Klass Looch Associates

Employer OHS Champion since 1986 

 

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.