚ as a country‚ we have lost so many lives in this disaster. These deaths add to an already high number of lost lives in the industry‚ since the beginning of the year‚” said Mantashe.

Grayston Bridge Inquiry completes work, awaits closing arguments. 14 July 2018

Two people were killed and 19 others were injured when the scaffolding around the temporary bridge caved in on the busy Johannesburg highway in 2015. The M1 Grayston bridge inquiry has finally completed its work and says it now awaits submissions on closing arguments. Two people were killed and 19 others were injured when the scaffolding around the temporary bridge caved in on the busy Johannesburg highway in 2015. The Labour Department set up the inquiry to probe contraventions of the Occupational Health and Safety Act and the exact circumstances which led to the collapse. The inquiry has heard testimony from various stakeholders and witnesses including construction company Murray and Roberts and the Johannesburg Development Agency.

Sibanye-Stillwater CEO appalled by mine tragedies. 16 June 2018.

Neal Froneman dispelled as ‘untrue’ claims by trade unions that the company is ‘putting profits before the safety of employees’. Sibanye-Stillwater chief executive Neal Froneman has every reason to be a worried man. Once hailed as the benchmark performer when it came to safety, this year alone has seen Sibanye-Stillwater’s mining operations suffering from a spate of safety incidents – two accounting for 12 deaths. With a workforce of over 65 000 employees, the Johannesburg Stock Exchange and New York Stock Exchange-listed company is the third-largest producer of platinum and palladium and features among the world’s top gold-producing companies. The latest incident, at the company’s Kloof Ikamva shaft in Westonaria, has now claimed five lives following the retrieval this week of another deceased worker’s body. Gas and poor underground ventilation have been cited as the reasons for the accident. Occurring in the wake of last month’s incident at the Masakhane shaft in Driefontein, where seven workers were killed due to a seismic activity, Sibanye-Stillwater’s proud safety record has now been tarnished. In a wide-ranging interview with The Citizen, Froneman said he was “appalled at these tragedies”. “We are committed to addressing the regression in safety at our operations by implementing the changes required to make our workplace safe,” he said. “After rolling out a revised safety strategy in 2017, we experienced a solid improvement in all our safety indicators during the year with no fatalities in the final quarter at our gold operations.” But things changed in February when the company experienced the first incident in Driefontein. He said the underground incidents arose “from very different causes not related to each other”. Despite the setbacks, Froneman is determined “to restore our previous safety records” by ushering changes. He dispelled as “untrue” claims by trade unions that the company was “putting profits before the safety of employees”. The company, he said, did not condone “risk-taking to deliver production”, adding the safety of employees was “a primary concern for us”. He explained: “If it is not safe to produce we expect conditions to be fixed before work can resume. There is substantial evidence that well-organised workplaces are both safe and productive and that is our aim. “Employees are our most important stakeholders and we would rather not mine if we cannot provide a safe environment.” On allegations that refusal by employees to work in unsafe areas could lead to dismissals, he responded: “These allegations are untrue and counter to our health-and-safety policy, and we do not condone anyone being forced to work if it is unsafe, or employees being disciplined if they exercise the right to withdraw when conditions are not safe. “Any supervisor who has been found to force workers to work in unsafe conditions is liable to disciplinary action.” On how the company plans to avoid future tragedies, he said: “We are fully investigating the incidents together with the department of mineral resources and representative trade unions. “While the safety record of the past few months is not acceptable, we remain committed to restoring our safety performance to where it should be,” he said.

Historic silicosis class action settlement reached between mines and mineworkers. 4 May 2018

Cecil John Rhodes statue in the Company Gardens covered to highlight the plight of ex-mineworkers suffering from a lung disease called silicosis. A historic class action settlement has been reached between mines and mineworkers which will see compensation paid to eligible mine workers suffering from silicosis or tuberculosis. The settlement – between the Legal Resources Centre‚ Abrahams Kiewitz Inc and Richard Spoor Attorneys‚ on behalf of thousands of mineworkers‚ and the Occupational Lung Disease (OLD) Working Group‚ representing the mines – is the first of its kind in South Africa. It is the result of three years of extensive negotiations between the representative attorneys and the OLD Working Group – representing African Rainbow Minerals‚ Anglo American SA‚ AngloGold Ashanti‚ Gold Fields‚ Harmony‚ Sibanye Stillwater and Pan African Resources. The settlement agreement was signed at Sunnyside Park Hotel‚ Parktown‚ Johannesburg. The parties emphasised that the signing of the settlement did not mean that finality has been reached‚ saying it must still be approved by the Johannesburg High Court. “Approval will take place in a number of weeks.”

Silicosis class action suit about to be settled in out-of-court R5bn deal. 2 May 2018

Six gold mining companies have made provisions for the amount to be placed in a trust to pay miners afflicted with silicosis after working underground in their gold mines. The class action brought against South African gold miners by workers made ill from breathing silica dust is on the cusp of being concluded, with an out-of-court settlement due to be signed on Thursday. Six gold mining companies have made provisions for about R5bn to be placed in a trust to pay miners afflicted with silicosis after working underground in their gold mines. Participants in the matter confirmed that the parties could sign an agreement on Thursday, provided there were no last-minute developments. The six mining companies are Harmony Gold, Gold Fields, African Rainbow Minerals, Sibanye-Stillwater, AngloGold Ashanti and Anglo American. Just recently, Pan African Resources, DRDGold, and Randgold and Exploration joined the matter. In the 12 months to end-October 2017, there were 7,756 compensation payments made to former miners with occupational lung diseases worth R226m, compared with 1,628 compensation payments worth R79m in the same period in 2015, Graham Briggs, the former Harmony Gold CEO who chairs the industry’s Occupational Lung Disease working group. The funds were paid from R3.5bn in unclaimed funds held in the Department of Health’s Medical Bureau for Occupational Diseases (MBOD). Six doctors and senior managers from gold mines were seconded to the fund, stepping up the tracking and tracing of former miners in SA and neighbouring countries, leading to the increase in claimants, he said in February. In the silicosis settlement, the mining companies would pay a lump sum into a trust that would embark on work to locate, verify and assess former miners with silicosis — which is caused by breathing in silica dust generated during gold mining — and occupational tuberculosis. Once confirmed, the trust would make a payment to the former miner, or their family if the miner, who had a confirmed occupational lung disease, had died, Briggs said. Mining companies would not pay the full R5bn into the trust, but rather a portion of it to fund the trust’s work; then they would make payments as claimants came into the system over the next 12 years or so and as the trust made cash calls on companies, Briggs said. The number of former miners who could approach the trust is unknown, he said, suggesting the number may be lower than the 100,000 some market commentators have said. Richard Spoor, the lawyer representing more than 20 ill miners in the litigation, said: "We are sitting on the brink of reaching an agreement in this matter and we hope to have it confirmed in writing and signed on Thursday, but the terms aren’t fully agreed yet and there’s still a bit of to-and-fro."

Labour department to probe fatal building collapse. 29 March 2018

Rescue technicians use specialized equipment in their effort to recover the bodies of three men killed when a building collapsed in Jacobs, Durban, on Wednesday. The department of labour has launched an investigation into a building collapse in Jacobs‚ south Durban‚ which claimed the lives of three construction workers on Wednesday. Part of a building‚ which had been under construction‚ collapsed onto the site as well as a truck parked nearby. Several others were injured in the incident. Initial reports from the scene indicate that three people‚ understood to be construction workers‚ were killed when they were crushed under tons of concrete. Department spokesperson Teboho Thejane said on Wednesday evening that details surrounding the incident were still unclear and remained a subject of investigations. “At least three workers died and several others were injured after being trapped underneath. Emergency response teams are busy at the scene trying to rescue workers who are believed to be trapped under the rubble. The building next to the warehouse was also partially damaged‚” he said. “The Department of Labour has dispatched a team of occupational health and safety inspectors to investigate the cause of the incident. “If the employer is found to be negligent and flouted any aspect of the Occupational Health and Safety Act or its regulations‚ a recommendation to prosecute will be made to the National Prosecuting Authority‚” he added. By 6pm on Wednesday evening‚ police search and rescue unit members had recovered all three bodies trapped under the rubble.

Department of Labour – the wheels are coming off! 14 March 2018

The Department of Labour is allegedly in a shambles, hit by a string of resignations of senior managers and failing to meet performance targets. At least 10 managers are said to have resigned in just a year because of what insiders say is a toxic environment of verbal abuse and bullying by the director-general, Thobile Lamati, and the chief operations officer (COO), Marsha Bronkhorst. More staffers are said to be contemplating resigning. The two are allegedly targeting senior managers in provinces to deflect attention from their incompetence, which has led the department into disarray. The department is allegedly failing to meet its performance targets in ensuring compliance to labour laws such as employment equity, Occupational Health and Safety (OHS) standards and the Unemployment Insurance Fund. Those who resigned include the provincial heads and directors in the Eastern Cape, Gauteng, Mpumalanga, Limpopo and North West. Among them is Bheki Gama, the Eastern Cape provincial head and chief director of operations, who resigned late last year, and Beverley Horgan, the chief inspector of operations in Gauteng, who quit last month. Mpumalanga provincial head Dolly Chiloane has also resigned, as has the chief director in Limpopo, Maurice Mabunda. More staffers are said to be contemplating quitting as Lamati and Bronkhorst allegedly continue to run the department as their fiefdom with scant regard for labour relations law. “During his ‘exit interview’, Gama said he wouldn’t return to the department as long as Bronkhorst was still in the employ of the department. “All heads of provinces report to her, and they complained of ill-treatment,” said an insider. Gama and Mabunda confirmed resigning but declined to comment. Hogan could not be reached for comment. Some of the alleged verbal abuse of employees is meted out during the departmental executive committee (Dexcom) meetings. “In two meetings last year, managers complained of public humiliation during presentations. “Lamati explicitly told the managers ‘if you think those meetings are tough, wait until next week on March 4 and 5 in Kopanong’,” said the source. “Since such meetings managers have been humiliated and treated like children, and this has triggered a string of resignations in Mpumalanga, Limpopo and North West because the director-general told managers to be very tough on staff.” Bronkhorst declined to comment and referred questions to Lamati, who said the allegations against Bronkhorst and him “are baseless and devoid of any semblance of truth and misleading”. “The public sector has clear grievance policies and procedures according to my recollection, the department and/or myself have not received any grievance(s) from anyone against Bronkhorst,” said Lamati. He said while it was true that a number of senior managers had resigned, it was sensationalism to say they left in ‘massive’ numbers. He said some of the managers, such as Gama and Chiloane, had left voluntarily. He confirmed Hogan’s resignation and said she did so after she was charged with misconduct. Poor performance by the department is at the heart of the victimisation of employees, according to insiders. The department is allegedly underperforming at 50% against the target of 70% as it continues to struggle meeting its performance targets. Insiders cited the M1 bridge collapse in Sandton and the Tongaat Mall collapse in KwaZulu-Natal, among others, as an indication that the department was failing in its key mandate. “It’s inexplicable that a department that is supposed to be the custodian of workers’ rights is failing to make progress in investigations of major accidents that threaten employees’ safety,” said another source. “Those accidents are the ones that the department is directly involved in, in terms of Section 32 of the Occupational Health Safety Act. “It’s very embarrassing that the inquiries drag for too long, considering the loss of life and injuries. All these point to a deficiency in the department, including failing to champion issues like workers’ rights,” said the source. This has ratcheted up the pressure on Bronkhorst and Lamati, who are allegedly shifting the blame onto staff, the source alleged. “As we speak, the grievance rate stands at over 1000% because of the unprecedented number of (complaints) cases,” said the source, adding that a survey done seven months ago showed morale among staff was at its lowest ebb. “The outcome hasn’t been released, and the suspicion is that the report is damning against management. They are just hoping the problems will take care of themselves.” Lamati denied that the grievance rate was at 1000%, saying the department had resolved 166 cases (77%) out of 236 grievances in the 2016/17 financial year. But such is the toxic climate at the labour department that some staffers have even resorted to contacting Minister of Labour Mildred Oliphant directly, according to insiders. “The minister told staff at the Dexcom that ‘my cellphone has become a call centre where you raise issues. Top management has to deal with issues of staff, not me’,” said a third source. “The Department of Labour is supposed to be the custodian of workers’ rights, yet when you go there, there’s an atmosphere of fear.” As more and more staffers resign, the department was allegedly not filling the vacancies, including in strategic positions. “There are more than 1 000 vacancies since the beginning of the last financial year because posts are not being filled within six months. “The department is returning more than R125 million to the Treasury at this financial year, despite all the vacancies.” Lamati would neither deny nor confirm if this amount would be returned to Treasury. On the probes into the M1 bridge, Tongaat Mall and Alberton accidents, Lamati said: “the M1 bridge has not progressed as we have wished due to postponements caused by non-availability of technical expert witnesses and the fact that the presiding officer fell ill”. “We have appointed a new presiding officer and the inquiry will commence in earnest. “Secondly, the Tongaat Mall, a section 32 inquiry, was concluded a year ago and handed over to the National Prosecuting Authority for recommendation for prosecution.” Courtesy Sheqafrica.

Listeria deaths: O’Sullivan to open criminal cases. 13 March 2018

FORENSIC investigator Paul O’Sullivan and Forensics For Justice (FFJ) plan to open criminal dockets against Tiger Brands over 180 listeriosis deaths and 479 sicknesses. O’Sullivan said he expected the number of listeriosis-linked deaths to rise up to 500 because of cases that could have slipped through the cracks of the public health system. He based this on the analogy of previous incidents that involved mass deaths. They will work with the National Institute for Communicable Diseases to finalise the exact number of deaths and illnesses. The 479 criminal dockets will include cases of attempted murder and culpable homicide. “I can tell you now that I don’t believe that the number of deaths is 180. It’s a lot higher than that. It’s a lot like the fire that took place at the Grenfell Towers (London). The day after they were saying that 18 people died but the final figure was close to a 100. After New York’s 9/11 (attacks), the initial figure was 1 000 deaths but the final figure was just over 3 000. “People who are victims to lesser known crimes tend not to report it and in this case my estimation is that the listeriosis deaths could easily jump to 500 because of unreported cases at public hospitals,” he said. The FFJ has set up a page on its website and a toll-free number 0800 118 118 where families of unreported victims of listeriosis can contact the non-profit organisation. Their efforts to open criminal cases will run together with the class action that human rights lawyer Richard Spoor is initiating against Tiger Brands. Two weeks ago, Health Minister Aaron Motsoaledi announced that the source of the listeriosis outbreak came from two brands of polony by Tiger Brands, Enterprise Foods and Rainbow Chicken. At the time Motsoaledi could confirm 180 deaths.

Grayston Drive bridge collapse inquiry gets new presiding inspector. 9 March 2018

Phumudzo Maphaha previously presided over the Tongaat mall collapse inquiry and the Meyersdal structural collapse inquiry. The Department of Labour’s chief inspector, Tibor Szana, today announced Phumudzo Maphaha as the new presiding inspector over the Grayston Drive pedestrian and cyclist structural bridge collapse inquiry. Maphaha will take over from Lennie Samuel who has been presiding since the inquiry was set up. Szana said Samuel has unfortunately taken ill and is no longer in a position to continue presiding over the inquiry. “I have subsequently appointed Mr P.O. Maphaha as the presiding inspector to take over from Mr Samuel due to the gravity of his illness,” Szana said. Maphaha previously presided over the Tongaat mall structural collapse inquiry and the Meyersdal structural collapse incident inquiry. The Grayston Drive pedestrian and cyclist structural bridge collapse inquiry was announced by the Department of Labour in 2015. The Section 32 hearing was set up to investigate negligence that may have resulted in occupational injuries and deaths of people. On 14 October 2015, a pedestrian and cyclist bridge under construction on Grayston Drive in Sandton collapsed on the M1 highway, leaving two people dead and 19 others injured. The inquiry had its first sitting in February 2016, with the last sitting held on 27 September 2017. The inquiry has been postponed to July 2018.

Tiger Brands hit by listeriosis outbreak.  5 March 2018

The killer bacterium has been traced to an Enterprise meat factory in Polokwane as the death toll reaches 180.Tiger Brands, SA’s biggest consumer foods company, was reeling on Sunday with the source of a listeriosis outbreak traced to its Enterprise meat factory in Polokwane, amid accusations that it had not followed proper food-safety procedures. Altogether 180 people have died, with almost 1,000 cases confirmed since listeriosis was first detected in January 2017. The discovery was announced by Health Minister Aaron Motsoaledi on Sunday. Tiger Brands was informed earlier in the day. The finding has triggered a large recall of all Enterprise ready-to-eat cold meat products as well as polony products produced by RCL, after an unidentified strain of listeriosis was found at its Free State factory. Dr Juno Thomas, head of the Centre for Enteric Diseases at the National Institute for Communicable Diseases, said that the “food-safety programme in place [at the Enterprise Polokwane factory] is insufficient for the type of risk posed by the type of food they produce. They do a little testing but it is not sufficient.” Thomas visited the factory a month ago when government officials accompanied by World Health Organisation technical experts took more than 300 environmental samples. We have suspended operations at both Enterprise manufacturing facilities in Polokwane and Germiston and have halted supply to trade. Tiger Brands spokeswoman Nevashnee Naicker denied the claims that safety measure were inadequate, saying that “stringent monitoring and testing protocols, including for the detection and management of pathogens, viruses and bacteria, including listeria” were in place. Protocols were certified by DQS, an international certification body, she said. Tiger Brands CEO Lawrence MacDougall said on Sunday afternoon that the group had undertaken a full national recall of the affected Enterprise ready-to-eat meat product range. “We are being extra vigilant and cautious as consumer safety remains our highest priority and therefore immediate action is being taken. “Additionally, we have suspended operations at both Enterprise manufacturing facilities in Polokwane and Germiston and have halted supply to trade,” MacDougall said. Tiger Brands had to recall its range of Tastic Simply Delicious sauces and ready-to-eat rices in 2014 after some products tested positive for traces of banned carcinogenic colourants, including the industrial dye Sudan 1. RCL Foods said its Wolwehoek processing plant had taken the precautionary step of suspending all production of Rainbow polony and was recalling all Rainbow polony products, although results of tests on its polony were pending and the specific strain of the pathogen responsible for the outbreak had not been traced specifically to the Wolwehoek facility. However, Motsoaledi said that more than 10% of samples from the Wolwehoek facility had tested positive for listeria. Uncooked processed meat has frequently been linked to listeria outbreaks around the world. Listeria is a bacterium found in soil and water and can cause food-borne disease when it contaminates food. Scientists were led to the Enterprise Food factory after five children were admitted with food poisoning at Chris Hani Baragwanath Hospital from a crèche that had served Enterprise polony and Rainbow Chicken polony. The polony tested positive for Listeria monocytogenes ST6. The strain of listeria found in a second Enterprise processed meat factory in Germiston was still being identified, Thomas said. The National Consumer Commission has issued investigation notices to Rainbow Chickens and Enterprise Food. Anthony Clark, an analyst at Vunani Securities, said the products being recalled were a small part of a “huge food business” and would not have a dramatic effect on the revenue line of either company. Perishables accounted for just 1.7% of Tiger Brands’s domestic food business, which was worth R24bn. Clark said that the way Tiger Brands and RCL Foods handled the situation in terms of consumer communication, recall and support for the victims and ill people would influence how quickly they recovered from the crisis. “In the short term, there will be a financial impact, one in terms of their share price tomorrow [Monday] … and then the cost of putting this right in cleaning up the factory … having a trusted brand that people have been buying for years taken off the shelf.” Clark said: “Will the consumer trust that brand again, when the situation has been put right?” Lionel October, Department of Trade and Industry director-general, said that there had to have been a drop in the standards in food testing by these companies. “It is clear there was a break in the procedures of testing and quality,” October said. Motsoaledi said that one of the problems that had led to the outbreak was that health inspectors — undertaking random testing at restaurants and food production facilities — were employed by municipalities. Due to financial pressures, employing health inspectors was low on the priorities lists of some municipalities, he said. Retailers acted swiftly. Shoprite and Pick n Pay announced that they had withdrawn the products. One of the reasons it is so hard to find is because‚ even in solid food‚ a scientist may sample the infected food and not find it. For example‚ a slice of polony could be tested and have none of the micro-organism, but a different slice could have it. Anelich said: “A micro-organism in a solid food is not homogenously distributed throughout food. A statistical sampling technique has to be used to ensure it is detected.” It is also difficult to find in factories. Anelich said it could hide away in niches in the factory environment in cracks or bad joints and pipes. Even if you sanitised a factory‚ you might miss the bugs hiding in cracks‚ she said. Listeria bacteria can sense when it is near other bacteria and secrete a sugary goo. This substance is called a biofilm and can allow the bacteria to live on inanimate surfaces. The biofilm protects the bacteria from cleaning agents. “A detergent could get superficial cells but leave behind some bacteria.” Motsoaledi said that people at risk such as pregnant women‚ those with HIV and those with weakened immune systems had to avoid all ready-to-eat products such as viennas‚ polony and frankfurters. Such products could be cross-contaminated in shops as they are often stored next to polony. A Rainbow Chicken factory in Wolwerhoek in Sasolburg also tested positive for listeria monocytogenes — but it was not the strain causing this current outbreak. The polony from Rainbow Chicken has also been recalled. Shortly after the media conference‚ Pick n Pay tweeted that it had begun removing “the products that may be linked to the listeriosis outbreak” from its stores. “Customers who bought any Enterprise product (including Bokkie‚ Renown‚ Lifestyle‚ Mieliekip) or any Rainbow ready-to-eat products‚ such as polony or Russians‚ can return the product for a full refund.” And later Checkers did the same: “We are taking swift action to remove products named by the Health Ministry as sources of listeria. “You are most welcome to return any Enterprise Foods and Rainbow Chicken cold meat products for a refund.” Enterprise  issued a statement on Sunday saying the company had “proactively amplified” its testing for listeria and could confirm that it found a “low detection” of a strain of listeria in some of its products on February 14. But‚ the company said “the presence of the ST6 strain has not been confirmed by our tests”. “We have sent samples to an external laboratory to test for the strain and should receive the results tomorrow (Monday). “We have been actively engaging the department of health and the NICD on our findings and have openly collaborated with them. “We await confirmation of the strain.… In the meantime‚ we reaffirm our commitment to recall the identified Enterprise products as soon as possible.”

Settlement seen in silicosis class action against gold firms. 7 February 2018

A R9 billion settlement should be reached "within months" in a class action suit brought against South African gold producers by miners suffering from lung diseases including silicosis, the chair of an industry group on the issue said on Wednesday. The suit was launched almost six years ago on behalf of miners suffering from silicosis, a fatal lung disease contacted by inhaling silica dust in gold mines. Almost all of the claimants are black miners from South Africa and neighbouring countries such as Lesotho, whom critics say were not provided with adequate protection during and even after apartheid rule ended in 1994. "The faster we settle, the faster we can pay compensation to those who are entitled to it," Graham Briggs, chair of the Working Group on Occupational Lung Disease, told Reuters ahead of a presentation on the topic he was to give at a mining conference in Cape Town. The six companies involved are Harmony Gold, Gold Fields, African Rainbow Minerals, Sibanye-Stillwater, AngloGold Ashanti and Anglo American. Anglo American no longer has gold assets but historically was a bullion producer. The six companies said late last year they were making provisions for about R5 billion and Briggs said there was close to R4 billion in a compensation fund which companies have been contributing to for years.

Mine closed for safety reasons after 955 trapped workers freed. 5 February 2018

Welkom – Sibanye Gold Beatrix mine has been closed for the safety of staff members, after 955 miners were trapped underground for more than 24 hours when a storm caused an electric cable outage on Wednesday night. This was according to Mineral Resources Minister Mosebenzi Zwane, who visited the site on Friday, where the miners were eventually freed. The mine workers were rescued at around 06:30 on Friday. Some of them were dehydrated and there were a few cases of high blood pressure. But there were no serious injuries or fatalities. Zwane also told reporters that the storm had a negative effect on the mine, but they did not want to "speculate" on what happened. "My team is here, we want to have facts [and] for now, the mine is closed for the safety of staff. We don't want to speculate, but what we got as an explanation is that the system was also affected and we are doing our own investigations around that," he added. He said they had agreed to follow due process to ensure the safety of everyone and to allow the mine to operate. Miners were receiving counselling and medical treatment on Friday. Zwane said he would meet with miners once this was finalised. "We will investigate the issue of negligence, generator, including the infrastructure." Association of Mineworkers and Construction Union (AMCU) president Joseph Mathunjwa had urged his members not to report for duty on Monday, so they could recover and receive counselling. Mathunjwa also demanded new generators at the mine and a full-scale audit to prevent future similar occurrences. "If Sibanye can purchase a mine in the US [United States], surely they can purchase new generators to save lives. We want to check whether Sibanye is complying with all the regulations, because it is quite clear that the company should have an emergency power supply," Mathunjwa said. According to Mathunjwa, in 2000, an explosion killed seven workers and in 2001 a further 13 mine workers lost their lives. "We thank God that this mine is not a deep mine, it is a shallow mine, if it was a deep mine, I'm telling you today we will be talking a different story," Mathunjwa said. They were also demanding R3 000 compensation per worker. Sibanye Gold spokesperson James Wellsted also confirmed that the miners had been brought to the surface safely. "There were some people with dehydration and few cases of high blood pressure and 16 of our older employees needed drips, but everything was successful," Wellsted told News24. In a statement on Friday, Eskom said the two 132 kV lines that supplied mines in the Welkom area collapsed due to a severe storm at around 23:18 on Wednesday night, leaving mines in the area without electricity supply. Officials worked tirelessly to restore the power supply to rescue them. "I would like to commend the team for working around the clock to ensure that power was restored, especially to the mine where workers' lives were at risk. The team's effort demonstrated a shared act of humanity and is in line with our value of Sinobuntu (We Care) which, alongside [our] other five values, underpins our business operations,” Eskom' s interim group chief executive Phakamani Hadebe said.

No compensation for man after losing arm in work accident. 23 January 2018

Durban – Ntongenzani Ngidi (57) from KwaSithebe in Mandeni, north of Durban, is finding it difficult to look after himself, as well as his family, following a work injury he got in August. He said he was cleaning machines used to manufacture sacks at Tufbag (Pty) Ltd, when his arm got stuck inside and ended up being cut off by the machine, GroundUp reported. Following the incident, the company bosses called him and asked him to fill in forms on how the incident happened. He said he was told that he was going to be compensated for losing his arm while on duty but that has not yet happened, nearly six months later. Until the compensation comes through, he gets half his monthly salary from the company, but he claims this is paid late. Contributing to his financial struggles, is that he has to pay for transport to go to Durban for doctors’ appointments. "In December I missed my appointment with the doctor because I didn’t have money for transport. The company deposited my salary after Christmas," said Ngidi. He said he could not buy clothes for his children, which is something he used to cheer them up with in previous years. "My kids were not jolly this past Christmas because they were wearing old clothes while their friends had new clothes. I could see that they were not happy at all," said Ngidi. He said the same thing happened when schools reopened. "I couldn’t buy them new uniforms because I did not have money. They had to wear old uniforms. The older ones had to pass some of their uniforms to the younger ones whose uniform could not fit well." Human resources manager at Tufbag, Francois van der Merwe, said all their employees are covered by the Compensation Fund should they incur any injury on duty. "Please refer to the Department of Labour for further information in regard to this injury on duty. Ngidi must still submit forms to the Provident Fund to claim disability benefits and will also receive compensation from the Compensation Fund for the injury he sustained." Department of Labour spokesperson, Lungelo Mkamba, said that the department deployed a team of inspectors to conduct a joint inspection in the company. "The employer was found to be non-compliant with certain regulations. The employer was served with a contravention notice." He said the company was directed to evaluate "all risks and hazards" with its machinery and take precautions against "adverse effects on the health and safety" of people. He said that the department had accepted Ngidi’s claim. "However, Ngidi is still undergoing medical treatment and among other things we are waiting for the progress reports from his doctor, physiotherapy report, resumption report from the employer stating his salary, an affidavit from the employer stating for how many months was he paid for after the injury," said Mkamba. He added that for assistance with an artificial arm, the doctor who is treating him should write a referral to an orthotist requesting one. The orthotist should then do a quotation and send it to the department. "On receiving those documents, we will assist him with obtaining the artificial arm after the procedure has been done. We further encourage Ngidi to visit one of our labour centres should he require any clarity or assistance from us," said Mkamba. Tufbag and the department said they could not tell how much longer Ngidi will have to wait until he gets compensated for his disability because the process involves a lot of paperwork. What is a 'Joint Inspection'? Surely a section 31 Investigation should have been held? RHL

Transport Union condemns PRASA for ignoring safety directions. 15 January 2018

The union says Prasa is deliberately contravening the National Railway Safety Regulator Act. In the wake of two major train crashes in the Free State and Germiston, the United National Transport Union says it’s concerned that Prasa continues to ignore the prohibition directive issued by the rail safety regular, by allowing trains to be manually operated. It says this is happening all over the country where signals are not operating. The regulator’s inspectors that have been deployed across the country have been monitoring the trains and issuing Prasa with non-compliance orders. The union says Prasa is deliberately contravening the National Railway Safety Regulator Act and threatening their members who refuse to join them in contravening the act with disciplinary action. General secretary Steve Harris said, “We find it perturbing that Prasa continues to deliver a service knowing that it is not safe to do so.”

Hope for injured workers as Compensation Fund starts to work. 5 December 2017

Attempts to fix the bottleneck of claims to the Worker’s Compensation Fund are finally showing results‚ with pension payouts for permanently disabled cases more than doubling in three years. The Fund pays compensation and medical bills for workers who are injured or contract diseases due to their work. An exception is lung diseases due to dust in mines‚ which are handled by the Department of Health. For many years the Fund and the Compensation Commissioner’s Office that runs it have been the subject of complaints by the office of the Auditor-General‚ by Parliament’s Portfolio Committee on Labour‚ trade unions‚ employers’ associations‚ the medical and pharmaceutical professions who treat injured and sick workers‚ and in court judgements. The complaints have been about wasteful and irregular expenditure‚ fraud‚ corruption‚ and poor service. But a report last week to the Labour Portfolio Committee by the Fund’s Operational Manager‚ Vuyo Mafatha‚ suggests that investments over the last three years in new skilled staff‚ reorganisation‚ training and better monitoring are beginning to show results. For one thing‚ the bottleneck in payments to health practitioners dealing with occupational disease cases is being eased. Many had resorted to demanding cash payment up front for treating sick or injured workers covered by the Fund because they could not rely on settlement of their claims to the Workers Compensation Commissioner’s office. Workers who should have been treated free were forced to pay‚ or‚ if they could not afford the payments‚ were denied access to quality care altogether. Mafatha reported that 80% of claims paid out by the Fund are medical claims for acute procedures and medication for temporary total disablement and chronic care for permanently disabled workers. Settlements of these claims rose from R2.195 billion for the 2013-14 financial year‚ to R2.982 billion for the 2016-17 year. Pension payouts to workers with permanent disabilities and their dependants more than doubled in the same period‚ from R475.2 million to nearly R1 billion. Lost wage compensation for workers with total temporary disability rose from R156.6 million to R164 million. Backlogs in compensation and pension payouts on documented claims are now at last being eliminated. Progress is being made chasing up missing documents which are holding up settlement of other unsettled claims‚ often for many years. This has been a chronic complaint by trade unions to the Department of Labour about sick and disabled members who have given up waiting for their claims to be settled. The Commissioner’s office has also been working with organised employers and banks to redesign‚ digitise‚ automate‚ and streamline the whole system of employer contributions to the Compensation Fund. Following a write-off of R2 billion of unpaid employer contributions in the 2017 tax year‚ debt collection from defaulting employers is improving‚ along with measures to eliminate incorrect and tardy payouts to employers for reductions in workplace accident rates (the Merit Rebate system built into the Fund). Mafatha said this system had degenerated into mere perks for employers‚ instead of an economic incentive for employer investment in safety. The Commissioner’s office proposes to streamline the system which in time should make it fit for purpose. Employers will also be happy that almost R100 million of unpaid merit payments will quite soon be paid out. There were other attractions in the report for workers. Systems are in place to improve accessibility through better communication between the head office‚ local Labour Centre offices‚ and all stakeholders‚ including workers. Until recently‚ the system responded to requests for information and advice with radio silence similar to that on Mars. A digitised legal case management system for claims went live online on 3 November 2017 and should speed up claims. Staff at call centres dealing with queries are to be increased and better managed. At last‚ after 30 years of policy inputs from civil society‚ the Commissioner is going beyond settling medical bills and lost wages and pensions (picking up the tab of industrial carnage) and making a serious effort to rehabilitate injured workers and get them back into work. In 2018 local Department of Labour centres will for the first time have qualified medical case adjudicators and nursing expertise on the premises. Home deliveries for chronic medication from pharmacies for victims of industrial injury will be gradually rolled out. And legislation is being discussed to oblige employers to re-employ injured workers and those disabled by chronic occupational disease in appropriate work. In addition,‚ the report shows that the Fund is beginning to move away from the “meat chart” approach to compensation for industrial injury. In this model‚ workers are pictured as two-legged machines for the purposes of calculating compensation for each piece lost‚ mangled‚ chopped off‚ or otherwise destroyed by their work. Acute physical injury has always accounted for the vast majority of claims settlement from the Worker’s Compensation Fund but these are only the tip of the iceberg‚ as other countries with more humane approaches have demonstrated beyond contestation. A model that includes psychological injury and extends the concept of chronic ill-health and wellness is being considered. A regulation to include Post-Traumatic Shock Disorder (PTSD) as a compensatable occupational illness will be published for public comment soon‚ with a view to promulgation in 2018-9. 

Gold Mining Firms set aside R5bn for silicosis Lawsuit. 23 November 2017

Many of the nearly half a million miners who contracted silicosis and tuberculosis are from nearby countries who supplied labour to South African mines.  Six gold mining firms, including Anglo American, have made a R5 billion provision to settle a class-action lawsuit with thousands of miners who contracted fatal lung diseases while working in South African mines, an industry document said on Wednesday. Earlier on Wednesday, lawyers acting for thousands of gold miners who contracted lung diseases at work in South African mines said on Wednesday an out-of-court settlement with their employers could be reached by December. A High Court ruling last year set the stage for protracted proceedings on cases dating back decades in the largest class action suit yet in Africa’s most industrialised country. Many of the nearly half a million miners who contracted silicosis and tuberculosis are from nearby countries who supplied labour to South African mines. Gold miners are appealing against that ruling while at the same time six of the firms, including Anglo American, AngloGold Ashanti, Sibanye and Harmony, are holding settlement talks with the workers. Richard Spoor and Charles Abrahams, lawyers for the workers, told Parliament’s mineral resources committee that significant progress had been made in those discussions. “The parties are reasonably confident that a settlement will be achieved in the course of this year,” they said. In a separate presentation made later to the committee, the Working Group on Occupational Lung Disease which represents the six gold mining firms, said provision for a pre-tax nominal total of around R5 billion has been made. “Settlement will include not only amounts to be paid to claimants but also ensuring as many as possible eligible claimants are located and adequate financial provision for the administration of a trust,” the mining firms said. Spoor said about half the number of afflicted miners had died since the legal process began a decade ago and that the longer the remainder wait for a settlement, the more would die. The suit, which has little precedent in South African law, has its roots in a landmark ruling given by the Constitutional Court in 2011 that for the first time allowed miners suffering from lung diseases to sue their employers for damages. Any settlement that is reached will have to be confirmed by the High Court, lawyers said. If allowed, it could cost gold firms billions of rand as the industry struggles with lower commodity prices, deeper ore bodies and labour strife curbing output. “We really do feel that in many ways we have a meeting of minds,” said Charmane Russell, spokeswoman for the mines working group dealing with silicosis. Silicosis is a disease that causes shortness of breath, a persistent cough and chest pains and makes people highly susceptible to tuberculosis. It has no known cure.

Chamber condemns mines’ deteriorating safety performance. 21 November 2017

The Chamber of Mines (CoM) on Monday expressed concern over the rising number of fatalities in South Africa’s mines after recent accidents brought the number of fatalities to date this year to 76, overtaking the 73 deaths reported for the same period in 2016. Over the last few weeks, several fall-of-ground incidents, triggered by seismic activity, had claimed several lives.  “This is particularly disappointing given the consistent improvement the industry has seen over the past two decades,” the chamber said in a statement, highlighting the progress that had been made over the last 25 years. Between 1993 and 2016, the number of fatalities in the industry declined by around 88%, while fatalities as a result of fall-of-ground incidents declined by 92%. To further minimise the possibility of fall-of-ground incidents, which have been a major focus for industry over many years as South Africa is home to the world’s deepest mines, the Mine Health and Safety Council (MHSC) has injected more than R150-million into fall-of-ground research. “On behalf of Chamber-member CEOs, I want to assure our employees, their families and our communities that, even though progress has been made, we recognise that much remains to be done and that every fatality is one too many,” said Anglo American Platinum CEO Chris Griffith. The CoM said Griffith had informed the Chief Inspector of Mines of all efforts currently being made to reverse this trend. “Among these and noting that fatalities from seismic events (rockbursts) have increased while rockfalls have decreased, AngloGold Ashanti South Africa head Chris Sheppard, sponsor of the Mining Industry Occupational Safety and Health fall-of-ground team, will lead a task team to develop a summary of rockburst leading practices and propose the best ways to share these efforts with all those who are involved in deep level mining,” the chamber added. 

Gruesome death at University of Pretoria due to ‘inadequate training’. 13 November 2017

Training on new piece of equipment lasted just one day, says co-worker.

The death of a University of Pretoria (UP) worker, who was killed last week when he was pulled into a chipper machine, was due to inadequate training on how to use the powerful machinery, General Industries Workers Union of South African (Giwusa) said. Mokhiti Johannes Moeti, 25, a worker employed by facilities management company Servest, was operating the machine last Monday when tree branches inserted in the machine hooked into his gloves and pulled him into the chipper, leading to his death, Giwusa organiser Isaac Malema said.  According to a co-worker who found Moeti’s body, Mulisa Mabudafhasi, workers had not received adequate training on how to use the machine, as the training session lasted only one day. “[The training] is not qualified, good training. It is a danger to use. You bought a new machine to bring to the workers. You give them only one-day training on the machine – no practical, no anything. You just say ‘we operate the machine like this’. “You never show the operators how to start the machine. You never show the operators how to switch off the machine. “But you want the operators to operate the machine. It’s not training, it’s an explanation,” Mabudafhasi said. He claimed Moeti was not trained to operate the machine, but was deployed and “forced” to operate the machinery. “We don’t have any job description because they want us to do any job they want, at any time, which is not right,” Mabudafhasi, a technician, said. “To be honest, I am strong but this thing is killing me. If I close my eyes, I can see that thing happening.” Police were called to the scene, and an inquest docket was opened for investigation at the Brooklyn police station, Malema said. “The department of labour is also conducting its own investigation. It is a week since the incident, but no one has been suspended pending the investigation. We met with the family. It was very traumatic and workers received group and individual counselling,” Malema said. In a joint statement, Servest and the university said they were working with police and the labour department to finalise investigations as so far, the investigative team could not identify the root cause. “Servest and UP will continue to cooperate with the police and the department of labour. Servest and UP will also continue to support Mokhiti’s family, friends and colleagues, and our thoughts and prayers remain with all of them.”

Explosion rocks East London Industrial Development Zone. 4 October 2017

East London – Eleven factory workers were injured in an explosion at one of the factories at the East London Industrial Development Zone on Tuesday evening, with the explosion heard as far away as Cove Rock. People across East London reported hearing the loud explosion, which rattled windows and doors. Police spokesperson, Warrant Officer Hazel Mqala confirmed the explosion had taken place at around 21:45 on Tuesday evening. "At this stage, it is suspected that the cause of the explosion is the chemicals that they are working with at the factory," she said. Eleven people - eight males and five females - were injured and were taken to hospital for medical attention. "Fire fighters were also summoned to extinguish the fire and the factory is currently closed." Mqala said an inquiry would be opened. In a statement on Tuesday night, the ELIDZ confirmed that there had been an incident within one of their enterprises in the zone. "At this point we have not yet ascertained the cause or the extent of the damage. Emergency Services and our technical team are on site. There were no major injuries reported," the ELIDZ said. Feltex Automotive Trim is a "leading supplier of automotive acoustic comfort and trim components". The company's automotive division comprises seven business units that supply products directly and indirectly to the South African vehicle manufacturers, with its head office in Durban. "This division is now one of South Africa's largest automotive component manufacturers with manufacturing facilities situated in Durban, Rosslyn (Pretoria), Ga-Rankuwa (Pretoria), Port Elizabeth and East London, in close proximity to the assembly plants to facilitate 'just in time' and 'just in sequence' supply," the company states.

Inquiry into M1 Bridge Collapse Postponed Again. 26 September 2017

The matter has been postponed to Tuesday after an expert from building material company Formscaff presented new evidence. There's been yet another delay on the first day back at the M1 Grayston Bridge inquiry. The matter has been postponed to Tuesday after an expert from building material company Formscaff presented new evidence. Two people were killed and 19 others were injured when the scaffolding around the temporary bridge caved in on the busy Johannesburg highway in 2015. The inquiry resumed with the cross-examination of an expert from Formscaff. The engineering expert has presented new evidence, relating to what may have caused the temporary structure around the pedestrian bridge to cave in. The inquiry has experienced several delays since the deadly collapse almost two years ago. The Johannesburg Development Agency's legal representative Willem Le Roux says the postponements are unacceptable. “This is a very serious matter and proceedings have been dragging on unnecessarily.” Legal representatives from construction company Murray And Roberts will now be studying a report after an expert witness presented new evidence in the probe. They were taken by surprise when an expert from Formscaff presented new evidence while being cross-examined. Le Roux says the inquiry cannot afford any more delays. “At this stage, it’s close to two years after the occurrence of the accident. It’s undesirable for proceedings to be delayed to such an extent.” Meanwhile, the inquiry's presiding officer Lennie Samuel insists despite today’s delay, all expert witnesses will be cross-examined by the end of this year. Samuel says he took the decision to adjourn Tuesday's proceedings to maintain the integrity of the commission. 

NUM: Prosecute mining companies. 7 September 2017

Mining companies get away with minor sanctions when they should face full prosecution, the National Union of Mineworkers (NUM) has said after five workers were killed at Harmony Gold’s Kusasalethu mine. The union said there were many instances in which the families of those who died underground were never told what happened to their loved ones. They did not receive reports of investigations into mine accidents. Many of these reports were kept under wraps, the union claimed. “Investigations are done after every incident, but we never know what happens to the reports and whether their recommendations are implemented. Reports are often referred to the National Prosecuting Authority (NPA) for possible prosecution, but in most cases you find these companies paying just a fine when people have died,” said NUM health and safety secretary Erick Gcilitshana. “We acknowledge that fewer fatalities were recorded in recent years, but one life is one too many. We still don’t know what caused most of those accidents. Workers continue to die and sustain serious injuries and we don’t see mining companies being punished when found to be in the wrong.” Five miner workers died underground following a “seismic incident” at the Kusasalethu shaft in Carletonville, Gauteng, last Friday. Motshewa Matuba, Mohlomi Mokhele, Relebokile Mokemane, Mohlabane Moganedi and Moss Setlhafuno were trapped underground. A large-scale rescue operation ended with the last two bodies recovered on Thursday. “We are looking forward to the investigation, to find out what exactly triggered the seismic event that led to the loss of lives at Kusasalethu mine,” Gcilitshana said. The Chamber of Mines reports that 73 people died in the mining industry last year, the “lowest in the history of the industry. “This marked an improvement of 5% year on year on 2015 and the industry certainly hopes to achieve a further decrease in 2017. “Even though significant progress has been made, the industry recognises that much remains to be done, and that every fatality is one too many,” said the chamber’s spokesperson, Charmane Russell. Statistics provided by the chamber show that fatalities have dropped, from 615 in 1993, to 73 last year. Deaths due to falling of ground, the main contributor to mining fatalities, decreased from 302 workers in 1993, to 24 in 2016. Russell said mining remained one of the most difficult industries to work in. “The South African mining environment is unique and exceptionally challenging. “Certain mines operate up to 5km underground where the virgin rock temperatures can reach 60°C,” she said. “In these and other circumstances, the safety of mine workers must take priority. But working together, South African mining companies, unions, employees and the regulatory authorities have made significant strides in improving the safety performance of South African mines.” She said that since 1994, the number of fatalities in the industry had declined by around 88%, while fatalities as a result of fall-of-ground incidents declined by 92%. City Press received no responses from the NPA and the department of mineral resources on what happened to mine accident reports and if there were consequences for wrongdoing. Minister Mosebenzi Zwane announced that an investigation into the Kusasalethu deaths had started. It began with an in loco inspection immediately after a briefing on Friday. Zwane said his department was concerned at the continued loss of life in the industry. “As we head towards the last quarter of the year, we ask that employers and the workforce remain alert and continue to prioritise safety, and as the regulator we will be increasing inspections,” he said.

The probe into the tragic Grayston bridge collapse continues. 5 September 2017

The inquiry was instituted by the department of labour following the collapse of the M1 pedestrian and cyclist bridge in 2015. The M1 Grayston Bridge inquiry, which was postponed in August 2016, will resume in Pretoria on September 26. The event will take place at the Pretoria Labour Centre offices, Concillium Building at the corner of Nana Sita and Thabo Sehume. The sitting will start at 9am. The inquiry, which is being held in terms of Section 32 of the Occupation, Health and Safety Act, was instituted by the department following the collapse of the M1 pedestrian and cyclist bridge on October 14, 2015, resulting in the deaths of two people and injuries to 19 others. The inquiry seeks to establish the cause of the accident. It is being conducted by Lennie Samuel after being instituted by the department of labour’s chief inspector, Tibor Szana. Stakeholders include the Johannesburg municipality as the client, Johannesburg Development Agency (JDA) as the agent, Murray and Roberts Infrastructure (MR) as the principal contractor appointed by JDA and Form Scaff as a contractor appointed by Murray and Roberts. Already a number of expert witnesses have been called, among them Roelf JM, an expert witness representing Murray and Roberts, Richard Beneke, an expert witness representing Murray and Roberts, Ric Snowden, an expert witness representing Murray and Roberts, Stefanus Francois van Zyl, an expert witness representing Murray and Roberts, and Garry Farrow, an expert witness of Form Scaff. It is expected that more witnesses will be called and that the inquiry will conclude its business at the end of September next year.

Labour brokerage workers to become full employees after three months. 14 July 2017

Employees hired via labour brokerage firms will be entitled to benefits if they remain employed by a company for more than three months‚ the Labour Appeal Court in Johannesburg has ruled. Judge Pule Tlaletsi ruled this week that employees of a labour broker become permanent employees of the client company after three months of working there. This judgment overturns a previous judgment handed down in 2015 when acting Judge Martin Brassey ruled that labour brokers and client companies are dual employers. "The protection is a measure to ensure that these employees are not treated differently from the employees employed directly by the client. The purpose of these protections in the context of Section 198A [of the Labour Relations Act] is to ensure that the deemed employees are fully integrated into the enterprise as employees of the client‚" Tlaletsi said in the judgment. The judgment came as a result of a case involving the National Union of Metalworkers (Numsa), Assign Services‚ Krost Shelving and Racking, and the Commission for Conciliation‚ Mediation and Arbitration. Assign Services supplied workers to Krost‚ many of which worked for the company for more than three months. Wayne Ncube‚ senior attorney for the strategic litigation unit at Lawyers for Human Rights‚ who represented the Casual Workers Advice Office, which was listed as a friend of the court in the case‚ said "This is a massive judgment". "What it means for employees who have been placed at a particular site by temporary employment services and have been working for more than three months at a particular site‚ [is] they can obtain employment obligations from an employer and not the labour broker‚" he said. "This means they cannot be treated any less favourably than any other employee of that particular employer. A lot of companies — including the state and universities — what they try and do is to avoid their obligations in terms of the Labour Relations Act. They use labour brokers to distance themselves from the vulnerable employees which would be the people doing the cooking and cleaning, which is the majority of the urban population‚ particularly the poor people‚" Ncube said. The judgment will ensure that vulnerable people employed via labour brokers have "a lot more job security". "If they get fired it needs to be done in terms of the Labour Relations Act and not simply by a company saying [it] cancelled the contract," Ncube said. Labour lawyer Michael Bagraim agreed that the judgment means these employees will be protected against ill treatment and will have access to the same benefits as those employed directly by the company. Such benefits include a pension fund and medical aid. "The significance of the judgment is that those employees are treated equally to the employees of the client and their rights are intact as being equal to other employees."

Inquiry stalls without any apparent reason.

Parties close to the Department of Labour’s inquiry into the collapse of the temporary works structure onto the M1 freeway in Sandton in October 2015, and the family of at least one of the deceased, are concerned about unexplained delays. Legal teams have made a proposal to the department on the way forward, in an effort to prevent a situation where the inquiry will only proceed next year. Evidence was last heard in August last year. Two people were killed and 19 injured when a temporary works structure collapsed onto the busy freeway on October 14, 2015. The construction work was done without interrupting the traffic and the scaffolding fell onto vehicles that were travelling underneath in mid-afternoon traffic. The Department of Labour set up a Section 32 inquiry in terms of the Occupational Health and Safety Act to determine with a mandate to investigate among other things:

·        The responsibility of the client in terms of construction regulations;

·        The responsibility of the principal constructor in terms of the    construction regulations and as an employer;

·        The responsibility of the agent on behalf of the client in terms of the same regulations;

·        Supplier of materials and design.

The parties before the inquiry are Murray & Roberts as principle contractor and material supplier, their client the Johannesburg Development Agency, the JDA’s agent Royal HaskoningDHV and From-Scaff, the supplier of some of the scaffolding. These parties as well as their workers and trade unions are expected to testify, the department said in an earlier statement. So far four witnesses have testified on behalf of Murray & Roberts. The hearings were postponed on August 29 last year to give Form-Scaff expert witness Gary Farrow, a mechanical engineer from Australia, more time to respond to questions that were put to him on short notice. It was scheduled to resume on March 27, but the department said in a statement issued on March 14 that it was postponed until May 4 “due to technical challenges affecting the proceedings”. The hearings were supposed to run from May 4 to June 9. On May 2, two days before the hearings were set to resume, the department could not tell Moneyweb whether they would go ahead. It in fact did not proceed and the department failed to respond to Moneyweb about the reasons for the postponement. Three different parties spoke to Moneyweb about their concern that further sittings might be impossible this year, since it has become very difficult to coordinate the diaries of all the different legal teams, including at least 12 senior counsel and attorneys. “We have reserved the dates agreed upon in the diaries of our legal teams. The department is not using it and some legal teams have indicated that they will only be available again next year,” one of the parties told Moneyweb on condition of anonymity. The parties confirmed that they have not been given any reason for the delay. They have agreed upon a way to expedite the inquiry by exchange of papers, but admit that that will detract from the public nature of the inquiry. The parties are currently waiting for feedback from the department. JDA executive director for transport Lisa Seftel, said the ongoing delay is disappointing. She says that from the beginning, the City of Joburg did everything possible to establish who was responsible for the collapse and to hold them accountable, but the delays are making it impossible. She said two people died and many were injured. The inquiry is important for those affected to get closure and to understand what happened. Attorney Hlengiwe Majozi from Bophela and Majozi attorneys that represents the family of Siyabonga Myeni, who died in the incident, said her clients suffered a great loss. Myeni was a breadwinner who provided for five children as well as his mother. “They are facing great financial difficulty and any delays have an adverse impact on especially the minor children,” she says. Majozi says the family is also concerned that the inquiry might not be completed before the family’s civil claim for damages prescribes three years after the event. Attorney Willem le Roux, director of ENSafrica who represents the JDA and specialises in mine and occupational health and safety matters, says the slow pace of the inquiry by the department in terms of the Occupational Health and Safety Act is in sharp contrast with inquiries by the Department of Mineral Resources following mining accidents. He says mining accidents are dealt with in terms of the Mine Health and Safety Act and the department deals with it speedily in order to determine the causes of the accident and determine remedial measures. Such an inquiry record assists injured persons and dependents of deceased persons to claim damages.

By Antoinette Slabbert

Gideon du Plessis: Blame miners, inspectors – not mines – as death toll soars. 24 March 2017.

Mining is a hazardous business, regularly claiming the lives of breadwinners with many mouths to feed. Mining companies are often in the spotlight for deaths at work, with questions asked about the safety standards and procedures. In this article, union leader Gideon du Plessis highlights another ugly side to mine deaths: they are often linked to the actions of miners who want to add days to their weekends. Spite and incompetence also play a role in inspectors shutting down mines. Du Plessis explains that there are geological reasons for the death toll rising after a mine is re-opened. So, the more often mines are closed, the more likely we are to hear about deaths. With a dramatic rise in the death rate this year, Du Plessis notes that there is a positive side to the legal action taken by Sibanye Gold and AngloGold Ashanti against the Department of Mineral Resources. Although the mining companies are focused on the bottom line, their actions could have the effect of reducing risks to miners. Visiting Anglo American mines in Australia, a South African mining trade union delegate asked an Australian miner what the consequences would be if safety procedures were not heeded. The miner replied, “We do not disregard safety procedures”. Amazed, the National Union of Mineworkers representative repeated the question as a hypothetical question, yet the firm answer remained the same. Despite uncontrollable factors that pose a grave threat to miners’ safety, the quoted conversation emphasises the difference and unique human cause of the high mining death toll in South Africa. In the same way that mining labour relations are destabilised by poor leadership and judgment, so do behaviour, actions and decisions by various mining role-players – driven by feeble discipline, ideology, power and personal gain – contribute to unacceptable mining deaths. In this way, such actions create an abnormal environment in which labour relations and occupational safety are supposed to flourish. The result is the destruction of human lives and job opportunities. Statistics for the period 1 January 2017 to 28 February 2017 show an increase in mining deaths compared with the same period in 2016. During this period, 16 fatalities were already recorded compared with 13 in 2016. Thus far in 2017 there have been eight fatalities in the gold-mining sector, compared with five in 2016. This amounts to an increase of 60%. Contributing to mining deaths may be the abuse of authority by safety inspectors employed by the Department of Mineral Resources (DMR). In terms of the Mines Health and Safety Act, if these employees believe that a life-threatening situation exists, they are entitled to close a mine or part of a mine. Justified cases of a so-called section 54 closure are gratifying; however, some inspectors are vindictive and would order a temporary mine closure just to prove a point for personal or political reasons. Sometimes these employees act out of a simply inadequate knowledge of mining. It is also general knowledge that some of our union “friends” would not hesitate to misuse their relationship with an inspector in order to have a long weekend created through the closure of a mine from a Thursday to a Monday, owing to a fictional or bona fide complaint. A miner walks through an underground tunnel at the South Deep gold mine, operated by Gold Fields Ltd., in Westonaria, South Africa, on Thursday, March 9, 2017. Apart from Chamber of Mines’ information that mines, because of closure orders, had suffered losses of R13,6 billion between 2012 and 2015 – depriving government of billions of rands’ worth of tax revenue closure orders may result in more mining deaths. Put simply: for geological reasons, conventional mines have to remain operational at all times. The use of explosives maintains a geological balance that prevents underground pressure and stress from building up – a typical result in a non-operational mine. Although litigation by Sibanye Gold and AngloGold Ashanti against the DMR and some of their mine inspectors relates to the financial impact on the companies caused by heedless closure orders, it may also have a positive effect on mine accidents. The outcome is that, once a mine is restarted following a closure order, there is an increased risk of ground disturbances and seismic shifts, which may result in rockfalls and mining deaths. In addition, in the wake of such a closure, some employers are guilty of pressuring employees to catch up on lost production: negligence may then lead to accidents. However, sometimes the workers themselves would chase production bonuses and disregard safety procedures, with fatal consequences. The tragedy of the three people who perished in the Lily Mine reminds us of the impact that a mining death could have on a family, dependents and a community. The death of a single breadwinner affects some 10 dependents: that alone is sufficient reason for all mining role-players to eliminate the controllable factors in potential mining deaths. These factors include: tension between the Chamber of Mines and the DMR about the regulatory framework which moves the focus away from safety; spiteful Section 54 closure orders; lack of a clear closure order regulation; rigid production bonuses; flimsy employee discipline; trade union rivalry that hampers job relations; illegal miners damaging infrastructure; the political overreaction of the DMR and certain unions during mining deaths which overshadows the reason(s) for and the lessons to be learned from an incident, and the uncertainty about the appointment of a chief inspector of mines. If these problems are not solved, the mining industry’s efforts to reach the international objective of “zero harm” would never be successful.

Gideon du Plessis is the General Secretary of Solidarity 

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Cracks in the walls. 22 March 2017

Public infrastructure in SA is at risk of decaying, and public works minister Thulas Nxesi and the state-mandated Engineering Council of SA (Ecsa) are facing legal action, says the SA Institution of Civil Engineering (Saice). Several structural collapses in recent years have spooked the engineering profession, leading to concerns about standards slipping in a crucial industry. Within this context, Ecsa plays a vital role — including accrediting engineering programmes, registering people as "professional" engineers, and regulating the industry. But Saice CEO Manglin Pillay says the new Ecsa council has been appointed illegally — which threatens to weaken quality and safety in the engineering industry. Saice isn’t alone. In all, 14 engineering associations (with a total of about 50,000 members) claim that changes were made without consultation with the minister, while there were also problems with the list of people appointed. Pillay says civil engineering infrastructure — including hospitals, bridges, dams and roads — is built to last for decades, provided there is regular maintenance and it is used appropriately. "Should this be neglected, deterioration will occur and eventually lead to replacement of infrastructure at huge cost to the taxpayer. It is apparent that, viewed overall, there are problems in areas of the construction industry that need urgent resolution." Pillay says all three tiers of government "seem to have a lack of appropriately qualified, experienced and professionally registered civil engineering professionals". This means they cannot handle tenders effectively, or properly manage consultants and contractors. As a result, engineering and construction companies are appointed without the right qualifications and expertise to plan and build infrastructure according to the legal health and safety standards. "By undermining the quality of oversight of engineering practitioners in SA, the entire pipeline of engineering infrastructure services, manufacturing and production will be at risk." This could result in the health and safety of the public being placed in jeopardy. Other engineering groups agree. Consulting Engineers SA (Cesa) says the allegations of compromised governance, the lack of consultation with affected industries, and the questionable integrity of appointments to Ecsa’s council "under the guise of transformation" will negatively affect the image of the domestic construction industry. "Our citizens deserve to experience less flooding and fewer bridge or roof collapses — not more," says Cesa CEO Chris Campbell. The body has over 500 member companies, employing more than 20,000 people in SA. Cesa is tackling the transformation of its members, promising to promote transformation as an ethical business practice and saying it will monitor progress made by its members beyond the requirements of the construction-sector scorecard. But Campbell says it is a battle to retain engineers in many municipalities and provincial departments. While he says the custodians of public infrastructure have always been state employees, today some municipalities have "little or no engineering capacity" outside of the major metro areas. Cesa president Lynne Pretorius says black ownership is still low at all levels of the industry. An assessment of employment by race indicates that the percentage of black employment in the sector has varied between 40% and 50% since 2007. Small, medium and micro enterprises constitute about 95% of Cesa’s existing membership. Of this grouping, only 24% have black ownership of more than 51%. "Broad-based black economic empowerment [BBBEE] policies also gave rise to ‘fronting’, and questions are being raised about the effectiveness of the BBBEE scorecard in realising transformation," she says. Transformation of the consulting engineering profession is also being hindered by the limited number of school pupils who are competent in mathematics. Cesa’s interventions will include developing a pipeline of engineering professionals over the long term, by identifying and supporting students with a technical aptitude at secondary school level. Saice, meanwhile, says it is a misconception that transformation in the civil engineering and construction sector is not happening. It says the "numbers tell a different story". Data from Ecsa shows that the percentage of black engineers increased from 35% to 46% from 2011 to 2016, compared to a drop from 65% to 54% for white practitioners in the same period. In that time, 9,194 black professionals registered with Ecsa, against 2,225 white professionals, Saice says. That means, for the first time in the history of Ecsa, the number of registered engineering practitioners in SA reached more than 50,000. The SA Council for the Project & Construction Management Professions registered 1,264 black construction project management professionals since 2008. In that year, 26% were black and 74% white. In 2016, though, 48% were black and 52% white. Says Pillay: "A more accurate measure of transformation is that almost 70% of Saice’s membership under the age of 36 is black." But he adds that many local and district municipalities have only junior staff, few of them adequately trained. "This is the real challenge. It is not about black and white any longer, it is all about experience and inexperience," he says. "It takes about 10 to 12 years — excluding basic education of another 12 years — for any individual to accumulate the necessary education and training before they are ready to register as professionals."

SANDF members died trying to help 'screaming' contract workers. 18 February 2017.

Durban - The three South African Defence Force members who died in a "freak accident" at the army’s naval base in Durban, were trying to rescue three contract workers screaming for help at the bottom of a sewage pit after a gas leak, says the SANDF. The SANDF's Brigadier-General Mafi Mgobozi said contract workers from the Department of Public Works were working in the sewage pit at the naval base. There were suddenly screams for help. “The workers said there was a gas leakage,” said Mgobozi on Friday. He said three SANDF members who heard the cries went down the sewage pit to help but they were overcome by the gas fumes. All six men died while 26 others were injured. Mgobozi said the army was still in the process of determining what type of gas had leaked. “We want to send our deepest condolences to the families of our members and those of the contractors that were working at the sewage pit.” The names of the deceased will be released as soon as their next of kin have been informed. SA Navy spokesperson, Rachel Dulamo, said the Navy would be releasing a statement detailing exactly what happened in the next hour. Mgobozi said the army was still investigating how the 26 others were injured.

Zuma, Oliphant send condolences to families of naval base six. 18 February 2017.

A gas explosion at Durban harbour has claimed the lives of six men.

 President Jacob Zuma expressed sadness and sent his condolences to the families of the six people who died while working in a sewer pit at the Natal Naval Base in Bayhead, Durban on Friday. "We are devastated by the deaths of these hard working soldiers and their colleagues. It is really tragic for all of them to lose their lives in this manner. This is a most painful and traumatic time for all the families and for all of us," Zuma said in a statement. Three soldiers and three public works department staff died. The Presidency said that it was believed that the three soldiers rushed to the pit to try and assist the public works staff members who were struggling to breathe underground. Defence and Military Veterans Minister Nosiviwe Maphisa-Nqakula called Zuma to inform him of the accident. “This happens just when we were preparing to join the SANDF in Durban for the Armed Forces Day celebration which also marks the centenary of the sinking of the SS Mendi vessel. Our thoughts and prayers are with the families at this difficult and painful time,” Zuma said. Labour Minister Mildred Oliphant sent her condolences to the families of the six that died in the accident and said the department's inspectors were dispatched to the scene after 11am to conduct and investigation into the cause of the accident. "The accident involves inhalation of methane gas by workers who were conducting repairs to a pumped storage in a pit of about 5 metres deep. About 21 Navy officers who tried to rescue the workers were rushed to hospital as they also got affected by the gas," the department said. "The Minister wishes to assure the public that measures are currently underway to prevent further loss of lives. Investigations into the matter are currently underway." Earlier, Mapisa-Nqakula sent condolences to the families of six people who died in a gas accident. “The Minister of Defence and Military Veterans, Nosiviwe Mapisa-Nqakula, has learnt with shock and sadness of the accident that happened today at Natal Naval Station, where three civilian members from the Department of Public Works and three uniform members of the SANDF lost their lives in a gas accident,” the South African National Defence Force (SANDF) said in a statement. “The Minister would like to pass her condolences to the families and friends of all the members who lost their lives.” Earlier, paramedics said that six people died and 26 other people were injured in the freak accident. ER24 spokesperson Russel Meiring said paramedics had arrived on the scene and found rescue teams already in attendance, situated near a sewer pit. “Rescue teams had already retrieved the bodies of six men from the sewer pit,” Meiring said. “Paramedics assessed all six men and found that they showed no signs of life. Unfortunately, nothing could be done for the men and they were declared dead on the scene.” Meiring said the patients were treated for their injuries and thereafter transported to various hospitals in the area for further treatment. Meanwhile, Rescue Care Paramedics spokesperson Ceron Lennox said paramedics and other emergency services arrived on the scene at around 11.40am and found that rescue personal had already retrieved the bodies of six people from the pit. Lennox said that they had already die before paramedics arrived. “They were declared deceased at the scene. Twenty six other people had sustained minor injuries and were treated on scene before being transported to a nearby hospital for the further care that they required.” Lennox said that the exact events leading up to the incident was unknown and authorities were on the scene to investigate. Meanwhile, Transnet National Ports Authority said it was aware of the “fatal incident” that took place at the Durban Naval Base, which falls outside of the Port of Durban land area. “The Port of Durban cannot comment on this matter as it is not within its authority or jurisdiction,” Transnet said.

Investigators will focus on General Safety Regulation 5 "Work in Confined Spaces. RHL

Union takes Prasa to court over safety. 6 February 2017.

The union is alarmed at the number of high-profile violent incidents in the Western Cape including the murder of a train driver in 2016. The United National Transport Union (Untu) is expected to approach the Western Cape High Court in Cape Town this week, seeking to compel the Passenger Rail Authority of SA (Prasa) to implement security measures to protect drivers and passengers. Should the bid fail, the union will consider a push for civil claims against the agency, which is failing to provide both sufficient security or ensure trains are technically safe for passengers, Untu general secretary Steve Harris said on Friday. "Untu has tried all other avenues to convince Prasa’s management to adhere to their obligation as employer to comply with the Basic Conditions of Employment Act, the Occupational Health and Safety Act and the Constitution by providing a safe working environment for our members, but to no avail," Harris said. The union’s primary concerns are with the situation in the Western Cape, with a number of high-profile incidents in recent months including the murder of a train driver in 2016. In 2015, the Constitutional Court ruled in favour of passenger Irvine Mashongwa who was assaulted and subsequently lost a leg when he was thrown from a train in the Western Cape. Mashongwa lodged a R4m civil claim against Prasa, and the court ultimately concluded that the organisation was fully liable, given its failure to ensure that the doors of the train were closed while in motion. Prasa did not immediately respond to requests for comment. However, in its 2015-16 annual report it indicated a 6% decline in incidents of crime with the Western Cape showing a higher number. The report further showed a 6% decline in Metrorail’s customer satisfaction to 57%. Commuters cited train operations, conditions of the trains and safety and security.

Chamber of Mines concerned about inappropriate application of regulations. 30 January 2017.

The industry’s goal was to ensure that regulations were properly implemented by all parties, including the inspectorate. The Chamber of Mines says it is perplexed by Mineral Resources Minister Mosebenzi Zwane’s statement on Wednesday directed against two of its members, and indeed, in reference to the industry as a whole. “In particular, the chamber is concerned about minister Zwane’s allegation that companies are flouting safety laws and regulations and that their actions ‘cheapen lives of mineworkers’,” the chamber said in a statement. The chamber and its members viewed safety as their most significant priority and prioritised safety above production at all times. The extensive efforts displayed by companies at the most senior levels, the significant resources applied to safety, and the substantial progress made in reducing fatal accidents and injuries was ample evidence of this, it said. “We and all our members are aware that notwithstanding significant improvements in safety outcomes over the past two decades much more remains to be done to achieve the goal of zero harm. “The chamber and its members are concerned about the inappropriate application of regulations where section 54s, for example, are applied in such a way that is not proportionate to the context of the alleged infraction. “A recent court judgment noted that the law requires an inspector objectively to establish that a state of affairs exists which would lead a reasonable person to believe that it may endanger the health or safety of any person at the mine and then to contemplate an instruction that is proportionate to the infraction and the risk that it poses to health and safety,” the chamber said. The industry’s goal was to ensure that regulations were properly implemented by all parties, including the inspectorate. “We would expect that the minister would share that objective. No doubt the courts will continue to provide clarity on these matters and we would hope that all parties would welcome and accept such clarity in the interests of the industry and our collective futures,” the chamber said. Business Day reported on Thursday that just days after saying the mineral resources department was “not at war” with Sibanye Gold and AngloGold Ashanti, Zwane laid into both companies for “refusing to comply with the mining laws of the country”. Zwane’s comments came after Sibanye subsidiary Sibanye Platinum lodged summonses against the minister and three high-ranking safety officials for R26.8 million to recompense the company for losses incurred during a safety stoppage at the Kroondal platinum mine that the company argued was not proportional with the Mine Health and Safety Act. AngloGold Ashanti successfully overturned a safety stoppage at its Kopanang mine in the Labour Court last year, Business Day reported.

Sibanye claims R26.8m from Zwane and inspectors. 25 January 2017.

Sibanye Platinum’s move opens the way for other miners to take similar action.

Sibanye Gold’s subsidiary Sibanye Platinum has served summonses on Mineral Resources Minister Mosebenzi Zwane and three of his officials, claiming R26.8m from them in their personal capacities, opening the way for other miners to take similar action. 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. Production was suspended at the two mines after the inspectors ordered a safety stoppage of the mine in August 2016. The officials have 20 days to serve notice that they will dispute the claim, otherwise an order will be made against them. Mbonambi said last Thursday the department had not yet received any details of the summonses and regarded stories that it was about to receive such notices as "a rumour". At the time, Zwane said: "Our differences should not be taken as people at war with each other. We are not. We are not at war with Sibanye, or AngloGold or any other person. We are engaging to ensure the real beneficiaries of our laws in SA benefit." Sibanye said it had suffered damages of R26.8m arising from the closure of the mine and that the defendants were "jointly or severally liable to compensate" Sibanye for damages and that the defendants had so far ignored written demands to pay. The department did not immediately respond to an e-mailed request for comment and reaction on Tuesday. The summonses are the latest in a long line of legal setbacks for the department, which was labelled incompetent in the Aquila Resources ruling last November; and acting out of proportion with clauses in the Mine Health and Safety Act in last year’s AngloGold Ashanti ruling and an earlier judgment in the Bert’s Bricks case. Kroondal had so many stoppages that it had become a marginal mine. The inspectorate ordered at least nine stoppages at the operation between July 2015 and December 2016, costing the mine R180m. In the latter judgments, the judges raised the prospect of officials being pursued for damages in their personal capacities, something neither AngloGold nor Bert’s Bricks opted to do in their cases. After an employee was killed by the vehicle he had failed to properly immobilise with a handbrake and stop blocks at one of five shafts at the mine, the inspector of mines in North West, Clifford Dlamini, conducted an inspection of the mine, finding various faults with vehicles having sub-standard or missing seatbelts, a missing door latch, checklists improperly completed, an underground haulage way too narrow for vehicles to pass each other and a number of fire extinguishers had not been checked in August. Between August 19 and August 26, Dlamini, the principal inspector of mines in North West, Monageng Mothiba and Mbonambi took action against the mine, including halting all trackless mobile machinery underground and the withdrawal of operators for retraining under Section 54. After legal threats from Sibanye and engagements between the company and the inspectorate, the order was changed to just the suspension of the Bambanani shaft where the accident happened. Sibanye argued that all three inspectors had acted in a "draconian" way and beyond the powers granted to them under the Mine Health and Safety Act, ignoring the localised nature of the accident. It said their actions were "irrational … arbitrary, capricious, and were taken for an improper purpose, which is not permitted under the act". This tied into the AngloGold Ashanti and Bert’s Bricks cases in which courts found inspectors had acted out of proportion when ordering shutdowns of mines for relatively minor and localised situations. Sibanye said Kroondal, which employed 9,500 people, had undergone so many stoppages that it had become a marginal mine. The inspectorate ordered at least nine stoppages at the operation between July 2015 and December 2016, costing the mine R180m.

Malicious inspectors face liability at mines. 17 January 2017.

Sibanye serves notices as judgments pave the way for government officials to be held liable in their personal capacity. Incompetent and malicious Department of Mineral Resources officials who overstepped their authority in applying regulations could soon be hauled to court for damages in their personal capacity, industry sources said. Two judgments pertaining to mining as well as a Constitutional Court ruling that government officials can be held liable in their personal capacity have paved the way for the action, which could see mine inspectors and other departmental officials pursued for damages by mining companies. Sibanye Gold is said to be the first company preparing to launch such an action, said the sources who declined to be named. Sibanye spokesman James Wellsted said he could not comment. The sources said the actions brought against various department officials were likely to be related to safety stoppages ordered at the company’s mines in 2016. AngloGold Ashanti won a case against the department’s safety officials in November 2016 after the entire Kopanang mine was shut down because of a violation at a small section of the mine. One of the sources said the company was also preparing to pursue safety officials related to that matter. AngloGold spokesman Stewart Bailey said: "We won’t comment." Under the Institution of Legal Proceedings Against Certain Organs of State Act, the notice has to be served on a government official within six months of the incident, and then a summons can be served. 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 It is understood the Sibanye notices under the act have already been served and the summonses will be served within the coming weeks. While the department officials are unlikely to be able to afford to pay hundreds of thousands or millions of rand in losses stemming from their actions, these summonses could form the basis of talks between mining companies and the department to formulate a protocol on how the Mine Health and Safety Act will be implemented and enforced,  for example. This would be to prevent the shutdown of entire mining operations for relatively minor infractions of the act as has been the case in recent years, costing the industry billions of rand in lost production. 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. The trend has nearly doubled the value put on shutdowns, rising to R4.8bn last year from R2.6bn in 2012. "There is a constitutional precedent for government officials who act in bad faith to be sued in their personal capacity. "Mining companies are starting to think in that direction because there are no consequences for DMR [Department of Mineral Resources] officials notwithstanding these judgments, they just ignore them," a source said. The court cases won by Bert’s Bricks and AngloGold Ashanti against safety stoppages ordered by inspectors showed that mineral resources departmental officials had acted out of proportion with the terms of the act. The judges in both cases said that the mining companies could have sought damages against the officials involved. "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," Judge Andre van Niekerk said in November’s AngloGold judgment. While AngloGold is unlikely to be as aggressive as Sibanye in following this avenue, the option is still there if it continues to endure a heavy-handed and unwarranted application of the Mine Health and Safety Act at its operations.

OHS Act Amendment Bill for comment soon. 23 November 2016

The OHS Act Amendment Bill will allow less self-regulation, and more inspections. The Bill will be out for public comment early in 2017. The last OHS Act review was 23 years ago, when self-regulation was introduced. The 1993 amendments had established and formalised a health and safety practice or ‘industry’. DOL chief inspector Tibor Szana repeated his earlier statement that health and safety self-regulation “did not work”. Addressing an OHS conference for small business and SMEs in Benoni in November, Szana said that voluntary OHS professional bodies, such as hygiene body SAIOH, “for whom the Department of Labour had created business, now refuses access to its data”. OHS professional bodies and their boards include SAIOH /SAIOH Board, IOSM /OHSAP, SAIOSH /IOSH SA, ACHASM, facilities managers, events managers, and other voluntary bodies. A Black OHS body was also announced two years ago, at the same official event where the DOL appointed the SACPCMP as registrar of construction health and safety professionals, backed by the big construction employers, Master Builder’s associations, and the Labour minister’s advisory council, ACOHS. Among the public complaints against the construction HS registrar are lack of capacity, privatisation of several functions, costs, delays, conflicts of interest, duplication of some Saqa and Seta functions, usurping some training functions by questionable exams and CPD, legitimising low CHS training levels, and about 30 more complaints (see earlier reports and petitions on Sheqafrica.com). Similar complaints apply to the voluntary bodies. Flashback to DOL’s appointment of the SACPCMP as construction health and safety registrar two years ago. The deal included some minor roles for voluntary OHS bodies, and contracts with certain CPD providers. The SACPCMP assessor is Joep Joubert (here back left), who is also president of a voluntary body. Some Master Builders contractors, and some OH service providers, are on the SACPCMP board, or on the Labour ACOHS. The SACPCMP is an entity of the Department of Public Works.

Construction OHS registration to change

Responding to a construction employer’s questions on legal interpretations of construction health and safety competence, and whether Labour inspectors had to register with the SACPCMP as CHS Agents, Managers, and Officers are expected to do, Szana said the DOL is drafting a memorandum on CHS competencies, which had “evolved” into a challenge. A change in the Construction Regulations is expected in 2017.

Labour inspectors on construction sites are not required to be SACPCMP registered.

Szana agreed that registration of construction health and safety managers and officers, was “a sore point’ that is receiving attention in the guidance to be issued by the end of November, drafted by a team”. Szana said that the DOL’s current sectoral accords with construction , iron, and chemicals employers, were “not delivering the aims”. There is also a huge backlog in construction health and safety training and registration. Several ACOHS members, including delegates of BUSA, Cosatu, Fedusa, and Nactu, attended the Benoni conference. Some of them complained of over-regulation.

The Department of Labour’s State of Health and Safety Report will be published in 2017.

OHS Act Amendment Bill.

The OHS Act Amendment Bill due in 2017 (which is dated 2014, when the amendments started,) will be circulated for comment soon. The DOL advised employers that:

[] Site-specific OHS risk assessments, plans, and systems (to be defined), by competent persons, appointed in writing relevant to each identified risk, would be required.

[] Appointment of OHS Reps will become compulsory, no longer optional.

[] The Chief Inspector may require and OHS Rep on sites with fewer than 20 workers.

[] Labour unions want to reduce the minimum number of employees requiring a Health and Safety Representative and Committee, from 20 to 10, which would impact many SMEs.

[] Groups of small employers may choose to share an OHS Committee and OHS Rep, but it will not be required. The DOL may subsidise such a practice.

[] Negotiation with workers on OHS measures will become compulsory.

[] The DOL may provide PPE support to some employers.

OHS Act Amendment comment expected

[] Articles on sale must have OHS instructions attached.

[] Some employers exclude incidents, injuries and diseases suffered by small contractors. Public comment on this issue is expected.

[] Approved Inspection Authorities (AIAs) that are required for certain functions relevant to asbestos, Major Hazard Installations, and some others, are too expensive. Public comment on this issue is expected.

New OHS Act regulations

[] Ergonomics Regulations will be added to the OHS Act .

[] General Safety Regulations, Facilities Regulations, and environmental health and safety measures, would be combined.

[] Hazardous chemicals handlers would have to follow the Globally Harmonised System (GHS) rules.

[] Hazardous Substances Regulations and Lead Regulations would be combined.

[] Asbestos Abatement Regulations are under review.

[] Silicosis and hearing loss management will be better enforced.

[] A guideline on compliance with the OHS Act review of 2017 will follow.

New OHS Act spot fines

[] Labour inspectors will have two mechanisms of enforcement: prosecution, and/or administrative fines (‘spot’ fines) ranging between R20 000 to R50 000 per relevant section of the OHS Act, thus some employers may receive several fines after a DOL inspection. These fines would apply to all employers, including small businesses. 

Compensation registration online from 2017

The Compensation Fund (CF) said employers would be able to register online from March 2017. Labour union Solidarity noted that the fund tended to trust submissions by employers, not workers. The Compensation Commissioner responded that the fund is “careful of employers who could take legal action. However it is worrying that most compensation payments are made to employers and to medical service providers, not to workers”, which may be open to fraud.

 Sources: Sheqafrica.com editor Edmond Furter, reporting from the DOL OHS Conference on Sustaining OHS within the SMME environment through innovative solutions, 15 November 2016, Benoni.

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. The trend has nearly doubled the value put on shutdowns, rising to R4.8bn last year from R2.6bn in 2012. "We believe that the Labour Court has, in this case, clarified the limits on the powers of the inspectorate," the chamber’s CE, Roger Baxter, said on Monday. It was in line with the industry’s approach in which it has sought to persuade the department to avoid unjustified stoppages that were compounding losses in already trying financial times, Baxter said. Royal Bafokeng Platinum has said the recent sharp increase in the frequency and severity of these orders, which did not appear to be addressing noncompliance with safety standards, was "very disappointing" and it could no longer offer the same acceptance and support of these orders it had in the past. In a judgment handed down on November 4, Judge Andre van Niekerk said the order to shut Kopanang near Orkney in North West on October 17 at a cost of R9.5m a day due to violations involving explosives and tramming at the 44 level of the mine was disproportionate. The 91 affected workers represented just 2% of the mine’s 4,218 employees and the 28 railway line switches that came under scrutiny were a fraction of the 206 switches used by Kopanang’s trams. "It is patently clear therefore that [the affected] 44 level comprises a very small portion of the total operation and conditions there are not axiomatically representative of conditions elsewhere on the mine," Van Niekerk said, ordering the lifting of the safety stoppage of the entire mine, but retaining the suspension of the offending level. "The instructions insofar as they relate to a prohibition across the entire mine in respect of explosives and tramming were out of all proportion to the issues identified by the third respondent. At worst, they should have been confined to level 44," he said. The legal fraternity welcomed the judgment. "The judgment is an indictment of the manner in which certain officials execute their duties. The judge’s sentiments echo the views of the mining industry as well as the legal counsel who have to deal with the consequences of these abusive practices on a daily basis," said Allan Reid of Cliffe Dekker Hofmeyr. "Enforcement issues are all too frequently approached in an aggressive, heavy-handed and ill-considered manner," he said. AngloGold CE Srinivasan Venkatakrishnan said on Monday the world’s third-largest gold miner had lost 82,800oz of gold in SA to safety stoppages so far this year. "This judgment will provide clear guidelines. You can’t just stop and start these big, deep-level mines. There are consequences to doing that." Ben Magara, CE at the world’s third-biggest platinum miner Lonmin, said it had lost 164 production days in its financial year to end-September in 50 section 54 stoppages compared to 173 days in 36 stoppages in the previous year. "Section 54 stoppages were enforced more broadly and were taking longer to lift in the first nine months of the year. Not only do safety stoppages affect production, they also have a negative impact on safety routines and care must be taken to safely shut down work areas so that on their return, workers do not enter a work area that is hazardous," Magara said. Asked if Lonmin would also turn to the courts to contest the stoppages, Magara said the company preferred to build relationships with officials while it worked at improving safety and this strategy had paid off in the fourth quarter of the year. Van Niekerk singled out the North West office of the department and its officials for particular criticism, drawing on a 2012 judgment delivered in favour of Bert’s Bricks contesting the shut down of their operations for safety reasons.  That judgment found that of the officials ordering the stoppage not one had “properly applied his mind to the operation of the MHSA and that there was a gross abuse of the provisions of the act,” the judgment said, calling the litigation a waste of tax payers’ money and berated department officials for not listening to complaints.  Van Niekerk said no lessons appeared to have been learnt at the North West office or by its officials.  “It is also astonishing, given the content of their answering affidavit and the submissions made on their behalf, that the respondents clearly fail to appreciate the conceptual framework within which they are required to discharge their duties,” he said, pointing out that in the department’s submission “proportionality was irrelevant’ because it did not feature in Section 54 of the MHSA which entailed shutting down mines.

Poor safety performance hits AngloGold Ashanti’s production forecast. 14 November 2016

AngloGold Ashanti pulled its full-year production forecast down to the lower end of its estimate after a poor safety performance in SA, but the higher gold price offset lower third-quarter output and contributed to strong cash flows. AngloGold Ashanti, the world’s third-largest gold miner by volume, said free cash flow for the three months to end-September was $161m from $50m paid out during the same period a year earlier and the $108m generated in the first half of the year. Gold production for the quarter was 900,000oz compared with 974,000oz in the same period a year ago when Cripple Creed & Victor in the US and Obuasi in Ghana jointly added 32,000oz. South African gold production fell by 7% to 235,000oz because of lower grades. During the quarter, AngloGold lost 38,600oz of gold to safety stoppages at its South African mines, bringing the total for the year to more than 80,000oz. On Friday, the Labour Court issued a judgment around the implementation of Section 54 stoppages issued by the department’s safety officials. The judgment pertaining to a full stoppage at AngloGold’s Kopanang mine ruled the entire mine did not need to be shut down for safety violations in a certain section of the operation. The matter of safety stoppages has affected gold and platinum miners alike, causing a number of CEs to speak out strongly on the matter, arguing that only relevant sections of the mine needed to be stopped rather than the entire operation, which caused heavy production and financial losses for an overzealous application of the stoppage orders by department officials. AngloGold CEO Srinivasan Venkatakrishnan said while his officials were "still in constructive dialogue" with their opposite numbers at the department, the company had taken a more "prudent" outlook of what its South African mines would deliver next year, but, he added, it would not be less than this year. There were three fatalities on South African mines during the quarter. Looking ahead, AngloGold forecast its full-year production at between 3.6-million and 3.65-million ounces compared with an earlier forecast of between 3.6-million and 3.8-million ounces.

I have always argued that section 54 of the MHS Act is being abused and is tantamount to an extra-judicial punitive measure. The same applies to the3 Prohibition Notice served in terms of section 30 of the OHS Act. At least the Labour Court has laid the matter to rest. RHL. 

Injured cyclist to test consumer law's extent. 14 November 2016

How can the Consumer Protection Act be extended to better protect people from dangerous products? This is the question the Constitutional Court will have to decide soon. Johannesburg cyclist Derek Halstead-Cleak was shocked and badly burned by a low-hanging power line in 2013 while cycling with friends near Johannesburg. The powerline, which belongs to Eskom, had been vandalised. In an unusual move, Halstead-Cleak asked the Pretoria High Court to hold Eskom liable for his medical and legal costs under the Consumer Protection Act. The act makes manufacturers, suppliers and distributors responsible for unsafe or defective goods sold to consumers. Halstead-Cleak won his High Court case. The judge found that even though he was not buying electricity while cycling, he was still a consumer in a broader sense. Eskom had argued that he was not a consumer and only would have been had he been injured at home. Legal experts warned that the judgment meant the act had an exceptionally broad reach. Insurance company Camargu said on its website: "Businesses need to be mindful of customers they might not know they have." In September, the Supreme Court of Appeal ruled against Halstead-Cleak, saying that the accident could not be understood as consequent on a consumer transaction. It dismissed the case and ordered the Pretoria High Court to hear the second part of the case, which will examine whether Eskom was negligent in maintaining the power line. Halstead-Cleak, in the meantime, has filed papers for leave to appeal the Supreme Court of Appeal rulings in the Constitutional Court, arguing that he is protected under the act. Eskom lawyer Thipe Mothile says the appeal should be dismissed. In responding papers, Mothile said: "The incident had nothing whatsoever to do with consumers." He warned that the broader interpretation of the act led to "absurd conclusions and [opened] the door to unbridled liability".

Tragedy at sewage plant was ‘just a freak accident’ 10 November 2016

The Sol Plaatje Municipality claims that the deaths of five workers at the Homevale Waste Water Treatment Plant in 2012 were a freak accident and municipal officials could not be held responsible. One of the general workers at the Homevale plant yesterday relived the tragedy, when he witnessed three of his colleagues falling to their deaths and being engulfed in rising sewage sludge inside a pump station. Testifying during the inquest into the deaths of five Sol Plaatje municipal workers in the Kimberley Magistrate’s Court, Thurlow Naidu indicated that there had been several attempts to drain the overflowing sewage on the day of the incident. He said that his father, Trevor Naidu, had advised one of the deceased, Joey Reid, and himself that he would accept responsibility if the malfunctioning electrical pump burnt out as it was submerged in sewage.“My father is the controller with 20 years of experience at the plant. Reid went down into the pump house to try and unblock one of the pumps. Due to the pressure, sewage squirted out of one of the valves and it spilled onto Reid.”Naidu stated that Reid attempted to clear the pump without entering the pump station, while they also tried to drain the liquid by means of an extractor pump from the steel platform.“I witnessed how the pressure did not subside and the sludge continued to leak after Reid had closed the valve. If the valve was functioning properly it should not have leaked.” He refuted claims that Reid had turned the valve in the wrong direction. Naidu said that Raymond Numan, who also died in the accident, refused to go into the pump house on the day of the tragedy. He explained that no safety representative had been appointed while the pump station was also not equipped with a rescue boat on the day of the incident. “All four pumps were switched off and the sludge inside the pump station had risen to about two metres.” He pointed out that the untreated sewage had, on previous occasions, flooded the pump station although the cause had not been established. “There were two people who contracted tuberculosis after being exposed to the sludge.” Naidu also told the court that about 10 minutes passed after they heard the screams from the pump house before an ambulance was called. “Everyone was panicking while we ran to assist those trapped inside the pump house.” Advocate Ferdi van Heerden, who is representing the Sol Plaatje Municipality, maintained that there had been no incidents prior to the deaths of the workers. Advocate Sakkie Nel, representing Garret Corns, the senior controller at the plant, stated that his client was not at the facility at the time of the incident. The legal representative for Naidu, Riaan Bode, confirmed that, according to his client, members of the Kimberley Fire Brigade, who attended to the scene, had to wear protective clothing and masks in order to retrieve the bodies of the workers from the sludge. The inquest will continue until Friday. 

Stellenbosch University has been found to be liable for damages to a student who was seriously injured when a fire. 8 November 2016.

Izak Potgieter — a 21-year-old‚ third-year student at the Eendrag men’s hostel — was asleep in his room on the third floor when the fire broke out on August 9‚ 2007. He does not know what exactly woke him that morning. He heard the roar of fire and people shouting and running further down the corridor. When he tried to open his room’s door‚ he was confronted by a wall of flames and overpowering heat‚ rendering it impossible for him to exit. He was forced to escape the fire through the window of his top floor room. He only regained consciousness in hospital two weeks later‚ rendered a paraplegic‚ with burn wounds to his hands‚ arms‚ back‚ legs and feet. Potgieter’s case was that the university was obliged to ensure that proper and reasonable measures and procedures were in place‚ and were implemented‚ for the safety of students in its hostels. He said the absence of fire stops in the common roof void of Eendrag posed a real and imminent fire risk to the residents of the top floor immediately below the roof void‚ given that once a fire reaches a roof void it will spread rapidly unless proper preventative measures were in place. There had been another fire at another residence known as Huis Ten Bosch with a similar roof structure to Eendrag’s in 1983. Potgieter said it was only in 2011 that the university implemented a roof risk mitigation project at those hostels where there was a real risk to life and safety of residents‚ which included the installation of fire stops in pitched roof voids. He claimed that the steps taken by the university‚ namely to install smoke detectors in the roof void of Eendrag‚ linked to an alarm‚ were completely inadequate. The High Court in Cape Town agreed with Potgieter‚ saying there was little doubt that he had discharged the onus resting upon him to show that‚ on a balance of probabilities‚ the university was negligent. The court said a “diligent father” in the position of the university would have foreseen‚ after the Huis Ten Bosch fire in 1983‚ that its failure to take reasonable steps to guard against a similar occurrence would cause injury to students in its hostels.  “A (diligent father) in the position of the (university) would also have taken reasonable steps to guard against such an occurrence‚” Judge Judith Cloete said in a judgment passed on Friday. The amount on damages will be determined at a later date. 

Department of Labour uncovers shocking bio-hazard lapses at public health facilities. 21 September 2016.

Inspections carried out by the Department of Labour at public health care sector facilities have uncovered shocking non-compliance when it comes workplace safety and hazardous biological agents‚ senior department officials said on Tuesday. “No country can afford deaths or injuries that take place in the workplace and also the burden that this places on a country’s social security system‚” said Tibor Szana‚ Chief Inspector at the Department of Labour. He was speaking at a Hazardous Biological Agents (HBA) Seminar in Port Elizabeth on Tuesday as the results of inspections conducted in the public health care sector presented gross levels of non-compliance. Hazardous biological agents are infectious and toxic. They can also cause allergic reactions such as hypersensitivity pneumonitis‚ allergic rhinitis‚ some types of asthma and organic dust toxic syndrome. In health care institutions‚ employees are exposed to them while treating patients suffering from infectious diseases. Occupational Health and Hygiene Director at the Department of Labour‚ Milly Ruiters‚ presented a comparison of compliance for 2014/2015 and the 2016/2017 inspections in the public health care sector. In contrast with the Occupational Health and Safety Act which states that employers shall provide and maintain as far as is reasonably practicable a working environment that is safe and without risks‚ the findings in some provinces were damning. The results of 407 inspections conducted in all nine provinces in the public health care sector in 2014/2015‚ showed that only 91 facilities complied while 316 did not comply. This showed that the compliance level for hazardous biological agents stood at just 22%. In 2014/2015‚ the worst performing provinces included the Eastern Cape at 18%‚ Gauteng Province at 9% and Limpopo at a shocking zero%. “This resulted in some facilities being closed down as a result of the outcome of inspections conducted. Many of the severe cases were found in clinics in rural areas in particular‚” said the department. In 2016 another inspection was conducted. The Eastern Cape improved to 67% but Gauteng Province and Limpopo continued on their downward trend and noncompliance at zero% respectively. Northern Cape and KwaZulu-Natal also decreased their compliance level. Ruiters said some of the reasons included no risk assessments being done‚ employees not inducted and trained on sources of exposure‚ medical surveillance not conducted and carried out in accordance with HBA regulations and personal protective equipment not being provided. A major concern was that health care risk waste contractors were not inducted and trained on hazardous biological agents‚ there were no separate lockers or storage facilities for protective clothing; no change rooms‚ medical surveillance reports were not available and inadequate means of ventilation. Some facilities did not even have natural ventilation. Ruiters said that the health care sector now had to prepare a written policy to protect the health and safety of employees. “The due date for this process is April 2017 where Labour inspectors will visit health care establishments to ensure compliance with the directive of the Chief Inspector‚” she said.

Compensation Fund admits to R1bn in irregular spend, despite a lack of audit data. 6 September 2016.

THE Compensation Fund, by its own admission, spent R1bn irregularly last year but the auditor-general was not able to confirm this figure, "as the entity did not maintain proper records and adequate systems of internal control". The fund also notched up R404m (from R17m the previous year) in fruitless and wasteful expenditure, mainly due to breach of contract with a debt collector who obtained an order of court. In the notes to the fund’s 2015-16 annual financial statements tabled in Parliament, the fund disclosed that it received 316 notices of motion and court summonses and, as a result, was exposed to about R310m, admittedly lower than the previous year’s R780m exposure. The auditor-general had to issue a disclaimer on the fund’s financial statements for 2015-16 as there was insufficient appropriate audit evidence to form an audit opinion. The lack of audit evidence covered a host of matters including revenue and records of benefits. The auditor-general also highlighted a lack of internal controls in the organisation. This negative finding continues a long trend of adverse audit opinions for the financially chaotic fund, which pays compensation for workers injured at work. Its failure to pay claims has been a bitter source of complaint by hospitals and the medical profession, not to mention beneficiaries themselves. Outstanding claims at year-end were valued by actuaries at R12bn. The fund, which is financed by contributions from employers, collected R7.6bn last year and earned R360m on its investments. Commissioner Vuyo Mafata said the fund was improving the payment of benefits. During the year it paid R2bn in medical claims, R132m in compensation benefits and R960m in monthly pensions. However, the auditor-general noted that the interventions to recruit adequately qualified and skilled people started too late in the financial year to have an effect. There was also minimal improvement in key controls over the processing of claims, debt collection, compliance with legislation and the quality of financial statements.

State defends spate of mining safety stoppages. 30 August 2016

DMR minister Mosebenzi Joseph Zwane sees mining safety stoppages as enforcing a priority. SA Mineral Resources minister Mosebenzi Zwane defended mining safety stoppages after complaints of production losses by some employers. The minister said the health of workers should take priority over profit. Anglo Gold Ashanti and Anglo American Platinum have lost some production to the Department of Mineral Resources’ use of section 54 provisions in the Mine Health and Safety Act, reported Bloomberg. These notices stop operations during incident investigations. The spate of stoppages, and complaints, and requests to close and inspect only the areas where accidents had occurred, had two sequels in recent years . Anglo Gold CEO Srinivasan Venkatakrishnan complained of an entire mine being shut down by a safety stoppage. Amplats CEO Chris Griffith made similar comments last month. “Certain mining companies have leveled very serious allegations against the minister (of Mineral Resources) and his officials, intimating that the officials may be using the instruments available to further its own purposes,” the DMR said in a statement in August. The department was “aware of the global economic realities facing commodity producers, but safety is non-negotiable”, said the DMR. Mining companies can appeal against section 54 notices, yet the minister had not received any formal appeals. “It is appalling behavior by some responsible corporate citizenry of South Africa’s mining industry, to be seemingly filing such appeals in… public opinion.” By 18 August, there were 57 fatalities in South African mines for the year, compared to 46 in the same period last year, said the union NUM. The DMR had noted earlier that in 2015, 77 miners died at work, a record low, and a fraction of the annual average of about 800 deaths per year in the two decades to 1994. Anglo Gold, the world’s third-biggest gold miner, had three fatalities and 77 safety stoppages in the first half of the year, losing 44,000 ounces of production. Amplats lost about 30,000 ounces of platinum group metals. Some employers do not complain against mining safety stoppages. Peter Steenkamp, CEO of Harmony Gold, said they have not had any unjustified section 54 stoppages. Sibanye Gold CE Neal Froneman said last month that the DMR was destroying hundreds of millions, if not billions of rand in value, because of unnecessary safety stoppages, reported Reuters. Sibanye has said it lost R135-m in revenue in the 12 months to June at Kroondal platinum mine due to government safety stops. Courtesy Sheqafrica

Heavy handed stoppages at mines hit output. 16 August 2016

ONE of the most contentious issues in the South African mining industry took the spotlight again on Monday night when AngloGold Ashanti CEO Srinivasan Venkatakrishnan called for a more considered approach to government-ordered safety stoppages that cost the company 44,000oz of gold in the first half of the year. Venkatakrishnan said AngloGold could no longer forecast with accuracy its annual production from SA, which accounts for about a quarter of the company’s total output, because of the implementation of safety stoppages by the Department of Mineral Resources through section 54 notices that demand a halt to a mine’s entire operations to address safety concerns. There has been a marked escalation in the cost of safety stoppages for the mining industry, according to a Chamber of Mines document. The total revenue loss amounted to R13.65bn between 2012 and 2015, with the loss in 2015 estimated at R4.8bn, up from R2.6bn in 2012, the document showed. Platinum producers have spoken of a threefold increase in the number of stoppages ordered in 2016. The chamber is due to meet department officials in coming weeks to discuss the increase in safety stoppages. AngloGold’s lost production of 44,000oz at a time of a high rand gold price was about R834m in forfeited revenue in the first six months of the year. While acknowledging safety stoppages were warranted in the case of fatal or serious accidents or of safety violations, it was the broad scope of the reasons behind the stoppages of entire mines that was causing concern for AngloGold, Venkatakrishnan said during an interim results presentation to analysts. "We’ve seen an increase in the number of section 54 stoppages that don’t necessarily arise out of a fatality or high-frequency, high-potential incidents. They come out of mass audits and routine inspections … a marked increase." The department said companies such as AngloGold had the right to appeal against stoppages through a clause in the Mine Health and Safety Act, but the company had failed to do so. "It’s unfortunate that AngloGold Ashanti has chosen to engage with the department on this critical matter through the media. The rightholder is aware of all the channels to follow should they experience challenges in implementing laws and regulations meant to safeguard the health and safety of employees in the sector," the department’s spokesman, Martin Madlala, said. The fatality rate at South African mines fell to 77 in 2015, from 84 in 2014. So far 42 people have been killed in the first half of 2016. Chris Sheppard, head of South African mines, said AngloGold had been served 77 section 54 notices by the end of July, with just six related to accidents. "Are they justified and related to safety? Categorically yes. We’ve no problem with section 54s, but the manner in which they’re applied. It can take two to three weeks to ramp up from zero to plus 90% of production volume and that’s debilitating for any business."

Backlog at compensation fund worries mines. 15 August 2016.

THE mining industry is concerned about the state of the Compensation Fund for Mines and Works, and six major companies are working with its commissioner in a bid to improve its administration. This is happening against the backdrop of Health Minister Aaron Motsoaledi having revealed on Friday that about 100,000 claimants had unpaid claims, with about 45% of these dating back to 2000. Working group spokesman Alan Fine said many mineworkers were suffering because they did not receive compensation payments on time from the fund. The working group hoped its intervention would lead to improvements in the administration of the fund and its auditing processes in future. The Chamber of Mines was also involved in trying to help the fund’s commissioner Barry Kistnasamy, he said. The health minister has told Speaker of the National Assembly Baleka Mbete that the 2015-16 financial report of the Compensation Fund for Mines and Works cannot be submitted within the timeframe laid down by Parliament because of backlogs in the capturing of key data. In a letter tabled in Parliament on Friday, Motsoaledi said a file verification exercise of the fund had revealed that about 100,000 claimants had unpaid claims, with about 45% of these dating back to 2000. A total of 200,000 files and an additional 500,000 files within the Medical Bureau for Occupational Diseases had been examined in the exercise. The fund’s financial affairs have been in serious disarray for a long time, but the minister is satisfied that steps are being taken to rectify the situation and ensure that proper annual reports and audited financial statements are available in future. The other Compensation Fund, operated by the Department of Labour for nonmine workers, has also been operationally and financially dysfunctional for many years. Discussions were under way between the health and labour departments to integrate the two systems to provide what Motsoaledi said would be a uniform compensation dispensation for all occupational injuries and diseases for all workers. In the interim, the compensation commissioner for occupational diseases has told Motsoaledi tabling its report will not be possible "owing to backlogs in the capturing of the source documents for beneficiary claims, payments to beneficiaries, bank reconciliations with the payments from the Compensation Fund and revenue from controlled mines and works". Motsoaledi said that actuarial evaluation of the fund was being conducted. "The audited financial statement of 2010-11 will be used as the base year, with corrections based on the valuation report and submitted to the auditor-general — together with the 2011-12 financial statement — by September 30," he said. "The auditor-general has begun its audit of the Compensation Fund as of July 4 2016. It is expected that the subsequent annual reports and annual financial statements of the Compensation Fund will be submitted to the auditor-general six-monthly thereafter," he said. Prior audits of the Compensation Fund had adverse opinions owing to missing beneficiary files and nonacceptance by the auditor-general of an actuarial valuation of the fund. 

Labour department inquiry into bridge collapse to visit M1/Grayston Drive scene. 20 July 2016.

The collapse of the temporary bridge structure on Johannesburg's M1/Grayston Drive last October led to the death of two people and injury to 19 others. The Department of Labour set up the Section 32 Inquiry to uncover the causes for the collapse of the scaffolding work into the Grayston Drive Pedestrian and cyclist structural bridge. Lennie Samuel is presiding over the inquiry‚ assisted by Lesibe Raphela. The commission's visit to the site of the fatal accident‚ follows Murray & Roberts’ request to reconstruct the bridge‚ the department said in a statement. The site has been under a prohibition notice by the Department of Labour following the collapse of the temporary structure. "The site visit will be preceded by a presentation by Murray & Roberts to the Commission. After the presentation‚ the Commission will write to the Department of Labour Chief Inspector for input‚ and will in due course provide a response to Murray & Roberts’ request." At the commission hearing on Tuesday‚ Murray & Roberts’ third expert witness‚ Ric Snowden‚ said that based on the drawings he had seen‚ if he were a designer of the temporary works structure‚ he would have re-designed the structure taking into account that the standalone structure erected by Murray & Roberts was not as per the drawings. Snowden testified on the importance of sequencing further emphasising the issue of adequate bracing‚ saying this was critical in all phases of the work. He said had bracing been done adequately‚ the temporary works structure would not have collapsed. “Although I was made aware of the deviations in the construction of the structure‚ this was a matter between Murray & Roberts and FormScaff‚” he said. Snowden said while there was a misalignment of the girders in the centre median‚ there could have been immense pressure on Murray & Roberts to open the road. He further told the Commission that although the construction was ahead of schedule‚ there were a number of dates that were revised. According to Snowden‚ he said he had interrogated the drawings of the project and a lot of information was missing. He further told the Commission if he were constructing the project using the same drawings‚ safety would have been compromised. He identified that the drawings were not signed off by a professional engineer.

Shocking short cuts by construction companies revealed. 18 July 2016

The inquiry into the collapse of the pedestrian bridge over a section of Grayston Drive in Johannesburg continued this week at the department of labour’s offices. The inquiry into the Grayston bridge collapse has revealed shocking short cuts being taken by construction companies. South Africa’s building-industry code could be set for major changes following damning evidence of a cowboy culture and unprofessional practices that emerged during a probe into the collapse of a temporary structure over a highway in Johannesburg. This week, at the inquiry in Pretoria, witnesses for construction company Murray & Roberts told Commissioner Lennie Samuel about gaps in building law standards and practices, such as starting construction when building plans were still incomplete. “We will make recommendations for legislation or amendments where there are gaps [to ensure] the health and safety of workers,”  Earlier this month at the inquiry, Professor Roelf Mostert‚ head of the University of Pretoria’s Materials Science and Metallurgical Engineering Department, said certain suggestions by Australian engineering firm Amog, which investigated the matter for scaffolding supplier Form-Scaff, were not industry standards in South Africa. However, Samuel had Mostert concede that the local construction industry should keep up with international construction standards. Three Murray & Roberts witnesses have so far this month argued that the collapse, which killed two people and injured 19 next to the Grayston Drive offramp near Sandton in October last year, was triggered by a gust of wind, resulting in the collapse of a temporary structure that wasn’t stiff and strong enough. The company also argued that the design used by Form-Scaff was inadequate. Richard Snowden, director of special projects at professional services firm Arup, and Murray & Roberts’ third witness, argued that the structure should have been built to withstand a wind speed of at least 35 metres per second. A wind speed of 10.1 metres per second had been recorded at 3.19pm on the day, six minutes before the crash. The company said its calculations showed a wind speed of 12 metres per second could have knocked the structure over. “Fundamentally, the structure had been slightly weakened during the day,” Snowden said. Form-Scaff, which has denied the charge, will present its version of events on Tuesday. In total, the inquiry expects to hear from 23 witnesses from Murray & Roberts, Form-Scaff, engineers Royal HaskoningDHV, the Johannesburg Development Agency (JDA) – the project owner – and Nemai Consulting, health and safety advisers to the JDA. Fourteen of the witnesses will be from Murray & Roberts, the majority of them company workers. Samuel, a 30-year veteran at the department of labour, is a forensic investigator and was a co-commissioner of the inquiry into the Tongaat Mall collapse in Durban in 2013. He said the inquiry was likely to conclude its work in September and that the report would be sent to the National Prosecuting Authority if there was evidence of wrongdoing. “But we will also see if there any gaps in the legislation or lessons to be learnt for the industry,” he said. Another gap identified this week was the absence of regulations on the construction of what is known in the industry as false works – temporary structures that are built while construction is under way, like the collapsed bridge. Also, in many cases where there was no industry code, builders used the British standard and this needed to be rectified, the inquiry heard. Richard Beneke, a civil engineer with 40 years of experience, told the inquiry that although the drawings for the M1 project had not been signed off, there was enough information to begin building. It was standard practice, he said, to start construction with what was available, if adequate, because “construction would otherwise be delayed”. Beneke, appearing as a Murray & Roberts expert witness, said Form-Scaff had not provided the document with the sequence for the construction of the bridge, as was standard practice. This was vital in ensuring the safety of the structure and ensuring the bridge was completed in time and on budget. Cross-examined by Willem le Roux, the JDA’s legal representative, Beneke said, based on the photos he had seen, he would have been concerned about the safety of the structure. “The majority of the remaining quick-stage components were not in place,” he said, adding that the structure also “had grossly insufficient lateral sway”. Beneke’s testimony was backed by Snowden, who investigated the cause of the collapse on behalf of Murray & Roberts. Snowden said he had seen no wind calculations in Form-Scaff’s drawings and there was no indication that the drawings were incomplete. Beneke testified that he had identified 61 structural risk deficiencies in the drawings and said that Form-Scaff’s design and drawings had “unsatisfactory aspects”. He was concerned that the design drawings might not have adequately communicated the requirements for the scaffolding setup. The design had “geometric errors”, including that the scaffolding setup would have seen it leaning south. “The Form-Scaff drawings are open to interpretation ... the Form-Scaff drawings don’t contain enough information,” Beneke said. Advocate Ewan Rudolph, legal counsel for Form-Scaff, argued that the drawings were sufficient and had been derived using a superior model developed by Amog. The companies’ legal experts will meet shortly to discuss the models, and a presentation to the commission is scheduled for next week. There were heated exchanges on Friday morning between Samuel and Murray & Roberts’ legal representative Sias Reinecke, with the commissioner accusing Reinecke of disrespecting the inquiry after calling Samuel’s suggestion that the parties present their models as “the worst decision”. The inquiry has been adjourned until Tuesday. The contract for the construction of the Grayston pedestrian bridge was worth R130 million over two years.

A COID loophole?                                       14 July 2016.

The recent case, heard by the Constitutional Court of the minister of defence and military veterans versus Thomas 2016 CC, is of interest since it throws light on the possibility of an injured employee claiming workmen’s compensation, as well as being able to bring a civil action for damages. The law governing civil actions is known as the law of delict in South Africa. In the United Kingdom and the United States of America it is referred to as the law of torts. As is now well known, workmen’s compensation was introduced in the late 1800s to provide compensation for injured employees. Shortly thereafter, the workmen’s compensation law was extended to provide compensation for employees who contracted occupational diseases. Hypothetically it was possible for an injured employee to bring a civil action for damages, but the employee would have to prove the employer was legally liable to pay compensation.  At the time, because of three common law defences to these claims, the probability of a successful civil claim was remote when it came to injuries, and impossible when it came to occupational diseases. Nevertheless, to avoid the possibility of double compensation, a civil claim was, and still is, prohibited, by virtue of section 35 of the Compensation for Occupational Injuries and Diseases Act of 1993 (COID). Notwithstanding this, lawyers have looked for ways to bypass the prohibition. The Thomas case is a recent example of section 35 being bypassed. Dr Thomas, a medical doctor, was employed by the Western Cape Provincial Government in its health department. She was seconded to a military hospital in the Western Cape, which fell under the control of the minister of defence and military veterans. While at the hospital she was injured when falling down some stairs. She claimed worker’s compensation and also brought a claim of delict against the minister and a private company, which was responsible for providing the hygiene services at the hospital. The minister objected to the claim arguing that it was prohibited by virtue of section 35 of the COID, which prohibits an action by an employee against his or her employer. Dr Thomas argued that her employer was the provincial government and not the national government and, therefore, section 35 did not preclude her suing the minister. The minister in turn argued that she was employed by the state and it did not matter if she worked for the provincial or national government, she could not sue the state. The High Court agreed with the minister. The Supreme Court of Appeal disagreed and overturned the High Court decision. The minister then took the matter to the Constitutional Court. As explained in previous articles, the COID recognises two distinct parties who are responsible for paying compensation: “insured” parties, and, where no “insured” party exists, the employer itself, but not as an employer, since the payments are the prescribed benefits as set out in the COID. The employer in this capacity is referred to as the “employer individually liable”. Neither the provincial government nor national government pay workmen's compensation levies. They are thus not “insured”. Consequently, they are employers that are “individually liable”. So, Dr Thomas would be entitled to worker’s compensation benefits paid for directly by either the provincial or national government – which is, in effect, paid for by the taxpayer. In this case, since she was employed by the provincial government, it was paid for by the provincial government (in other words by the taxpayers). Yet she wanted more, so she sued the other arm of government; the national government – which would have to be paid for by the same taxpayers. The minister argued, and the High Court accepted, that, since sections of the COID (such as the definition section and others) which exist when dealing with the “employer individually liable”, referred collectively to national and provincial government as “the employer”, these spheres of the state are to be treated, where the state is concerned, as if there is only one employer, notionally the state. Thus, the minister argued that, when it came to paying compensation, it did not matter in which sphere of the state the employee worked. Thus section 35 prohibited a state employee from suing the state. The Constitutional Court agreed there was “merit in the argument”. The taxpayer is the same taxpayer. Just because different levels of government exist, this does not mean there are different taxpayers. At this point the Constitutional Court raised what is now a familiar argument and ruled that it must “promote the spirit, purport and objects of the Bill of Rights” (whatever that may mean). It, therefore, argued that Dr Thomas had a fundamental right to bodily integrity and security of person and this right underlies her common-law claim. According to this argument, she should be paid additional compensation. It should be added that being paid additional compensation is not the same as not being injured. The ancient obligation of the state is to protect the rights to liberty, life and property. The obligation is not for the state to pay compensation to people who are injured, but to protect people from injury. The state, for example, has a police force and courts to catch, prosecute and punish murderers. The state cannot guarantee it will prevent murders. It does not offer to pay dependants of the murdered person compensation if a murder is committed. The difference between being injured and receiving compensation is the difference between day and night, or east and west. Therefore, having failed to see the difference between being injured and receiving compensation, the Constitutional Court had no difficulty in ruling that if a person works for the state in the provincial government, or for the state in national government, that that person works for two different employers. Thus injured state employees (as in the case of Dr Thomas) can receive worker’s compensation benefits from the state in the form of the provincial government, and additional compensation from the state in the form of the national government. And, thus, another way of bypassing section 35 of the COID has been found. Courtesy SHEQ Management Newsletter. 

Critical flaws in bridge.  13 July 2016.

The temporary structure collapsed in October, killing two people and injuring several others. Testifying at the inquiry into the collapse yesterday, civil engineer Richard Beneke, who studied the scaffolding company Form-Scaff's drawings after the accident, said it was clear from the photographs that some "sections were completed only to a small extent, and that they were partially completed in the region around the support on each side of the M1 motorway".  He said the temporary bridge was still under construction, saying progress "was clearly less than the full extent shown in the drawing". "I considered some of the bracing elements to be inadequate to provide the necessary lateral restraint when the super-shores are subjected to concrete loads. "They were not massively inadequate but I did not consider them sufficiently adequate," he said. Asked if he found proof that the stress caused by wind was taken into account in the drawings, Beneke said he did not know to what extent it was taken into account because of the "uncertainties" on the design drawings. He said he was concerned that the wind loading appeared to be quite high in relation to the strength of the bracing system. Beneke said the documentation he analysed for his report as an expert witness for construction firm Murray & Roberts did not have a clear prescription for the sequence of the implementation of the components of the bridge. He said the design's implementation sequence for the structure was key for safety and ensuring that the bridge was completed within the required time and resources. "There are many issues to be considered and to be considered jointly both by the construction people and design people," he said. Under cross-examination by Johannesburg Development Agency lawyer Willem le Roux, Beneke said he would have been concerned with opening the highway without a risk assessment. Earlier testimony pointed to missing bolts, a gust of wind and an unsatisfactory design being among the reasons why the bridge collapsed.

Inquiry given contrary reports on scaffolding. 7 July 2016

THE oft-delayed Department of Labour’s inquiry into the M1 bridge collapse resumed on Thursday, with principal parties Murray & Roberts and Form-Scaff shifting blame over who was responsible for the fatal accident last year. Murray & Roberts, the main contractor whose responsibility was to erect the pedestrian bridge near Grayston Drive, argued through its expert witness on Thursday that the quality of some of the couplers used to hold the scaffolding structure together had not been up to standard. A coupler is used to connect two tubes by clamping them together so they do not slip. The questionable quality of some of the couplers could have contributed to the temporary structure not being able to withhold the force of the wind, argued Prof Roelf Mostert‚ head of the University of Pretoria’s Materials Science and Metallurgical Engineering Department. He was at the scene on the day of the incident. “The structure didn’t show any noticeable movement until the time of collapse (on that day)‚” Mostert said. However, legal counsel for Form-Scaff, the company that supplied the scaffolding to erect the bridge, countered this by accusing Murray & Roberts, SA’s second-largest construction company, of poor workmanship. Citing findings from an investigative report compiled by AMOG, an Australian consultancy that specialises in structural collapses, Form-Scaff said that evidence suggested the couplers had not been tightened adequately. Michael Els, CEO of Waco Africa, of which Form-Scaff is a subsidiary, told Business Day on Thursday that “under certain conditions, if you under-tighten the coupler, it does not grip as well as it is designed to do”. But Mostert said he had found no evidence to back the theory that poor workmanship was at the root of the collapse. Instead he had found that the couplers provided by Form-Scaff had snapped and the structure could not withstand the force of the wind. Murray & Roberts spokesperson Ed Jardim said on Thursday the construction group would respond to the report’s allegations of poor workmanship as the inquiry continues. On Friday, the construction group is expected to present three other witnesses to vindicate it from blame for the bridge collapse on October 14 that left two people dead and at least 19 others injured. Form-Scaff’s expert witness from AMOG is expected to provide submissions next week. Other role-players include the City of Johannesburg, represented by the Johannesburg Development Agency (JDA); the Engineering Council of SA and engineering consulting company Royal HaskoningDHV. The Department of Labour’s inquiry, which has so far been delayed three times since investigations began six months ago, must make a finding on what went wrong and who is responsible. In May the inquiry was postponed after the department said commissioner Lennie Samuel‚ a departmental forensic investigator, needed more time to study reports by major stakeholders. These reports had allegedly been submitted after the stated deadline. But a representative from the JDA denied this.

Grayston Drive bridge collapse inquiry to resume. 4 July 2016.

The on and off inquiry into the Grayston Drive pedestrian and cyclist bridge that collapsed and killed two people and injured 19 others last year is set to resume, the Department of Labour said on Friday. The inquiry, which was set up after the 14 October 2015 collapse of the temporary bridge structure across the M1 near the Grayston Drive off ramp in Johannesburg, has been deferred several times. Department of Labour Director and Media Liaison Mokgadi Pela said the inquiry would resume next week Thursday. "The next sitting of the M1/Grayston Drive Pedestrian and cyclist structural bridge collapse inquiry is expected to start on 7 July with testimony from construction firm, Murray & Roberts," said Pela in a statement on Friday. He said the sitting was expected to continue for seven successive days, except on weekends, until 15 July 2016. The Section 32 Inquiry, which was set up by the Department of Labour after the collapse of the temporary bridge structure in terms of Occupational Health and Safety, will investigate instances of alleged negligence. "The Commission’s mandate will focus on: the responsibility of the principal constructor in terms of the construction regulations, the responsibility of the client, the responsibility of the agent on behalf of the client in terms of the same regulations, supplier of the materials and design(er)," said Pela. The inquiry will be presided over by Lennie Samuel. Pela said some of the interested role players and witnesses that were expected to testify include engineers, construction firm Murray & Roberts, the City of Johannesburg, the Johannesburg Development Agency, Royal HaskoningDHV, Formscaff, Engineering Council of South Africa, and the National Union of Mineworkers. The Inquiry will be held at the Department of Labour offices (Labour Centre) at Concillium Building, Nana Sita (formerly Skinner Steet) and Thabo Sehume (Andries Street) in Pretoria/Tshwane.

Gold mining companies to appeal judgment in silicosis class action. 23 June 2016.

THE Johannesburg High Court will on Thursday hear an application to appeal against its landmark silicosis class action judgment, which paves the way for between 17,000 and 500,000 mine workers and former mine workers suffering from silicosis to sue the mining companies for damages. The size and the scope of the certified class is unprecedented: if the lawsuit is to go ahead on the basis of the High Court’s order, it will be against almost every gold mine in SA, including their parent companies. And it will cover their conduct over years — from 1965 to last year. It will also cover both silicosis and tuberculosis sufferers. In a case where so much is at stake — claims could run to billions of rand — the gold mining companies have lodged six separate applications for leave to appeal. Between them, they have contested almost every aspect of the judgment. On Thursday, the court will hear the applications by Gold Fields, AngloGold Ashanti, Anglo American SA, DRDGold, African Rainbow Minerals and Harmony Gold. The companies said the judgment addressed a "number of highly complex and important issues". These included a "far-reaching amendment of the common law, that had not previously been considered by other courts in SA". They believed that the court was incorrect on some of these issues and that another court may take a different view. In the judgment — penned by Deputy Judge President Phineas Mojapelo and Judge Bashier Valley — the judges acknowledged that for the mine workers to succeed, their case will "entail and traverse novel and complex issues of fact and law". But they said for the vast majority of the mine workers — most of them are poor, ill and living in far-flung places across the sub-continent — the class action was the only realistic chance of their making a claim for compensation. To deny the class action would be to deny them access to courts — something the courts "should be very careful" about, said the judges.

104 miners killed in Vaal Reef tragedy remembered. 30 May 2016.

104 mineworkers who lost their lives in the Vaal Reef mine disaster have been remembered. This year marks 20 years since the tragedy. Since then, government has committed to improving safety conditions underground. Friends and family of those whose came to Orkney in the North West to commemorate those who died on 10 May 1995. An underground train fell down a shaft, hitting a lift carrying miners back to surface. After plunging down the shaft, the loco landed on top of the cage, crushing all 104 men to death. Most of them beyond recognition. The gold miners left behind 431 dependents, families without breadwinners.

Government's promise to miners and widows. 30 May 2016.

Government says there are plans to speed up the compensation process for mineworkers and their families. A group of former miners and workers' widows is camping outside the Union Buildings to highlight their plight. They have travelled more than 900 kilometres from the Eastern Cape and promise not to leave until they get a response. They want to be compensated for illness, injury and the mine-related deaths of loved ones. Government acknowledges the claim process has been slow. Some who had worked for 18 years, had fallen ill because of their working conditions. "We were told that there is a blue card money due to us. Including money for long service and death benefits. We have been fooled too many times through the years," said Bonakele Vinindwa, former miner. 

Silicosis: Blows for mining industry. 30 May 2016.

TWO heavy blows landed on the mining industry in quick succession last week. The first was a ruling by the high court in Johannesburg that allows miners who contracted silicosis on gold mines to pursue a class action for compensation. The second was the department of water affairs & sanitation’s decision that all mining companies will have to fund two-thirds of the cost of treating acid mine drainage through an environmental levy. Each blow is not final in itself, but there has been an accumulation of demands on SA’s mining companies, which are already tottering as a result of weak commodity prices, labour and community protests, policy uncertainty and costly and restricted energy supply. The extent of the liability for acid mine drainage is quantifiable. It will be about R8bn of the projected cost of R12bn, if the mining companies do not challenge it. The amount that gold companies could have to pay silicosis claimants is far more difficult to estimate. It depends on whether there is a settlement or a protracted legal battle, and if there is a settlement, many factors have to be taken into account. Silicosis is a lung disease caused by exposure to crystalline silica dust. Over decades of working in SA’s deep gold mines, thousands or even hundreds of thousands of miners were affected. They received a small lump sum under the Occupational Diseases in Mines & Works Act (ODMWA), to which employers made contributions. The test case of Thembekile Mankayi, brought to the constitutional court, showed he received only R16,320 in compensation under the ODMWA for a disease that killed him painfully in 2011 at the age of 53. The constitutional court opened the way for other claimants and over the past five years attorneys in SA and the UK have sought out silicosis sufferers throughout Southern Africa, since gold miners were drawn from as far as Malawi. The claimants have scored two victories so far. In March Anglo American and AngloGold Ashanti agreed a settlement with attorneys Leigh Day in which they will form the Qubeka Trust with R500m for the benefit of 4,365 claimants. A second action against 32 gold mining companies, brought by attorneys Richard Spoor Inc, Charles Abrahams of Abrahams Kiewitz and the Legal Resources Centre, was given the green light two weeks ago to proceed to a class action. Gold companies are likely to be weighing the merits of continuing their defence or achieving a settlement, which would resolve uncertainty for their shareholders, save legal costs, and avoid further damage to the industry’s image. Richard Spoor says there have been confidential discussions over a settlement for more than a year. In theory if there is no settlement the matter will proceed to trial, which would take years. Though a protracted trial would earn huge fees for lawyers and counsel, it is not in either the claimants’ or their attorneys’ interest, Spoor says. Over the past five years, out of 30,000 potential claimants registered, 4,000-5,000 have died, because they are on average about 60 years old, suffering from ill health, poor and living far from medical facilities. The court action is also costing a great deal of money. Richard Spoor Inc has spent about R500,000 a month over the past five years on this case (it will be paid its fees on a contingency basis) and the mining companies together, with big legal teams, are probably spending far more. “We could settle tomorrow if our proposal was low enough but there is pressure on us to get a good settlement,” Spoor says. The mining industry’s Occupational Lung Diseases Working Group says on its website the gold companies do not believe they are liable for more compensation and are defending the claims. But there is a common interest in settling the complex case and there are discussions “with a view to seeking a fair and sustainable settlement on these matters. “We have in mind the establishment of a ‘legacy fund’ that will pay a top-up payment to eligible claimants over and above the statutory compensation to which they are entitled,” they say. Any settlement has to be approved as reasonable by the court. Spoor says the difficulties include knowing how many potential claimants there are, for which the attorneys need access to gold mine employment numbers, where they are living, how severely they are affected, how much money to set aside for tracing and diagnosing them and how much they should be paid. Eric Gcilitshana, the National Union of Mineworkers (NUM) national secretary for health and safety, says the NUM would prefer a settlement, rather than protracted litigation, because in lengthy court cases the lawyers are the ones that win the most. He declines to speculate how much should be paid in a settlement in this case, but suggests the Anglo American/AngloGold settlement sets an example. Last week Gcilitshana attended a conference to discuss potential changes to SA’s occupational compensation laws. He says there was general agreement on the need to move miners onto the more generous Compensation for Occupational Injuries & Diseases Act (Coida) of 1993, which covers all industries. He says Mankayi would have received three times as much compensation under Coida as he did under ODMWA. Several important issues in the transition include that workers on the ODMWA scheme should be migrated to Coida without any loss of benefits but should continue having the two-yearly medical examination provided for under ODMWA, because silicosis can emerge only after 10-15 years. The NUM would also like payout times to be shortened, since at present workers are waiting up to five years to receive compensation.

 Tongaat mall collapse inquiry report to prosecutors. 26 May 2016

Labour minister Mildred Oliphant handed the Tongaat mall inquiry report over to state prosecutors. She noted that the OHS Act would be amended away from fines, and towards jail time. The Tongaat Mall collapse inquiry reported several contraventions of the Occupational Health and Safety Act (OHS Act), and Construction Regulations Amendment, in May 2016.

Among the findings are;

·         Poor construction of beam 7 had triggered the collapse

·         Piles for some of the columns were under-designed, and over-loaded

·         Lack of supervision of construction work

·         Failure to appoint a competent supervisor for construction work

·         Lack of knowledge to execute an interdependent structure

·         Defective materials, including cement imported from Pakistan, not                        meeting SANS standards

·         Failure to prepare drawings, and failure to work from drawings

·         Poor construction methods

·         Contravention of section 4 of the National Building Regulations and                     Building Standards Act (construction started before approval by the local              authority)

·         Manufacturers did not discharge all their duties in terms of the OHS Act

·         The employer did not inform employees about safety standards.    

Labour minister Mildred Oliphant said the DOL would not take action against those implicated in the report. The Director of Public Prosecutions of the NPA may decide on any prosecutions based on the findings, in June 2016. Three years ago, two people were killed and 29 people injured when a column neck exploded, and a section of the mall collapsed during construction on November 19. Twenty-nine workers sustained serious injuries including to the head, back, and lower bodies. Rectangle Property Investment had bought the stand and building plans submitted some years before. Their application for earthwork was rejected. However the owners went ahead with excavation work. Gralio Precast was the agent and principal contractor. About 40% of the construction industry, involving 5000 sites, did not comply with some of the relevant laws. Fatal construction incidents in South Africa now take a toll of about 1.5 deaths per week.

Courtesy sheqafrica.com

Tibor Szana, Chief Inspector DoL, stated on 26 May 2016 during an interview with John Robbie om Radio 702 that DoL has recommended criminal charges be instituted against certain parties. He refused to reveal who these parties are. Will the NPA prosecute since criminal prosecutions are extremely rare for OHS crimes. If memory serves me correctly Tibor was the presiding officer at the Paarl Print (fire) section 32 Formal Inquiry and the NPA refused to prosecute. Reasons are never furnished. (I would love to get my hands on the Paarl Print (Fire) report)!  Very few Formal Inquiries are held by DoL who prefer to finalise OHS matters using the lamentable section 31 Investigations. These section 31 Investigations do not test evidence and the NPA invariably opts not to prosecute OHS matters based on these investigations. Unless of course the matter is res ipse loquitur i.e. the facts speak for themselves. RHL 

Report on Tongaat Mall heads for prosecutors. 25 May 2016. 

THE Department of Labour would refer the long-awaited report into the collapse of the Tongaat Mall to prosecution authorities, Labour Minister Mildred Oliphant said on Tuesday. The collapse of the Tongaat Mall while it was under construction in 2013 led to the deaths of two people and 29 serious injuries. The referral of the report to the National Prosecuting Authority (NPA) in KwaZulu-Natal would be finalised within a month, the department said. "The NPA will decide on whether it is necessary to prosecute anyone," director-general of the department Thobile Lamati said. "We have made a recommendation on the basis of the contraventions that certain individuals and certain companies be prosecuted." The commission into the collapse found noncompliance in the supervision of construction, failure to get approval for plans and the use of defective materials. Oliphant said the failings and the transgressions of construction standards in the ill-fated project necessitated that the Occupational Health and Safety Amendment Bill be expedited through parliamentary processes. The amendment bill as well as construction regulations promulgated in 2014 would go a long way in preventing future events of this nature, she said. "Through the offences and penalties, we have strengthened measures applied in enforcing legislation. We are now going to make sure that there is vicarious liability on all parties involved … culprits do not just pay a fee for admission of guilt, but a jail term is recommended," Oliphant said.

Safety laws: ‘Mining shouldn’t be like war, where death is expected’. 23 May 2016.

Legislation around issues of health and safety in mines should be tightened, chairperson of the portfolio committee on mineral resources, Sahlulele Luzipho, said today. “Mining in South Africa should not be like going to war, where death is a legitimate and real expectation,” he said following the discovery of a miner’s body at Impala Platinum’s mine in Rustenburg. A search-and-rescue team found the body yesterday. It could however not be recovered yet because it was in an unstable area. Efforts to find the second missing miner were continuing. The two were trapped underground at the mine’s 1 Shaft after a rock fall on Tuesday. According to reports, seven other miners working in the same area got out unharmed. Luzipho extended his and the committee’s condolences to the miner’s family. “We share in their pain, particularly as there is a good chance that the miner was a bread winner in the family. The committee will continually raise the matter of mine safety and improved methods of doing the work in the mines without compromising jobs,” he said. Luzipho urged the mining industry to “continue innovating in the area of safety”. “It cannot be profits at all cost. We all have a responsibility not only to ensure the welfare of miners, but also that they do not lose their lives while actively working in the mines,” he said. The South African National Civic Organisation’s national spokesperson Jabu Mahlangu also called on mining houses to “uphold the culture of zero harm”. Mahlangu argued that higher penalties would lead to strict adherence to set occupational health and safety standards and reduce injuries and fatalities. “Every mining incident reminds us that the Nkambule, Nyarende and Mnisi families are after 105 days still anxiously waiting for the bodies of their loved ones to be recovered at Lily Mine for them to find closure,” he said.“It is equally tragic that an investigation into that incident has not commenced for corrective action to be taken to prevent similar incidents at other mines.”

Miners in class action suit may have to wait four years for money. 24 May 2016.

FORMER mineworkers who won a R500m payout from Anglo American’s South African unit and AngloGold Ashanti for contracting lung diseases may have to wait as long as four years to receive their full compensation. The former gold miners would be medically evaluated and paid compensation depending on whether they had silicosis or silico-tuberculosis and the severity of their condition, Leigh Day, the London-based law firm that brought the case, said in a statement on Friday. The case involves 4,365 ex-employees and relatives of deceased workers. "Individual claimants who are found to have silicosis will receive differing amounts, not an average figure," Leigh Day said. Those with the disease would receive an initial payout and then possibly more once the whole group had been evaluated. "Completion of the whole process is expected to take three to four years." The former mineworkers reached the settlement after suing the mining companies, who did not admit liability, for providing unsafe conditions in which to work. SA was the world’s top gold producer for a century to 2007 and is the source of a third of all bullion in existence. In a separate lawsuit, other ex-mineworkers won the right to bring a class-action lawsuit against 32 mining companies earlier in May. They too are seeking damages from mining companies for lung diseases they contracted while working at their operations. Silicosis, a lung disease caused by inhaling dust from mines, causes scar tissue in the lungs, increasing vulnerability to tuberculosis (TB), which can kill more than half of sufferers if not properly treated. As much as 60% of the 4,365 former gold miners in the Leigh Day case could be found to have silicosis, the law firm said.

Bridge collapse inquiry to probe Health and Safety Agent. 19 May 2016.

The Construction Health and Safety Agent will be investigated in the the bridge collapse inquiry. The Grayston bridge collapse inquiry will investigate the contractor, the client, the Construction Health and Safety Agent, and the supplier of materials and design. However the inquiry was postponed due to “technical glitches and challenges”, said the SA Department of Labour. A sitting of the Grayston Drive Pedestrian and cyclist structural bridge collapse inquiry expected to sit for three days from 4 May 2016, was postponed due to “untold challenges faced” by the DOL-appointed Commission. Bridge collapse inquiry Presiding Officer, Lennie Samuel, said every time the Commission meets it experiences challenges. He said the issues faced by the Commission were beyond his control. “We have had a series of communications with various stakeholders to the inquiry. We have also made sufficient progress to date.  “We have now received expert reports from Formscaff and Murray & Roberts. The rest of the parties have submitted statements”. Two experts from Formscaff were expected to give evidence before the Inquiry. There were 20 witnesses lined up to testify before the Inquiry. The inquiry may proceed on 7 July 2016 at a venue to be confirmed. The Section 32 Inquiry was set up in terms of the OHS Act after the collapse of the temporary bridge structure at the M1 Grayston Drive. The collapse of the bridge structure to link Sandton and Alexandra led to the deaths of two people and injury to 19 others. The Occupational Health and Safety Act requires the DOL to investigate instances of negligence and contravention of safety legislation. The Commission’s mandate will focus on: the responsibility of the principal constructor in terms of the Construction Regulations as employer, and the responsibility of the client; and the responsibility of the Construction Health and Safety Agent; and the supplier of the materials and design. Interested role players and witnesses expected to testify include engineers, construction firm Murray & Roberts, the City of Johannesburg a s client, the Johannesburg Development Agency, Royal Haskoning 

Refresher training to be conducted for JHB firefighters. 18 May 2016.

The Johannesburg Emergency Services (EMS) Department says refresher training is being conducted to re-familiarise firefighters with safety procedures in the field. The training is one of the recommendations of reports into the death of two firefighters at the Nedbank Mall in the Joburg CBD last year. While attending to a fire at the building, 50-year-old Daniel Zwane and 34-year-old Michael Letsosa were trapped in the basement by a sudden explosion. The department says it realised from investigations that essential safety equipment was not used correctly on the night the two firefighters died. EMS head Tshepo Makola says Letsosa and Zwane didn’t use an essential distress signal device on the night of their death. “Once you’ve collapsed, it gives us a beep signal, so that the rest of the other teams will be able to identify you. So what happened here is that the devices were there but they were not put on.” The department says it did provide the necessary equipment to firefighters, who it says didn’t fully comply with safety practices. It says it will provide re-training on communication, ventilation and compliance with policies. At the same time, the City of Johannesburg says the deaths of two firefighters were an unprecedented event. Following their deaths, allegations were made that the city failed to supply firefighters with necessary equipment.  However the report shows a failure to apply safety procedures and poor communication contributed to the tragedy. Public Safety MMC Sello Lemao says the incident is still one of very few that have seen firefighters killed on duty. “This is actually an unprecedented occurrence that took place in the City of Johannesburg. We can mention that this is really an isolated incident in the sense that we’ve never had this kind of an incident in many years since I was inception.”  

Misstep led to death of two firefighters. 18 May 2016.

One vital step in the standard operating procedures of City of Joburg Emergency Management Services (EMS) firemen was missed a year ago today. And it was that missed step that caused a ripple-effect in the mismanagement of a fire in the seven-storey Nedbank Mall in Albertina Sisulu Street in the inner city that claimed the lives of two firemen, Michael Letsosa and Dan Zwane. But nobody has been held to account for this yet. On Sunday, neither the city nor the EMS management could name the person responsible for the misstep, or say what action would be taken against them and when, despite having concluded three investigative reports detailing where things went wrong. Authorities could say only that the EMS would need to conduct another investigation to determine culpability in the incident. The head of public safety for Joburg's EMS Hlula Msimang explained what should have, but didn’t, happen on the night of May 16 last year. “Once an incident is reported, and an incident commander arrives on the scene, their job is to appoint a safety officer. The safety officer’s job is to ensure that the firefighters arriving are properly dressed, properly equipped and that the building is safe to enter. “If the incident commander doesn’t do that, challenges like these happen... if one element is breached, it has a ripple effect on how an incident is managed.” However, on the night in question, according to the city’s overall report, the first arriving crew found dark smoke billowing out of the mall's parking basement. During the deployment of crews, a breathing apparatus team led by the incident commander became “fragmented”, with individual members becoming disoriented and lost. The incident commander got out of the building but his two colleagues died in it. At the time, The Star reported on allegations within the department of equipment shortages and unavailability of the required resources to conduct active fire-fighting. Three days later, The Star also reported that a firefighter at the scene said the incident manager was supposed to have stayed outside the building, ensuring the men had a guideline from which to work, also ensuring they had enough oxygen, and checking that they emerged safely. On Sunday, member of the mayoral committee for public safety Sello Lemao revealed more damning findings in what he called an “unprecedented occurrence”. A chilling finding was that the personal-alert safety system devices which each firefighter carried were not activated. The device tracks a firefighter’s movement through a building and beeps when they don‘t move. “The devices weren’t on so when the two collapsed, they couldn’t be located by the rescue team,” Lemao said. Among others, the EMS had failed to implement an incident command system.

Mineral dept's court negligence cost taxpayers R700 000. 15 May 2016

The department of mineral resources wasted close to R700 000 in taxpayers’ money because it failed to follow up on a court case. “This begs the question: how many other court cases follow a similar route?” asked Hendrik Schmidt, the Democratic Alliance spokesperson on mineral resources. Schmidt submitted a written question to the department of mineral resources to find out why it had failed to submit answering affidavits in a court challenge with Glencore. In its response, the department of mineral resources acknowledged it had to pay Glencore an amount of R696 828, which includes the repayment of a R500 000 administrative fine plus interest at 15.5% per year from August 2013. In February this year the court set aside a fine that Glencore had to pay, following a mining accident at its South Witbank Colliery in Mpumalanga that left one contractor dead in 2012. The company was ordered to pay a R500 000 fine due to a lack of proper supervision during underground operations. 
Glencore challenged the decision in court and although the department instructed the state attorney to oppose the challenge, the Mine Health and Safety Inspectorate failed to submit answering affidavits during the case. “This is an abbuse of the legal process,” said Schmidt, “as any respondent in a court matter is obliged to submit an answering affidavit. In this case the court had no record of the department of mineral resources’ response, because it hadn’t been submitted in the first place.” In its response, the department said a legal counsel was appointed to handle the Glencore challenge. “Counsel requested certain information from the department and such information was provided. There was no feedback from the state attorney on the matter until judgment was granted.” The department said it was investigating the reasons why the answering affidavits had not been filed as required.    

Silicosis: Landmark judgment for mineworkers. 15 May 2016 

In a landmark judgment, the South Gauteng High Court ruled in favour of mineworkers’ to launch a silicosis class action suit against mining companies. “We have reached the consensus that there are sufficient common issues to justify the class action. There will be two classes (for silicosis and for TB)," Deputy Judge President Phineas Mojapelo told the court on Friday morning. “All the mining companies are accused of failing to protect the health of the employees when they were legally bound to do so and as a result causing (the mine workers) to contract TB and silicosis," Mojapelo said. He said although the mine workers had developed silicosis or TB – both potentially fatal lung diseases - at different stages, many of them had made similar claims and those claims had been made simultaneously. He said all the mineworkers had contracted the diseases from inhaling silica dust. He says the certification of the class action would not be dependent on the outcomes of each individual miner’s case. "It can't be overlooked that the case of all mineworkers may not be finalised on a case of one common issue." Mojapelo says the court's decision to grant the case a class action certification is because there is similar evidence and it would also be more economical. "Mineworkers correctly point out that the evidence they referred to would have to be repeated in each individual case many times over. It is neither economic nor affordable for him to bring his trial action in his individual capacity," Mojapelo said. "The class action trial will deal with all the evidence at once, it has to be borne in mind that if each individual trial had to be held, the findings would remain case specific." He was delivering judgment in the historic Silicosis Class Action, Bongani Nkala and 55 others v Harmony Gold Mining Company Ltd and 31 others. The judgment means this is the largest class action to ever be certified in South Africa and it allows hundreds of thousands of gold miners and their families to access justice and redress. On March 5 this year, former gold miners and relatives of deceased ex-miners have reached a similar landmark settlement of their long-running legal battle against Anglo American South Africa and AngloGold Ashanti. The 4 365 claimants in that case sued the mining companies for dust-related lung diseases, silicosis and silico-tuberculosis, which they claim were contracted from working in unsafe conditions in the mines. The claims were instituted from 2012 and were completely separate from the silicosis class action proceedings ruled on on Friday. The overall value of the Qubeka settlement was estimated to be more than R500m. Binyana Benson Qubeka, one of the lead claimants in the litigation, worked at AngloGold mines for 15 years and at other Anglo 

M1 bridge collapse inquiry postponed for a second time. 5 May 2016.

THE inquiry into the bridge collapse over Johannesburg’s M1 highway was on Wednesday postponed for the second time, with the Department of Labour citing continuous challenges that were "beyond its control" as reasons for the delay. "We have made progress from the time that the inquiry started and we have communicated with various stakeholders," said the Department of Labour’s Lennie Samuels who is the presiding inspector over the inquiry. "Unfortunately, we continue to face challenges that are impeding the commission’s inquiry. These issues are beyond our control," he said. The Department of Labour’s acting spokesman, Mokgadi Pela, said these challenges included some stakeholders not fully complying with the investigation by not submitting the required documentation on time. "I will not name and shame any of the parties", but the department had received extensive reports from only two stakeholders, he said, referring to Murray & Roberts, which built the temporary bridge structure, and Form Scaff, which supplied the scaffolding. This challenged the commission’s ability to thoroughly investigate the case, said Mr Pela. A representative from the Johannesburg Development Agency (JDA) lambasted the department’s reasons for the delay, accusing it of misinforming the media. "We have no knowledge of missing reports as being the reasons for the delay," said Siyabonga Genu of the JDA. He said the reasons he was given were that the department did not have equipment to record the sessions, as it was supposed to. "This is disappointing. We want to get on with the inquiry so we can move on," he said The new date for the inquiry to be heard is July 7. The collapse of the M1 pedestrian bridge on October 14 last year resulted in the deaths of two people, while 19 others were injured.

Today marks 15 years since the Ellis Park Disaster. 11 April 2016

Today marks 15 years since the Ellis Park Stadium disaster, which claimed the lives of 43 people and injured 158. Soweto rivals Kaizer Chiefs and Orlando Pirates were facing each other in a league derby and after two goals were scored early in the match, chaos broke out as spectators stuck outside the ground tried forcing their way in.Among some of the victims were two children. Former Chiefs and Pirates player Marks Maponyane says access to the stadium was difficult that day, even for the media.“The stadium was packed and then it became a fateful night because I remember how I even struggled to get in, you can imagine that we get in with accreditation but every gate was blocked. And it was just all people squeezing and forcing to get in.” Maponyane says he witnessed a gruesome sight on the night. “Hell broke loose, I remember I was seated right on top in the media compound and suddenly I saw bodies being brought behind the poles, then it was reality dawning and it wasn’t a good sight at all.” It’s believed that close to 80,000 spectators tried to cram a 60 000 seater stadium and chaos broke out when two early goals were scored in the match while some fans were still stuck outside the ground. Maponyane says he realised the situation was bad when bodies were carried onto the field. Former Orlando Pirates coach Gordon Igesund says the Ellis Park Stadium disaster happened quickly and it took a while before it sunk in. “In that moment there was just chaos. At first nobody really knew what was going on. No one really realised because there were two goals quickly and before people were celebrating a goal all of a sudden people were carried onto to the field and it was absolute terrible disaster.” Igesund says they realised the reality of the tragedy when bodies were spread across the field...“It was such a terrible scene to see people, women, children, supporters being carried onto the field and the news started coming through that there was a stampede at the gates. It was absolute nightmare for everybody.” Former Kaizer Chiefs coach Muhsin Ertugral says the scariest moment of the Ellis Park disaster was seeing a destitute young boy who'd lost both his family members. Ertugral says it took a while for him to fully understand what had happened. “It's something that happened so quickly that for me it went to my trauma mind when I saw these bodies brought down from the tunnel and then later on when a small child, I think he was five years old, was sitting on Mr Kaizer Motaung’s knee later on in the VIP lounge. He had just lost his father and brother.”

Set of bolts not installed on collapsed Grayston bridge, says JDA. 17 February 2016

While key stakeholders have refused to take responsibility for the October collapse of the Grayston drive pedestrian bridge on Gauteng’s M1 highway – which killed two people and injured 19 – the Johannesburg Development Agency (JDA) has told an official inquiry into the bridge collapse that construction company Murray & Roberts (M&R), as well as scaffolding supplier Formscaff, were responsible for the construction of the bridge and its support structures. JDA senior development manager Siyabonga Genu told the inquiry, which got under way on Tuesday, that it had been brought to his attention during monthly progress meetings prior to the collapse that a set of bolts on the scaffolding had not yet been installed and that M&R representatives had decided that the missing bolts would not affect the structure. M&R attorney Richard Haul noted that it was a temporary structure that collapsed, not the bridge or any permanent structure, adding that the scaffolding acted as a support to the final structure and would have been removed once completed. He added that the JDA, as employer under the contract, provided copies of design drawings for the permanent works as part of the tender and that the engineer appointed to administer the contract was from engineering firm Royal Haskoning DHV. “It is important to understand the difference between the permanent work provided by Murray and Roberts and what actually collapsed,” he stressed. He explained that the permanent works provided by M&R included traffic accommodation, construction of the pedestrian bridge, widening sections of Grayston drive, the construction of sidewalks, the upgrading of streetlights and the installation of street signage. To construct the bridge, M&R required temporary work solutions to be designed, supplied and implemented. “Formscaff provided the design for the temporary work solution and specified and supplied the materials to implement the temporary works solutions,” he said. In a report read by Formscaff attorney Ewan Rudolph, the company, which was subcontracted by M&R to supply materials and erect the bridge,  stated that it had supplied the material used to construct the temporary works but that it was not responsible for their design. Rudolph noted that the formwork was not fully erected at the time of the collapse and that Formscaff was not on site to oversee any construction work before the date of the collapse. “Between October 11 and 13 last year, M&R did not call Formscaff’s representatives to site and Formscaff [had not seen] M&R’s methodology drawings. Formscaff also had no knowledge of the construction methodology that M&R used during the temporary works phase,” said Rudolph, stressing that the cause of the collapse was not yet known to Formscaff. Meanwhile, Genu pointed out that over 10 000 pedestrians crossed the Grayston daily and that a separate bridge built specifically for pedestrians and cyclists was required. “It is important that the causes of the collapse are determined to prevent future similar occurrences,” he added. Representing the JDA, law firm ENSAfrica attorney Willie le Roux stated during the session that it was still not clear who was responsible for the design of the temporary scaffolding and that it was important to get factual issues cleared up before expert reports were submitted to the inquiry. No witnesses had been called during the session, which was called by the Department of Labour to investigate an alleged instance of negligence in terms of the Occupational Health and Safety Act.  The inquiry provided the opportunity for key stakeholders to deliver their administrative reports to highlight the extent of their involvement in the project. The first session was chaired by presiding inspector Lennie Samuels, who received submissions from the JDA, M&R and Formscaff The next session would take place between April 19 and 21.

Duty of care to workers is grave business. 19 January 2016

MOST organisations that employ a substantial number of people understand employers have legal and moral obligations to their employees. However, many small and medium-sized enterprises that employ more than 60% of SA’s formal workers, lack access to quality professional advice on their legal duty of care. The proposed silicosis class action suit against South African mining houses is an example of how employees are increasingly turning to the courts when they perceive their employer has failed to create a safe working environment. As we become increasingly litigious, legal action against employers for perceived lack of safety standards and risk mitigation processes is likely to increase. Changes in the law and heightened risks are making it essential for companies to develop a cohesive and comprehensive strategy that ensures they fulfil their obligation to reduce risks to their employees. The legal obligations are complex and ever-changing, but International SOS’s 30 years experience in the field shows that companies that take good care of their employees have a workforce that is more engaged and loyal, and that boosts the bottom line. The common law and various pieces of legislation give employees the right to a safe working environment. Additionally, proper information about risks should be provided transparently so that employees can make informed decisions. The courts have shown that they take this duty of care seriously, and employers need to think through the implications in today’s complex business environments. One complexity is the growing flexibility in terms of working styles and workplaces. A company might have independent contractors or the employees of a third party working on its premises, and some employees may be working from home. Employers need to understand their duty of care in these cases because the courts are interpreting employers’ duty increasingly broadly, and the consequences can be severe for the company and the CEO personally. As some African economies continue to grow robustly, more South African companies are looking north to find new markets. As the recent events in Mali have shown, African countries present variable risks. In the case of employees working outside SA, it is important that the company has a plan in place to deal with incidents. When employees are travelling or doing business outside SA, an impulsive response to an incident can set in motion a chain of events with unforeseen consequences. It is very important that companies have processes in place, and that employees know what they are. Such cases can be complex, especially as the host country will have its own legal framework relating to the duty of care. The fund established in terms of the Compensation for Occupational Injuries and Diseases Act should form the linchpin of employer strategies relating to the duty of care. The fund provides comprehensive, tariff-based compensation for injury and illness sustained at work, and thus gives employees a reliable source of compensation. Because the tariffs are set, it also provides employers with some protection against much greater liability in terms of other legislation should the act not apply. It can be extended to employees outside SA’s borders by arrangement with the Department of Labour. However, litigants are finding ways to avoid the act, to sue employers directly for higher damages. When it comes to the duty of care, employers should be able to demonstrate that they have taken reasonable steps to assess the risks to their workers, have eliminated or mitigated those risks, and have informed workers and associated parties about the risks they may face. As workers devote almost their entire waking day to advancing their employer’s interests, duty of care is a responsible practice.

• Dr Van Loggerenberg is regional medical director, Southern Africa, for International SOS

Labour dept to address bridge collapse, Tongaat Mall.  3 December 2015.

A labour department official has said the M1 bridge collapse in Johannesburg and the Tongaat Mall collapse near Durban would be addressed by December 8. Speaking to News24 on Monday, department spokesperson Mokgadi Pela said a media briefing would be held in Pretoria to discuss the bridge collapse. "The media will be given an opportunity to address the Tongaat Mall issue at this event as well." When asked if the department would be releasing the mall report at the briefing, Pela said: "All queries will be addressed at the briefing." After the mall collapse on November 19 2013, the department appointed a commission of inquiry, headed by Labour Department Occupational Health and Safety Manager Phumudzo Maphaha, to investigate the reasons. It emerged the eThekwini Municipality never approved the development plans. Durban businessman Jay Singh, whose company Gralio Precast was building the mall, said at the time the collapse was caused by its poor design, which was drawn up by structural engineer Andre Ballack. The development has since been sold. Murray & Roberts, responsible for constructing the temporary bridge at the M1 highway in Grayston that collapsed in October, said at the time it was probing the incident. Company spokesperson Ed Jardim said they did not immediately have all the details of the incident, but they had sent people to the scene. One person was killed in the incident with several others sustaining serious injuries.

Formal inquiry launched over collapsed bridge. 29 October 2015.

Labour Department investigators were unable to get access to all of the key people they wished to interview about the collapse of the scaffolding structure near the Grayston off-ramp in Johannesburg, contributing to the department’s decision to launch a formal public inquiry into the accident. Tibor Szana, the chief inspector at the department, admitted yesterday that the investigators’ inability to gain access to some people was “an area of concern to us”. However, Szana declined to comment on the companies the people they wanted to interview worked for. But he stressed that it was an aspect “we will definitely pursue going forward”. The deadly scaffolding bridge collapse, which claimed the lives of two people and injured 19 others, happened on October 14. Listed construction and engineering group Murray & Roberts (M&R) was the main contractor on the R130 million project to build a pedestrian and cyclist bridge over the N1 to link Alexandra and Sandton. Aggy Moila, the acting director-general at the Department of Labour, who is also the deputy director-general responsible for inspection and enforcement, said M&R had acquired materials and the design for the construction of the temporary bridge from Form-Scaff. Form-Scaff is a division of Waco Africa, which was planning to list on the JSE before the end of this year, but postponed its planned listing a day after the accident. Moila said M&R had erected the temporary bridge using the design drawings done by Form-Scaff. “At the time of the collapse, it transpired that the installation of the Kwik stage design was not yet completed. However, the traffic was already traversing under the structure,” she said. Moila said the formal inquiry into the accident that would take place in terms of section 32 of the Occupational Health and Safety Act would focus on, but not be limited to, investigating the responsibility of the client in terms of construction regulations; the responsibility of the principal contractor in terms of the construction regulations and as a employer; the responsibility of the agent on behalf of the client in terms of the same regulations; the supplier of materials; and the design. Szana said the formal inquiry would take about six months to complete and was aimed at gathering further evidence and information on the cause of the collapse. He said the evidence and information would then be presented to the National Prosecuting Authority, and they would then make a decision on the issue. Szana said the prima facie evidence obtained during the preliminary investigation indicated it was appropriate “to look a lot deeper into this particular matter”. Ed Jardim, the group investor and media executive at M&R, said it welcomed the inquiry as a means to discover the exact cause of the accident.

Click here for Construction Regulations 2014 'Definitions'.

Labour dept to release report on Grayston Bridge collapse.

A preliminary report on the findings of what may have caused the collapse of the Grayston Bridge earlier this month, will be revealed by the Department of Labour on Wednesday. The support structure of the bridge, which runs along the M1 across Grayston Drive, collapsed on October 14 shortly before the afternoon rush. At least two people were killed and another 20 were injured when vehicles making their way past the bridge were crushed. The road was closed following the incident and was re-opened by mayor Parks Tau the following day. Murray & Roberts, the company responsible for the construction of the pedestrian and cycle bridge, has appointed technical, engineering, legal and forensic specialists to probe the incident. This was in addition to other investigations initiated by the Department of Labour, the City of Johannesburg, the South African Police Service, the company said. It has previously warned against speculation over what caused the structure to collapse. It was not immediately clear when Murray & Roberts would release its own report.

Six months for bridge inquiry

Department chief inspector Tibor Szana said yesterday that they were looking more closely at the design drawings, but would not speculate as to what might have caused the incident. "We are gathering further evidence to get to the bottom of what transpired," he said, adding that the department would be conducting a formal inquiry in terms of section 32 of the Occupational Health and Safety Act. This inquiry will focus on whether the client, contractor, supplier and the agent who dealt with the contractor followed regulations. The inquiry's results would be handed over to the NPA, Szana said. Two people died and 19 were injured in the incident, which took place on October 14, when a pedestrian bridge collapsed on two vehicles close to the Grayston Drive offramp, near Sandton.

The Department of Labour has concluded its preliminary investigation into the collapse of the Grayston bridge scaffolding support structure over the M1 in Sandton on October 14 that killed two people and injured 19 others. 26 October 2015. Mokgadi Pela, a spokesman for the department, confirmed this on Friday, adding that the report was being shared with stakeholders. Pela said the department would hold a media briefing this week about the findings of the preliminary investigation. Henry Laas, the group chief executive of Murray & Roberts, the main contractor on the R130 million pedestrian bridge project, said last week that it was difficult to commit to a time frame on when the investigation would be completed. Laas said if the department decided to conduct a section 32 investigation, this would be a public inquiry and take months rather than weeks to be concluded. He said the cause of the accident had not yet been determined and stressed he did not want to speculate about the cause.

Five probes on bridge. 16 October 2015.

The Department of Labour, the City of Johannesburg, the police, the Engineering Council of SA and the bridge's builder, Murray&Roberts, have all launched investigations. Johannesburg mayoral spokesman Phindile Chauke said: "We have launched our investigation because we contracted Murray&Roberts and we feel responsible." The M1 was reopened yesterday afternoon, with metro police monitoring the traffic flow at the site of the collapse. Gauteng Traffic Police spokesman Obed Sibasa said the collapse had not damaged the freeway. Two people were killed and 21 injured when the bridge's support structure collapsed just after 3pm. The dead and injured were in two vehicles, a minibus taxi and a Toyota Fortuner that were directly under the structure when it fell. Of the injured, Chauke said, seven remained in hospital and one was in a critical condition. Johannesburg mayor Parks Tau yesterday visited the injured and the families of the dead. "Everything at the moment as to what caused the collapse is speculation," said Chauke. Chauke dismissed a claim that a cement-carrying truck had crashed into the structure shortly before the collapse, stating that the vehicle arrived after the collapse. The pedestrian bridge was due to be completed by October next year. It is not known when construction will resume. The bridge was built for the 10000 or so pedestrians who use Grayston Drive as a crossing point from Alexandra to Sandton every day. Department of Labour spokesman Mokgadi Pela said : "If [investigators] find wrongdoing, we will initiate a section 32 OHS Inquiries hearing ." Murray & Roberts said its investigation would "include analysis and research conducted by technical, engineering, legal and forensic specialists". "We have spoken to a number of the injured and will ensure that they, and all affected parties, receive the necessary care."

Safety stoppage costs bite miners. 21 September 2015. 

SAFETY stoppages ordered by the Department of Mineral Resources have cost struggling mines more than R13.6bn in lost revenue since 2012. A leaked Chamber of Mines document showed revenue losses because of stoppages for 60% of its members rising sharply over four years. Mines were most affected this year with an estimated loss of R4.84bn — almost R2bn higher than the R3bn lost in 2014 and almost double the R2.55bn loss in 2012. The stoppages accelerated despite a huge improvement in safety over recent years. "This revenue loss does not capture (the) full financial impact as fixed costs components add to total losses," the chamber’s document reads. "Indirect costs from co-impacted operations and ramp-up challenges are also not included." Industry players, speaking on condition of anonymity for fear of reprisals from the department, said the increased cost burden of section 54 notices — to temporarily close all or parts of mining operations under the Mine Health and Safety Act — came when the industry was under tremendous financial pressure from weak commodity prices and the retrenchment of thousands of workers. One source said the R4.84bn loss this year could be doubled when fixed costs and the ramp-up to restore production were included, bringing the true cost to R9.7bn. Extrapolated across the industry, this would be a R16bn loss this year. Using the R12,500 wage demand from the Association of Mineworkers and Construction Union (Amcu), the cost of the stoppages represented 106,666 annual salaries. "When you challenge a stoppage … there is a sense that you then get bullied, you get audited and stopped to death. All the CEOs are s**t scared about speaking up," said a frustrated mining executive. "It is such a mess. Nobody is making money; they are struggling to survive and nobody can afford to be singled out for (fear of) more severe treatment." The Chamber of Mines supported the justified application of stoppage notices, said its CEO Roger Baxter. "Yes, we are concerned that in some cases section 54s are applied inconsistently and unfairly." He said the notices often involved shutting down unaffected areas as well. The reasons given in some of the notices were not clear or justified and affected shafts were not opened "expeditiously", Mr Baxter said. "In many cases" the department’s inspectorate could have issued section 55 notices, demanding remedial action from mines but not suspending operations, he added. "The chamber’s leadership has engaged the leadership of the Department of Mineral Resources and believes this is one of the areas we can work on together to ensure the sustainability of the industry, without compromising safety," Mr Baxter said. Repeated requests to the department for statistics on section 54 notices over the past few years were not answered. Instead, in an e-mailed response the chief inspector of mines, David Msiza, said there had been 9,000 inspections and audits last year and 1,074 section 54 notices were issued. There were 2,935 section 55 notices. Only one appeal was received and resolved last year, he said. "It has to be highlighted that the majority of the section 54 notices resulted in the halting of the affected working place and not necessarily the entire mine," Mr Msiza said. "The notices are issued in terms of the law in cases of dangerous working conditions and serious transgressions of the law to prevent harm to mineworkers and not for petty reasons." Impala Platinum (Implats) had 54 safety stoppages and lost 52,000 ounces of platinum group metals worth R720m in the year to end-June, its CEO Terence Goodlace said at a recent results presentation. It had to pay employees who were not producing and cover costs of maintaining operations — spending R600m at suspended mines during the year. "We support every single stoppage where there is a danger to safety and health," Mr Goodlace said. Implats ordered 4,016 stoppages to ensure safe operations, but these were localised instead of shutting entire shafts. He said it took days to restore output levels after a shutdown. Companies were asking the inspectorate for stoppages to be ring-fenced to affected areas. In an affidavit prepared for a court application to set aside the Mining Charter and the amended charter, mining lawyer Hulme Scholes said section 54 notices were used to "victimise" mining companies that speak out against the mineral resources department. Mr Msiza denied this. "No, the Department of Mineral Resources does not issue notices to victimise companies. They are issued as a corrective measure to protect the lives of mineworkers," he said. He said the notices had "contributed significantly" to better safety. Last year, 84 people died on SA’s mines compared to 615 in 1993. There had been a 21% improvement so far this year, he said.

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. 

Click here for my Open Letter to the Chief Inspector.

Eskom to pay for man shocked by cable. 4 June 2015

Eskom is liable for the damages suffered by a cyclist who was severely burnt when he was shocked by an overhanging power line while out cycling with his mates. This was the finding of Judge Selby Baqwa in the High Court in Pretoria, following a damages claim by Joburg investment consultant, Derek Anthony Halstead-Cleak. He suffered burns across his face, neck, arms and chest when he bumped into the low hanging power line. Halstead-Cleak’s clothes caught fire and his friends had to save his life. He was so severely burnt that he is still receiving skin grafts. While Judge Baqwa found Eskom to be liable, the amount of damages will only be determined at a later stage. He is claiming millions in general damages as well as for his past and future medical expenses. Halstead-Cleak, of Melrose North, was out cycling with his friends on August 11, 2013, when he came into contact with a low hanging live power line spanning across a footpath along Bokmakierie Road in the Nooitgedacht area. One of his fellow riders, Vincent Langolois, testified how he and the other cyclists managed to cycle under the overhanging line. Halstead-Cleak was the last in the line and the other riders suddenly heard him scream. They saw him being shocked by the overhanging line. Langolois said he tried to pull him off the line by using the handle bars of his bicycle, but he also got shocked. When the other riders tried to pull him off the cable, they were also shocked when they touched him. This was in spite of them wearing thick winter gloves. Halstead-Cleak’s clothes started burning and his fellow cyclists eventually managed to pull him free, using the rubber tyres and handlebar grips of his bicycle. He fell to the ground and his friends put out the flames by rolling him on the ground. He was unconscious but they managed to resuscitate him. Halstead-Cleak’s legal team argued that Eskom was liable for his injuries in terms of the provisions of the Consumer Protection Act (CPA). While Eskom denied liability, it acknowledged that it was responsible for the power line which was hanging low across the footpath. It was also both the manufacturer and distributor of the electricity generated through the power line. Judge Baqwa said pictures handed to court of Halstead-Cleak’s injuries demonstrated a pattern of burns mainly of an electrical nature and of the “open flame” type due to his clothing which caught fire. The judge said the type of injuries were of an “electro thermal nature”, falling within the high voltage realm of more than 100 volts. Eskom said the CPA was all about the protection of consumers and if Halstead-Cleak was injured at home while utilising his electricity, the CPA would have applied. Judge Baqwa compared this case with another where a woman was bitten by a dog. The defendant in that case denied liability as he said it was a stray. Yet, in that case he took the woman to hospital, paid her bill and killed the dog. The judge questioned why the man would have done that if the matter didn’t concern him. The same applied here, he said. “Eskom’s actions after the incident (switching off the power) reinforce the notion that it had introduced the source of danger which led to the injuries,” he said.

I am surprised the Judge used the CPA as basis for the judgement when section 26 of the Electricity Act No. 41 of 1987 seems more appropriate.  

Liability of undertaker (supplier of electricity) for damage or injury In any civil proceedings against an undertaker arising out of damage or injury caused by induction or electrolysis or in any other manner by means of electricity generated or transmitted by or leaking from the plant or machinery of any undertaker, such damage or injury shall be presumed to have been caused by the negligence of the undertaker, unless the contrary is proved. RHL.

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.

Will the Fund create a Statutory Indemnity against potential civil suits for damages arising from occupational diseases along the lines of section 35 of the COID Act? RHL.

Ondersoek na Linkin Park-konsertganger se dood begin eersdaags. 21 Mei 2015.

’n Geregtelike ondersoek na die dood van ’n konsertganger by die Linkin Park-konsert in 2012 sal na verwagting Dinsdag in die Wes-Kaapse hooggeregshof begin. Florentina Popa-Heaven (33) en 19 ander konsertgangers is op Woensdag 7 November 2012 beseer toe steierwerk deur ’n sterk suidoostewind omgewaai is. Big Concerts het die konsert in die Kaapstad-stadion gereël. Twee uur voor Linkin Park se optrede sou begin, het die wind die steierwerk, waarop die energiedrankie Lucozade geadverteer was, buite die stadion omgewaai. Twaalf beseerdes is na hospitale geneem waar Popa-Heaven later dood is. Sy was oorspronklik van Roemenië afkomstig. ’n Mede-konsertganger het vroeër aan Netwerk24 gesê Popa-Heaven het erge kopbeserings gehad en daar was baie bloed. Die res van die beseerdes is op die toneel vir minder ernstige beserings behandel. Die ondersoek kom sowat drie jaar ná die voorval en ingevolge die wet is dit om voorsiening te maak vir ondersoeke na sterftes of beweerde sterftes wat glo deur iets anders as natuurlike oorsake veroorsaak is. Ten eerste moet die oorledene se identiteit bepaal word, waarna die datum van dood  evestig moet word. Die oorsaak van dood of die moontlikheid van die oorsaak van dood moet dan bepaal word. Die voorsittende beampte moet dan bepaal of iemand strafregtelik vervolg kan word, of nie. Van die partye wat betrokke is, is onder meer die Kaapse stadsraad, Big Concerts, Lucozade en die polisie. Die ondersoek is geskeduleer om tot 2 Junie te duur. 

Vrou sterf by Linkin Park-konsert: ‘Die steierwerk was nie veilig genoeg’

Meer kon gedoen gewees het om die steierwerk stewig te maak voordat dit omgeslaan en ’n vrou se dood veroorsaak het. Só het die eerste getuie in die geregtelike ondersoek na die dood van ’n konsertganger by die Linkin Park-konsert in 2012 Woensdag in die Wes-Kaapse hooggeregshof getuig. Florentina Popa (33) en nog twintig konsertgangers is op Woensdag, 7 November 2012, beseer toe ’n sterk suidoostewind die steierwerk waarop die energiedrankie Lucozade geadverteer was, buite die stadion omgewaai het. Popa is later die aand dood. Bradley Antill, ’n verkoopsagent van Vertex Scaffolding, het Woensdag getuig dat hy ’n kwotasie aan Bothma Signs uitgereik het vir die oprigting en beveiliging van twee torings by die Kaapstad-stadion vir advertensiedoeleindes. Big Concerts het die konsert in die Kaapstad-stadion gereël. Antill het gesê Bothma Signs wou twee 10 m-torings gehad het en het ’n foto aangestuur as voorbeeld. Hy het gesê hy het aangeneem die steierwerk sou op beton vasgeheg word om dit te beveilig, maar Woensdag het hy erken dat die steierwerk op sagte grond opgerig was. Hy het eers ná die voorval uitgevind dat die steierwerk nie op beton vasgeheg was nie. Dit was ook deel van Vertex se veiligheidsmaatreëls dat niemand toegang tot of rondom die steierwerk kry wanneer dit opgerig word, of ná die tyd nie. “Ek was nie bewus dat daar mense onder die steierwerk sou rondloop nie,” het hy gesê. Antill het toegegee dat Vertex nie genoeg gedoen het om die steierwerk stewig vas te heg nie. Hy het getuig dat die twee mans wat vir die oprigting van die steierwerk verantwoordelik was, ene Lusanda en Freedom, hom moes ingelig het oor die soort oppervlak, maar hulle het nie. Daar was gewigte en ekstra vertikale balke vasgemaak, maar daar was niks om die konstruksie aan die grond vas te heg nie, het Antill toegegee. Gevra wat hy (Antill) anders sou doen as hy toe geweet het wat hy nou weet, het hy geantwoord: “Ek sou die werk van die hand gewys het.” Die saak duur Donderdag voort.

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.   Pretoria - 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. 

Click here for the Supreme Court of Appeal decision which creates the precedent for labour broker personnel to sue for negligent injury. I am writing an article on this next week and will publish it. RHL. 

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 Unemployment Insurance Amendment Bill, which would increase the period of unemployment benefits from the current eight months to 12, extend the period within which a contributor can lodge a claim from six to twelve months and extend the scope of the fund to cover public servants and workers in the learnership programmes. Another bill due to come before Parliament is the Compensation for Occupational Injuries and Diseases Amendment Bill, which is currently going through internal processes within the department. Among other things, it would promote rehabilitation programmes to facilitate a return to work. The Occupational Health and Safety Amendment Bill, which is currently under discussion in the National Economic Development and Labour Council, will also be tabled. Ms Oliphant highlighted an improvement in the functioning of the notoriously inefficient Compensation Fund as one of the key priorities of her department this year. The introduction of a new electronic claims-management system in August last year would expedite the processing of claims, which previously was done manually, the minister said. Another priority would be to strengthen the department’s inspection and enforcement activities. During the debate Democratic Alliance (DA) labour spokesman Ian Ollis condemned the labour department’s waste of money while DA MP Michael Baigram criticised the country’s labour regime which he said acted as a "a handbrake to job creation".

The Department of Labour asked the state to fund 100 new health and safety and BEE Labour inspectors, in addition to the current 145. 6 May 2015.

The DOL now has a total staff of 1347 inspectors, of which 1247 posts are filled, but only 145 of these are health and safety inspectors. Addressing the Labour Portfolio Committee in Cape Town, the Department of Labour Director General, Thobile Lamati, said they needed to “address critical areas around Occupational Health and Safety and employment equity (EE)”. The occupational health and safety inspection ratio benchmark of the International Labour Organisation (ILO) is one inspector for every 20 000 workers. According to the Quarterly Labour Force Survey of February 2015, South Africa has 15 320 000 workers, and therefore the country needs 1011 OHS inspectors, said Lamati. The 100 new Labour inspectors would cost R64-million, and would enable “the original idea of specialisation [of Labour inspectors], as approved by the [former] Minster in 2012.” The R64-million equals Treasury’s withdrawal of some Labour budget in the previous financial year, and is thus a re-allocation. “We met with employers and told them of their responsibilities in promoting OHS. We signed OHS Agreements in construction, iron and steel, as well as chemical industries,” said Lamati. “Some employers are exposing workers to hazardous employment.”

Politicians support the return of the major cut of the inspection budget

Labour portfolio chairperson, Lumka Yengeni, said they would support the request to Treasury to give back the formerly allocated budget to the department. Department of Labour inspectors visit workplaces to check the level of compliance with labour legislation.

Labour inspectors are appointed in terms of section 63 (1) of the Basic Conditions of Employment Act, to monitor and enforce these laws;
[] Basic Conditions of employment Act
[] Compensation for Occupational Injury and Diseases Act
[] Employment Equity Act
[] Occupational Health and Safety Act
[] Unemployment Insurance Act.

ADT liable after couple attacked. 7 May 2015

Security giant ADT Security is liable for the damages suffered by former Sappi chief executive Eugene van As after robbers broke into his luxury Hyde Park home while his security system was faulty. Van As claimed R1.7 million from ADT in the High Court in Pretoria, saying the company was in breach of an oral contract. ADT had agreed to do repair work to his security system, he said, but a few hours after the technician left his premises after “completing” the work, he and his wife were overpowered by armed robbers. This was on the eve of the couple leaving for a holiday in Antarctica, which then had to be cancelled. Apart from the robbers stealing items worth R1.1m from their home, the couple also lost R265 342 they had paid for the trip. Van As was also badly injured during the attack. Three armed robbers entered the kitchen while the couple were having dinner and held them up at gunpoint. Van As told wondered why the alarm did not go off as it had been switched on and the control panel inside the house indicated it was on. He found out the next day that the system was not working along the northern perimeter wall of his property, the place most likely used by the intruders to gain entry. Van As said an ADT technician was repairing the system on January 26, 2012 – the day of the robbery. Unbeknown to him, the system did not work when they left. ADT said Van As knew its security services were a mere deterrent and not a guarantee of safety against damage of any nature. The robbery was not due to its fault, it said, because when the workers left, the system was up and running. ADT blamed Van As, saying he insisted beams be used that he had supplied. In all probability, the robbers gained entry to the property during the day and probably hid in the large garden, waiting for nightfall to rob the couple. But two of Van As’s gardeners testified that, as part of their daily routine, they patrolled the area with dogs and would have noticed if anyone had gained unlawful entry. Van As said the perimeter alarm system was incorrectly wired by ADT. Judge Johan Louw said ADT tried to create the impression that what went wrong was Van As’s fault. “This attempt was unsuccessful. “The plaintiff’s uncontested evidence was that had the alarm functioned properly with the siren sounding and floodlights being activated, he would have pressed the panic button and locked the patio doors,” the judge said. The amount of damages will be determined later.

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.

Tongaat Mall collapse: moment of truth. 30 March 2015.

Durban - The Department of Labour’s commission of enquiry into the cause of the partial collapse of the Tongaat Mall has ended. Now, it will send its recommendations to the National Prosecuting Authority in the next 60 days. Its report, to be compiled by inquiry chairman Phumudzo Maphaha and his co-presiding officers, Lenny Samuel and Sandile Kubheka, would only be made public should the NPA decide to prosecute. The partial collapse during construction of the mall in November 2013, left two workers dead and 29 injured. Final arguments, from all parties involved, were heard on Friday, drawing the inquiry to a close. While the municipality asked the commission to consider demolishing the structure and for the mall developer to start afresh with applying for approval of its building plans, the design engineer and the contractor again placed blame on the other. Advocate Ian Topping, SC, acting for the municipality, focused on the issues relating to the failure of the property owner, Rectangle Property Investment, to comply with the provisions of the National Building Regulations and Building Standards Act, as well as the high court orders. An application was brought by the municipality last year to hold Rectangle Property and its sole director, Ravi Jagadasan, in contempt of court for ignoring interdict orders granted in 2013 by the high court to stop work at the mall. The city had applied for the interdict because it was concerned about safety, because the company had no approval to begin work on its R208 million development, and no approved building plans. The interim interdict was granted in September 2013 and the order was made final in November, five days before part of the mall collapsed. Topping said the final order had directed that if Rectangle did not apply for building plan approval, they had to demolish the entire structure, irrespective of whether or not it was sound. A high court order, granted in December, 2014, interdicts Rectangle from construction on the property until it obtains municipal approval for the proposed building works. Topping argued that Rectangle Property committed a crime and that non-compliance could not be condoned. He asked the commission to consider all this information when it releases the property back to Rectangle at the end of these proceedings. Design engineer André Ballack’s attorney, Richard Hoal, argued the collapse was due to contractor Gralio Precast’s negligence, and failure to comply with its obligations in terms of regulations. He said the collapse occurred because of under-strength concrete present in the columns that collapsed or due to the lack of reinforcing in beam 7. Tests had found that some of the concrete used was less than a third of the required standard strength of 30 megapascals (mPa). Beam 7, and two columns, were identified as the three possible causes. Hoal argued that beam 7 failed first and that Ballack had not authorised the pour on beam 7, saying there was no request to inspect it when reinforcing was made. Hoal said it was common cause that Gralio failed to construct the mall in accordance with the design. He argued the cause of the collapse was due to:

* Gralio’s failure in hiring adequately qualified and competent supervisors on site.

* Gralio not supervising or approving any work undertaken by subcontractors.

* Gralio relying on the performance of subcontractors in the that  hope Ballack, during his ad hoc inspections, would pick up any discrepancies.

Hoal blamed Gralio for failing to appoint Ballack to perform any construction monitoring service.

Advocate Saleem Khan, acting for Rectangle and Gralio, said Gralio’s chief executive, Jay Singh, repeatedly told Ballack not to take any risks in the self-funded project. He argued that in Gralio hiring a qualified and competent professional team, it was absolved of all responsibilities. “Jay Singh set in place all the checks and balances that were good for previous projects. The only difference here is that a different engineer was used,” he said. Khan argued that several engineers had testified saying the concrete mix made no difference to the collapse. He said Singh relied on Ballack for quality control, reinforcing inspection and certifying structural stability compliance on completion.

Durban cooking oil factory burns. 26 March 2015.

Durban - A factory that manufactures cooking oil went up in flames on Thursday morning. A huge plume of smoke could be seen from as far away as Queensburgh, some 15 kilometres away. It was not immediately clear if there were any injuries, but Netcare 911 spokesperson Chris Botha said he was not aware of any calls for medical assistance being received. Robert Mackenzie, spokesperson for the provincial Emergency Medical Service, said they had one report of a person who had injured his arm. However, he said it was not clear whether this injury was linked to the fire or if it was a worker who was injured on duty. East Coast Radio's traffic report stated that a portion of the busy South Coast Road had been closed off to traffic as firefighters fought the blaze. The phone for Africa SunOil Refineries (Pty) Ltd went unanswered. Twitter was full of pictures posted by a Durban commuter showing the massive plume of smoke in the sky. It was also not immediately clear if the neighbouring Plascon paint factory was under any immediate threat.

Tongaat mall was always going to collapse - Singh. 6 March 2015. 

Durban - The Tongaat mall was always going to collapse, even if the concrete had the required strength and steel bars, Durban businessman Jay Singh told a commission of inquiry on Thursday. Singh told the commission investigating the structure's collapse that he still believed the poor design by engineer Andre Ballack meant the mall would collapse. "Even if it had the full bars or the strength it was still going to collapse," he said. The inquiry is tasked with investigating the partial collapse of the mall on 19 November 2013, in which two people were killed and 29 injured. It is headed by labour department occupational health and safety manager Phumudzo Maphaha. Singh is the chief executive of Gralio Precast, which was building the mall. The inquiry has heard that the beam that collapsed, called beam seven, only had seven of the required 19 steel bars. Many of the concrete samples taken from the site failed to meet the required strength of 30 megapascals. Maphaha suggested that a column, identified as column 319, cracked, causing greater load on beam seven, which it could not support because of the weak concrete. Singh maintained the problem was with column 243 which his experts had said was poorly designed. It was then that Singh said the mall would have collapsed in any event. On Wednesday it emerged that Gralio may have been using old drawings while building the mall. Singh was ordered to bring the drawings his company used to the commission on Thursday. Singh on Thursday said he had newer drawings, but because there had been no changes to the columns, the old drawings were used for the columns. During re-examination by Singh's lawyer Saleem Khan, Singh said he had trusted his foreman Ronnie Pillay, backed up by inspections by Ballack, to ensure the job was completed properly. Asked if he accepted personal responsibility, he said he did not. The inquiry continues.

Questions around old Tongaat mall design. 5 March 2015

Durban - Workers building the Tongaat mall may have been using the design engineer's old drawings, the commission of inquiry investigating the structure's collapse heard on Wednesday. This emerged during a dispute between Richard Hoal, for engineer Andre Ballack, and Jay Singh, the chief executive of Gralio Precast, the company that built the mall. The commission is investigating the mall's collapse on 19 November 2013, in which two workers were killed and 29 injured. Construction started in May that year. Hoal and Singh, who was being questioned, disagreed over a pillar and two beams. Singh maintained the support beams were not place. As the two men could not agree over the drawing, labour department occupational health and safety manager Phumudzo Maphaha, who is chairing the commission, intervened. He said he remembered another drawing that did not have the support beams, identified as beams one and three. Ballack then confirmed his first drawing did not have those support beams as there was a pillar. This pillar was removed after one of the mall's prospective tenants wanted to have space for a driveway. Ballack said this required putting in the support beams. "There is a possibility that Mr Singh has been using an outdated drawing," Maphaha said. He ordered that Singh bring the drawings Gralio used in the mall's construction to the commission. Earlier on Wednesday, Singh told the commission the building site was always safe. Singh blamed the collapse squarely on Ballack. "It was the engineer," he said, when asked by advocate Ian Topping, for the eThekwini Metro municipality, who he thought was responsible. Topping asked him what he personally did to ensure the building site was safe. "It was always safe," Singh replied. "It fell down and killed two people. How can you say it was safe?" Topping retorted. "Because of your inaction, it led to a situation where the workers were not working in safe conditions," said Topping. Singh admitted that he continued with construction, despite having no written authority from the municipality for the building and the earthworks. Reading from the minutes of a site meeting which Singh attended in his capacity as chief executive of Gralio, Topping revealed it was discussed that the building plans had still not been submitted. Singh argued they were working from plans for which the previous developer had obtained the necessary municipal approval. Singh said he merely needed to change the name on the plans, which had already expired, and resubmit them. "You knew very well that the plans in question are no longer valid and you chose to continue," said Maphaha. 

Tongaat mall always safe – Singh. 4 March 2015

Durban - Durban businessman Jay Singh on Wednesday told the commission of inquiry investigating the Tongaat Mall collapse that the building site was always safe. Singh blamed the mall's collapse on 19 November 2013, in which two workers were killed, squarely on design engineer Andre Ballack. "It was the engineer," he said, when asked by advocate Ian Topping, for the eThekwini Metro municipality, who he thought was responsible. Topping asked him what he personally did to ensure the building site was safe. "It was always safe," Singh replied. "It fell down and killed two people. How can you say it was safe?" Topping retorted. Apart from the two people killed, another 29 were injured when the mall collapsed. "Because of your inaction, it led to a situation where the workers were not working in safe conditions," said Topping.  Singh admitted that he continued with construction, despite having no written authority from the municipality for the building and the earthworks. Reading from the minutes of a site meeting which Singh attended in his capacity as chief executive of Gralio Precast (Pty) Ltd - the firm building the mall - Topping revealed it was discussed that the building plans had still not been submitted. Construction on the mall started in May 2013. Singh argued they were working from plans for which the previous developer had obtained all necessary municipal approval. Singh said he merely needed to change the name on the plans, which had already expired, and resubmit them. "You knew very well that the plans in question are no longer valid and you chose to continue," said labour department occupational health and safety manager Phumudzo Maphaha, who chairs the inquiry.

Tongaat mall boss questioned. 4 March 2015. 

Durban - Verbal agreements, incompetent and unqualified staff, a lack of documentation, and a failure to abide by the law all plagued the construction of the Tongaat Mall, a commission of inquiry heard on Tuesday. This emerged from questioning of controversial Durban businessman Jay Singh by labour department occupational health and safety manager Phumudzo Maphaha, who chairs the inquiry into the mall's collapse on 19 November 2013, that killed two people and injured 29. Singh, who owns Gralio Precast which was building the mall, admitted that since 2003 he had never registered a single building site with the labour department, as required by law. Maphaha pointed out that by law, when a contractor starts a construction project the provincial labour department has to be informed. The department was not informed of the Tongaat Mall. The law had existed since 2003. Singh said he was not aware that he was legally obliged to inform the department. "From 2003 all the projects you have been doing have contravened the regulations," said Maphaha. Maphaha pointed out to Singh that after more than a year the commission had not been supplied with a safety risk assessment. He had also not received the health and safety specifications needed before construction could start. Singh admitted he had not seen the documentation. He admitted he was not aware of health and safety documents being given to sub-contractors. "I would like to see the documents. I have requested it from day one and I do not have it," said Maphaha. He pointed out that unless authority was delegated, the main contractor's chief executive was responsible for ensuring that everyone carried out their duties. Maphaha said several people had been appointed to various positions on the site only in August 2013. Work at the site started six months earlier and there was no documentation for their appointment. Singh argued they had been appointed. "What it means effectively is that we don't have any legal appointment for this site," Maphaha said. "By not appointing these people, as chief executive, don't you think you have failed in executing your duties?" Maphaha pointed out to Singh that none of the people he had appointed, including site foreman Ronnie Pillay, had formal qualifications. Maphaha questioned how Pillay could have been appointed scaffolding, welding, and labour inspectors all at the same time, in August 2013, despite having no qualifications. He asked why a bricklayer was responsible for the machinery on the site. It emerged that many people and sub-contractors were appointed without any written contract or formal letter of appointment. "The challenge we are having here, Mr Singh, is that you are having a lot of verbal agreements. We have nothing in writing." Maphaha asked Singh why his employees had failed to place 19 steel bars in a concrete beam referred to as beam seven. An on-site inspection the commission did last year revealed that the beam only had seven steel bars, when design engineer Andre Ballack had specified there should be 19. He questioned whether Singh and Pillay could read the engineer's drawings. "Here you have people on site who you deem to be competent, but they can't do what the engineer specifies?" Maphaha asked. Singh said he believed Pillay and Ballack were responsible for ensuring the steel was correctly placed. "He [Ballack] was responsible for the steel," said Singh. "No, you are responsible. You are the contractor," Maphaha retorted. Singh admitted he had also never seen any concrete strength test results and did not know the strength of the concrete used on the site. Maphaha asked why Singh paid for concrete testing for eight months without ever looking at the results. The collapse happened eight months after construction started.

Tongaat mall engineer never raised concerns - inquiry hears. 2 March 2015. 

Durban - The design engineer of the collapsed Tongaat mall never raised any concerns during its construction, the commission of inquiry investigating the collapse heard on Monday. "I was under the impression that everything was in order," controversial Durban businessman Jay Singh told the commission. Singh owns Gralio Precast, the company that was building the mall when a large section collapsed on 19 November 2013, killing two people and injuring 29. Singh denied that engineer Andre Ballack had asked him for test cube results to determine the strength of the concrete being used to build the mall. Ballack testified during his cross-examination last year that Singh failed on several occasions to furnish him with test cube results to determine the strength of the concrete. The inquiry has previously heard that concrete at several locations on the ill-fated mall did not meet the required strength and several steel bars were missing. Singh said he had been in the construction business since he was 14 years old, when he worked with his father. He said 75% of his work since he had his own business from 1986 had been government contracts. This included building 70 schools and 28 000 houses. He had trusted his foreman Ronnie Pillay who had been in charge of the site and there had been 380 calls between Pillay and Ballack. Singh said he had raised some concerns with Ballack regarding the building, but Ballack had reassured him that all was in order. He said he had parked his van and had a braai with contractors on the section of the mall that collapsed. "I wouldn't park my van there if I knew I had done something wrong." He said that on one occasion he had even parked there with his small son. "We were doing everything to the engineer's design," said Singh.

Engineer denies negligence over mall plans. 12 December 2014. 

Durban - The Tongaat Mall engineer dismissed suggestions that he was “grossly negligent” by allowing deviations from his drawings, the inquiry into the collapse of the mall, in which two people were killed, heard on Thursday. KwaZulu-Natal provincial spokesman Nhlanhla Khumalo said Dr Andre Ballack argued that he had no reason to doubt the integrity of the contractor, who assured him that the project was proceeding as per specifications until the fatal day. Ballack testified during his cross-examination that the contractor, Jay Singh, the owner of Gralio Precast, failed on several occasions to furnish him with test cube results to determine the strength of the concrete. He told the commission that he relied on the contractor's word to authorise the stripping. Gralio Precast is the developing company behind the construction of the mall. He said it was not his function solely to look at samples of the building elements, but also the responsibility of the contractor to verify, said Khumalo. “I took the engineering project and relied on trust. I had no reason not to trust what I was told by the contractor,” Ballack said. The commission's presiding officer Phumudzo Maphaha told Ballack that engineering did not work on trust but on figures and verification of facts. Saleem Khan for Singh said that according to instruction, Ballack had never on a single occasion requested cube tests on concrete strength. Ballack responded that although the requests were never recorded in minutes, these requests were made on site where most of the meetings were held. “With hindsight a piece of paper requesting such results and acknowledging their receipt will have been better.” The inquiry will resume on Friday with further cross-examination of Ballack in Tongaat's local municipal offices. The commission of inquiry was appointed following the structural collapse of the mall on November 19 last year. It claimed the lives of two people and injured 29 others. Khumalo said the inquiry was expected to complete its work in the first quarter of 2015.

Tongaat mall inquiry to resume this week. 3 December 2014. 

AN INQUIRY into the Tongaat mall collapse, in which two people died and 29 were injured, will continue this week, the Department of Labour said on Monday. The Tongaat mall engineer would testify before the commission of inquiry about his "models", spokesman Masede Mosima said in a statement. "Dr Andre Ballack, the structural engineer from Axiom Consulting Engineers, who was responsible for the design of the doomed Thongathi mall, will on Thursday and Friday give his testimony before the commission on the causes of the structural collapse of the mall." The commission was appointed shortly after part of the structure collapsed during construction on November 19 last year. It has held hearings since February and is expected to conclude its work in the first quarter of 2015. On March 10, the commission and engineers conducted a site visit to the mall that was being constructed by Gralio Precast. Permission to build the mall was never obtained and the eThekwini Municipality had obtained a court order stopping the development. However, building continued and the mall had been scheduled to open in March this year.

Two killed in crane accident in Northern Cape.  4 November 2014.

Two people were killed when a crane collapsed at the building site of a new solar plant in Upington in the Northern Cape on Monday, the SABC reported. Police spokesperson Jacques September told the public broadcaster that a 26-year-old woman died at the scene and a 31-year-old man died in hospital. He said four other people remained in a critical condition at an Upington hospital.  inquest has been opened.

Meyersdal house collapse matter heads to court. 31 October 2014.

Pretoria - The labour department inquiry into the partial collapse of an Alberton house in August will no longer question additional witnesses, inquiry chairperson Phumudzo Maphaha said on Thursday. "In light of the proceedings from yesterday [Wednesday] I have taken a decision about the inquiry. Some are worried that 'do inquiries go like this?' Yes they do and I like it. It makes my work easier," Maphaha said in Pretoria. He was scheduled to question Gregory Cumming - the owner of the luxury house that collapsed killing seven construction workers. "We are zooming into what caused the collapse. I don't have evidence that can link the client [Cumming] to the cause of the collapse," said Maphaha. "I have a number of contraventions that I have identified since yesterday [Wednesday] which are against the contractor and the engineer." He said he would use the evidence gathered to prepare a report to the national director of public prosecutions (NDPP). "I am going to compile a report based on the findings on site, plans that we have, and evidence which we have led. "We will be going to court as government with the contractor and the [house] designer," said Maphaha. He instructed Cumming to provide affidavits and evidence showing that he had hired the contractor and the building designer. The documents were required within 14 days and the inquiry would file its recommendations to the NDPP within 60 days. The building designer Ranjan Galal on Thursday refused to answer questions from Maphaha. "My client has not been afforded his procedural rights. He has been called to deal with technical engineering issues, he has been called to this inquiry without proper opportunity to prepare," said Galal's attorney Robert Krombrein. "He has not received an engineering report or [never had] an opportunity to consider what will be put to him. That is substantially and procedurally unfair. He has the right to remain silent not to incriminate himself." Maphaha went on to ask numerous questions but Galal's answer was consistent: "I am exercising my right to remain silent and my right against self-incrimination. I, therefore, decline to answer the question." At one point Galal said only it was not his design which caused the collapse. He refused to explain. Seven workers died and nine were injured when part of the house in the Meyersdal Eco Estate, near Alberton on the East Rand, collapsed on 18 August. On Wednesday, building contractor Errol Romburgh refused to answer questions at the inquiry. Despite repeated attempts by Maphaha, Romburgh stuck to his guns. "Mr Romburgh, were you the contractor involved in the collapse that we are holding an inquiry about?" Maphaha asked. "On legal advice from my counsel I have been advised that I should exercise my constitutional right and not answer any questions at this stage," Romburgh responded. Maphaha said the law made it obligatory for the contractor to answer, except questions that might incriminate him. "Do you find it incriminating to answer that question?" asked Maphaha. At that stage, Romburg's lawyer Piet Pistorius intervened. "With the greatest respect, I must object to the commissioner directing this question to the witness. He is a lay person. He has been advised of his rights," said Pistorius. "The commissioner cannot put to a layperson whether he thinks he is incriminating himself or not. That is a decision that has been made upon counsel's advice.

"Meyersdal contractor refuses to answer questions. 30 October 2014.

Pretoria - Building contractor Errol Romburgh on Wednesday refused to answer questions at a labour department inquiry in Pretoria into the partial collapse of an Alberton house in August. Despite repeated attempts by inquiry chairman Phumudzo Maphaha, Romburgh stuck to his guns. "Mr Romburgh, were you the contractor involved in the collapse that we are holding an inquiry about?" Maphaha asked. "On legal advice from my counsel I have been advised that I should exercise my constitutional right and not answer any questions at this stage," Romburgh responded. Maphaha said the law made it obligatory for the contractor to answer, except questions that might incriminate him. "Do you find it incriminating to answer that question?" asked Maphaha. At that stage, Romburg's lawyer Piet Pistorius intervened. "With the greatest respect, I must object to the commissioner directing this question to the witness. He is a lay person. He has been advised of his rights," said Pistorius. "The commissioner cannot put to a layperson whether he thinks he is incriminating himself or not. That is a decision that has been made upon counsel's advice." Maphaha then asked if the three witnesses before the commission on Wednesday were his employees. Again, Romburgh said he would not answer. Pistorius said his client would not answer any questions. Maphaha went on to ask several questions and made numerous comments but Romburgh remained silent. "I am putting it to you that in terms of section eight of the Occupational Health and Safety Act of 1993, you didn't prepare a risk management for the job that you were going to do," said Maphaha. "As such, this high-risk job you conducted, you didn't have a risk assessment. When the incident happened you didn't have a risk assessment. It will be noted that the commission afforded the contractor [an opportunity] to respond." Employer has ‘failed’ Maphaha said the construction workers had indicated that Romburgh was their employer. "On general duties of the employer to employees [the law says] every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of his employee. "This commission, therefore, says that you have failed in the provision of this regulation. I put it to you that you have failed to provide a working environment that is safe and without risk," said Maphaha. The inquiry is probing the collapse of part of a luxury house in the Meyersdal Eco Estate, near Alberton on the East Rand, in which seven people were killed on 18 August. Nine other workers were injured. Maphaha said Romburgh had also failed to inform the labour department about the construction, as required by law. The contractor remained silent and Maphaha said he would make his recommendations to the National Prosecuting Authority. Earlier, three workers briefly testified at the inquiry. Collins Mohale, who survived the collapse, said he could not remember what happened on 18 August. "I do not remember what happened. I just woke up in hospital," said. Mohale's colleague Patrick Mahlomola Moremi said he also could not remember what happened. "Everything happened so fast, I am not sure about what happened. I didn't see anything," he said. Moremi had worked for the construction company for eight years. He said he had never undergone health and safety training. He also had not been medically checked for fitness to do construction work. Sandile Mabuza said, like his colleagues, he had also never been medically checked for fitness to do the work. He had been employed by the contractor for two years. "I started work in June 2012. I had never been taken in for any training on occupation health and safety," Mabuza said. "On the day of the accident, I can't tell you what exactly happened. The scaffolding came down and covered me then the slab fell. I just saw myself in hospital." Mabuza said he was pulled out of the rubble after around three hours. The inquiry resumes on Thursday.

House Collapse Inquiry due to start. 29 October 2014.

Johannesburg - An inquiry into the collapse of a house at Meyersdal Eco Estate, near Alberton on the East Rand, in which seven people were killed, will get under way on Wednesday, the labour department said. "The inquiry will gather evidence for eight successive days until 7 November," the department said in a statement on Monday. Seven workers were killed and nine injured when the house collapsed on 18 August. The department established the commission of inquiry under section 32 of the Occupational Health and Safety Act. "The section 32 hearing is appointed to investigate acts of negligence that resulted in occupational injuries and death of workers." The department's senior specialist on health and safety in construction Phumudzo Maphaha would chair the inquiry. Principal inspector of the department Christo du Preez and specialist inspector Lesibe Raphela would also serve as commissioners in the probe. "The interested parties expected to testify before the inquiry include: the owner of the house; workers; foreman; insurer(s); designer; the Engineering Council of SA; the National Home Builders Registration Council; and the National Regulator for Compulsory Specification." The inquiry would be held at the labour department's head office at the corner of Paul Kruger and Francis Baard Streets in Pretoria.

Tongaat mall engineer to testify. 30 September 2014. 

Johannesburg - The engineer who designed the structure of the Tongaat mall in KwaZulu-Natal will testify next week before the commission investigating the building's collapse, which left two people dead. The labour department said on Friday the commission set aside Monday and Tuesday for the testimony of Andre Ballack, an engineer with Axiom Consulting. "Ballack's testimony before the commission is expected to be preceded on Monday by a presentation on the so-called 'finite model', which he claimed to have used to design the structure of the mall." The finite model would uncover the information technology system that was used to design the structure of the columns, beams, and entire mall. The presentation would take place at the engineering company's offices in Gateway, in Umhlanga. Ballack would conclude later in the day with a testimony before the commission. The commission of inquiry was appointed following the structural collapse of the mall that claimed the lives of two people and injured 29 others. On Tuesday, the commission would recall engineer Rob Young, who was hired to investigate the site of the mall. Earlier this month, Piet Pretorius, an engineer tasked by Ballack to investigate the cause of the collapse, testified that the mall did not have an unusual structure. Advocate Saleem Khan, the legal representative for Gralio Precast, the contractor building the mall, accused Pretorius of evading questions to protect Ballack. The commission is expected to have a last session before the end of October.

Site inspection at collapsed Tongaat mall. 

The commission of inquiry into the deadly collapse of the partly-built Tongaat mall adjourned for a site inspection on Wednesday. Commission president Phumudzo Maphaha of the labour department, his two co-presidents, engineers involved in the mall's construction, and lawyers met at the site 15 minutes after leaving the Tongaat municipal offices where the hearing is taking place. They donned hard hats for the hour-long inspection. Two people were killed and 29 injured when a section of the mall, which was under construction, collapsed on 19 November last year. Forensic investigator Lennie Samuel said before the commission began its work at the municipal offices on Wednesday that there are been requests from the engineer for the contractor Gralio, and from the engineer responsible for the design, to go to the site to point something out. There were three possible causes for the collapse of the mall, Samuel said and the commission "want to get closer in terms of our findings". Maphaha said the crux of the matter was whether a beam or two columns had collapsed first. Advocate Saleem Khan, representing Gralio and the owners, Rectangle Property Investments, said further investigation at the site would reduce the issues and curtail the time the commission needed.

9 killed in East Rand building collapse. 18 August 2014.

Johannesburg - The number of people killed when a house collapsed at the Meyersdal Eco Estate in Alberton, south-east of Johannesburg, on Monday has risen to nine, paramedics said. Nine people were also injured and transported to hospital, Netcare 911 spokeswoman Santi Steinmann said. The house had collapsed while builders were busy working on it on Monday morning. Some workers were still believed to be trapped under the rubble. ER24 spokeswoman Luyanda Majija said two of the 27 workers were still missing. The labour department said it had sent a team of inspectors to investigate the building collapse. It said the inspectors would issue a preliminary report on the cause of the accident. The estate confirmed the accident. "Today, at approximately 10.30am, a structure at the house of one of our residents which was undergoing alterations collapsed," it said in a statement. "Emergency services are still involved in rescue operations and the families of the affected workers have yet to be informed." Security at the upmarket estate was tight as non-residents were questioned before they were allowed access. Some were turned away. The estate's attorney Andrew Boerner said they were waiting for an update from emergency services. "We ask the media to await the official statement from emergency services until such time as they have completed their rescue operation," he said outside the gates of the upmarket estate. "We are liaising with emergency services and providing our full co-operation to them and the contractor." The Meyersdal Eco Estate is the property from where two giraffes were removed last month. The giraffes were being transported on the N1 highway on a truck when one of them hit its head on a bridge and died. Last week, the Gauteng agriculture department said the estate was being investigated over whether it had the correct permits to bring in and keep giraffes. 

Engineers meet over Tongaat mall collapse. July 2014. 

Engineers involved in the commission of inquiry into the collapse of the Tongaat mall, north of Durban, were meeting on Wednesday to discuss the cause of the disaster. Earlier in the day, the engineers who are to be cross-examined on the report into the collapse, visited the site for further investigations. They were among a party of 36, including the president of the commission Phumudzo Maphaha, his two co-presidents, lawyers, and journalists. Two people were killed and 29 workers injured when the partly constructed mall collapsed on November 19 last year. The visit was to allow the engineer for the contractor, Gralio, and the design engineer to point something out. After the hour-long site visit, the party returned to the commission of inquiry's venue at the Tongaat municipal building. Maphaha said he would see if engineers needed time to fine-tune their report. Ed Wheatley, the independent engineer for the insurers, said based on what transpired at the construction site, all the engineers needed to meet. They recently met twice, but needed to get together again to find common ground. Lawyer Richard Hoal, for the design engineers, said Rob Young, Gralio's engineer, had raised concerns earlier in the week that could make some calculations incorrect. Maphaha said there were three possible causes for the collapse, involving a beam or two columns. The partly-built mall has to be knocked down following a high court order made days before the collapse. The commission continues on Thursday.

Expert identifies 'weakest link' in Tongaat mall. July 2014. 

There were three points of weakness close to each other in the partly built Tongaat mall which collapsed last November, with one of the beams being the “weakest link”, an independent engineering expert testified on Thursday.  Ed Weakley, who was called in after the tragedy by the insurers, also told the commission of inquiry into last November's collapse - when two workers were killed and 29 others were injured - that the foundations of one of the columns that supported the beam in question was inadequate as there was only one pile. One was not sufficient to carry the required load and, in his opinion, there should have been three piles, he said. The department of labour-run commission of inquiry is to prepare a report on its findings and formulate recommendations to the labour minister and the director of public prosecutions for their consideration. Presiding officer Phumudzo Maphaha, the department’s occupational health and safety manager, who visited the construction site on Wednesday, said on Thursday that the aim was also to ensure that such incidents never happened again. Weakley, who visited the site of the tragedy several times, said that the various engineers involved in the inquiry had reached agreement that the “triggers” for the collapse involved beam number seven and columns 243 and 319. The beam had not been cast in a single pouring, he said. It had a join and, in his opinion, it could break at this point of weakness. There were also seven reinforcing rods in the beam instead of the required 19, although only six were cast in concrete. Column 243, a critical column required to support of lot of work, was close to its load-carrying capacity, he said. In his opinion, the “column 243 could have failed along with beam seven”, he said, adding there were other general construction defects. Some of the columns were not being perfectly vertical which would have made them weak and meant their capacity to support was reduced. Asked by advocate Saleem Khan, for Gralio Precast, the contractor, what he would have done if he knew that column 243 was close to its load capacity, he said he would have made the column bigger. Asked again what he would have done in the event of an inadequate foundation in column 319, he said he would have taken measures to compensate and carried out underpinning. Weakley was also asked by Khan if the engineer Andre Ballack had been negligent and he replied that there was negligence in relation to the design load of column 243, although he stressed he did not interrogate Ballack’s calculations. Lawyer Richard Hoal, for the engineers, said any suggestion of negligence depended on whether the structure was braced or not. He said in an interview after the hearing that this suggested negligence was not the cause of the collapse of the mall. The hearing continues on Friday, when an independent engineer called in by the eThekwini Municipality is to be quizzed on his report.

Tongaat photo contains 'interesting clues'. July 2014. 

An aerial photograph of the partly collapsed Tongaat Mall, north of Durban, contained some "interesting clues" about why it had collapsed. Now the search is on to find the photographer.  Phumudzo Maphaha, the presiding officer of the labour department-convened commission of inquiry, said on Friday it would be "very good" to know who took the photograph.  The collapse claimed the lives of two workers, Zakithi Nxumalo and Zwelibanzi Masuku, and injured 29 others.  The photograph shows the extent of two collapsed portions of the partly built mall and was produced in a report by independent structural engineer Gons Poonan, who was called in by the eThekwini municipality in the wake of the tragedy.  Poonan said he was unable to say who had taken the photograph as it had just landed on his desk and no one else at the commission was able to throw light on who exactly had taken the picture.  Sitting with two co-presiding officers on the third and final day of the current session of the inquiry, Maphaha said the hearing "will change how we do business in future for the better.  "All the stakeholders are learning… and this is part of our contribution in preventing a recurrence of this incident in the country."  The focus this week has been on three areas of concern and the possible triggers for the collapse, identified by various engineers as beam number seven and columns 243 and 219. Earlier this week, independent engineer Ed Weakley said the beam had not been cast in a single pouring and since there was a joint, it could break at this point of weakness. Column 243, a critical column, was close to its load-carrying capacity and column 319 had a single pile in the foundations when, in his view, there should have been three piles. Advocate Saleem Khan, for Gralio Precast, the contractor and Rectangle Property Investments, the owners, told Poonan that Weakley had testified that he could not say with certainty where the trigger for the collapse was. "I agree," Poonan replied. Poonan said while he had no criticism of the beam design, it had not been constructed in accordance with the construction drawing. As for column 243, which he said was in the upper limits of "slender", it was inadequately designed for its purpose and had not been constructed to the design specifications in terms of its strength. The under-design of this column resulted in it collapsing. Asked what he would have done, he said he would have made it bigger. Column 319, with its single pile, would also have failed, he said. The inquiry heard there were seven reinforcing rods in the beam instead of the required 19, but only six of them had been cast in concrete. With six bars, the beam would not stand the construction load and it was going to fail, Poonan said. Rob Young, the engineer for Gralio Precast, said the only thing that the various engineers were arguing about was whether the part of the site under investigation was braced. Lawyer Richard Hoal, for the design engineer Andre Ballack, said he would be leading evidence at a later session that the structure was braced, which he said in a later interview would make it more stable, meaning that column 243 was adequate to take the load. Another expert engineer, Dr Piet Pretorius, was working on the bracing issue and would be the first witness to be called when the hearing resumes on 21 July.

How to get a Construction Regulations exemption. 25 June 2014.

Construction Regulations exemptions may stop some controversial, onerous, impractical, expensive and ineffective professional registration measures before they take effect. Construction employers, contractors and maintenance contractors, may ask for Construction Regulations exemption. The general threshold for obtaining a Construction Work Permit is for work involving R13m, or 180 days, or 1800 man-days, or a CIDB grading of Level 6. Applications have to state the registration numbers and cellphone numbers of Health and Safety Agents. About 400 concurrent construction sites in South Africa require Work Permits. Inspectors are currently in training on enforcing the Construction Regulations, and will be using a new data system. DOL told Sasol and its contractors at a conference in Midrand that employers may ask for exemption from the CR by a submission to the relevant DOL provincial office, motivating how workers and the public are protected on their site. Provincial inspectors would visit the site and add their recommendation to the submission that is sent to DOL head office in Pretoria. Consulting body NIOCCSA advise certain categories of employers to apply for Construction Regulations exemption from some of the requirements of registration, and from the appointment of a Construction Manager for each single site. In all cases: officer, manager and agent as well as the requirement for application of a construction work permit, only kicks in at 6 August 2015. They acknowledge that that is not what is said in the exemption notice, but they realise it is a matter of impossibility to have all officers and managers registered by August 2014. This fact was also confirmed by Anthony Forgey of the SACPCMP.

The Prohibition Notice

Labour inspectors may stop work only if they find life-threatening conditions or operations, or the risk of serious health impacts on workers or the public. The power to issue a prohibition notice is limited to actual life-threatening activities or operations. They do not have the power to stop an entire site or factory if only one process is high risk. A site was recently brought to a halt when an inspector issued a Prohibition Notice on finding five workers not wearing hearing protection. Inspectors may stop work in noise zones if hearing protection was not provided, to resume as soon as workers in the noise zones (above 85dB) are issued with PPE. DOL said Labour inspectors first issue a Prohibition Notice, and have to approach the Chief Inspector, Thobile Lamati. They may also issue a Contravention Notice that the employer has to follow to rectify exposure to specific hazards or risks. The time of a follow-up inspection is stated in Contravention Notices. Employers, inspectors and the court have to follow the principle of reasonable practicality that is enshrined in the law. The legal period to comply is 60 days, but some inspectors give notice of a period of 30 days. Employers also have 60 days to appeal to the Chief Inspector in writing, by stating grounds for appeal. (Courtesy Sheqafrica.com).

Mall commission hears of fines for developers. 5 June 2014. 

Durban - The developers of the ill-fated Tongaat mall were fined twice for failing to submit building plans and continuing construction despite being served with notices to stop. Two people were killed and 29 injured when a section of the mall, which was under construction, collapsed on 19 November last year. Lungiswa Cemane, a law enforcement officer with the eThekwini metro municipality, told the commission of inquiry into the tragedy on Wednesday that she visited the site on 8 May last year and told the foreman that the construction was illegal. "We showed him the contravention notice and told him to stop building," she told the inquiry in Durban. She said a fine was issued to a site foreman for R2 500 - R1 000 for failing to comply with a notice to cease building and R1 500 for building without approved plans. She waited for the workers to leave, but when she returned the next day, found them back on the site. She then issued another site foreman, Rajan Haripersad, another fine of R2 500 and waited for the workers to leave. The inquiry heard that the fine issued to Haripersad was subsequently paid. After building continued she referred the matter to the eThekwini metro municipality's legal department. She visited the site several times and took photographs which she submitted to the municipality's legal department. She sent a letter from the city's legal department to the developers. The labour department's occupational health and safety manager Phumudzo Maphaha was appointed to preside over the commission investigating the collapse. The commission is expected to prepare a report of its findings and formulate recommendations. These would be handed to the labour minister and National Prosecuting Authority for consideration. The mall was being developed by Rectangle Property Developments, while the firm constructing it was Gralio Precast.

Worker killed after trench collapses. 4 June 2014. 

Port Elizabeth - A construction worker died when a trench he was working in collapsed in Missionvale near Port Elizabeth, Eastern Cape police said on Friday. Xolani Selani, 22, was inside the trench measuring its depth when the walls collapsed on Thursday, said Warrant officer Alwin Labans. Trenches were being dug for water pipes and drainage in the area. The wet walls collapsed trapping him underneath. Labans said two Caterpillar construction vehicles had to be used to remove his body from the mud. He was not sure whether work was continuing at the construction site. An inquest docket was opened and police were investigating.

Surely DoL should also be investigating? RHL. See construction regulation 13.

Weak concrete used at Tongaat mall. 4 June 2014. 

Durban - The strength of concrete used in the ill-fated Tongaat mall was in places less than a third of what it should have been, an inquiry heard in Durban on Wednesday. "This concrete failed to reach even half of what is required. That is a catastrophe. It means collapse," the labour department's occupational health and safety manager Phumudzo Maphaha said. He heads a three-man commission investigating the collapse. The weak concrete was used in the portion that collapsed on 19 November last year, killing two people and injuring 29. It failed to achieve the required strength of 30 megapascals (MPa) after 28 days of curing. "The concrete could not even reach one third of what was required," Maphaha said. He was speaking during testimony of Roderick Raw, the Durban laboratory manager for Contest, a company which tested the concrete at the mall while it was under construction. Maphaha asked why Raw's laboratory had not raised the alarm over the test results. Raw said the results would be sent to the builders, Gralio Precast, and he assumed the person receiving them would take action. Gralio mixed the concrete on site. Raw said he did not believe anything was wrong with the cement used, Lucky Cement. He said concrete could be weak because insufficient cement was used, or too much water was added. Raw said from the date Gralio contracted Contest in June 2013 there were substantial variances in the strength of the concrete. "These results are different from anything that I have experienced," Raw said. The concrete was tested at three days, seven days and 28 days. According to the design by the structural engineer Andre Ballack, all concrete had to have a strength of 30 Mpa after 28 days. Earlier on Wednesday, the inquiry was told that Gralio was fined twice for failing to submit building plans and continuing construction despite being served with notices to stop. Lungiswa Cemane, a law enforcement officer with the eThekwini metro municipality, told the inquiry that she visited the site on 8 May last year and told the foreman that the construction was illegal. "We showed him the contravention notice and told him to stop building." She said a fine was issued to a site foreman for R2 500 - R1 000 for failing to comply with a notice to cease building and R1 500 for building without approved plans. She waited for the workers to leave, but when she returned the next day, found them back on the site. She then issued another site foreman, Rajan Haripersad, another fine of R2 500 and waited for the workers to leave. The fine issued to Haripersad was subsequently paid. Building continued and she referred the matter to the eThekwini metro municipality's legal department. She visited the site several times and took photographs which she submitted to the municipality's legal department. She sent a letter from the city's legal department to the developers. The commission is expected to prepare a report of its findings and formulate recommendations. These would be handed to the labour minister and National Prosecuting Authority for consideration.

KZN mall probe continues. 4 June 2014. 

The commission of inquiry set up to investigate the collapse of the Tongaat Mall, in which two people died, will resume on Wednesday. “With the commission's evidence work gathering momentum, the spotlight in the upcoming session will fall on the further cross-examination of witnesses and experts,” KwaZulu-Natal labour department spokesman Nhlanhla Khumalo said in a statement. “This will include workers who were below the slab during the collapse... eThekwini municipal representatives, engineers and the contractor/client.” Two people were killed and 29 injured when a section of the mall, which was under construction, collapsed in November last year. The department's occupational health and safety manager, Phumudzo Maphaha, was appointed to preside over the commission investigating events leading to the collapse of the mall. The commission is expected to prepare a report of its findings and formulate recommendations to be presented to the labour minister and National Prosecuting Authority for consideration. 

Employer fined R20 000 for ignoring Labour inspection PPE instructions. 3 June 2014. 

SA DOL North West provincial chief director Andile Makapela warns employers to comply with Labour inspection instructions, or face prosecution. SA Labour inspectors fined a Rustenburg employer R20 000 for ignoring Labour inspection instructions about an electrical certificate and PPE. The admission of guilt fine was raised against Reboni Furniture factory in Mogwase, about 50 km from Rustenburg, in June 2014. The employer was initially asked for electrical certificate of compliance (COC) for the electrical installation at the factory, and to provide workers with protective clothing as provided for in the Electrical Installation Regulation (IER) 7 (1), and General Safety Regulation (GSR) 2 (2), under authority of the Occupational Health and Safety Act. Labour North West Provincial Chief Director Andile Makapela said the employer was summoned to appear before the Mogwase Magistrates Court on 26 May 2014. “That is when the employer realised that ignoring Labour inspection instructions is a criminal offence, and he opted to settle the matter out of court by admitting guilt,” Makapela said. Makapela commended the work of the inspectorate and its increased visibility. He said the department’s move to increase the number of inspectors and labour inspections in the country, and to raise specialisation skills among inspectors, were giving Labour inspection more muscle. “Employers must know that failure to obey health and safety laws, equals prosecution,” Makaela said.

Oliphant: Work can’t become place of death. 4 May 2014. 

Labour Minister Mildred Oliphant says workers should be at the forefront of ensuring that they are safe when on duty. Oliphant said: "We've seen that workers do not play a pivotal role in their own safety in workplaces we've visited over the past few years.”They leave everything to the company and sometimes companies cut corners. "Workers should approach and report to inspectors things that make them uncomfortable or feel unsafe ‘We cannot continue having workplaces becoming death places."

GOVERNMENT NOTICE

 DEPARTMENT OF LABOUR

 No. R. March 2014

 NOTICE REGARDING APPLICATION OF THE CONSTRUCTION REGULATIONS 2014

 OCCUPATIONAL HEALTH AND SAFETY ACT, 1993

 CONSTRUCTION REGULATIONS, 2014

Under section 40(3)(b) of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), I, Thobile Lamati, appointed as chief inspector in terms of section 27(1) of the said Act, and by virtue of the powers delegated to me by the Minister of Labour, in terms of section 42(1) of the said Act, hereby grant the following temporary exemptions in terms of section 40 of the said Act:

 1. All construction works where physical construction started after the 7th of February 2014 must comply with the Construction Regulations 2003, and such construction works are exempted to comply with the Construction Regulations 2014 until the 7th August 2014, 6 months after the commencement of these Regulations, thereafter the Construction Regulations 2014 shall apply with the exception of Regulation 3 and 5 (7)(b) which will come into effect on the 7th August 2015, 18 months after the commencement of these Regulations.

 2. All construction works where physical construction had started on or before the 7th of February 2014 must comply with the Construction Regulations 2003, and such construction works are exempted to comply with Construction Regulations 2014 until the 6th August 2015 and thereafter the Construction Regulations 2014 shall apply

 Thobile Lamati

 Chief Inspector

Phumi Maphaha presiding over the section 32 Formal Inquiry into the 'Tongaat Mall Collapse'.

No health safety audits at Tongaat mall. 14 February 2014. 

Durban - No health and safety audits were carried out in the four months preceding the Tongaat Mall's collapse, a commission of inquiry heard in Durban on Thursday. Two people were killed and 29 injured when the building collapsed on November 19, while it was still under construction. Ismaiel van Zyl, a safety consultant appointed by the contractor Gralio Precast (Pty) Ltd, told the commission that he had never signed off on any scaffolding or supports to be removed. On the day before the accident, when he inspected the site, no one was working on the football pitch-sized portion of the mall that ultimately collapsed. He said he had not signed off on any scaffolding or supports to be removed at any stage during the time he worked there. “The Monday that I was there, there was no stripping going on.” When pressed by the labour department's occupational health and safety manager Phumudzo Maphaha, he said he had not given any consent for the formworks, props or scaffolding to be removed on the next day - the day the accident happened. The inquiry heard previously that some of the formworks were being removed on the day the slab collapsed. Formworks are the temporary or permanent moulds into which the concrete is poured. Van Zyl told the commission his safety folder had disappeared on the day of the accident. It emerged that the book had been taken by one of the supervisors from Gralio without Van Zyl's knowledge. In further evidence it emerged that the building site foreman had been assigned six safety posts, when the law only allowed for a person to hold a maximum of two such posts. Van Zyl said he was not aware of any health and safety audits having been carried out or submitted to the labour department in the four months that he had been appointed as a consultant to the project. Thursday's sitting of the inquiry heard that the structural engineer had only been present at two of the 10 inspections to check post-tensioning cables of the concrete slabs. Rishen Naidoo of Freyssinet Posten said he was responsible for checking the post-tensioning cables. Only two of his reports indicated that structural engineer Andre Ballack was on site when he did his inspections. Ballack only signed one of the reports while Naidoo noted on another that Ballack was present. Asked if this was irregular, Naidoo said: “Irrespective of whether the engineer is on site I have to do my inspection.” Naidoo said his inspection had to take place prior to concrete being poured. On one occasion he had been asked by his immediate superior to inspect a slab to ensure that reinforcing steel had been correctly laid. Naidoo said on that occasion, on October 7, he noticed that five cables were missing and that some bars had been laid incorrectly. The person responsible for putting the steel bars and cables into place had either not finished his work or “he was incompetent on this particular slab”. Naidoo said when he worked with other clients the structural engineer would usually be on site when he conducted his inspections. He said he was aware that the eThekwini metro municipality had obtained a court order to stop construction on the site. “But then I was told that everything was sorted and the work continued.”

Engineer absent from mall inspections. 13 February 2014. 

Durban - A structural engineer was not always present to ensure that concrete slabs at Tongaat shopping mall in Durban were correctly installed, an inquiry heard on Thursday. Rishen Naidoo of Freyssinet Posten said he was responsible for checking the post-tensioning cables of concrete slabs. Only two of his reports indicated that structural engineer Andre Ballack was on site when he did his inspections. Ballack only signed one of the reports while Naidoo noted on another that Ballack was present. Asked if this was irregular, Naidoo said: "Irrespective of whether the engineer is on site I have to do my inspection." Naidoo was giving evidence before a three-man commission of inquiry into the collapse of the Tongaat Mall, outside Durban, on Tuesday, 19 November, while it was still under construction. Two people were killed and 29 others injured. The commission is headed by the labour department's occupational health and safety manager Phumudzo Maphaha. Naidoo said his inspection had to take place prior to concrete being poured. On one occasion he had been asked by his immediate superior to inspect a slab to ensure that reinforcing steel had been correctly laid. Naidoo said on that occasion, on 7 October, he noticed that five cables were missing and that some bars had been laid incorrectly. The person responsible for putting the steel bars and cables into place had either not finished his work or "he was incompetent on this particular slab". Naidoo said when he worked with other clients the structural engineer would usually be on site when he conducted his inspections. He said he was aware that the eThekwini Metro municipality had obtained a court order to stop construction on the site. "But then I was told that everything was sorted and the work continued."

Bodies of 8 miners found after mine fire. 6 February 2014. 

The bodies of eight missing miners have been found after a fire broke out at Harmony Gold's Doornkop gold mine, west of Johannesburg, the mineral resources department said on Thursday. "One missing worker had still not been found at the time of issuing the statement," the department said. A fire broke out on level 192 of the mine, roughly 1 733 metres underground, at about 18:00 on Tuesday after a seismic event triggered a fall of ground. Eighteen people were reported missing at the end of the shift on Tuesday night. One miner came out in the early hours of Wednesday. He gave rescue workers the location of other miners he had seen underground. Eight other miners were brought to the surface later on Wednesday and were all unharmed. Nine miners were still unaccounted for at the time. The chief mine inspector said that once the last miner had been found, the search and rescue team would need to make sure the fire had been extinguished, the department said on Thursday. After that, an on-the-spot inspection would take place. The results of the inspection would help determine what steps the department needed to take next. Harmony spokesperson James Duncan confirmed eight bodies had been recovered. He said on Wednesday that the underground fire had been subdued although conditions remained challenging. All operations at the mine, other than essential services, were suspended on Wednesday night. Harmony's CEO Graham Briggs, board and management extended their condolences to the families, friends and colleagues of the men who died. The National Union of Mineworkers (NUM) was extremely saddened by the deaths of the eight miners. "[This is] really bad news for us as the NUM, families of the deceased, department of mineral resources and the South African public," acting spokesperson Livhuwani Mammburu said. NUM health and safety secretary Erick Gcilitshana said: "We pass our deepest condolences to the families of the deceased. One death is one death too many." The union called on the mineral resources department to trigger its investigation into the accident, with NUM ready to participate to leave no stone unturned. Mineral Resources Minister Susan Shabangu said the situation was deeply regrettable. "The health and safety of workers is of paramount importance to us as the regulator of this sector," she said. "We must ensure that we do all we can to get to the bottom of what caused this incident, in order to prevent similar occurrences in future.” 

Death mall neighbours jittery. 3 February 2014. 

The community living near the doomed Tongaat Mall kept a close eye on the construction site this week, fearing that its developer had returned. But KwaZulu-Natal labour department spokesman Nhlanhla Khumalo said yesterday that Ravi Jagadasan, of Rectangle Property Investments, and his construction workers could "under no circumstances" return to the site. Residents of the North Coast town reported that they had seen "suspicious" construction workers at the site of the collapsed mall several times last week. "They were department officials," Khumalo said. "Engineers do go there to gather information, but under the supervision of the department because we have taken over the site." The department is concluding its investigation of the mall collapse, which killed two construction workers and injured 29 other people on November 19. Khumalo said the site was under guard and cordoned off. Jagadasan, the son of millionaire and well-connected Durban businessman Jay Singh, will face the first phase of a section 32 hearing next week. Section 32 hearings are instituted against those whose alleged negligence results in occupational injuries or the death of workers. The department of labour served Jagadasan with several compliance notices before the tragedy, and the eThekwini municipality took him to court to stop construction. Despite the court order Jagadasan continued the construction work without approved building plans, or an assessment of the environmental impact the rezoning of a residential area would have. The building sprang up in months. Between 20 and 50 people are expected to be called to testify at the hearing, which will be held at the Tongaat municipal offices from February 11 to 14. "On completion of its work the commission is expected to prepare a report of its findings and formulate recommendations which will be presented to the minister of labour, the Department of Labour's chief inspector and the Directorate of Public Prosecutions," Khumalo said. He said the commission was expected to spend at least six months gathering evidence.

DOL convenes Tongaat Mall collapse hearing. 29 November 2013. 

DOL Deputy Director for the Civil and Construction Sector, Phumi Maphaha, leads the Tongaat mall collapse hearing. SA DOL set up a Section 32 Tongaat Mall collapse hearing after a worker died and 29 were injured near Durban on Monday 18 November. The Department of Labour (DoL) appointed a presiding inspector to help set up a formal Section 32 hearing on the causes of the Tongaat Mall disaster. He is the DOL Deputy Director for the Civil and Construction Sector, Phumi Maphaha. A Section 32 hearing is usually appointed by the Department of Labour against parties whose negligence results in occupational injuries and death of workers. Maphaha is expected to begin his work in the last week of November. He will first meet with legal representatives of various stakeholders affected by the tragedy to thrash out modalities on how a formal hearing would proceed. “Labour inspectors have taken control of the accident site and are gathering evidence,” said the DOL A high-powered delegation of the Department of Labour (DoL) visited the Tongaat Mall collapse scene the day after the incident, led by Acting Director-General Sam Morotoba, Department of Labour Deputy Director-General of Inspection and Enforcement Services Thobile Lamati, and the Department’s public entity responsible for occupational injuries, Compensation Fund’s Commissioner Shadrack Mkhonto.

Phumi Maphaha is a very competent presiding officer. He will get to the bottom of this!

South Africa must obey court orders. 28 November 2013. 

THE collapse of a concrete floor of a mall under construction in Tongaat in KwaZulu-Natal has laid bare the seeds of disregard for our courts, a trend that must be stamped out if we are going to avoid a descent into anarchy. The tragedy of the Tongaat mall collapse is that it appears the system that is supposed to prevent illegal building was actually functioning. The eThekwini municipality had been trying to stop construction of the 1,200m² shopping mall since March because the required approvals had not been granted. What failed was the enforcement of these regulations. The developer simply ignored several summonses instructing him to stop construction, including a final summons to cease work immediately, issued six days before the building collapsed. This raises the question why he believed there would be no consequence to ignoring a court order. Is it just part of South Africa’s general slide in morals and ethics? Did he believe he was above the law? Or did he feel he could use political connections to avoid the consequences of ignoring such judicial orders? Whatever the reason, it is clear the developer thought ignoring a court order did not carry sufficient sanction to be a deterrent. That belief had extreme consequences for two innocent people who lost their lives in the wreckage of the building, of which the ripple effects on their families and dependents are incalculable. Yet this is not an isolated incident. There have been numerous cases of cabinet ministers ignoring court orders. It wasn’t that long ago that an immigration officer at Cape Town International Airport refused to comply with a court order to stop the deportation of a Turkish citizen. In that matter Judge Dennis Davis, who issued the order, subsequently commented that if court orders are ignored, "our constitutional democracy will be destroyed in the final analysis". The law is the fine line between order and chaos in society. Its rupture starts with motorists skipping red traffic lights because they think they can get away with it; when it extends to people willfully ignoring court orders, the country is on a slippery slope. Our civic duty goes beyond merely upholding the laws of the land to demanding that those who ignore court orders face the full might of the law.

Inferior building materials might cause more building collapses. 25 November 2013. 

THE increase in the mining of substandard building materials by illegal quarry operators could lead to building and construction site collapses as happened at a shopping mall construction site in Tongaat last week, an industry body has warned. The structure collapsed and killed two workmen. The Aggregate and Sand Producers’ Association, a member of the Chamber of Mines representing firms producing aggregate and sand used in concrete products, says building collapses could be imminent in South Africa. It warned recently that building collapses such as those seen in Ghana and Nigeria may happen in South Africa unless attention was paid to specifying appropriate materials to meet the design criteria of buildings. This year in particular there have been several reports of building collapses, the investigation of which revealed that inappropriate design and unsuitable building materials were to blame. Nico Pienaar, director of the association and also the Southern Africa Readymix Association, said incorrectly specified materials might lead to building collapses. The association’s warning follows statements from Consulting Engineers South Africa CEO Lefadi Makibinyane in July when he said corruption in the construction industry destroyed value and compromised quality. Infrastructure was mostly delivered at local level, where "corruption is rife". Expert inputs of registered consulting engineers were often dismissed early in the tender, project design and implementation process, Mr Makibinyane said. Mr Pienaar said even the size of the aggregates used in concrete, or the composition of sand used, played a role in the future strength of a structure. "For example, acidic soil may corrode certain types of stone. "The role of the engineer is therefore critical in establishing soil conditions and geological conditions for a building." The entry of unlicensed quarry and mine operators into the sand and aggregate supply industry had led to aggregates being supplied with completely different chemical compositions than what they purport to be when examined under the microscope.

Section 10 of the OHS Act potentially punishes the manufacture or supply of inferior articles or substances that is used in construction.

Tongaat mall rescue operation called off. 20 November 2013.

Durban - The labour department has taken control of a collapsed mall construction site in Tongaat, north of Durban, KwaZulu-Natal health MEC Sibongiseni Dhlomo said on Wednesday. He said heavy machinery would be brought in to remove rubble from the site following the collapse on Tuesday afternoon. Emergency workers would remain on standby at the scene once the labour department's efforts started at the site. Netcare 911 spokesperson Chris Botha said the search and rescue operation had been called off so that the labour department could move some of the rubble with heavy machinery. He said one woman was confirmed dead on the scene and 29 were hospitalised with various injuries. Police spokesperson Lieutenant Mandy Govender said three people were unaccounted for, but it was possible that more people were trapped in the debris. Labour department spokesperson Page Boikanyo said in a statement a delegation led by acting director-general Sam Morotoba would visit the scene on Wednesday. The department's deputy director-general of inspection and enforcement services, Thobile Lamati, and Compensation Fund commissioner Shadrack Mkhonto

 Yet the ANC dominated councillors voted to extend this contractor's contract? Why was DoL not pro-active in this regard as opposed to reactive.? RHL.
 

1 dead, 26 critical injured after roof collapses in KZN
20 November 2013.
 

One person was reported dead as efforts to rescue about 50 workers feared trapped on Tuesday after a roof collapse at a Tongaat shopping mall are under way. "It will take a very long time, we probably looking at an all night stint," Netcare 911 spokesperson Chris Botha told eNCA. About a 100m of concrete slabs which were about 18 inches thick had crashed to the ground. He said it was a mangled mess under the concrete. According to eNCA one worker was killed after the roof collapse. Emergency services said at least 26 people were taken to hospital with “massive traumatic injuries”. Botha said he hoped that others would be found alive. The shopping mall was under construction. "We have an unconfirmed number of 50 people [trapped inside]. It is a shopping mall which was under construction," he said. Mandy Govender, a police spokesperson, says sniffer dogs are combing the area for survivors. Ethekwini fire department chief Mark te Water confirmed a building had collapsed in the area. Workmen were trapped and his department had dispatched units to the scene, Te Water said.

Concrete slab falls on KZN mall builders. 20 November 2013.

All that mall construction worker Skhumbuzo Ngcobo saw was dust when a slab collapsed in Tongaat, north of Durban, on Tuesday, killing a woman and injuring him and at least 28 of his co-workers. “Next thing all of us were down on the floor with the scaffolding and everything. I hurt my hand, my back,” he said from a hospital bed on Tuesday night. He was three floors up on scaffolding, setting up bricks for the bricklayer to use, when the slab caved in. He heard one of his friends calling and he helped to pull him from the rubble onto the railway line. They had not been sure what else would collapse. “The only thing I could see was concrete rubble and they were taking people from under the concrete. Most of them, I thought they were dead, because that place was finished,” he said. Paramedics said two of the injured were critically hurt. It was initially reported that 50 more people were feared trapped, but the site foreman told rescue workers they may have already left for home, as the slab came down while they were knocking off. Ngcobo worked for a sub-contractor. He had been told that four people from his company, which he did not want to name, were still missing. Asked what he thought had caused the accident, the 24-year old said construction on the mall had been going too fast to allow the concrete to set. “That job, they doing it and rushing it. They wanted to do a quick job. Finish that thing. That's the thing I think went wrong.” He said that within two or three days of concrete being cast, scaffolding was being removed. “I don't think that concrete was hard enough. They were building more walls on top of the slab, the top slab.” Earlier, eThekwini deputy mayor Nomvuzo Shabalala said construction at the mall should not have been taking place. “We took them (the contractors) to court a month ago. We thought they had stopped,” she said. The municipality had approached the court because the contractors had not “followed processes”. Ethekwini Democratic Alliance councillor Brian Jaganathan said plans for the mall's construction started in 2010, when several people were forced to move from their homes to make way for the development. “I found out that in 2010 no plans had been passed. In 2012, they started building and during the last month they were working at a high pace.” He questioned why building had been allowed to continue despite the court order. Lubabalo Ntanze, whose legs were injured, said he was laying bricks when the scaffolding underneath him gave way. “I thought I was going to be dying when that wall came down,” he said, also from hospital. Thomas Miendo, 27, a bricklayer, broke his arm and bruised his leg in a three-storey fall from the scaffolding. He had heard a noise. “I thought the slab was falling down. I tried to escape, but I fell.” It was when he tried to get up, that he discovered his arm was broken. “Some of them (the other injured) were crying. Some were stuck,” he said. Sniffer dogs were combing the scene for survivors late on Tuesday night as rescuers worked by spotlight. KwaZulu-Natal health MEC Dr Sibongiseni Dhlomo said health facilities in and around Durban were on high alert to attend to the victims. Those that were already seeing to injured people were coping well. Premier Senzo Mchunu expressed his shock at the accident. “We express our condolences to the family of the person who died in this horrific accident,” he said in a statement. “We also wish those who were injured prompt recovery.” “Importantly, I am confident that all the relevant departments, such as the department of labour and eThekwini municipality, will help speed up an investigation into the causes of this accident,” Mchunu said. Fiona Moonean said she was washing dishes when the slab collapsed, directly over the railway line from her home. A few days earlier, workers had started removing the scaffolding supporting the level, she said. “Just after 4.30pm it was a thunderous sound. Before the bang, I heard too much scaffolding fall. That's when I picked my eyes up and looked through her window at the mall. “The whole concrete slab crashed down with the pillars. The smoke and dust was too thick. I heard them screaming out for help in Zulu.” She called the emergency services and a woman took down her details. “She had to calm me down because I was so freaked out. For me, the most traumatic is the sound of the guys' voices. That is the part that plays in my head,” she said.

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