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Spammer v S [2009] (C)
Mini Summary
The appellant was charged with contravening safety regulations by installing an electric fence in a manner that could lead to persons coming into contact therewith inadvertently. She was convicted and sentenced to a wholly suspended sentence of 30 days' imprisonment.
Held that the key question was whether the trial court had erred in finding that the appellant had been negligent in installing the fence without ensuring inadvertent harm to third parties.
At the heart of the matter, was the adequacy of the charge sheet. The appellant's representative had attempted in vain to bring to the magistrate's attention that the charge sheet lacked a key element. The ignoring of the objection was a misdirection which warranted the appeal being upheld.
NDITA J
Introduction
[1] The appellant was charged in the Magistrate's Court, Montagu with two offences. The first offence was that she had with contravened section 38(1)(b) of the Occupational Health & Safety Act 85 of 1983 but she was discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977. The second charge against the appellant was that she had contravened regulation 11(6)(a) of the Electrical Machinery Regulations in that she had caused to be installed in her premises an electric fence in a manner that persons could inadvertently come into contact with it. She was convicted and sentenced to 30 days' imprisonment which was wholly suspended on certain conditions. She now appeals against both conviction and sentence.
[2] The applicable regulation reads as follows:
"1
Electric Fence . . .
(6)
When an electric fence is installed along a public road or in an urban area the user shall–
(a)
as far as practicable mount the electrified wires or articles in such positions that persons cannot inadvertently come into contact therewith . . ."
The charge reads as follows:
"Dat die beskuldigde is aan die misdryf van (sic – 'die oortreding van die Bepalings Van Regulasie 11(6)(a)) van die elektriese masjinerieregulasie deurdat sy gedurende 2005 toegelaat het dat 'n elektriese heining op haar perseel opgerig is wat dit moonlik gemaak het dat persone abuis daarmee in aanraking kom."
[3] The first ground of appeal is that the charge does not contain essential averments in particular with regard to the mens rea and as such does not disclose an offence. Secondly, even if it did, on the evidence presented, no offence has been proved. Before considering each of these submissions, it is necessary to set out the factual background.
[4] As earlier stated, the appellant was charged with erecting an electric fence in her premises during 2005. At the commencement of the trial, Mr Spammer, who represented the appellant, indicated that he wanted to address the court on the charge which, in his opinion, was unclear. It does not appear that he fully addressed the court on this issue but he did place on record the fact that the charges were not clear. The magistrate ruled that sufficient information had been provided in the charge-sheet.
[5] The evidence tendered in support of the allegation was that before the appellant installed the electric fence, she approached Mr Vorster in order to establish the requirements, should she install it. Mr Vorster's response to the query was that although he did not have any experience in matters of this nature, he did not believe that she would encounter any problems but she should ensure that installation complied with the South African Bureau of Standards ("SABS"). After the appellant had consulted him, certain complaints regarding the fence were lodged whereupon he decided to visit the premises. On his arrival he found a certain Mr Elstadt who was busy erecting the fence. Although Mr Vorster did not have any experience in such matters, he took the measurements and found some of the places whereon the fence was installed to be a little above one metre. In his opinion, because of this reason the fence was not safe. However, Mr Elstadt informed him that the fence was being erected in accordance with SABS standards. Further complaints were received and that culminated in the visit by Mr Boegervennig and Mr Cupido who issued notice in terms of section 30(1)(b) of the Act directing the appellant not [to] activate or energise the portion that was less than 1,8 metres. It is common cause that it was only the portion of the fence that was in the region of 1.1 metres that was the basis of the charge. Furthermore, it appears from the photographs that the property lay on a slope and a vibacrete wall had been raised up. In addition, the electric fence followed the decreasing gradient. None of the witnesses testified in relation to the terrain on the lower parts of the electric fence. However, the photographs depict that there are plants, shrubs and trees on the lower area.
[6] In the light of the above, the crisp question is whether the trial court misdirected itself in finding that the appellant was negligent in installing an electric fence without ensuring "as far as was practicable" that no persons could inadvertently come into contact with live wires.
[7] In considering the above, it seems prudent to first consider the prior question: whether the court a quo erred in coming to the conclusion that the charge-sheet disclosed an offence.
[8] The essential elements of the crime created by regulation 11(6)(a) are the following:
1.
The installation of an electric fence next to a public road or in an urban area;
2.
An omission to monitor the electric wires as far as is practicable to ensure that persons will not inadvertently come into contact with it.
It is clear from the above that guilt is in the form of culpa.
[9] The purpose of a charge-sheet is to inform an accused person of the charges he or she is facing and should clearly set out all the elements of that particular offence to enable an accused person to conduct a proper defence. This is a fundamental principle of the right to a fair trial. In the present matter the charge-sheet only shows that the offence against the appellant is that she allowed that an electric fence be erected in her premises during 2005 that made it possible that persons can come in contact by mistake. It is always possible that wherever any electric fence is installed people will come in contact with it by mistake. What creates an offence is the failure, as far practicable, to ensure that persons do not inadvertently come into contact with live electric fence. In the present matter, the charge-sheet clearly does not include the words the failure to ensure "as far as practicable" that people do not inadvertently come into contact with it. In my view, the charge-sheet is deficient to the extent that it does not disclose what forms the basis of the appellant's culpability. The deficiency in the charge-sheet operated to the prejudice of the appellant who sought to understand the basis for liability.
[10] The charge as it stands does not even allege a recognisable offence (see S v Dhludhla 1968 (1) SA 459 (N) at 462). Furthermore, this defect cannot be salvaged by the provisions section 88 of the Criminal Procedure Act 51 of 1977 which provides that, where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the offence. It is clear from the record that the appellant's legal representative in the court a quo at least attempted to bring to the attention of the magistrate that the charge-sheet lacked an essential ingredient. The magistrate ignored the objection and merely retorted that the charge-sheet contained sufficient information to enable the appellant to plead. This is a misdirection. Malherbe AJ in S v Gaba 1981 (3) SA 745 (O) at 746H reaffirmed the principle that:
"Where the existence of a legal duty is not averred in a charge sheet, and the charge sheet is not amended, notwithstanding the fact that the defect was brought to the attention [of the] court at the commencement of the trial and such legal duty is 'an essential ingredient of the relevant offence', such defect cannot be cured by evidence, in terms of s 88 of the Criminal Procedure Act 51 of 1977, at the trial proving the matter which should have been averred."
On this ground alone, in my view, the appeal should succeed.
[11] For the sake of completeness, I turn to consider whether the evidence falls significantly short of the measure required to sustain a conviction. On Mr Vorster's version, the appellant made enquiries regarding problems she was likely to encounter if she erected an electric fence. He told her that if she complied with SABS standards she should not encounter any problems. Mr Vorster was present when Mr Elstadt erected the fence. It is further common cause that the officials had adopted the SABS code of practice as guideline but these have no foundation in law. Various safety standards were incorporated into the Machinery & Occupational Safety Act 6 of 1983 in terms of GN R1594 dated 5 August 2008. However, no safety standards were incorporated with regard to regulation 11 under which the appellant has been charged. No inspection in loco was conducted in the course of the trial and for that reason it becomes difficult to understand on what basis the magistrate came to the conclusion that the appellant failed to mount the electrified wires in such positions that persons could inadvertently come into contact therewith. On the one side, direct access to the electrified wires was blocked by a wall, on the other side by extensive foliage. In my view, on the evidence presented the trial court misdirected itself by returning a verdict of guilt against the appellant and for that reason the appeal should be upheld.
[12] In the circumstances, the appeal succeeds and the order of the court a quo is set aside and replaced as follows:
The accused is acquitted.
(Davis J concurred in the judgment of Ndita J).
In Fry v Huletts Aluminium 2009 the plaintiff, a contractor, sued Huletts Aluminium for damages after being burnt in a fire. Although a civil as opposed to criminal case, the plaintiff relied on the General Safety Regulations to bolster his claim for damages. The court found that the General Safety Regulations places no duty on an employer vis-a-vis contractors and, along with other evidentiary proof, dismissed his claim.
I find it odd that the plantiff did not rely on section 9 which places duties on employers to ensure that their activities do not cause harm to non employees. (Persons). The claim would have been dismissed for other reasons though.
Engineering Council of SA & another v City of Tshwane Metropolitan Municipality & another [2008] (T)
The second applicant was an engineer registered with the first applicant, a professional body registered under section 18 of the Engineering Profession Act 46 of 2000 ("the EPA"). In his position as Managing Engineer: Power System Control ("PSC") with the first respondent, a local authority, he had refused to co-operate with the appointment of certain black people who had obtained excessively low marks in performance tests which were part of the selection process. He considered, inter alia, that it would be a danger to the public to appoint them as PSC operators. Conflict developed between the first applicant and one the municipality's General Managers who had informed the first applicant that, given the employment equity numbers, candidates who "did not comply with equity requirements" would "not be listed at all". As a result certain appointees were removed from the list. In response the second applicant raised his concerns with other officials and warned them of his intention to report the matter to the Department of Labour, which he did. In addition he asked to be relieved of his duties under regulation 2(7) promulgated under the Occupational Health and Safety Act 85 of 1985 ("OHSA") related to an obligation to ensure various safety requirements. A few months later he was called before a disciplinary enquiry where he was charged with misconduct for writing the letter to the Department of Labour "without authority". When the matter was postponed the applicants approached the high court for urgent interim relief to interdict the respondents from proceeding with the hearing pending the outcome of this application for a final interdict to restrain the respondents from imposing disciplinary sanction on the second applicant. His defence against the charge of misconduct was that he had had a duty to make the disclosure, which was protected under the EPA, the OHSA and the Protected Disclosures Act 26 of 2000 ("the PDA"). Held that in terms of section 39(2) of the EPA a registered person who, in the public interest, refuses to perform an act, or informs the council or other appropriate authority of an act performed by any other person which is likely to endanger the health or safety of the public or fellow employees, is not liable for that refusal, omission or information. In addition, section 26 of the OHSA forbids victimisation of employees who give information to the Minister "or any other person charged with administration" for refusing to do anything which he is prohibited from doing in terms of the OHSA. The court could therefore not conclude that disciplinary proceedings against the second applicant were lawful. Held that section 15(4) of the Employment Equity Act 55 of 1998 forbids employers to take any decision that would establish an absolute barrier to the employment of people who are not from "designated groups". In the circumstances, the court could not express approval for actions taken by the respondents which were aimed at achieving equity transformation regardless of safety considerations. There had to be a sensible balance between employment equity and safety. Held that the second applicant's disclosure was protected under sections 2(1), (3), 4(1) and 9 of the PDA. He had informed senior officials about his intentions, there was no evidence that they had objected. The applicants had established that the second applicant had a "clear right" to a final interdict. He had no alternative remedy; the application had to succeed. The respondents were accordingly interdicted from imposing any disciplinary sanction against the second applicant.
In SACTWU obo Ramafoko / Bader SA (Pty) Ltd [2007] (CCMA) the employer had charged, in a disciplinary hearing, an employee with sabotage of a safety device or the deliberate misuse of company property, as well as making false reports to a company representative about the results of (safety) test. The facts related to a test required to be done by the company, to assess certain health risks associated with its operation. The employer alleged that the employee had deliberately manipulated the test so that a high risk was revealed. It instituted disciplinary action and dismissed the employee. The latter referred a dispute to the CCMA, alleging that his dismissal was substantively unfair. It was held that the evidence satisfied the arbitrator that the employee had indeed sabotaged the test. The dismissal was therefore fair, and the case dismissed. The employer could have contacted DoL as it is a crime in terms of section 38(1)(n) for any person to tamper with safety equipment or even section 38(1)(p) for a person to willfully or recklessly does anything at a workplace or in connection with the use of plant or machinery which threatens the safety or health of any person. It could have been a nice test case but my guess is that it would have gone nowhere if DoL was involved.
In terms of section 23 of the Mine Health & Safety (MHS) Act workers have the right to leave a dangerous workplace. Employers are required to establish procedures for the exercise of this right and the resolution of problems arising from workers exercising this right. By implication workers enjoy the same right in section 14(c) of the OHS Act. Section 34 of the NOH&S draft Bill envisages to provide workers with this explicit right along the lines of the MHS Act. Can the exercising of this right be tantamount to a strike? The onus is on NUM to prove this fact. They allege that the quarry was unsafe hence they withdrew their labour. He who alleges must prove. The following facts militate strongly against the fact that the working place was unsafe:
1. The applicants (stockmen) remained and continued to work in the 'unsafe' working environment. They testified that they were prepared to sacrifice their safety by guarding the slates they had excavated. Surely if the place was that unsafe one would expect them not to remain in the quarry for a period of about 14 days.
2. The issue of unsafe working conditions was raised for the first time in the pre-trial conference. This can only lead to one conclusion. The safety issue was truly an afterthought.
Accordingly no evidence has been presented to substantiate the fact that the quarry was unsafe. The court is not in a position to find that the quarry was indeed unsafe. On the contrary, there are sufficient factors referred to earlier which suggest that the quarry was indeed safe. If it was not, then the stockmen could have evacuated the quarry from day one of unsafe conditions. The court found that section 23 of the MHS Act did not apply and that it could therefore not be used as an excuse to strike.
During an armed robbery at appellant’s business premises, the Mrs Rieck (respondent), an employee of the appellant, was taken hostage by the robbers when making their getaway. The respondent alleged that the appellant's security personnel had fired shots at the getaway vehicle, and that one of those shots had hit her in the elbow. Alleging that the security staff had acted negligently, and that the appellant was vicariously liable for those actions, respondent successfully sued appellant for damages. The grounds of negligence were that the security staff was aware that respondent was in the getaway vehicle, and must have realised that she could be injured if they shot at the getaway vehicle. The present appeal was noted against the trial court’s findings. The court ruled that the trial court was correct in its findings on the issue of negligence and the appellant’s vicarious liability. The only remaining issue was whether the claim against the appellant was excluded by section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, which provides that no action shall lie by an employee for the recovery of damages in respect of any occupational injury resulting in the disablement of such employee against such employee’s employer. The appellant relied on this section to claim protection against a claim such as the respondent’s. However, the court noted that the respondent was in fact employed by a labour broker who contracted her services out to the appellant. Thus the appellant could not claim indemnity under section 35 and the appeal was dismissed.
