Dear OHS Practitioners

I would like to thank all those persons who responded to my Mine Health & Safety (MHS) Act survey pertaining to suppliers of articles and substances for use at a mine. ( Section 21of the MHS Act). I went into all your websites just to ensure that I fully understood the articles and substances that some of you supplied to mines. The term ‘article’ is not defined in either the MHS or OHS Acts and, at best, the Oxford dictionary defines it as an individual object. Substances are defined as including any solid, liquid, vapour, gas or aerosol or a combination thereof. I guess it is also significant that the substance need be hazardous in order to activate duties on suppliers and to be governed by section 21 of the MHS Act. Ravesha, is a resin a hazardous substance? And I still can’t figure out whether electricity is a substance or not.

As I mentioned in an earlier article (‘article’ this time is defined as a written communication), section 21 of the MHS Act, like its section 10counterpart in the OHS Act, is very misunderstood and underrated. Both have far reaching implications and both offer suppliers, designers, manufactures, sellers and repairers written relief, in the form of a Written Undertaking by recipients of articles, to abide by specific requirements of the supplier etc. This Written Undertaking relieves the supplier etc. of broad far-reaching legal duties.

While we are discussing section 21 of the MHS Act and its OHS Act equivalent, dare I mention that I am currently representing the principal contractor in what has become known as “The Stellenbosch Collapse” case. Without compromising the sub judice rule, I can mention that I have successfully requested the Department of Labour to subpoena the supplier of the props that were utilised to support the slab that ultimately collapsed. I made this request while relying on section 10 of the OHS Act since I felt that the information furnished by the supplier of the props constituted a misrepresentation which led to a miscalculation by the principal contractor. In other words the articles (props) could not be used properly. ‘Properly used’ means used with reasonable care, and with due regard to any information, instruction or advice supplied by the designer, manufacturer, importer, seller or supplier.

It may even result in this type of prop being withdrawn entirely from all workplaces but much will depend of evidence gathered from the manufacturer in Europe. Watch this space as I predict the outcome will be quite ground breaking. At the enquiry I also questioned the scope of demolition work as the term ‘demolition’ is not defined in the OHS Act. Does it mean the entire destruction of a structure or merely breaking down of parts of a structure? A brick. A wall ? It is very important as construction regulation 12entitled ‘Demolition Work’ is very prescriptive. I should also mention that the section 32 Formal Inquiry into the matter has been conducted extremely efficiently, thoroughly and professionally by DoL. It has been postponed to hear evidence from the supplier and for legal argument. (This all has been in the newspapers anyway).

Section 21 of the MHS Act also requires erectors and installers of articles for use at a mine to ensure that the articles are safe and without health risks when properly used. This is essentially construction work since these articles being erected or installed will invariably be structures as defined in the construction regulations of the OHS Act. The same would apply to designers of structures or articles. The duties and definition of designers are also contained in the construction regulations.

As you know there is an Memorandum of Understanding between the Departments of Minerals & Energy (Mines) and Labour which provides for the construction regulations of the OHS Act to apply in these scenarios. For example the negligent (unsafe) installation of a structure at a mine, which leads to a fatal incident, could pose quite a dilemma for the National Prosecuting Authority (NPA). They would have to consider charges against the installer under the common law (culpable homicide), perhaps section 5of the MHS Act against the mine (Employer to maintain healthy and safe mine environment), section 86A– if promulgated in its present (bad) format - against the installer and mine as it is not only a statutory homicide offence but potentially imputes liability onto a mine for the offences of an ‘agent’ along the lines of section 37 of the OHS Act. Section 21 of the MHS Act against the installer and perhaps include contraventions of the construction regulations of the OHS Act can also be thrown into the mix. On the other hand, if the OHS Act applies, the MHS Act offences must fall away and I guess the charges could be culpable homicide against the installer, sections 8or 9of the OHS Act against the installer depending on whether it was an employee of the installer (section 8 of the OHS Act) or an employee of the mine that died (section 9 of the OHS Act) and charges in terms of the construction regulations. Perhaps section 10 of the OHS Act would be appropriate in that it also applies to erectors and installers of articles for use at work. Or can the NPA charge under both pieces of legislation? Without getting too legally technical, I think the NPA would only be able to use section 21 of the MHS Act or section 10 of the OHS Act against mines, in construction related incidents, as an alternative charge and not an additional charge for fear of splitting the charges. (You can’t charge someone twice for the same act or omission i.e the unsafe installation act. For example you cannot charge some for drunken driving and reckless driving but you can make the latter an alternative charge. In other words if you cannot prove alcohol impairment then at least you can fall back on the alternative charge).

Back to OHS legislation. I can safely say, based on the response to my survey, that those of you who supply equipment to the mines must take cognisance of section 21 applies. I would encourage you to embrace section 21(2) of the MHS Act along the lines of section 10(4) of the OHS Act. It is also a Written Undertaking by the recipient (mine) to use the equipment safely and to take the specified steps prescribed by you to achieve this. It has the effect of relieving you of your duty of ensuring the equipment is safe and without health risks when properly used. It only applies to designers, manufacturers, repairers, importers and suppliers of articles for use at a mine and not to erectors or installers of articles for use at a mine. The latter is essentially construction work as defined in the OHS Act. Many of you supply hazardous substances to mines and your duty of providing adequate information about the substance is quite clear. You cannot resort to any Written Undertakings to relieve you of those duties along the lines of section 21(4) of the MHS Act. I would recommend that employers performing construction work on mines ensure that all role-players are clear as to which piece of OHS legislation applies and that the mine management embrace OHS Act appointments. I believe they often are suspicious of appointments outside the MHS Act. Appointments in terms of the MHS Act can anyway easily be gelled with their OHS counterparts. Mines may not always be aware of their duties as clients in terms of construction regulation 4. There is no harm is spelling out these duties in a contract or referring in a contract to the applicability of the construction regulations of the OHS Act.

I will be exploring this and more at my forthcoming open OHS Legislation Workshops which kick off in October and November. Early Bird Discounts end 31 August 2009 so catch the first worm!

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