Klass Looch Associates

Employer OHS Champion since 1986

Occupational Health & Safety Legislation Consultants

A read for the New Year.

DEL : Frequently asked questions relating to asbestos and the Asbestos Abatement Regulations. (Above).

Extract from Mostert vs Cape Town City Council, 2001 SCA which introduces cost versus benefit considerations into the traditional test for negligence. This aligns with the ‘reasonably practical’ approach to the duties of employers and which has been deliberately omitted in draft OHS legislation in SA.

Mr Ramsay, the only pipeline expert called on the subject, regarded the proposal as both impractical and dangerous. Dangerous in that such tests could damage the pipeline. First impracticality. Because it serves as a distribution line, a test would entail shutting off the valves in pipes leading out of it, which would lead to affected areas being without water. Moreover, the seals provided by valves that would have to be closed were so imperfect that a proper test was not feasible. As far as cost was concerned, testing would have to go on all year in order to complete one test, as it was not practicable to test more than a kilometre at a time and tests would presumably have to be performed over weekends when there was less traffic. An additional problem was, at what intervals should tests be performed? Van Rooyen was of no real help on this practical question and Ramsay did not know what the answer to it was. On top of all this (and this is the danger aspect) Ramsay was of the view that such tests could have a deleterious effect, in that they could cause joints to leak, leading to erosion of the bedding, with consequent possible damage to pipes. Van Rooyen had no effective counter to these objections, and I consider that the court a quo was correct in rejecting the proposal as a solution.
“There are ... four basic considerations in each case which influence the reaction of the reasonable man in the situation posing a foreseeable risk of harm to others: (a) the degree or extent of the risk created by the actor’s conduct; (b) the gravity of the possible consequences if the risk of harm materialises; (c) the utility of the actor’s conduct; and (d) the burden of eliminating the risk of harm.”
The classic test for negligence is stated in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G, as follows:
“For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.”
Requirement (a)(i) is satisfied. The Council could foresee in 1983 that pipes might burst again, causing property damage and consequent patrimonial loss. But as Holmes JA pointed out at 430G:
“Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case.”
It is certainly not the position that the Council has adopted an attitude of indifference, content that damage might fall upon the luckless. Active steps are taken to prevent or minimize damage. I have referred to the two-daily patrol, aimed at detecting leaks and activities near the pipeline which might cause it harm. In addition, repair crews and engineers are on 24-hour standby, to deal with bursts as expeditiously as possible when they should occur. But the question is whether the Council was obliged to go further and replace a substantial part of the pipeline. In the words of Prof JC van der Walt, quoted from Lawsa in Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776I:
“There are ... four basic considerations in each case which influence the reaction of the reasonable man in the situation posing a foreseeable risk of harm to others: (a) the degree or extent of the risk created by the actor’s conduct; (b) the gravity of the possible consequences if the risk of harm materialises; (c) the utility of the actor’s conduct; and (d) the burden of eliminating the risk of harm.”
When considerations (a) and (b) are weighed against consideration (d), affordability and proportionality between the loss which may be suffered by occupiers of land and the cost of replacement to the Council must be examined: Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 363C–H (the enquiry in that case was conducted in the context of wrongfulness, but that does not affect the principle or its application).
Returning to the facts of this case, I agree with Tebbutt J’s conclusion that it would not have been reasonable to have expected that the Council should have expended either R118 000 000 or R93 000 000 in replacing the pipeline between 1983 and 1990. Nor do I think that it is to be expected to spend a lesser, but still large sum on replacing pipes where the risk of flooding is regarded as greatest (no easy or certain enterprise to determine where).

"reasonably practicable" means practicable having regard to -
(a) the severity and scope of the hazard or risk concerned;
(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;
(c) the availability and suitability of means to remove or mitigate that hazard or risk; and
(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

OHS Act. Section 8. General duties of employers to their employees
(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

Guidelines released by the Department of Employment and Labour: What every employer and worker should know about workplace safety.
On 3 October 2024, the Department of Employment and Labour published a critical guide titled: What every worker and employer should know about health and safety in the workplace. This document outlines the key roles, obligations and rights that both employers and employees must understand to ensure compliance with occupational health and safety (OHS) laws. This guide is an indispensable tool for promoting a safe and compliant workplace.

Draft OHS Amendment Bill. Criminal Liability 37B.

(1) An employer, chief executive officer, manager, agent or employee commits an offence by contravening or failing to comply with a provision of this Act, thereby causing a person’s-
• death; Does this create a new homicide offence outside the common law crime of culpable homicide?
• permanent disablement: Repeals section 38(2) of the OHS Act which punishes negligent injury which does not discriminate based on the degree or seriousness of the injury and now only criminalises disablement?
• illness. How serious?
(2) The chief executive officer, manager, agent or employer of the employee commits an offence by performing or omitting to perform an act, if the act or omission falls within the scope of the authority or employment of the employer or employee concerned.

Draft OHS Amendment Bill. Section 14A Employees' right to leave dangerous workplace

Every employee has the right to leave any workplace whenever-
circumstances arise at that workplace which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee; or
the health and safety representative responsible for that workplace directs that employee to leave that workplace.
Every employer, after consulting the health and safety committee at the workplace, must determine effective procedures for the general exercise of the rights granted by subsection (1), and those procedures must provide for-
• notification of supervisors and health and safety representatives of dangers which have been perceived and responded to;
• participation by representatives of employer and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right;
• participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right;
• where appropriate, the assignment to suitable alternative work of any employee who left, or refuses to work in, a workplace; and
• notification to any employee who has to perform work or is requested to perform work in a workplace of the fact that another employee has refused to work there and of the reason for that refusal.
• If there is no health and safety committee at a workplace, the consultation must be held with-
• the health and safety representatives; or
• if there is no health and safety representative at the workplace, with the employees.

MHS Act. Section 23.

I stumbled upon this today. A case study of the cost and causes of the Tongaat Mall Accident in Durban by Leonarda van Eeden.

Life Esidimeni Inquest. The inquest finding that former Gauteng health MEC Qedani Mahlangu and erstwhile director of mental health care in the province Dr Makgabo Manamela should be held criminally liable for the deaths of 10 Life Esidimeni psychiatric patients will come as cold comfort to the families of all those who died or suffered as a result of this devastating episode. If there are no consequences, the whole inquisitory process will have been left incomplete — an open wound that will make it difficult for the affected next of kin to find closure. Sadly, there is also no closure for families of workers who die from workplace incidents as they never participate in DEL section 31 Investigations and formal inquests are seldom / never held. In the Mine Health & Safety Act all fatal incidents are formally inquired into and families not only participate but am afforded the right to cross-examine witnesses.

Here is an Supreme Court of Appeal (SCA) finding following an appeal against an Inquest finding.

Inquest found three companies negligent for Linkin Park concert goer's death. Cape Town - On November 7, 2012, 32-year-old Florentina Popa died from injuries caused when a scaffolding tower fell on her before a Linkin Park rock concert in Cape Town.

How could the Compensation Commissioner get it so wrong!

Registered person placed on precautionary suspension follwing George Building Collapse. Engineering Council South Africa (ECSA). 18 June 2024.

Written by the former Chief Inspector DEL.

My thanks to SAIOSH for providing me with a platform to debunk section 16 and section 37(2) of the OHS Act yesterday at the Securitex / A-OSH Exhibition on 13 June 2024.

SAIOSH CEO was interviwed on 22 May 2024 on radio 702 about the state of OHS in South Africa. He alluded to the lack of prosections for OHS incidents. For more click on https://www.primediaplus.com/listener-s-choice-how-does-occupational-safety-and-health-work-in-south-africa/

Click on the link for the video of my presentation: https://www.youtube.com/watch?v=uFroaPfKWLY

Contact Advocate Raynard Looch at raynard04@gmail.com / raynard@klasslooch.com for a quotation. Klass Looch Assciates charges a flat rate - as opposed to a fee per delegate - so you can load the number of delegates!

DEL's interpretation's of a competent Person.

Apart from the construction regulations which recognises the statutory appointments of managers, supervisors and safety officers, the current OHS Act and draft OHS Amendment Bill fail to recognise any statutory appointments with the exception of the 16(2) individual – which is not even a compulsory written appointment and the GMR2 appointments. This also contradicts the MHS Act. The UK OHS legislation has a great solution which I embrace providing for all statutory appointments albeit senior, middle managers, supervisors and even safety practitioners. It recognises the importance of devolved statutory appointments where, in the equivalent of section 8, it reads:

Every employer shall appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.
The employer shall ensure that the number of persons appointed, the time available for them to fulfil their functions and the means at their disposal are adequate having regard to the size of his undertaking, the risks to which his employees are exposed and the distribution of those risks throughout the undertaking’.

In my view the draft OHS Amendment Bill will be set aside on review. Obviously someone / entity will need to take it on review. It fails to align itself with the Constitution as I outline in this PDF. document. (These are my notes I used for my presentation at the Annual SAIOSH Conference 2023.

Above. My presentation to the Master Builders Association Western Cape on 23 February 2023 on the draft OHS Amendment Bill.

The SAIOSH Technical Commitee (TC) commenced analysiing two draft regulations (below) on 31 October 2022. I am a member & have published the TC's comments below.

Draft Noise Induced Hearing Loss Regulationsd (NIHL) and the draft Physical Agents Regulations below:

Advocate Raynard Looch presenting at a SAIOSH sponsored workshop in Cape Town on the draft OHS Amendment Bill.

No-one is immune to prosecution in terms of the OHS Act, yet it is mostly employers and users of plant and machinery who are exposed to criminal prosecution. The reason for this is to be found in the extensive duties which the OHS Act imposes upon them, thereby creating a host of legal rights for employees sections 8 and 13, persons in general (non employees) section 9, recipients of articles and substances manufactured, imported and supplied and utilised at a workplace, clients for whom articles (including structures) are designed, erected or installed. (Section 10) read with the Construction Regulations). Criminal liability emanates from the infringement of these statutory rights by employers or users. Juristic persons or corporate bodies along with natural persons such as the CEO and his or her team of section 16(2)“Assigned Persons’ are regarded as employers and users for prosecution purposes. Employers can also be held vicariously liable for wrongdoings of contractors in terms of section 37.

The duties placed upon employers & users are not absolute but are tempered with reasonability and practicability. What the Labour Court says in this regard:

‘Sections 8 and 9 therefore place a duty on the employer to act proactively to avoid any harm or injury to its employees and others. There is no standard as to what is reasonably practicable. Each case will have to be determined on its own facts and circumstances. As can be seen from the definition of reasonably practicable it involves weighing different considerations from risk evaluation, means of removing or avoiding the risk, resource availability and a cost-benefit analysis. In Edwards v National Coal Board, Lord Justice Asquith stated:

"Reasonably practicable as traditionally interpreted, is a narrower term than 'physically possible' and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measure necessary to avert the risk is placed in the other; and that, if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon who the duty is laid discharges the burden of proving that compliance was not reasonably practicable." Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others [2014] (LAC)

The broad duties of employers (mines & works) in the Mine Health & Safety Act is contained in sections 5 to 19

Employers have OHS rights too. How does an employer earn such rights?

Start by training your employees into their duties. The opposite of a 'Right' is a "Duty'. If employees have duties, employers have rights. They are not automatic rights as those enjoyed by employees but must be earned. By training employees into their duties, employers earn rights! In the OHS Act section 14 is a good point of departure. Similarly in the MHS Act start with section 22

In brief, you should know the following about us: our company was established in 1986 and had been responsible for providing outstanding legal advice, legal representation and OHS legislation workshops ever since. Our business is located in Johannesburg.

Dear Raynard Looch,

Thank you very much for attending Teaming up for Safety℠, the first virtual conference from DuPont Personal Protection. It was a pleasure for us to host the event and collaborate with our partners to prepare this 2-day digital event for you. We hoped you enjoyed the event as much as we did.

I am also proud to be associated with a body which has been established for Occupational Health & Safety Professionals. The South African Institute of Occupational Safety & Health (SAIOSH) has been established by dedicated safety practitioners for whom I tremendous respect and with whom I have been associated for decades. I encourage you to visit their website. Visit www.saiosh.co.za

Saiosh launch new OHS Legal Advice Forum

Saiosh is pleased to announce that it has secured the services of Advocate Raynard Looch to provide opinion on member's Occupational Health and Safety legal queries. The OHS Legal Advice Forum is now live and members are invited to post their OHS legal queries. This free service is only available to paid up Saiosh members.

Disclaimer:

Opinions expressed on the Saiosh OHS Legal Advice Forum reflect the personal opinion of Advocate Raynard Looch. It is accepted that other individuals may differ with his opinion or interpretation of OHS legislation which remains untested by the courts. Advocate Raynard Looch will not accept liability for any loss, including reputational damage or costs, however caused, arising from the use or reliance upon, in any manner, the opinion provided on this forum and does not warrant the truth, accuracy or completeness of the opinion provided.

The OHS Legal Advice Forum can be found on the "Professional Registration" drop down page on the Saiosh website www.saiosh.co.za

Klass Looch Associates

Employer OHS Champion since 1986

Occupational Health & Safety Legislation Consultants

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