Dear Folks

Welcome to 2009. Rather belated I am afraid. I had the most admirable intentions of writing to you sooner but nature intervened in the form of a direct lightening strike which hit my office / home resulting in the loss or damage to nearly all my computer equipment. And I have only now come on line!

Well let us guess what 2009 will have in store for us from an OHS perspective. Being election year I guess the rhetoric from politicians, particularly the new ruling cabal, will gather momentum particularly as the unions now seem to think they are in power. The mines will bear the brunt as it clearly demonstrated by the proposed draconian amendment to the Mine Health & Safety (MHS) Act.  Do they really want to imprison the CEOs of mines? Click here for the amendment and click here for some articles on the topic. My gut feel is that these amendments are just another example of the ruling cabal kowtowing to union pressure and that many of its provisions are potentially unconstitutional.  We may even see the amendments to the construction regulations being promulgated in 2009 but expect no movement on the draft National Occupational Health & Safety Bill. I mean we have an election to fight - without machine guns, witchcraft, bad singing and dancing I hope. And then there is the World Cup looming and all those corruption trials. No Obama moments I regret but loads of entertaining infantile hot air.

What of the most interesting aspects of the MHS Act amendment is section 86A entitled ‘Criminal Liability’. As those of you in the mining industry know,  the presumption of wrongdoing by the mine for the offences of mandataries (contractors) never existed before in the MHS Act. Contractors are part of the mine and are included in the mine appointment and safety structure.  In fact there is no definition of a contractor or even mandatary in the MHS Act. On the other hand those of you who resort within the jurisdiction of the OHS Act have lived with section 37 for many years and know that mandataries (contractors) are employers in their own right and that you can potentially be punished for their wrongdoings. You also know that the section 37(2) Written Agreement or OHS Contract is one instrument to prevent this vicarious liability. We also know that sections 124 and 125 of the Draft National Occupational Health & Safety Bill, which will have jurisdiction over all employers , envisages something along the lines of section 37. This will mean that the mines would have to adapt to the current OHS Act scenario regarding mandataries if the Bill is adopted as is.

But here is the catch. If the draft Bill is ever passed in our life time – heaven knows  parliament seems more interested in other things and the lawmaker is kept so busy by the ruling cabal whose focus seems to be more on the demise of effective law enforcement units than the safety and health of workers – what will this amendment mean to all other non mining employers? Surely this draconian and potentially unconstitutional provision will finds its way into the new Act? (Unless the Constitutional Court tosses it out before)!

‘‘Criminal liability

MHS Act section 86A. (1) An employer, chief executive offıcer, manager, agent or employee commits an offence if he or she contravenes or fails to comply with the provisions of this Act thereby causing—

(a) a person’s death; or

(b) serious injury or illness to a person.

 (2) If a chief executive offıcer, manager, agent or employee of the employer commits an offence by performing or omitting to perform an act and such performance or omission would have constituted an offence had it been done by the employer, that employer is equally committing an offence if the act or omission fell within the scope of the authority or employment of the chief executive offıcer, manager, agent or employee concerned and the

employer—

(a) connived at or permitted the performance or an omission by the chief executive offıcer,  manager, agent, or employee concerned; or

(b) did not take all reasonable steps to prevent the performance or an omission.

(3) For the purposes of subsection (1) the—

(a) fact that the person issued instructions prohibiting the performance or

an omission is not in itself sufficient proof that all reasonable steps

were taken to prevent the performance or an omission;

(b) defence of ignorance or mistake by any person accused cannot be admitted; or

(c) defence that the death of a person, injury, illness or endangerment was caused by the performance or an omission of any individual within the employ of the employer may not be admitted.’’.

The way I understand this provision is that criminal liability can be visited upon the employer (corporate body mine) through the wrongdoings of the CEO, a manager, agent or employee. I assume the agent  - not defined in the MHS Act – is an outsider such as a contractor. Nothing really new as it has existed for years in section 332 of the Criminal Procedure Act  (CPA) which determines criminal liability for corporate bodies. (Except that the CPA does not provide for vicarious liability where outsiders (agents) commit crimes.   I find it odd that, unlike section 37(2) of the OHS Act, this provision does not provide any relief to mines in the event of an agent committing an offence. And that gets me to the bolded part above. Does it really mean that, post an incident at a mine which has caused death, injury or merely an endangerment, the CEO or manager cannot raise the defence that it was caused by an employee of the mine? That can’t be right? That can’t be legal?  I also think , unlike some other commentators, that it won’t apply to common crimes such as murder at a mine as it must be linked to a contravention of the MHS Act. But what about causality? Surely there must be a casual connection between the offence and the potential accused? Causality is an element of any crime just like an act or omission, fault in the form of intention or negligence, unlawfulness and a causal connection to a result. Let’s say for example a trained mine worker, kitted out with all the required Personal Protection Equipment (PPE) inadvertently (read negligently or as the section says ‘mistakenly’) does something stupid because of a babelas or lapse in concentration which results in the death of a fellow mine worker. It may be feasible that the corporate body and mine management be charged even where workers commit suicide at a mine or die from an AIDS related ailment. (I can hear NUM saying that the mine management worked the person to death).  According to this provision the CEO, manager and  corporate body cannot raise this as a defence! Where is the causal connection between an act or omission on the part of the CEO, mine or manager and the death of the worker?   This section is also contradictory. Firstly it states that it is a management crime to cause someone’s death at a mine and then not a defence to say that another person (employee of the mine) caused the death. It's like saying it is not a defence to a murder charge to say that someone else murdered the person.

It must also be remembered that a workplace fatality could result in a culpable homicide charge which falls outside OHS legislation. An inspector cannot recommend prosecution for  common law crimes such as culpable homicide but may in the future but limited to the proposed new statutory crime of Corporate Homicide. Click here for more on the proposed crime of Corporate Homicide in the draft National Occupational Health & Safety Bill. It makes you wonder. I am not a conspiracy theorist but this provision is sinister. Or should I say political? We all know that the ruling cabal consists of a multitude of ex trade union individuals. We also know that the unions have thrown their weight behind the ruling cabal in the forthcoming election. So I guess it’s a pay back time. I also find it strange that this amendment was rushed through Parliament while we have been waiting forever for them to pass the amended construction regulations or even the draft Bill. (We are supposed to report regularly to the ILO on progress towards the adoption of the Bill and progress is………………….zero)!

And this all gets me back to a point that I raised earlier. What does it mean to the non mining industry?  We are promised that there will be one National OHS Act for all and, surely in one piece of legislation, you cannot discriminate or differentiate between various employers? Will this silly type of legislation then apply to all? Perhaps it’s time for CEOs and managers to get danger pay! Start saving bail money because the penalties in the MHS Act have rocketed to R3million or 5 years in jail.

I gave open work shopping a miss last year due to work pressure but am determined to tour the country soon with a brand new show. I represented at least one client per week last year in terms of both the OHS and MHS Acts and want to share all the experience and new tactics I developed with you all. I will keep you posted. In the interim log on to www.klasslooch.com particularly if you missed some previous newsletters and I will keep you posted about the workshops.

As Always

Your Devil’s Advocate.