Much of my time has recently been consumed by the draft amendments to the construction regulations. The window for comment has closed and we await either the promulgation or an amended set of draft regulations. I am quite sure how it works but wonder how much of the comments will be included.
Without going into too much detail, I anticipate problems with overall authority at construction sites. It was quite obvious from the duties that are placed on clients that the majority of clients will need to appoint an agent to discharge these duties. Also that the agent will have to have extensive OHS construction experience. In fact the agent has more duties than the client. The client is empowered to stop any construction on a site which deviates from the client’s H & S Specifications or principal contractor’s H & S Plan or any activity which poses a threat to the health and safety of persons. Such deviation or threats assumedly will be detected during audits which must be conducted at least every 14 days. The client thus has overall authority and must stop work if such deviations or threats occur and may overrule any objections from contractors. It suggests that the clients have specialised construction expertise lest construction work be unnecessarily stopped resulting in a stand-off with contractors. The client is also duty-bound to investigate any fatality or permanent disabling injury and to submit a report to the inspector who is conducting an investigation in terms of section 31 of the OHS Act followed by a report within 30 days of remedial steps. (Not section 24 as construction regulation 4(3) reads). It is unclear whether the client must wait to be directed by an inspector before investigating and reporting these incidents or whether the inspector will direct the nature/ thrust / contents of the report. (Where a fatality or permanent disabling injury occurs on a construction site, the client must provide the provincial director with a full report as directed by the inspector who is conducting the investigation under section 24 of the Act, and must include the measures that the client intends to implement within 30 days to ensure a safe construction site as far as is reasonably practicable).
This means that if an incident occurs involving a contractor, the contractor must investigate the incident as per General Administrative Regulation 9 and merely record the findings on Annexure 1. Unlike the client the contractor is not obliged to submit a full report to the inspector including the 30 day remedial deadline. There is no explicit prohibition on a joint client / contractor investigations and I assume if this is done, a full investigation report will have to be submitted to the inspector. Perhaps the inspector can direct a joint investigation?
In all likelihood a client will routinely have to appoint a competent agent to discharge its duties. An agent is defined a as any competent person who acts as a representative for a client in managing the overall construction work performed for the client. The agent sounds more like a project manager in terms of this definition. Is there a difference? The regulations make no provision for the appointment of project managers although there is reference to project management in construction regulation 5(b)(vi) where agents are obliged to (audit) debrief the client’s project management and principal contractor before leaving the premises after a safety management system audit. Perhaps a client should merely fall back on section 16(2) when appointing project managers – if indeed there is a difference between an agent and project manager.
While most of the duties of a client can be transferred to an agent, I find it odd that an agent’s duties actually exceed that of a client. Clients who do not appoint an agent appear not be obliged to conduct safety management system audits. (Clients must merely ensure that the health and safety plan is implemented and maintained on the construction site and that periodic health and safety audits at intervals mutually agreed upon between the client and principal contractor are conducted - but at least every 14 days). These audits by agents must include inspections, surveys, monitoring, incident investigations, complaints and audit debriefing.
To avoid overlapping duties, to control personalities/egos, I recommend that contracts between clients and principal contractors / contractors be used to regulate some of these blurry situations listed above. Call me a pessimist but I anticipate problems.
More on the draft construction regulations to follow.
Dear OHS Practitioners
I continue to look at aspects of the OHS Act Working Documen6t which will form the foundation of the new OHS Act. After the prolonged debate surrounding section 16 of the OHS Act, in particular the assignment of duties emanating from the CEO in terms of section 16(2), I’m sure many of you will be curious as to the future scenario. Will the proposed new Act place more onerous duties on the CEO, clarify the manner in which the CEO creates a team to assist in his or her duty of ensuring compliance with the Act and finally lay the delegation vs. assign debate to rest. Will it oblige an entirely new system resulting in a massive OHS organisational restructure?
The good news is that no real major changes are proposed. The CEO will still be the person ultimately responsible to ensure compliance as it currently is the case with both the OHS and MHS Acts. However, via an almost innocuous subsection, CEOs may find themselves more easily in trouble than before. That is to say if a CEO does not decide to transfer all his or her OHS obligations to another member of the Board, something which the current MHS Act does allow in section 2A(3). That Act as well as the Bill essentially provides for two CEOs. One, the CEO in the traditional sense or overall CEO, and, the other, the CEO for OHS purposes only! Section 11(4) of the *Bill reads ‘If the employer or person conducting a business or undertaking is a corporate body, the responsibilities of the chief executive officer in terms of sub-sections (1) and (2) may be performed by a member of the board of the body corporate, designated by the board’. The innocuous provision I mentioned requires explicit overseeing and monitoring by the CEO something which neither of the existing OHS statutes (explicitly) requires. Most CEOs would, however, find it condescending to be told how to properly assign or delegate duties but it is something that SHE advisors and auditors may need to take into consideration when providing advice or auditing. Monitoring and overseeing are the foundations of a proper delegation or assignment but some CEOs may fall foul of the Act if they, particularly after an incident, could not provide any tangible proof of such monitoring or overseeing. As with any delegation or assignment of duties, the further removed the CEO is from the workface, the less monitoring would be appropriate to demonstrate reasonable monitoring. The Bill has omitted the requirement of both the OHS and MHS Acts that the assignee act subject to the control and directions of the CEO but, in my view, the monitoring requirements includes the control element and even goes further.
Like the OHS and MHS Acts the Bill does not oblige a CEO to assign any responsibilities but unlike the current situation, if a CEO opts to assign, then it must be done in writing, a practice which in any case has become the norm. Naturally a CEO would grasp the opportunity of utilising this provision, not only to cushion his or her potential criminal liability but also to establish a functioning Employer Health and Safety Structure which ultimately is headed by the CEO. Interestingly enough the Bill does not require an assignment to a person who acts subject to the (direct?) control and directions of the CEO!
Perhaps equally condescending is the provision in section 11(2)(b) which provides that the CEO must ensure that any person who is assigned any responsibility has the means and capacity to comply with that responsibility. As with any delegation or assign of duties, it would ‘upfire’ if, for example, post an incident, it appears that a CEO assigned duties to an incompetent person or failed to provide them with sufficient resources to discharge the duties.
The bottom-line is that you can still adopt the cascading or devolution approach whereby the CEO assigns his or her duties to an individual who in turn assigns down the line. It remains an in house arrangement and is no one else’s business except yours. SHE practitioners and auditors should avoid recommending rigid or impracticable structures, particularly those who belong to the delegatus delegare non potest school which contains an Administrative Law restrictive requirement preventing a delegator from providing for further delegation. I stick to my assessment of section 16(2).
Public companies should take cognisance of the introduction of a new appointment namely that of the Health & Safety Director in section 12 of the Bill. This individual will have far more onerous health and safety duties than the CEO including reporting functions to the Board on health and safety matters. Failure to perform these more prescriptive health and safety functions may cause the Health & Safety Director to end up in court. This individual may not be the CEO and his or her appointment will not necessarily relieve the CEO of any potential criminal liability in terms of the new proposed Act.
(4) For the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.
MHS Act Section 2A. Chief executive officer charged with certain functions
(1) Every chief executive officer must take reasonable steps to ensure that the functions of the employer as contemplated in this Act, are properly performed.
(2) Without derogating from any responsibility or liability of the chief executive officer in terms of subsection (1), the chief executive officer may entrust any function contemplated in the said subsection to any person under the control of the chief executive officer, which person must act subject to the control and directions of the chief executive officer.
(3) If the employer is a body corporate, the functions of the chief executive officer contemplated in subsections (1) and (2) may be performed by a member of the board of the body corporate designated by the board.
(4) Subsections (1), (2) and (3) do not relieve an employer of any duty imposed on employers by this Act.
(5) Every person appointed in terms of section 3 or 4(1) must perform their functions subject to the control and direction of the chief executive officer or the person contemplated in subsection (3).
A public company is a corporation owned by the public and it has a minimum of seven shareholders. The word “Limited” will appear at the end of the company’s name. The registration of a public company involves the following:
Shares are offered to the public.
Although there is no limitation on the maximum number of shareholders, there must be a minimum of seven.
There is no limit on the transfer of its shares.
The word "Limited" will appear at the end of the companies’ name.
The company must make certain information known to the public.
This type of business is normally very capital intensive.
There is a minimum of two directors.
* Bill = Proposed new OHS Act Working Document
Dear OHS Practitioners
Many of you have been wondering about the future of the OHS Act in view of the fact that a draft National Occupational Health & Safety (NOH&S) Bill has been floating around for some time. The NOH&S draft Bill envisaged lumping the OHS and MHS Acts together in one OHS Act with one OHS Authority, comprising the current MHS Inspectorate and DoL’s I&ES, as the enforcement body. An undertaking was made in this regard to the International Labour Organisation (ILO) by means of a treaty. A treaty is a binding international contract. It now appears that South Africa is going to renege on that treaty and abandon the idea of a national OHS Act. The MHS Act will remain as is and the current 1993 OHS Act will be repealed. My information is that the review and ultimate publication of a draft may be fast tracked although I have my doubts as to whether we will see a draft this year. (We are still waiting for the amendments to the construction regulations to be promulgated).
The new Act will be almost identical to the draft Bill save that mines will be omitted. All references to the National Occupational Health & Safety Authority will merely be deleted and replaced by the Chief Inspector. Fortunately most of us have a good idea what the new Act will entail since the draft NOH&S Bill was leaked about two years ago. I have even presented workshops on the draft Bill and written numerous newsletters on it which I will regurgitate in time.
I personally am disappointed. Not necessarily because the Department of Mines successfully resisted attempts at integration but because the Authority would have had a (semi) autonomous status along the lines of the UK’s Health & Safety Executive (HSE). OHS should be removed from the clutches of the Department of Labour (DoL) which has virtually destroyed the effectiveness of the Inspectorate since 1996. Numerous attempts to rectify the failed transformation exercise which saw an exodus of experienced inspectors have in turn failed and no amount of new legislation will rectify the situation. In fact I doubt a new Act will have any impact unless the standard of inspectors and thus enforcement is drastically improved. You may recall that DoL desperately turned to outsourcing investigations and inquiries a few years ago, the irony being that these outsourcing companies consisted entirely of former inspectors. These inspectors should have been retained at all costs in order to mentor the new recruits. Perhaps more than any other profession the key to competent inspectors is retention since experience is vital.
But it seems as if the problem is not merely confined to DoL. The Mining Audit which former President Mbeki ordered also revealed that the National Prosecuting Authority (NPA) is to blame for poor performance. It revealed that out of 218 MHS Act cases, probably mostly fatal accidents, where charges of culpable homicide could be brought, only 4 had been concluded since 2004! Unlike the OHS Act, the MHS Act requires a (formal) inquiry into any mining fatality which generates a recorded transcript. This, coupled with a more experienced Inspector’s Report, is a luxury for any prosecutor - yet they seem reluctant to touch OHS criminal matters. NUM invariably has legal representation which also provides the prosecutor with a tested version of events. You can only imagine a prosecutor’s dilemma when confronted by an OHS Act section 31 Inspector’s Report. (One of the positive spin-offs of the proposed new Act will be that an inspector will be compelled to furnish the employer with a copy of the Report – something I have moaned about for decades).
I have copied the chapters of the draft / discussion document which are relevant. (I have omitted the chapter pertaining to the Authority since it no longer will be applicable).
I read between the lines that a proposal is may be on the table to penalise employers for OHS crimes with a percentage of the profit in addition to a fine. Certain employers may require a permit to operate along the lines of the old Factory Registration Certificate that existed decades ago. Contraventions of the Act could result is Permits being withdrawn.
Administrative Fines, proposed by inspectors, will be introduced in lieu of prosecutions and this could prove problematic given the experience of most inspectors.
You may wonder why the statutory crime Corporate Homicide is necessary given that corporate bodies may be convicted of the common law crime of culpable homicide. The potential of a culpable homicide charge for companies will remain since Corporate Homicide will be a lesser charge but the introduction of a statutory homicide charge, perhaps for the first time in our criminal law history, will allow inspectors - also for the first time - to recommend homicide charges. As the name suggests, it will be limited to corporate bodies and inspectors will not be able to recommend homicide charges against natural persons. Only the NPA will be able to do this post a fatal workplace accident.
I will keep you briefed on developments.
I am proud to be associated with a new 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 http://www.saiosh.com/
Regards
Raynard
TABLE OF CONTENTS
CHAPTER 1
1. What is the objective of this Act?
2. To whom does this Act apply?
3. Application to sectors with specific health and safety legislation
4. What is work?
5. What is a workplace?
6. Who is a worker?
7. Who is a self-employed person?
8. Who is an employer?
9. Who is a person who conducts a business or undertaking?
10. Interpretation
11. Responsibilities of chief executive officer
12. Appointment of health and safety director
CHAPTER 2
13. Application
14. Duties of employers
15. Duties of person who conducts a business or undertaking
16. Duties of self-employed persons
17. Duties of persons in control of workplace
18. Duties of persons in control of machinery or plant
19. Duties of persons who share workplaces
20. Duties in respect of articles used at workplaces
21. Duties in respect of design or construction of workplaces
22. Duties of persons in respect of hazardous substances
23. Complying with duties in terms of Part One
24. Health and safety management system
25. Duty to identify hazards and prevent or minimise risks
26. Employer to provide health and safety training
27. Duty to ensure adequate supply of health and safety equipment
28. Appointment of persons
29. Employer to investigate accidents and other occurrences
30. Costs of examination
31. Record of hazardous work
32. Record of medical surveillance
33. Duties for health and safety of persons at work
34. Worker’s right to leave dangerous working place
35. Workers not to pay for safety measures
36. No discrimination against workers who exercise rights
37. Workers’ right to information
38. Defences
CHAPTER 3
39. Application of this Chapter
40. Which workplaces must have health and safety representatives and committees?
41. Immunity from liability and protection from discrimination
42. With whom must employer consult or negotiate?
43. Subject matter of consultations or negotiations
44. Collective agreements in terms of this Chapter
45. Who may be a representative?
46. How do employees elect representatives?
47. What are the rights and powers of representatives?
48. How must the employer assist representatives?
49. When must employer notify representatives?
50. When may workers elect full-time health and safety representatives?
51. Establishment of health and safety committees
52. Committee procedures
53. Rights and powers of health and safety committee
54. Duty to support committee
55. Disclosure of information
56. Disputes concerning this Chapter
57. Disputes concerning disclosure of information
58. Disputes concerning full-time health and safety representatives
59. Minister’s power to make regulations
CHAPTER 5
85. Appointment of inspectors
86. Entry into places
87. Power to question and inspect
88. Inspector may be accompanied
89. Duty to assist inspector and answer questions
90. Duty to produce documents required by inspector
91. Inspector’s power to deal with dangerous conditions
92. Inspector’s power to order compliance
93. Instructions to be publicised
94. Right to appeal inspectors’ decisions
95. Right to appeal Chief Inspector’s decision
96. Appeal does not suspend decision
97. Initiating investigations
98. Chief Executive may designate assistant in investigation
99. Duty to answer questions during investigation
100. Reports on investigations
101. Initiating inquiries
102. Inquiry in respect of matter that has been investigated
103. Chief Inspector may designate assistant in inquiry
104. Inquiry to be public
105. Right to participate in inquiry
106. Powers of person presiding at inquiry
107. Duty of persons summoned or instructed
108. Inquiry records and reports
109. Chief Inspector may order further inquiry
110. Enhancing effectiveness of inquiry
111. Inquiry and inquest may be conducted jointly
112. Review of decision
CHAPTER 6
113. Power of Minister and Chief Inspector to regulate health and safety
114. Regulations
115. Incorporation of standards into regulations
116. Codes of practice
117. Chief Inspector may prohibit or restrict work or declare health hazards
125. Commission of offence by employee or mandatory
126. Safety equipment not be interfered with
127. Breach of confidence
128. Hindering administration of this Act
129. Falsifying documents
130. Failure to attend when summoned
131. Failure to comply with this Act
132. Penalties
133. Magistrates’ Court has jurisdiction to impose penalties
134. Proof of facts
135. Recommendation to impose administrative fine
136. Decision in respect of administrative fine
CHAPTER 8
137. Delegation and exercise of power
138. Serving documents
139. Minister’s power to change Schedules
140. Repeal and Amendment of laws
141. Transitional arrangements
142. Act not effected by agreement
SCHEDULES
SCHEDULE 1: Matters on which the Minister may make regulations
SCHEDULE 2: Maximum fines or period of imprisonment
SCHEDULE 3: Acts amended or repealed by this Act
SCHEDULE 4: Transitional provisions
SCHEDULE 5: Definitions
Ever since the construction regulations were promulgated in 2003, employers / owners of structures have struggled with the interpretation of construction regulations 9(4) and 9(5). Only recently did the real implications of a rigid interpretation dawn on me and so I have decided to approach DoL for their opinion / interpretation.
With this in mind I thought some of you risk managers which risk an opinion. I have published the draft of the letter to DoL on my website on http://klasslooch.com/43601.html in the hope that we can get a debate going. I have had an OHS Forum button on www.klasslooch.com for some time now but feel perhaps now is the right time to revive it. I expect to hear from Eddy, Basie and Sivi!
Construction Regulation 9 (4) Any owner of a structure shall ensure that inspections of that structure upon completion are carried out periodically by competent persons in order to render the structure safe for continued use: Provided that the inspections are carried out at least once every six months for the first two years and thereafter yearly and records of such inspections are kept and made available to an inspector upon request.
Construction Regulation 9(5) Any owner of a structure shall ensure that the structure upon completion is maintained in such a manner that the structure remains safe for continued use and such maintenance records shall be kept and made available to an inspector upon request.
"competent person" means any person having the knowledge, training, experience and qualifications specific to the work or task being performed: Provided that where appropriate qualifications and training are registered in terms of the provisions of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), these qualifications and training shall be deemed to be the required qualifications and training.
"structure" means -
(a) any building, steel or reinforced concrete structure (not being a building), railway line or siding, bridge, waterworks, reservoir, pipe or pipeline, cable, sewer, sewage works, fixed vessels, road, drainage works, earthworks, dam, wall, mast, tower, tower crane, batching plants, pylon, surface and underground tanks, earth retaining structure or any structure designed to preserve or alter any natural feature, and any other similar structure;
(b) any formwork, false work, scaffold or other structure designed or used to provide support or means of access during construction work; or
(c) any fixed plant in respect of work which includes the installation, commissioning, decommissioning or dismantling and where any such work involves a risk of a person falling two meters or more.
I won’t repeat the draft letter save if you cannot access it but the dilemma revolves around the following:
1. How in depth must these inspections be?
2. What level of competency is required?
3. Do the regulations only apply to structures than have been completed post 2003 when the construction regulations were promulgated?
Of course the cost factor is of major concern especially if the intention is that structures be thoroughly (forensically) tested. Very few owners of structures will have the expertise to fulfil this requirement particularly if the intent is a thorough forensic inspection. They would in variably have to outsource this function or recruit specialists to perform this task. But then again owners of structures can only act within the bounds of reasonability and practicability and the cost factor surely forms part of the definition / guideline.
"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.
Perhaps designers should be given a statutory duty of compiling a checklist for owners upon completion? (Don’t shoot me Basie)!
Are owners absolved of any duty of ensuring a structure remains safe for use which were erected before the promulgation of the construction regulations –that is to say - if the duty of inspection at annual intervals only applies post 2003? No. Owners, as controllers of the safety of a structure, have a common law duty of ensuring the structure remains safe as well as a broad based (section 8) duty to employees and to the public (section 9) particularly if employers are owners.
There have been some interesting court cases lately as well. In Engineering Council of SA & another v City of Tshwane Metropolitan Municipality & another [2008] (T), the Gauteng North High Court ruled in favour of a whistleblower who informed the Department of Labour that the Tshwane Metro had lower standards to allow unqualified / under qualified persons to perform hazardous electrical tasks. This despite being protected by section 26 of the OHS Act entitled Victimisation Forbidden. The Tshwane Metro dismissed him for writing a letter to the Department of Labour without authority. The High court ruled in his favour but the Tshwane Metro, using taxpayers’ money, decided to take the matter to the Constitutional Court. The case will continue on 4 May 2010 but, judging from remarks made by the judges as reported in the media, is seems likely that safety will prevail over other (equity) considerations and section 26 will prevail.
In Chartaprops 16 (Pty) Ltd & another v Silberman 2008 SCA Mrs Silberman, whilst at a shopping mall owned by Chartaprops, (the first appellant), the Mrs Silberman (respondent) slipped on a substance on the floor, and had injured herself. The second appellant was an independent contractor ( cleaning company) which the Chartaprops had contracted to keep the floors clean. Mrs Silberman respondent successfully sued both appellants for damages in the High Court , leading to the appeal. The Supreme Court of Appeal (SCA)ruled that the Chataprops had tasked the cleaning company appellant (independent contractor) with going over the floor at intervals of no more than five minutes. As owner of the mall, it was required to take no more than reasonable steps to guard against foreseeable harm to the public, which it had done by engaging an independent contractor.
The SCA found that the independent contractor had done what was required of it, and held Chartaprop liable for the damages and not the independent contractor. Does it amount to a civil version of section 37 of the OHS Act?
The formal inquiry into the Paarl Print fire in which 13 people died and which occurred on 17 April 2009 is currently under way. From media reports it seems as if the union (Ceppwawu) legal representative is focus on training for emergency situations. I imagine he is focusing on the section 8 duty placed on employers to ensure employees are trained into the pre cautionary measures against fires as well as Environmental Regulations for Workplace 9 ‘Fire precautions and means of egress’.
In the next newsletter I will discuss the implications of another challenge to section 35 of the COID Act which prohibits civil suits by employees against their employers. The Constitutional Court was quite clear in Jooste v Score Supermarket Trading that this prohibition is constitutional. But what is an employee is covered by the Occupational Diseases in Mines and Works Act (Odimwa) which provides for once-off compensation for occupational diseases. Click here for more.
Regards
Raynard
PS. I am copying this to Subscribers as well so you may receive it twice.
Dear Folks
As my first newsletter of 2010, I would like to take this opportunity of wishing you all a safe, healthy and profitable new year. Also to apologise for not pumping out this or any newsletters sooner but nature, in the form of a direct lightening strike, took care of my computers and all other forms of communication for a while. Since I live on a (Melville) koppie and my telephone pole is the highest point on the koppie, I have come to the conclusion that lightening regularly strikes numerous times in the same place. I now have surge plug upon surge plug upon surge plug so let’s see whether I can beat the elements. I shouldn’t moan as I could be living in Haiti plus I have upgraded my computers to such a degree that and I must have the most advanced small office systems around. Computer upgrades are, however, not for the fainthearted and it seems as if e-mail addresses and Distribution Lists always go fuzzy during these upgrades.
I am almost back on track with all these lists and thought you may wish to hear less about me and more about some things OHS. In criminal law - the OHS Act – you all know that you can be punished for the wrongdoings of your independent contractors or mandataries. That provision is found in section 37 of the OHS Act which, in turn, has spawned the much misunderstood section 37(2) Written Agreement between an employer and a mandatary. Section 37 of the OHS Act also applies to employees and essentially presumes employers to have committed the sins of their mandataries and employees unless they demonstrate good OHS behaviour.
But that is criminal law which differs from civil law where normally the delicts or unlawful acts or omissions of an independent contractor, which cause prejudice or damage, are attributable to that independent contractor. In other words, it seldom happens that principals are held (vicariously) liable to pay damages when their independent contractors do or fail to something which is unlawful and which results in a civil action for damages. This is particularly true of specialist independent contractors who work completely independently of the principal employer.
But this could be something of the past. Could the criminal vicarious implications of section 37 of the OHS Act become the norm in civil suits? Civil suits hit your pockets far more than the relatively puny fines metered out by the criminal courts in OHS matters. (That is to say your criminal case actually gets placed on the court’s roll). The answer is yes and no.
In Chartaprops 16 (Pty) Ltd & Another v Silberman (Supreme Court of Appeal) the court found the principal, a shopping mall, liable for damages caused to Mrs Silberman who slipped on a substance at the mall. This despite the fact that the mall had contracted a specialist cleaning company to keep the floors clean. Chartaprops, through its Centre Manager, kept a regular check on the cleaning company’s performance. Although not a unanimous decision, the SCA overruled the High Court’s finding that both the mall and cleaning company were liable – the mall vicariously through the cleansing company’s failure to timeously remove the culprit slippery substance. The SCA dismissed the whole idea of vicariously liability along the lines of section 37 of the OHS Act and found that the mall actually failed in its duty of ensuring a safe shopping experience for shoppers despite outsourcing the cleaning functions.
I attach the full Law Report although they never make for easy reading and so it won’t be necessary to copy and paste every important pronouncement by the learned Judges. As with Langely Fox Building Partnership (Pty) Ltd v De Valence where the principal was also held liable for damages resulting from an independent contractor’s actions, it seems to me as that we are not really moving away from the normal principle that independent contractors are responsible / civilly liable for their own actions which cause prejudice to others save where:The public is involved as it seems as if the courts feel a greater degree of care is required of principals.
The principal employer supervises or gets involved in the independent contractors work.
The hazard or threat posed to the public was severe enough to cause injury.
The hazard was objectively speaking reasonable foreseeable.
An indemnity or disclaimer whereby the independent contractor holds the principal harmless where harm is caused to others is one way to protect yourself as a principal from unnecessarily haemorrhaging money stemming from the unlawful actions of an independent contractor. Public liability Insurance policies have a way of indirectly punishing you like all insurance claims.
Click here for August 2009 OHS Practitioner Newsletter on suppliers of articles & substances for use at mines.
Many of you have asked me in the past which OHS legislation applies, the MHS or the OHS Act when, for example, construction work is being performed on mining ground. In other words when mining or undertaking a ‘works’ as defined are not being performed. Many have asked which inspectorate would be involved should there be an incident in the scenario mentioned above.
I have just managed to get hold of the attachment which is a Memorandum of Understanding between the Departments of Labour and Mineral & Energy. It is more-or-less self-explanatory.
What it does not really tell us is which Inspectorate will preside over the proceedings where, for example, an incident -let's say a fatal incident - occurs while construction work is being conducted on mining ground. Section 65 of the MHS Act demands an Inquiry along the lines of a section 32 Formal Inquiry of the OHS Act into any mining fatality, unlike its OHS counterpart where fatal incidents may be investigated more informally in terms of section 31 of the OHS Act. Inquiries or formal inquiries are far more in depth and rigid, unions actively participate through high-powered legal representation, families often have their own legal representation and all, including the presiding officer have the right to cross examine. The proceedings are also recorded. Legal argumentation post a formal inquiry have also become the norm. My last MHS Act Heads of Argument comprised over 40 pages as one has to analyse all the evidence, comment on its veracity, quote precedents etc. (There are no real OHS or MHS Act precedents but, if a fatality occurs, the common law in the form of a potential charge of culpable homicide, comes into play and our Law Reports are riddled with culpable homicide precedents. My sources inform me that an investigation or inquiry into an incident on mining territory, where the OHS Act has jurisdiction, will be led by the Mine Health & Safety Inspectorate and that the 'investigating' inspector from DoL will be called as an ‘expert’ witness. I relish this. Imagine subjecting the DoL Inspector to gruelling cross-examination! As we all know, the present crop of DoL Inspectors leave a lot to be desired. My guess is that they will have to rely on the few real experts that remain within DoL. So it may not be that easy. Would NUM demand to be represented?
I have also stumbled upon some interesting material for my next newsletter. It is based on the USA Constitution (Fourth Amendment – Right to Privacy, not having your property searched etc.) and the powers of their OHS inspectorate. An interesting case has ruled…….. You will have to wait. All I need tell you is that the USA Fourth Amendment to their Constitution is similar to our Section 14 of the Bill of the rights which reads…’ Privacy. Everyone (including juristic persons i.e. companies / employers) has the right to privacy, which includes the right not to have-their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.
Their OSHA inspectors have similar powers to ours. The question I pose now. Are the powers of an inspector as contained in section 30 of the OHS Act constitutional bearing in mind that the OHS Act preceded the Constitution? Bear further in mind that the Constitution always prevails over other legislation.
