Klass Looch Associates

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RAF vs Monjane 2007 SCA

The respondent (Monjane)had sued the appellant fund (RAF) for damages after he was injured in consequence of the negligent driving of a motor vehicle by the vehicle's driver. The driver of the vehicle was the Monjane's employer. The RAF filed a special plea, averring that even if the respondent's injuries were caused by the employer's negligent driving the fund was not liable to the respondent in law because in terms of section 19(a) of the Road Accident Fund Act 56 of 1996 the fund shall not be obliged to compensate any person for loss for which neither the driver nor the owner of the motor vehicle concerned would have been liable, and in terms of section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, no action shall lie by the respondent (as employee) against the insured driver (the employer). Held that an employee who sustains an occupational injury as defined in Act 130 of 1993 will have no claim under the Road Accident Fund Act 56 of 1996 if the wrongdoer is his employer. The special plea was sound, and should not have been dismissed. The appeal was thus upheld. 

In Sanan v Eskom Holdings Ltd [2010] (GSJ) the High Court once again upheld section 35 of the COID Act. (Forget about the civil procedural arguments pertaining to Exceptions & Special Pleas).

Click here for the Mankayi vs AngloGold Ashanti Limited Supreme Court of Appeal (SCA) and scroll down for the Constitutional Court finding that overruled both the findings of the High Court and SCA.

BGWU obo Mababe / LAPACE Construction (Pty) Ltd [2010]

'The employer has placed a strong argument in relation to the applicant's experience, previous disciplinary record and pattern of unacceptable behaviour that when all this is assessed against the gravity of the safety breach which had a high potential for serious injury or property damage or even a potential of a fatal accident must sway in favour of the employer. Negligence can be defined as an act or omission which causes a serious injury, property damage or a fatality or has the potential to cause a serious injury, accident, property damage and or fatality. Safety is a behavioural issue and a frame of mind not a mechanistic process like switching a light on or off'.

Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others [2014] (LAC)  

Mini Summary

The appellant was a municipal entity rendering waste management services on behalf of the Johannesburg Metropolitan Municipality. Its employees collected refuse from households and businesses within the City of Johannesburg utilising, inter alia, specialised trucks belonging to the appellant. Alleging that it experienced serious and pervasive problems with employees reporting for duty under the influence of alcohol, the appellant introduced mandatory alcohol testing through a breathalyser device for its drivers, and random alcohol testing for its other employees. The first respondent, a trade union, objected to the introduction and use of the breathalyser device.

A dispute referred to the CCMA remained unresolved and the union gave notice to the appellant of its intention to embark on strike action. Although the appellant obtained a rule nisi calling upon the respondents to show cause why a final order should not be made inter alia, interdicting the respondents from embarking on strike action, the rule was later discharged. The present appeal was against that order.

Held that in terms of the definition of a strike in the Act, the cessation, retardation or obstruction of work must be for the purposes of remedying a grievance or resolving a dispute, and the dispute or grievance must be about a matter of mutual interest.

Insofar as the appellant categorised the dispute as one relating to health and safety issues, the question was whether those were matters of mutual interest. Related to that was whether the union’s demand that the breathalyser testing be abandoned was a lawful demand.

The respondents argued that the right to strike should only be limited if the limitation is clear from the legislation or instrument seeking to limit the right, and the mere fact that a statute, the Occupational Health and Safety Act 85 of 1993 in this case, is designed to give effect to a safety and security measure, does not necessarily render the right to strike subordinate to such legislation.

The Court acknowledged the appellant’s duty to ensure that safety standards were maintained in its workplace. However, it was not convinced that the breathalyser was the only reasonably practicable way to ensure the safety of the employees and others. It also pointed out that the fact that the appellant did not have breathalyser testing in place until it implemented that measure did not mean that it had until then been operating in contravention of the Occupational Health and Safety Act. Mandatory breathalyser testing for all drivers or employees is also not a requirement of the Act. The union’s demand was therefore justified and lawful.

It was noted that the phrase “matters of mutual interest” cannot be precisely defined. The Court approved the view that any matter which affects employees in the workplace, however, indirectly, falls within the scope of the phrase. It therefore held that the health and safety issues in this matter were matters of mutual interest over which the parties could engage in collective bargaining and if they could not agree, the employees could embark on strike action in order to resolve the dispute.

The appeal was dismissed.

MUSI AJA:

[1]  This is an appeal, with the leave of the court a quo, against the judgment of the Labour Court. The appeal is about the right to strike. It essentially concerns two issues, firstly, whether the demand by the first respondent (the Union), that the appellant should abandon the conducting of breathalyser testing at its workplace is an unlawful demand and secondly, whether health and safety issues are matters of mutual interest. If the demand is unlawful or the issues are not matters of mutual interest, then any work stoppage pursuant thereto, would be unlawful.

[2]  The appellant is a municipal entity, as defined in the Local Government Municipal Systems Act and renders waste management services in the greater Johannesburg area on behalf of the Johannesburg Metropolitan Municipality.1  The appellant's employees collect refuse from households and businesses within the City of Johannesburg utilising, inter alia, specialised trucks belonging to the appellant.

[3]  The appellant employed two hundred and sixty-two (262) drivers. It alleged that it experienced serious and pervasive problems with employees reporting for duty under the influence of alcohol, consequently, it introduced mandatory alcohol testing, through a breathalyser device, for its drivers and random alcohol testing for its other employees.2

[4]  The Union, on behalf of its members, objected to the introduction and use of the breathalyser device. On 30 April 2013, the Union referred a dispute, relating to the breathalyser and biometric devices, for conciliation to the Commission for Conciliation, Mediation and Arbitration (CCMA). The dispute could not be resolved; consequently the CCMA issued a certificate of non-resolution. The Union gave notice to the appellant of its intention to embark on strike action with effect from 29 July 2013.

[5]  On 24 July 2013, the appellant sought and was granted, on an urgent basis, a rule nisi by Snyman AJ in the following terms:

"1. Condonation is granted for the applicant's failure to comply with the time limits as contemplated by Sections 68(2) and (3) of the Labour Relations Act 66 of 1995, and the applicant is permitted to bring this application on shorter notice.

2. This application is heard as one of urgency in terms of Rule 8 and the time limits imposed by Rule 7 are hereby and herewith dispensed with.

3. A Rule nisi is hereby issued calling upon the respondents to show cause on 12 September 2013 at 10h00 why a final order should not be made in the following terms:

3.1 The strike which the second to further respondents intend to embark upon on 29 July 2013 in terms of the notice in terms of Section 64(1) (b) of the Labour Relations Act given by the first respondent and dated 17 July 2013, is declared to be an unprotected strike as contemplated by Section 68(1) of the Labour Relations Act.

3.2 The second to further respondents are interdicted and restrained from embarking upon any strike action or conduct in contemplation of strike action in respect of the strike declared to be unprotected in terms of paragraph 3.1 above.

3.3 The first respondent is ordered to immediately call upon the second and further respondents not to commence strike action in respect of the strike declared to be unprotected in terms of paragraph 3.1 above.

3.4 The first respondent is ordered to take all reasonable steps necessary to ensure that the second to further respondents do not commence strike action on 29 July 2013, including but not limited to actively communicating and consulting with the second to further respondents, before 29 July 2013.

4. The provisions of paragraphs 3.1, 3.2, 3.3 and 3.4 of the rule nisi shall operate as an interim order with immediate effect, pending the return date of 12 September 2013, and the first respondent and second to further respondents shall be required to immediately adhere to the same and give effect to the same. . .

6. The issue of costs is reserved for argument on 12 September 2013.

7. Written judgment pursuant to the granting of this order will be handed down on 5 August 2013."

[6]  The Union anticipated the return date, as a result the matter was argued before Hulley AJ on 5 August 2013. He discharged the rule nisi with costs. This appeal is against Hulley AJ's judgment.

[7]  The genesis of the implementation of the mandatory/random testing of the appellant's employees for alcohol consumption is not entirely clear from the record. This is caused, in part, by the fact that the appellant attached a variety of documents to its founding affidavit without properly contextualising them. Although it alleged that the documents are self-explanatory, some of them caused one to ask more questions than it provided explanations or answers.

[8]  During 2009, one of the appellant's drivers, Mr MP Motlou, was involved in a motor vehicle collision. He succumbed to the injuries sustained during the collision. An insurance claim lodged by the appellant was repudiated by its insurers, because the deceased had driven the vehicle whilst having more than the legal limit of alcohol in his blood. The repudiation prompted the General Manager: Fleet of the appellant to write an email to, inter alia, Ms Johanna Joja, the Employee Wellness Manager, of the appellant. The email, in part, reads as follows:

". . . In effect it would mean that every claim related to this accident is at risk. The driver's family will lose the benefit of his death benefit and there is a chance that the vehicle claim of approximately R250k could also be repudiated. This raises considerable risk to the business and I recommend that we strongly push the aspect of random testing of the drivers."

[9]  The documents also contained anecdotal evidence of collisions in which the appellant's drivers were involved, of which four were proved to have occurred whilst the appellant's drivers were under the influence of alcohol.

[10]  According to a report drafted by Ms Joja on 11 December 2011, the appellant's alcohol and driving abuse policy was reviewed and the substance abuse testing programme was included in the policy. It is not clear when this was done, however the substance abuse testing programme was launched on 23 October 2010 at the appellant's head office. According to the aforementioned report "EXCO" recommended that the testing programme should continue at head office. It also recommended that "negotiations continue with Employee Wellness and Organised Labour concerning the roll-out of the testing programme to all depots".

[11]  In her report to the Executive Director: Corporate Services dated 12 April 2013, she repeated the EXCO's recommendations and stated:

"Negotiations with labour were initiated but there was never an agreement between Labour and Employee Wellness on the issue of testing. Presentations at LLF never brought any changes in Labour's stance on the testing programme."

[12]  Ms Joja did not state what the irreconcilable differences were between the Union and her department. The minutes of the meeting of the Pikitup Local Labour Forum held on 8 December 2010 sheds more light on the issue. The minutes read as follows:

"5.8 Organised Labour

● Submitted that the issue of subjecting employees to the breathalyser has to be treated within the Employee Assistance Programme that the company has.

● Is very unhappy about this exercise as it does not even know how safe are the tools used and how accurate they are.

● Stated that this practice must be withdrawn and must be included in the Employee Assistance Programme and the company's Code of Conduct.

● Stated that the exercise of testing people is degrading to the people being tested.

Management

● Management stated that the establishment of the Employee Wellness Department was solely to attend to such problems and that the application of breathalyser is part of correcting the alcohol abuse problem.

● Explained that even in a case in which an employee is caught being under the influence using the breathalyser, the employee is not going to be dismissed with immediate effect, but will be taken through some corrective steps to alleviate the behaviour.

● Defended the breathalyser being used by Pikitup by saying that the device is designed in such a way that it is safe to use without any contamination to any person using it."

[13]  The objections raised by the first respondent were despite a memorandum, dated 3 November 2010, that was sent to all employees at the head office, by Ms Joja, wherein she explained how the breathalyser works and assured the employees that it is hygienic. She also explained why everybody that enters their building should be tested.

[14]  In its replying affidavit, the appellant reiterated that the fears relating to hygiene are unfounded, because the person being tested does not even touch the device with his/her lips, because the person only blows towards it for the tester to take a reading. It also stated that an employee who incorrectly tested positive for alcohol, will be given an opportunity to have a second test and if the result remained positive, such employee can demand that a blood test be administered.

14.1 The appellant was also of the view that even if breathalysers are less accurate than blood tests, they are still a valuable first line of testing, which can profitably be used to enhance the safety of its employees and members of the public. It also presented proof that the breathalysers were calibrated and that the testers were trained to operate them.

14.2 The appellant stated that the first respondent's contention, that the tests are degrading, is absurd when members of the public and other employees were injured and killed as a result of its drivers driving under the influence of alcohol.

 [15]  The first respondent and the appellant could not reach an agreement on these issues. The former referred the dispute to the CCMA on 30 April 2013 and summarised the dispute as follows:

"The workers demand that there be no

1. Breathalyser test and

2. No Biometric time control system."

[16]  As indicated above, the dispute remained unresolved as at 15 July 2013 and the certificate of outcome was endorsed to that effect. The Union was of the view that its right to strike had been perfected. On 17 July 2013, it gave notice to the appellant of its intention to embark on strike action with effect from 29 July 2013.

[17]  The appellant pre-empted the proposed strike and approached the Labour Court on an urgent basis seeking interim relief to interdict the strike. During those proceedings, before Snyman AJ, the Union did not file an answering affidavit and argued the matter based on the appellant's founding affidavit.

[18]  The issues, with regard to the breathalyser testing, were, inter alia, whether the demand for the abandonment of breathalyser testing was unlawful and whether it was an issue of mutual interest. Snyman AJ concluded that the demand for the cessation of breathalyser testing was not an unlawful demand. He was however of the view that the implementation of the breathalyser testing policy fell squarely within the operational management of the business of the employer that cannot form part and parcel of issues in dispute that would qualify for or form the subject matter of legitimate collective bargaining. He explained his conclusion as follows:

"In fact, the very issue of the Breathalyser testing process can be used to illustrate what I am saying. If the issue of the Breathalyser test was for example coupled with a new automatic penalty such as an unpaid suspension for the day, then it would clearly have the necessary nexus to an employment issue and could form the subject matter of legitimate collective bargaining to change it. However, and in this case, the applicant has in its founding affidavit stated that other than conducting Breathalyser test on the driver before handing over the keys, nothing else changes. The applicant has in fact stated that the normal and existing processes in the applicant (sic) with regard to employees being under the influence of alcohol would apply which processes is (sic) not an issue in dispute between the parties."

Snyman AJ granted the interim relief based, mainly, on the above reasoning.

[19]  On the anticipated return date, Hulley AJ heard substantially the same arguments as Snyman AJ did, save that the first respondent had filed its answering affidavit and the appellant its replying affidavit when the matter was heard by the former. He discharged the interim order.

[20]  His reasons for doing so were crisply that the method used to provide a safe working environment, must necessarily be a matter in respect of which employees have an interest. Secondly, that the fact that the employer proposed administering a blood test (irrespective of whether it was upon demand by the employee) as part of the new system, raised serious concerns and was a matter of interest to both employer and employee.

[21]  With regard to the unlawfulness of the demand, he found that the demand was lawful. He also found that it would require substantial evidence to demonstrate that the use of breathalyser tests were the only method or only reasonably practicable method by which the applicant could discharge its obligations and that such evidence was absent in this matter.

[22]  Mr Myburgh, for the appellant, argued that Hulley AJ did not resolve the factual controversy as to whether there was a legitimate proven objection to the "precautionary measure" of breathalyser testing introduced by the appellant. According to Mr Myburgh, this factual issue is important, because no alternative measure was advanced by the first respondent. Mr Myburgh therefore persisted with the arguments raised before Hulley AJ and submitted that Hulley AJ failed to deal properly with the facts. He pointed out that Hulley AJ initially found that the introduction of breathalyser testing per se as a method of alcohol testing does not involve a matter of mutual interest, but then went on to find that because a blood sample might ultimately be drawn from the employee, made it a matter of mutual interest. He further submitted that Hulley AJ was wrong in determining that the demand would only be unlawful if a breathalyser test was the only method (or reasonably practicable method) of testing for intoxication and that, if necessary, expert testimony should have been presented to establish that fact. He submitted that the strike was ultimately aimed at preventing the appellant from complying with its legal obligations in terms of the Occupational Health and Safety Act (the OHSA).3  Any work stoppage for the aforementioned purpose would therefore be unlawful.

[23]  Mr Kennedy, for the first respondent, argued that the right to strike should only be limited if the limitation is clear from the legislation or instrument seeking to limit the right. He submitted that the mere fact that a statute, the OHSA in this case, is designed to give effect to a safety and security measure, does not necessarily render the right to strike subordinate to such legislation. He further submitted that a demand by employees that an employer must bargain collectively, and agree, on a measure contemplated in the OHSA, is not unlawful.

[24]  It is clear that the appellant endeavoured to limit the issues on which it had to engage in collective bargaining with its employees, by excluding health and safety matters, and thereby restricting their right to strike. It also sought to limit the employees' right to strike by arguing that their demand is an unlawful demand. Before examining these issues, it is apposite to discuss the right to engage in collective bargaining and the concomitant right to strike.

[25]  The right to strike and the right to engage in collective bargaining are entrenched in the Constitution.4  Section 23(2)(c) provides that every worker has the right to strike. Section 23(5) provides that:

"Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1)."5

[26]  Collective bargaining, it was said, implies a right on the part of those who engage in collective bargaining to exercise economic power against their adversaries.6  The Constitutional Court emphasised the importance of the right to strike as follows:

"Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers. Workers therefore need to act in concert to provide them collectively with sufficient power to bargain effectively with employers. Workers exercise collective power primarily through the mechanism of strike action. In theory, employers, on the other hand, may exercise power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace (the last of these being generally called a lockout). The importance of the right to strike for workers has led to it being far more frequently entrenched in constitutions as a fundamental right than is the right to lockout."

[27]  The right to strike and the right to engage in collective bargaining are interrelated. One cannot exist without the other. The right to engage in collective bargaining is strengthened by the right to strike. Collective bargaining without the concomitant right to strike will be rendered nugatory. The right to strike is constitutionally protected in order to redress the inequality in social and economic power in employer/employee relations.8  It is also important for the dignity of workers who may not be treated as coerced employees.

[28]  Given the historical and contemporaneous importance of the right to strike, it should not be limited or restricted by reading implicit limitations into it. In SATAWU v Moloto it was said that:

"The right to strike is protected as a fundamental right in the Constitution without any express limitation. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them, and when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning."

[29]  An interpretation which limits the right to strike should therefore be avoided if the text that seeks to limit it is susceptible to an interpretation that upholds and protects the right to strike. In essence, any legislative provision that seeks to restrict the right to strike should do so expressly, in clear and unequivocal terms.

[30]  The Labour Relations Act (LRA),11  which is the vehicle that Parliament used to give effect to and regulate the labour rights entrenched in section 23 of the Constitution, contains limitations on the right to strike. It is uncontroversial that the LRA contains both substantive and procedural restrictions to the right to strike. Procedurally, the right to strike will not accrue if the dispute, to put it simply, was not referred to the CCMA or a Bargaining Council and a certificate of non-resolution issued and, secondly, if the Union had not issued a strike notice.12  Both procedural requirements were fulfilled in this matter.

The substantive requirements set out in section 65 of the LRA are strictly speaking also not relevant for the resolution of this dispute.

[31]  The definition of "strike" in the LRA also restricts the right to strike. It is defined as follows:

"'Strike' means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to 'work' in this definition includes overtime work, whether it was voluntary or compulsory."

[32]  The disputes in this matter hinge on two parts of the definition of a strike. It is clear that the cessation, retardation or obstruction of work must be for the purposes of remedying a grievance or resolving a dispute. It is also beyond cavil that the dispute or grievance must be about a matter of mutual interest. The appellant contended that the intended strike in this matter is not about a matter of mutual interest and that it is not aimed at remedying or resolving a lawful dispute or grievance. I turn to deal with the last mentioned issue first.

[33]  This Court said that industrial action for the purpose of requiring or compelling an employer to perform an unlawful act cannot be protected.15  Therefore the cessation, retardation or obstruction of work must be aimed at remedying a lawful grievance or resolving a lawful dispute. Both parties accepted this to be the legal position.

[34]  Mr Myburgh submitted that the first respondent's proposed industrial action is essentially geared at forcing the appellant to commit a crime in terms of the OHSA. He contended that the OHSA places onerous duties and responsibilities on the appellant, which it has to comply with on pain of criminal sanction. Both Snyman AJ and Hulley AJ rejected this argument. Was the rejection justified?

[35]  Section 8 of the OHSA reads as follows:

"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.

(2) Without derogating from the generality of an employer's duties under subsection (1), the matters to which those duties refer include in particular-

 (a) the provisions and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health;

(b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

(c) making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;

(d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures;

(e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;

(f) as far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken;

(g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;

(h) enforcing such measures as may be necessary in the interest of health and safety;

(i) ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented; and

(j) causing all employees to be informed regarding the scope of their authority as contemplated in section 37(1)(b)."

[36]  Section 9 of the OHSA reads as follows:

"9. General duties of employers and self-employed persons to persons other than their employees

(1) Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

(2) Every self-employed person shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that he and other persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety."

[37]  Section 14 places duties on employees at work and reads as follows:

"Every employee shall at work-

(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts omissions;

(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;

(c) carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety;

(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative of his workplace or section thereof, as the case may be, who shall report it to the employer; and

 (e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter."

[38]  Regulation 2A of the regulations promulgated under the Machinery and Occupational Safety Act16  provides that an employer shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.

[39]  In terms of section 38 of the OHSA, any person who contravenes or fails to comply with the provisions of sections 8, 9 and 14 is guilty of an offence and shall on conviction be liable to be sentenced to a fine not exceeding R50 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

[40]  Section 8 of the OHSA places a duty on the appellant to maintain as far as is reasonably practicable a working environment that is safe and without health risks for its employees. Section 9 places a duty on the appellant to conduct its business in such a manner as to ensure as far as reasonably practicable that persons who are not its employees who may be directly affected by its activities are not thereby exposed to health or safety hazards.

[41]  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.

[42]  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. This computation falls to be made at a point of time anterior to the happening of the incident complained of."

[43]  Mr Myburgh argued that the appellant has made an assessment and concluded that the reasonably practicable way to fulfil its obligations and comply with its duty is by subjecting its drivers to mandatory breathalyser testing. The appellant considered the breathalyser as an effective precautionary measure as compared to mere physical observation. He further contended that the breathalyser testing policy assists the employees because they are obliged to take reasonable care of their own health and safety and that of other persons who may be affected by their conduct. He correctly submitted that all employees are obliged to:

 (i) cooperate with their employer in order to enable it to acquit itself of its duties under the OHSA;

(ii) carry out lawful health and safety orders; and

(iii) comply with health and safety rules and procedures.

A refusal by the employees, so the argument went, to undergo breathalyser testing would be in breach of all three [of] the above-mentioned statutory duties, because it would involve a failure to cooperate and disobedience with a health and safety order, rule or procedure.

[44]  Mr Kennedy submitted that the appellant's arguments are flawed, because it sought to subordinate the right to strike to the provisions of the OHSA in circumstances where the OHSA does not contain any express intention to limit the right to strike. He contended that the demand of the employees properly construed, did not mean that they wanted no testing measures at all. He further submitted that the OHSA, by using reasonableness as a touchstone, adopted a variable standard which meant that both employers and employees are permitted to negotiate over the most effective means to implement the measures contained in the OHSA.

[45]  Before attending to the issue of the lawfulness or otherwise of the demand, I propose to deal briefly with what Mr Myburgh styled as the factual controversy that went undetermined, by Hulley AJ. In my view, there is no controversy at all. The facts are that the first respondent objected to the introduction of breathalyser testing, at the meeting of 8 December 2010, and stated that it is unhygienic, inaccurate and degrading. At that meeting, the appellant only addressed the hygiene issue. Likewise of the three issues of concern to the first respondent only the hygiene issue was addressed by Ms Joja in her memorandum dated 3 November 2010. The issues relating to the accuracy of the breathalyser devices and the fact that testing is degrading to the persons being tested were only addressed in the replying affidavit. The issue with regard to the reliability of the device was also not proved. The concern that breathalyser testing was degrading, was dismissively and contemptuously, without proper consideration rejected, by the appellant.

 [46]  I accept that the appellant has done a risk assessment and concluded that it is reasonably practicable to ensure the safety of its employees and the public by introducing breathalyser testing. The subsequent implementation was done without properly engaging the first respondent. The employees demanded that "there be no breathalyser test". They did not propose an alternative. Their reticence does not, in my view, mean that the employer may unilaterally impose breathalyser testing.

[47]  It is our duty to look at the true nature of the dispute and not the manner in which it has been packaged by the employees. In NUMSA v Bader Bop it was stated that:

"It is the duty of a Court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute a Court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications."19

[48]  The dispute properly considered, is not a demand that the appellant should not have any policy or practice in place to detect whether employees, or drivers specifically, are under the influence of alcohol. They had specific problems with the breathalyser device. The appellant had an alcohol/substance abuse policy in place before it decided to introduce breathalyser testing. Its original policy did not include any form of pre-incident mandatory testing.

[49]  It is not in dispute that breathalyser testing is but one of a range of measures that can be used to detect alcohol consumption; observation, urine test, blood test and the stroop test – are some of the other methods that can be used.

 [50]  The employees complained that there were instances where the breathalyser produced inaccurate and unreliable results. The appellant stated in its replying affidavit that to the extent that the breathalyser gives an incorrect result, the employee will be given an opportunity to have a second test and, if the result is still positive, such employee can demand that a blood test be administered. It further stated that even if the breathalyser is less accurate than blood tests, which appears to be unknown to either of the parties, it is still a valuable first line of testing which can profitably be used to enhance the safety of the employees and members of the public.

[51]  The appellant's evidence relating to the reliability of the breathalyser is equivocal. The employees raised a genuine concern relating to the reliability of the breathalyser. Although the first respondent does not say what should replace breathalyser testing it is clear that in the absence of breathalyser testing there are other lawful means of testing for alcohol consumption be it observation, blood tests, urine tests or any other reasonably practicable means. On the facts of this matter it cannot be said that the breathalyser was the only reasonably practicable way to ensure the safety of the employees and others.

[52]  Reasonably practicable is a variable standard that must be determined objectively. The employer and to a lesser extent the employee as the duty holders (in terms of sections 8, 9 and 14 of the OHSA) must do a risk assessment and consider what can or should be done under the circumstances, considering their knowledge of the situation to ensure the health and safety of employees, co-workers and others who might be put in harm's way, because of their activities. They must then consider, given the circumstances, whether it is reasonable to do all that is possible to comply with their duty. In essence, this means that what can be done, should be done, unless it is reasonable in the circumstances to do something less, or in extreme circumstances, more.

[53]  The appellant, as stated above, had an alcohol and substance abuse policy in place before deciding on breathalyser testing. Does it mean that it operated in contravention of sections 8 and 9 of the OHSA before it introduced breathalyser testing? The answer is no. The absence of breathalyser testing surely did not mean that the appellant contravened the provisions of the OHSA. Mandatory breathalyser testing for all drivers or employees is also not a requirement of the OHSA. A policy that an employee will be tested for alcohol consumption where there are reasonable grounds to believe that he/she had consumed alcohol whilst on duty, can be reasonably practicable. Moreover the demand that "there be no breathalyser test" may mean that the Union is of the view that the measure introduced by the appellant to avoid the risk is disproportionate to the risk, ie that the risk is so small that the preventative measure is not necessary. The Union can be convinced otherwise at the bargaining table. The demand was justified and would not necessarily result in a crime being committed by the appellant. I therefore agree with Snyman and Hulley AJJ. I now turn to consider whether the dispute was a matter of mutual interest.

[54]  I agree with Hulley AJ that the phrase any matter of mutual interest defies precise definition. The phrase is couched in very wide terms. According to Grogan, the phrase is extremely wide, "potentially encompassing issues of employment in general, not merely matters pertaining to wages and conditions of service".

[55]  In Rand Tyres & Accessories v Industrial Council for the Motor Industry (Transvaal) the following was said about the phrase:

"Whatever can reasonably and fairly be regarded as calculated to promote the well-being of the trade concerned, must be of mutual interest to them; and there can be no justification for restricting in any way powers which the Legislature has been at the greatest pains to frame in the widest possible language."

[56]  Grogan concludes, correctly in my view, that "the best one can say, therefore, is that any matter which affects employees in the workplace, however, indirectly, falls within the scope of the phrase 'matters of mutual interest' and may accordingly form the subject matter of strike action".

[57]  The phrase mutual interest seeks to limit the issues that may form the subject matter of a strike. It can therefore not be without boundary. The matter should not be too far removed from the employment relationship so that it can properly be said that it does not concern the employment relationship. Matters that are purely socio-economic or political would generally not be matters of mutual interest. If employees were to be allowed to strike over any political or socio-economic issues, uncertainty will reign and the employer will in most cases be confronted with a situation over which he/she has no control or influence. Many disputes however have, at bottom, political and/or socio-economic issues. The facts of each matter will determine whether such issue is one of mutual interest.

[58]  Although ensuring the health and safety of employees and others is predominantly the employer's responsibility, it is clear from the OHSA that the employee also bears duties and responsibilities towards other employees and members of the public. The employer may not always have all the solutions to health and safety issues at the workplace. The employees on the other hand may have the necessary knowledge and experience of a risk, how it affects or may affect them and or others and how to avoid it. The term reasonably practicable which is the touchstone in the OHSA also demands that various interests be considered as well as a cost-benefit analysis to be done. The whole scheme of the OHSA points to a need for employers and employees to work together, in order to ensure the health and safety of everybody. Employers might consider the minimum that can be done in order to satisfy the reasonably practicable requirement whilst employees, who are at the coalface, might want more to be done.

[59]  It is counter-intuitive to say that an employee has no interest in his/her own health and safety. The giving of a breath sample might be less invasive than giving a blood sample, but it is still invasive. It represents an inroad into the employee's right to privacy. The worker is coerced to give a sample in circumstances where his/her consent was not sought before the decision to subject him/her to breathalyser testing was taken.

[60]  On the appellant's arguments the employer may unilaterally, by virtue of its managerial prerogative, set unreasonable health and safety rules and policies, under the guise of it being reasonably practicable measures, and the employees will have to obey without demur. On the other hand, the employer may determine that it is reasonably practicable to implement a measure whereas the employees might be of the view that the proposed measure does not give them adequate protection. The employees would, on the appellant's argument, not have a right to engage in collective bargaining with the employer for the best possible protection. This would in my view be against the general purpose of the OHSA.

[61]  The employees' complaint that breathalyser testing is degrading, was answered as follows in the replying affidavit:

"The allegation that the tests are degrading is, with respect, absurd. It has been shown comprehensively above that employees do attend at work under the influence of alcohol and that this is extremely dangerous. There can be no reason whatsoever why employees should feel that it is degrading for drivers to be tested when other employees and members of the public have lost their lives and, in one instance referred to above, been permanently disabled, as a result of a driver driving whilst under the influence of alcohol. The respondents should welcome this initiative as it can only be to their benefit. . ."

[62]  It is correct that the appellant did show that some of its employees reported for duty or drove its vehicles whilst they were under the influence of alcohol. The evidence did not indicate that the problem of driving under the influence is so pervasive that breathalyser testing had to be implemented without having regard to the rights of employees or without negotiating with the first respondent. The appellant only referred us to four vehicle collisions for the period 2008–2013 where the drivers were under the influence of alcohol.

During the pilot phase of the breathalyser testing, October 2010 to December 2010, none of the drivers tested positive for alcohol consumption.

[63]  There is no indication that proper consideration was given to the right to privacy of the employees. In Communications, Energy and Paperworkers Union of Canada v Irving Pulp & Paper, Limited the Supreme Court of Canada said the following:

"49 On the other side of the balance was the employee right to privacy. The board accepted that breathalyser testing 'effects a significant inroad' on private 'involving coercion and restriction on movement. Upon pain of significant punishment, the employee must go promptly to the breathalyser station and must co-operate in the provision of breath samples. . . Taking its results together, the scheme effects a loss of liberty and personal autonomy. These are at the heart of the right to privacy.

50 That conclusion is unassailable. Early in the life of the Canadian Charter of Rights and Freedoms, this Court recognized that 'the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity. . .'. And in R v Shoker 2006 SCC 44, [2006] 2 S.C.R. 399 it notably drew no distinction between drug and alcohol testing by urine, blood or breath sample concluding that the "seizure of bodily samples is highly intrusive. . .'"

I can think of no reason why the position should be different here. The rights to human dignity, privacy, freedom of movement and bodily integrity are entrenched in our Constitution.25  In my view, an employee's consent is required before such an invasive and intrusive act can be required from him/her.

[64]  The OHSA is underpinned by co-operation between employer and employees. It should be viewed through the prism of shared duties and responsibilities which can in most cases only be achieved if the employees consent and buy-in to the measures. It does not exclude collective bargaining.

 [65]  The provisions of the OHSA are compatible with collective bargaining. As stated above, the Act is underpinned by mutual cooperation between employer and employees. Such cooperation can be achieved by way of collective bargaining and in cases where no agreement is reached, by using the weapons available to the bargaining parties. It is telling that Ms Joja was mandated by EXCO to negotiate with the first respondent. Such negotiations could only have been aimed at reaching an agreement on the breathalyser testing. It is strange that when the negotiations failed the appellant then changed tack and alleged that it had no duty to engage in collective bargaining with the first respondent.

[66]  I therefore agree with Hulley AJ that the health and safety issues in this matter are matters of mutual interest. In my view, Snyman AJ's judgment unjustifiably limits the phrase matters of mutual interest to terms and conditions of employment only. In any event, the fact that an employee would work in a safe and healthy environment and the parties' (employer and employee) duties thereanent is at least an implied term of a contract of employment. Snyman AJ found that nothing changed except that the employee had to give a breath sample before receiving the keys to a truck. This is an oversimplification of the situation. The Constitutional rights of the employees where infringed without their consent. In my view, that represents a substantial change.

[67]  In my judgment, health and safety issues are primarily the responsibility of the employer but they are matters of mutual interest over which the parties may engage in collective bargaining and if they cannot agree, the employees may embark on strike action in order to resolve the dispute.

[68]  There is no reason in law or equity why the costs should not follow the result in this matter. Both parties employed two counsel. The matter was sufficiently complex to warrant the employment of two counsel on both sides.

[69]  I accordingly make the following order:

The appeal is dismissed with costs, such costs to include the costs occasioned by the employment of two counsel.

(Tlaletsi ADJP and Mokgoatlheng AJA concurred in the judgment of Musi AJA).


 

 

 

 

Minister of Defence and Military Veterans v Thomas[2015] JOL 33707 (CC) 

Key Words

Delict – Occupational injury – Claim for compensation – Identity of employer – Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993

Mini Summary

The respondent was employed by the Western Cape Provincial Government (provincial government) in its health department. She was injured in an accident while on secondment to a military hospital under the control of the applicant. The Compensation for Occupational Injuries and Diseases Act 130 of 1993 governed the compensation she could claim arising from her injury at work. The respondent instituted a claim against the applicant (“the minister”) for delictual damages in the high court, and also lodged a claim against the provincial government under the Compensation Act for occupational injury benefits. The minister lodged a special plea in which it resisted the workplace damages claim, arguing that Dr Thomas is precluded from claiming against them in terms of section 35(1) of the Act.

Held that section 35 provides that no action shall lie by an employee for the recovery of damages in respect of any occupational injury against such employee’s employer and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death. The critical question then, was the identity of the respondent’s employer ie the state as a single employer, or its individual components, in this case the provincial government.

The Court held that there is nothing in the Constitution or other legislation that supports a general constitutional principle that the state is a single employer for all employees working in the three different spheres of government. The Court found that the definition of “employer” in the Act is wider than its ordinary meaning. Accordingly, where the employer seconds an employee to a third party, the entity that originally employed her continues to be her employer. The minister’s argument precluded a further delictual claim for compensation. That would unjustly deprive the respondent of her full common law entitlement.

Although leave to appeal was granted, the appeal was dismissed.

FRONEMAN J:

[1]  The respondent (Dr Thomas) is a medical doctor employed by the Western Cape Provincial Government (provincial government) in its health department. She was injured in an accident while on secondment to a military hospital under the control of the applicant, the Minister of Defence and Military Veterans (“minister”). Legislation in the form of the Compensation for Occupational Injuries and Diseases Act (“Compensation Act or Act") governs the compensation she may claim arising from injuries suffered while at work.

[2] Compensation under the Act may come in two guises. The first is for prescribed benefits payable under the Act for occupational injuries sustained as a result of a work accident (occupational injury benefits).  It is payable irrespective of any negligence on the part of the employer. The second is for damages, beyond those benefits, that were caused by a third party at the workplace (workplace damages). This is an ordinary delictual claim, dependent on proof of wrongful and negligent conduct by the third party. In contrast, the common law delictual claim against an employer for workplace damages is precluded.

Background

[3]  On 28 May 2009, Dr Thomas was working as a Medical Registrar at the 2 Military Hospital in Wynberg, Cape Town (hospital), where she fell down eight stairs in a stairwell of the hospital. At the time of her fall, Dr Thomas had been seconded to work at the hospital, which was under the control of the minister as the appropriate representative of national government. As a result of the fall, she sustained injuries to her right ankle, knees, left wrist and thighs and alleged that she had suffered emotional shock.

Litigation history

High Court

[4] Dr Thomas instituted a claim for delictual damages in the Western Cape High Court, Cape Town (high court) against the minister, alternatively, against the company responsible for providing the hygiene services at the hospital, Greystone Trading 389 CC t/a Pronto Kleen Cleaning Service, as well as against both parties jointly and severally.

[5] Dr Thomas also lodged a claim against the provincial government under the Compensation Act for occupational injury benefits. There is no dispute that she is entitled to those benefits under the Act. In addition, though, she also claimed delictual workplace damages from the minister – as a third party – for the alleged negligence of its employees at the hospital where she worked on secondment. The minister lodged a special plea in which it resisted the workplace damages claim, arguing that Dr Thomas is precluded from claiming against them in terms of section 35(1) of the Act. Section 35(1), entitled "Substitution of compensation for other legal remedies", provides:

"No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death."

[6] The minister argued that for the purposes of determining who her employer under the Compensation Act is, it matters not whether it is the provincial or national government. Both are arms of government, albeit at different spheres, and hence her employer is the overall entity representing government at all spheres, namely the State.

 [7] that is the essential issue before us. Who is Dr Thomas's employer: the State as a single employer, or its individual components, in this case the provincial government?

[8] The high court upheld the minister's special plea and dismissed Dr Thomas's claim with costs. It held that Dr Thomas was an employee of the State as represented by the South African Government as a single entity, although at the provincial level. It found that the State could not simply be equated with the "national government", or for that matter a provincial government, but was rather the composite of all three political spheres of government.

Supreme Court of Appeal

[9]  Leave to appeal was granted to the Supreme Court of Appeal. The Supreme Court of Appeal overturned the high court order.3  It dismissed the special plea and remitted the matter to the high court for trial to determine the merits of Dr Thomas's workplace damages claim against the minister. In addition, it found that the provincial government was an "employer individually liable" under the Compensation Act, with particular reliance on the provisions of sections 39(2), 84(1) and 88(1) of the Act. The Supreme Court of Appeal therefore did not regard "the State" or government as her employer, but rather the head of the particular provincial government department, as reflected in Dr Thomas's employment contract.

In this Court

Leave to appeal

[10]  The minister now seeks leave to appeal against the decision of the Supreme Court of Appeal. Leave must be granted. The interpretation of the Compensation Act raises constitutional issues of national importance. Dr Thomas's claim involves her fundamental right to security of her person,4  and the interpretation of the relevant provisions of the Compensation Act "must promote the spirit, purport and objects of the Bill of Rights".5  It is in the interests of justice to obtain clarity on the responsibility between the different spheres of government under the Act for workplace damages claims.

Issue

[11] The parties' contentions followed the different perspectives of the high court and Supreme Court of Appeal judgments. As stated earlier, the main issue is this: who is Dr Thomas's employer – the State as a single employer, or its individual components, in this case the provincial government?

Minister's submissions

[12] The minister relied on the Constitution's provisions relating to the operation of the three spheres of government and its provisions in relation to the employment of public service employees. These provisions, she argued, supported her contention of a single entity, the State, operating at three different levels: national, provincial and local. Reference in the Compensation Act to the State must be understood to mean this single entity. The other provisions in the Act referring to the three individual levels of government should be understood as necessary practical arrangements to efficiently administer the compensation scheme under the Act insofar as it applies to the vast State administration at different levels of government. The minister sought support in other statutes where the State is regarded as a single employer.

Dr Thomas's submissions

[13] Dr Thomas submitted that the Constitution's provisions are inconclusive. She relied on Supreme Court of Appeal authority to the effect that there is no general legal definition or conception of "the State" and that its meaning should be determined in the appropriate context of a particular statute's objects and purpose. Seen in its particular context, the provisions of the Compensation Act – specifically sections 39(2), 81 and 84 – clearly identified the three spheres of government as employers individually liable for compensation, not the State as a single entity comprising them. Dr Thomas also contended that if, however, the statute is capable of two different interpretations, then the interpretation that is least restrictive of her rights must be preferred.

 [14] In terms of the Constitution, "government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated".  Further, "[a]n organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a Court to resolve the dispute".

[15] The Constitution also provides for a public service within public administration which must function and be structured in terms of national legislation. Provincial governments "are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service".   Municipal Councils may "employ personnel that are necessary for the effective performance of its functions". 

[16] These provisions do not expressly provide that for all purposes the three different spheres of government must be regarded as one entity. If this were so, section 84(1)(a)(i) of the Act would have read differently.  This Court has held that within its constitutional sphere of competence, each sphere of government reigns supreme.  And litigation, albeit as a last resort, between Organs of State within these spheres of government is competent.  Both provincial and local government may employ people in their respective spheres.16  It was argued that there was significance in the different wording in this regard: "employ" for Municipal Councils, but merely "appointment" for provincial governments. I do not think so. Appointing someone to work is not different from employing someone.

[17] The provisions of the national legislation as required by the Constitution, namely the Public Service Act are also not decisive. The Supreme Court of Appeal relied on some of its provisions in support of its finding that the State is not a single employer for the purposes of the Compensation Act,  but in argument the minister referred to others that point the other way.

[18] There is nothing in the Constitution and the legislative framework mandated by it that compels a conclusion that, for the purposes of interpreting the Compensation Act, there is a general constitutional principle that the State must be regarded as a single employer for all employees working in the three different spheres of government.

[19] It is true that in some other statutes the State appears to be treated as a single entity. In Holeni, the Supreme Court of Appeal held:

"The State as a concept does not have a universal meaning. Its precise meaning always depends on the context within which it is used. Courts have consistently refused to accord it any inherent characteristics and have relied, in any particular case, on practical considerations to determine its scope. In a plethora of legislation no consistency in meaning has been maintained." 

[20]  It is, as a general rule, not permissible to use the meanings attributed to words in other statutes as determinative in the interpretation of a different statute.  Where Parliament has defined a word used in a statute, it is taken as an indication that Parliament contemplated a special meaning

assigned to the word and not an ordinary meaning.  But if the other statutes traverse the same terrain they might be relevant if the meaning of "employer" in them in effect also determines the meaning of "employer" in the Compensation Act. Whether that is the case depends on their respective subject matter.

[21] The minister's defence, to the effect that it is not liable for a civil claim by Dr Thomas, is squarely based on section 35(1) of the Act.25. This section forbids the recovery of damages in respect of occupational injuries by employees and their dependants from an employer. The section protects employers from civil claims and confines their liability for damages to claims lodged in terms of the Act only. For the defence based on this section to succeed here, it must be established that national government was the employer of Dr Thomas when she suffered occupational injuries.

 [22] The determination of the issue whether national government was an employer envisaged in section 35(1) takes us to the meaning assigned to the word "employer" by the Act. In the Act "employer" is defined to mean–

"any person, including the State, who employs an employee, and includes—

(a) any person controlling the business of an employer;

(b) if the services of an employee are lent or let or temporarily made available to some other person by his employer, such employer for such period as the employee works for that other person;

(c) a labour broker who against payment provides a person to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker." 

[23] What emerges from the language of the definition is that the word "employer" is used in the Act in a sense wider than its ordinary meaning. But what is significant is the fact that the Act identifies the action that qualifies one as an employer. The definition states that a person who employs another person is an employer. It further tells us that employer includes the State when it employs a public servant. The scope of the word "employer" under the Act extends further to include the person who controls the business of an employer, and a labour broker who pays the salary of a worker offered to a third party for specific services.

[24] In contrast, where the employer seconds an employee to a third party or allows the employee to work for another person for a limited period, the person to whom an employee is seconded does not become an employer in the eyes of the Act. The definition specifically states that throughout the secondment, the person who originally employed the worker continues to be her employer. When applying this part of the definition to the present matter, it means the Western Cape Provincial Government, which employed Dr Thomas within the State, remained her employer during her secondment to the Department of Defence and Military Veterans.

[25] The Public Service Act is instructive in determining who employed Dr Thomas. Section 9 of this Act provides that persons are appointed to a State department by an executive authority. The term "executive authority" is in turn defined to mean, in the case of a provincial department, the Member of the Executive Council responsible for a particular department. Therefore, in terms of the Public Service Act, the power to appoint Dr Thomas vested in the Provincial minister for Health in the Western Cape Province. In his representative capacity, the Provincial minister (MEC) became her employer, and continued to be her employer even when she was seconded to the Department of Defence and Military Veterans.

[26] The argument by the minister is more nuanced. Her counsel argued that since the Provincial Department of Health that employed Dr Thomas is part of the same State to which the National Department of Defence and Military Veterans belongs, this Court should hold that the minister cannot be liable for the claim made by Dr Thomas. Counsel urged us to construe the word "State" in the definition as reference to government in its provincial and national spheres, and not the local sphere. The logical consequence of this contention is this: if the Western Cape Provincial Minister for Health was insulated from liability by section 35(1), all parts of the State, including the national minister, are also exempt from liability by reason of being part of a singular entity, the State.

[27] This argument is not consistent with the structure of our Constitution which establishes a government consisting of three spheres, namely, national, provincial and local. The Constitution also acknowledges that, from time to time, disputes will arise between these spheres and when that happens, certain procedures must be followed in an attempt to resolve the dispute, before courts of law can be approached. By accepting that disputes will sometimes reach the courts, the Constitution affirms that each sphere is separate from the others, even though they are interdependent and interrelated. The Constitution provides for the devolution of power between these spheres and barring concurrent competencies, each sphere enjoys the exclusive exercise of power allocated to it.

[28] The construction advanced by the minister is also at odds with the Public Service Act which identifies various functionaries as the appointing authority of officials in different State departments at both provincial and national spheres. That interpretation is, in addition, not in line with the other provisions of the Act set out below.

[29] An employee is entitled to claim occupational injury benefits under the Compensation Act for occupational injuries sustained in an accident arising from her employment. This is not a claim for damages under the common law, but for specified benefits under the Act. This is not dependent on proof of any negligence on the part of the employer.  An employee may have a workplace damages claim against a third party, not the employer, if the occupational injury was caused in circumstances where the third party is liable for damages.

[30] The procedure for claiming occupational injury benefits is set out in chapter V of the Act.  Briefly, it works like this. The employee must give notice of the accident to her employer; the employer must then give notice of the accident to the director-general;31  the director-general investigates the accident;  and, after formal requirements relating to the claim are complied with,  the director-general considers and adjudicates the claim.  The determination and calculation of the claim is done in accordance with chapter VI of the Act.

[31] Although the procedure for making the claim is directed at the director-general, and he decides and adjudicates the claim, the liability for payment of the claim only rests on the director-general in those instances where employers have to pay assessments which form part of the Compensation Fund.36  In the case of an "employer individually liable", the payment has to be made by the "employer individually liable".  In terms of the definition of an "employer individually liable", it is "an employer who in terms of section 84(1)(a) is exempt from paying assessments to the compensation fund". To sum up: the director-general has to make payment of the claim from the Compensation Fund in cases where employers are obliged to pay assessments into the Compensation Fund. Employers who are not obliged to make payment of assessments into that fund have to pay the compensation themselves.

[32]  In terms of section 84(1), no assessments need to be paid in respect of employees who are employed in the national and provincial spheres of government, including Parliament and Provincial Legislatures; local authorities and Municipalities with exemptions under certain Acts; and employers who are fully insured for potential liability in terms of the Compensation Act with a mutual association.

[33] Even though these "employers individually liable" need not pay assessments, they are liable to pay the director-general administration fees as he deems equitable, as well as contributions to losses that may have occurred from payments out of the Compensation Fund.  These provisions do not, however, impose any liability on the director-general for payment of claims against "employers individually liable".

[34] In addition to the definition of "employers individually liable" in section 84(1), the Supreme Court of Appeal relied on section 39(2) of the Act:

"For the purposes of subsection (1) an employer referred to in section 84(1)(a)(i) means, in the case of—

(a) the national and provincial spheres of government, the respective heads of departments referred to in section 7(3) of the Public Service Act, 1994 (Proclamation No. 103 of 1994);

(b) Parliament, the Secretary to Parliament;

(c) a provincial legislature, the Secretary of the provincial legislature in question."

[35] The minister submitted that the Supreme Court of Appeal's reliance on these sections was misplaced. The provisions of section 39(2) of the Act are expressly subject to "the purposes of subsection (1)", which deals with the procedural requirement of giving notice of an accident. Similarly, section 84(1) is part of chapter IX of the Act, which deals with the obligations of employers. Section 84 deals with exemption from assessments under the Act and has little or nothing to do with the individual liability of the entities mentioned in the section. Both these provisions are perfectly compatible with an interpretation of the State as a single employer, because they merely provide for practical means to process claims on behalf of the vast State administration in its many forms. This interpretation, it was argued, would also give proper meaning to the reference "the State" in the definition of "employer", which the interpretation favoured by the Supreme Court of Appeal fails to do.

[36] The minister also contended that section 39(2) of the Compensation Act is significant for two further reasons. First, it establishes the link between the Public Service Act and the Compensation Act. Second, it follows the Public Service Act in identifying the various employers within the State.

[37] There is merit in this argument. It might be countered by regarding the inclusion of "the State" in the definition of "employer" as merely qualifying "any person", as the State is not considered to be a natural or juristic "person" for definitional purposes. It could merely be an all-encapsulating term for the individual components of the State and to avoid listing each government department or sphere of government in the definition. Section 39(2) of the Act provides that in the case of both the national and provincial spheres, employers referred to in section 84(1) are the respective heads of departments. This is an indication that the Compensation Act does not regard the State as a single employer entity.

[38] These considerations show how the approach in this judgment differs from that of the Supreme Court of Appeal. The textual and contextual arguments counter each other and do not provide sufficient grounds for choosing one reasonable interpretation above the other. The balance must be tilted by looking at which interpretation will best "promote the spirit, purport and objects of the Bill of Rights".  In Bato Star, this Court held:

"Indeed, every Court 'must promote the spirit, purport and objects of the Bill of Rights' when interpreting any legislation. That is the command of section 39(2). Implicit in this command are two propositions: first, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and second, the statute must be reasonably capable of such interpretation. This flows from the fact that the Bill of Rights 'is a cornerstone of [our constitutional] democracy.' It 'affirms the democratic values of human dignity, equality and freedom.'

[39] At stake is Dr Thomas's fundamental right to bodily integrity and security of her person, a right that underlies her common law claim for workplace damages.  The interpretation advocated for by the minister precludes a further delictual claim and is thus more restrictive of Dr Thomas's rights. On that score the Supreme Court of Appeal's interpretation must be favoured and, therefore, upheld. To deprive her of her full common law entitlement would, in these circumstances, not be justified.

 [40] The appeal must thus be dismissed.

Order

[41]  The following order is made:

1. Leave to appeal is granted.

2. The appeal is dismissed with costs, including the costs of two counsel.

(Mogoeng CJ, Moseneke DCJ, Cameron, Froneman, Jafta, Khampepe, Madlanga and Nkabinde JJ, and Theron, Tshiqi and Molemela AJJ concurred in the judgment of Froneman J).

Industrial Health Resource Group and others v Minister of Labour and others [2015] JOL 33664 (GP)   

Key Words

Health and safety – Workplace accident – Report – Section 32 of the Occupational Health and Safety Act 85 of 1993 – Access to report

Mini Summary

Following a workplace fire, the applicant sought access to a report issued in terms of section 32 of the Occupational Health and Safety Act 85 of 1993 (“the act”). Approaching the Court, the applicants sought a declaratory order that they were entitled, on request, to be furnished with a copy of the report contemplated in section 32(9) of the act.

Held that the application concerned the interpretation and application of section 32 of the act. Section 32 governs any incident occurring at work or arising out of or in connection with the use of plant or machinery. The second respondent (the chief Inspector) is required to direct an inspector to conduct an inquiry into any incident in terms of section 32 when presented with prima facie evidence of an offence.

Words in a statute must be given their ordinary grammatical meaning, unless doing so would result in an absurdity. A statutory provision should always be interpreted purposively, the relevant statutory provision must be properly contextualised and all statutes must be construed consistently with the Constitution. In construing section 32, the Court was obliged to consider the statute within the context of the related provisions and the statute as a whole including its underlying values bearing in mind that we should avoid an interpretation that is contrary to the Bill of Rights.

A section 32 inquiry is not limited to incidents involving employees only, but may be convened whenever “any person” suffers the consequences referred in section 24(1)(a) of the act. Section 32(5) affords interested parties the right to participate in section 32 inquiries. If the reports are not made available to interested parties, they could never become aggrieved by anything contained therein, as they would not have had sight of its contents. It would be absurd to confer on interested parties, a right of appeal against the finding of a report and at the same time deny them access to the report. The purpose of the section 32 inquiry is to determine whether any duties imposed on employers and manufacturers have been breached and whether any party ought to be held criminally liable hence the referral of the report to the prosecuting authority. The applicants, as family members and dependants of employees who were killed in the fire, had a legitimate interest in the outcome of any section 32 inquiry into such an accident as they could have a claim for loss of support against any third party, who might be held liable under common law.

The Court held that interpreted purposively, the act entitles persons in the position of the applicants to access section 32 reports. An interpretation that entitled interested parties to access section 32 reports respects, protects and promotes various rights in the Bill of Rights and other important values enshrined in the Constitution.

The declaratory relief sought was granted.

MATOJANE J:

Introduction

[1] This matter concerns the interpretation and application of section 32 of the Occupational Health and Safety Act. The Department of Labour ("the Department") has denied the applicants access to a section 32 report following a workplace fire at the Paarl Print Facility on 17 April 2009 ("the Paarl Print fire")

 [2]  The applicants seeks a declaratory relief that they are entitled, on request, to be furnished with a copy of the report contemplated in section 32(9) of the Occupational Health and Safety Act  ("the OHSA") or alternatively in terms of PAIA. The report aforesaid is the report into any inquiry held in terms of section 32 of the OHSA

[3] The applicant also seeks an order directing the Minister of Labour, the first respondent, to give the second to the tenth applicant's access to the Presiding Inspector's section 32 inquiry report, into the fire that occurred at the Paarl Print Facility on 17 April 2009, within five days from the date of the order.

[4] The respondents deny that the provisions of the OHSA allow for an interested party to have access to the Presiding Inspector's report into a section 32 inquiry. Respondents contend that the disclosure of the Presiding Inspector's section 32 inquiry report to any person other than the Chief Inspector and the National Prosecuting Authority, would violate the principles of co-operative governance enshrined in sections 40 and 41 of the Constitution of the Republic of South Africa, 1996 ("the Constitution").

[5]  Respondents contends further that because employees injured on duty and/or the dependants of employees, who have died as a result of injuries on duty, are not entitled (by virtue of the provisions of section 35 of the Compensation for Occupational Injuries and Diseases Act),2  to sue their employer for damages, arising from such injury or death, such employees and/or dependants do not require access to the report of the presiding inspector into a section 32 inquiry, for the protection of, or for the exercise of, any right as they have no right of action against the employer.

The parties

[6] The first applicant is a unit of the University of Cape Town ("UCT"), a university with its own juristic personality established in terms of the Higher Education Act.3  The second to tenth applicants are dependants, parents and spouses of employees who died in consequence of injuries suffered at the Paarl Print fire.

Issues to be determined

[7] The issue to be determined is whether the applicants and similarly situated interested parties are entitled to be furnished with a copy of the report of an enquiry contemplated in section 32(9) of the OHSA as of right. The answer to this question depends on the interpretation of section 32 of OHSA, in particular section 32(10) thereof.

Factual background

[8] On 17 April 2009 a fire incident broke out in a printing factory owned and operated by Paarl Print (Pty) Ltd ("Paarl Print"). The fire spread rapidly through the facility, destroying much of it and killing 13 people and injuring 10 more.

[9] The second respondent ("the Chief Inspector") appointed the third respondent, Mr Tibor Szana, who was the Senior Inspector in the Department at the time, to conduct a formal inquiry in terms of section 32 of the OHSA, and to prepare a report into the inquiry.




[10] The inquiry was held in public and was attended by members of the public and the media. The inquiry ran for some 20 days, between 1 March 2010 and 15 June 2010. Some 30 witnesses were called to testify and approximately 3 000 pages of evidence were submitted as evidence in the inquiry.

[11] The following parties were represented and actively participated in the enquiry by leading evidence, cross-examining witnesses and making their submissions both orally and in writing.

11.1 The twelfth applicant and the families of the second to the tenth applicants;

11.2 Paarl Print and Paarl Media, the parent company of Paarl Print;

11.3 The Drakenstein local municipality;

11.4 The engineers and architects responsible for the construction and design of the facility;

11.5 The manufactures of the product "Kulite" which is used for roof insulation.

[12]  According to the deponent to the answering affidavit of the first, second and third respondents, the inquiry was directed at establishing causes for the fire and also making a recommendations that may be helpful either during the prosecution in terms of the Criminal Procedure Act or conducting an inquest in terms of the Inquest Act.

[13] The applicants urged the Presiding Inspector to make a findings that included the origin and cause of the fire, the reason for its rapid spread through the premises, preventative steps that could have been taken by Paarl Print and whether any parties ought to be held criminally and/or civilly responsible for the resultant injuries and death.

 [14] The twelfth applicant contends that the original fire in the kitchen ignited the "Kulite" thermal roof insulation, which burned furiously and provided the fuel for the fire as it raced through the facility.

[15] Applicants raised concerns regarding the safety of the design and construction of the factory. These included inadequacies in the alarm and fire detection system, inadequate fire training and the absence of physical fire divisions in the building.

[16]  The Presiding Inspector completed his report in late 2010 and submitted it to the Chief Inspector and the Director of Public Prosecutions pursuant to section 32(10) of the OHSA. In January 2011 families of the deceased requested the Chief Inspector to furnish them with the copy of the Presiding Inspector's report. Applicants were informed of the blanket policy not to make section 32 reports available to anyone other than the NPA.

[17] The applicants wrote the Director of Public Prosecutions requesting a copy of the report and an update on the progress of the investigations. The Director of Public Prosecutions informed the families of the deceased that he was not at liberty to disclose the contents of the report by virtue of section 36 of OHSA and that the reports are submitted to him marked "confidential".

 [18] On 16 May 2013, the Director of Public Prosecutions decided that no prosecutions would be instituted arising out of the Paarl Print fire and the matter was referred to an inquest.

[19] On 31 May 2013 the Department refused the applicant's PAIA request stating that the reports have been submitted to the Senior Public Prosecutor and in terms of section 39(1)(b)(iii)(aa) of PAIA the department was unable to release the report.

[20] On 24 April 2014, the National Prosecuting Authority informed the applicants that it would not be instituting any prosecutions arising from the incident.

The statutory framework

[21] The purpose of the Occupational Health and Safety Act as set out in the preamble is:

". . . to provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work; to establish an advisory council for occupational health and safety; and to provide for matters connected therewith."

[22] Section 8 of the Act imposes positive duties on employers and third parties to their employees in respect of workplace safety. The duties include, inter alia:

". . . the provision and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health (section 8(1)); taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment (section 8(2)(b)); making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances (section(2)(c)(d)); establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery (section 8(2)(d)."

[23]  Section 10 imposes general duties on manufacturers of articles and substances for use at work and state that:

"(1) Any person who designs, manufactures, imports, sells or supplies any article for use at work shall ensure, as far as is reasonably practicable, that the article is safe and without risks to health when properly used and that it complies with all prescribed requirements."

[24] Failure to comply with these duties constitutes a criminal offence in terms of section 38(1) of the OHSA.

[25] The Act defines an "incident" as each incident occurring at work or arising out of or in connection with the activities of persons at work, or in connection with the use of plant or machinery, in which, or in consequence of which:

"(a) any person dies, becomes unconscious, suffers the loss of a limb or part of a limb or is otherwise injured or becomes ill to such a degree that he is likely either to die or to suffer a permanent physical defect or likely to be unable for a period of at least 14 days either to work or to continue with the activity for which he was employed or is usually employed;

(b) a major incident occurred; or

(c) the health or safety of any person was endangered and where–

 (i) a dangerous substance was spilled;

(ii) the uncontrolled release of any substance under pressure took place;

(iii) machinery or any part thereof fractured or failed resulting in flying, falling or uncontrolled moving objects; or

(iv) machinery ran out of control, shall, within the prescribed period and in the prescribed manner, be reported to an inspector by the employer or the user of the plant or machinery concerned, as the case may be."

[26] The Act defines "major incident" as "an occurrence of catastrophic proportions, resulting from the use of plant or machinery, or from activities at a workplace".

[27] Section 32 governs any incident occurring at work or arising out of or in connection with the use of plant or machinery. The Chief Inspector is required to direct an inspector to conduct an inquiry into any incident in terms of section 32 of the OHSA when presented with prima facie evidence of an offence .4  Section 32(4) provides that an inquiry must be held in public.

[28]  Section 32(5)(b) identifies persons who have an interest in the issue of the formal enquiry and limits their rights to participating in the inquiry through putting questions to a witness to such an extent as the Presiding Inspector may allow. Section 32(5)(b) provides:

"(b) Any person who has an interest in the issue of the formal inquiry may personally or by representative, advocate or attorney put such questions to a witness at the inquiry to such extent as the presiding inspector may allow.

(c) The following persons shall have an interest as referred to in paragraph (b), namely

(i) any person who was injured or suffered damage as a result of the incident forming the subject of the inquiry;

 (ii) the employer or user, as the case may be, involved in the incident;

(iii) any person in respect of whom in the opinion of the presiding inspector it can reasonably be inferred from the evidence that he could be held responsible for the incident;

(iv) a trade union recognized by the employer concerned or any trade union of which a person referred to in subparagraph (i) or (iii) is a member;

(v) any owner or occupier of any premises where the said incident occurred;

(vi) any other person who, at the discretion of the presiding inspector, can prove such interest."

[29] Section 32(9) requires the Presiding Inspector at the conclusion of the inquiry to compile a written report thereon. Section 32(10) provides:

"The evidence given at any inquiry under this section shall be recorded and a copy thereof shall be submitted by the presiding inspector together with his report to the chief inspector, and in the case of an incident in which or as a result of which any person died or was seriously injured or became ill, the inspector shall submit a copy of the said evidence and the report to the attorney-general within whose area of jurisdiction such incident occurred."

[30]  Section 32(13) provides that an inspector presiding at any formal inquiry shall not incur any civil liability by virtue of anything contained in the report compiled in terms of subsection (9).

[31] Section 35 affords a right to any person aggrieved by any decision taken by the inspector to appeal against such a decision.

Approach to statutory interpretation

[32] Section 39(2) of the Constitution obliges courts to promote "the spirit", purport and objects of the Bill of Rights when construing legislation. Although the text is often the starting point of any statutory construction, the meaning it bears must pay due regard to the context. This is so even when the ordinary meaning of the provision to be construed is clear and unambiguous (see Department of Land Affairs and others v Goedgelegen Tropical Fruits (Pty) Ltd).5

It is trite that words in a statute must be given their ordinary grammatical meaning, unless doing so would result in an absurdity, added to this general principle is the rider that (a) a statutory provision should always be interpreted purposively, (b) the relevant statutory provision must be properly contextualised, and (c) all statutes must be construed consistently with the Constitution (see Cool Ideas v Hubbard).

[33]  Therefore in construing section 32, we are obliged to consider the statute within the context of the related provisions and the statute as a whole including its underlying values bearing in mind that we should avoid an interpretation that is contrary to the Bill of Rights.

[34] Respondents submit in their heads of argument and in court that section 32 expressly mentions the individuals who must be provided with the report, namely, the Chief Inspector and in some instances, the Director of Public Prosecutions. Respondents argue that section 32(10) does not provide for access to the report by interested parties listed in section 32(5). Respondents argue that it prescribes specifically that the report shall be submitted to the people mentioned in section 32(10) only.

 [35]  Section 32 inquiry is not limited to incidents involving employees only, but may be convened whenever "any person" suffers the consequences referred insection 24(1)(a) of the OHSA.

[36] Section 32(5) of the OHSA affords interested parties the right to participate is section 32 inquiries.

[37] Section 35(1) confers a right of appeal to the Chief Inspector to "Any person aggrieved by any decision taken by an inspector under a provision of this Act". The section provides that:

". . . after the Chief Inspector has considered the grounds of the appeal and the inspector's reasons for the decision, he shall confirm, set aside or vary the decision or substitute for such decision any other decision which the inspector ought to have taken."

[38] If the reports are not made available to interested parties, they could never become aggrieved by anything contained in it, as they would not have had sight of its contents. It is absurd, in my view, to confer on interested parties a right of appeal against the finding of a report and at the same time deny them access to the report.

[39] Section 32(13) of the OHSA confers a statutory indemnity on the inspector in respect of the content of the report. This indemnity would be redundant if the only recipients of the inspector's report are the Senior Inspector and the Prosecuting authority only. In my view, the right of access of interested parties to section 32 reports follows from the express language of the order.

[40]  It is clear from the reading of section 8  and section 10 that the purpose of the section 32 inquiry is to determine whether any duties imposed on employers and manufacturers have been breached and whether any party ought to be held criminally liable hence the referral of the report to the Prosecuting Authority. Civil liability on the part of the employers or manufactures is not catered for in the Act. The family members and dependants of employees, who are killed in an industrial accident, have a legitimate interest in the outcome of any section 32 inquiry into such accident as they may have a claim for loss of support against any third party, who might be held liable under common law.

[41] The findings and recommendations of the Presiding Inspector in any section 32 inquiry are of direct relevance to employers who are under a duty in terms of section 8 of the Act to establish the hazards to the health and safety of persons in the workplace and to take all measures reasonably required to eliminate the risk posed by such hazards. By denying employers and employees sight of the Presiding Inspector's report into the causes of the accidents and their recommendations on means to prevent future occurrences, they will be deprived the knowledge they require to ensure safe and healthy workplace.

[42]  The respondents submit that applicants do not need the inspector's report to enforce any right against the employer as the Compensation for Occupational Injuries and Diseases Act  ("COIDA") provides for compensation for disablement caused by occupational injuries or death resulting from such injuries during the course of employment. The difficulty with this submission is that COIDA does not have application to persons who are not employees of the party whose negligence is the cause of their disablement or death. In the present matter, COIDA will not apply if the Presiding Inspector finds that third parties like the manufacturers of Kulite, the engineers who designed the premises or the contractor who operated the canteen where the fire broke out were responsible for the fire and the ensuing deaths and injuries.

[43]  It follows that the finding of the Presiding Inspector are relevant to the rights of the dependants of the deceased and those of the injured workers to recover damages from third parties who may be held responsible for the deaths and injuries.

 [44] For the above reasons, I find that OHSA itself interpreted purposively entitles persons in the position of the applicants to access section 32 reports.

[45] Section 32(1)(a) of the Constitution provides that everyone "has the right of access to any information held by the state". This right gives effect to the founding constitutional values of openness and accountability in public affairs. The founding values in section 1 include the pursuit of "accountability, responsiveness and openness".

[46] Section 39(1)(a) provides that the courts must promote the values that underlie "an open and democratic society". Section 41(1)(c) of the Constitution requires all spheres of government and all organs of State to provide "transparent and accountable" government.

[47] Section 195(1)(g) provides that "transparency must be fostered by providing the public with timely, accessible and accurate information".

[48] The respondents' interpretation of section 32, in my view, undermines the constitutional values of transparency, openness and accountability in that it deprives interested parties their right to information held by the State. The refusal to disclose section 32 reports violates the right to human dignity provided for in section 10 of the Constitution, in that families and next of kin of workers killed in industrial accidents do not receive an authoritative report on the cause of their loved one's death to enable them to find psychological closure.

[49] Without access to the reports, employers and trade unions are hampered in their ability to ensure health and safety in the workplace. It is also not possible for unions to adequately protect their members' interest by advocating for reform and improvement of safety in the workplace which infringes the workers' right to fair labour practice provided for in section 23 of the Constitution.

[50] It follows, in my view, that an interpretation that entitles interested parties to access section 32 reports respects, protects and promotes various rights in the Bill of Rights and other important values enshrined in the Constitution. It allows employees and unions to hold employers accountable to past and future conduct by ensuring that they comply with the recommendations and findings contained in the report.

[51] The respondents contend that PAIA is not applicable because the OHSA specifically excludes disclosure to interested parties and that PAIA, being a "general statute", cannot override the provisions of OHSA.

 [52] Section 46 of the Promotion of Access to Information Act  makes access to the inspector's report mandatory. It provides:

"Despite any other provision of this Chapter, the information officer of a public body must grant a request for access to a record of the body contemplated in section 34(1), 36(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (h), 40, 41(1)(a) or (b), 42(1) or (3), 43(1) or (2), 44(1) or (2) or 45, if–

(a) the disclosure of the record would reveal evidence of–

(i) a substantial contravention of, or failure to comply with, the law; or

(ii) an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question."

[53] The order:

1. It is declared that the persons referred to in section 32(5)(c) of the Occupational Health and Safety Act 85 of 1993 ("OHSA"), are entitled, on request to the presiding inspector, to be furnished with a copy of the report contemplated in section 32(9) of OHSA, into any inquiry held in terms of section 32 of OHSA.

2. It is declared that the policy of the Department of Labour to refuse access to a section 32 inquiry report in all instances and without regard to the circumstances of each case once the report is referred to the National Prosecuting Authority is inconsistent with OHSA, the Promotion of Access to Information Act 2 of 2000, and the Constitution of the Republic of South Africa, 1996, and is accordingly unlawful and invalid.

3. The Minister of Labour is directed to provide, within five days of this Court order, the second to tenth applicants with access to the presiding inspector's section 32 inquiry report, into the fire that occurred at the Paarl Print facility, in Paarl, on 17 April 2009.

4. It is directed that the costs of this application are to be paid by the first respondent and such other respondents who opposed this application, jointly and severally, the one paying the other to be absolved.                                                                        

Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck [2007] (SCA)

Mini Summary

During an armed robbery at appellant’s business premises, the 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.

Held 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.

The appeal was dismissed.

NUGENT JA

[1]  The appellant is a poultry farmer in the Uitenhage district. Attached to its poultry farm is a retail shop. On the afternoon of 13 June 2003 a group of armed men entered the shop and robbed the staff and customers. Before the robbers left the shop they became aware that security personnel had been alerted to the robbery. They seized the cashier, Ms Rieck, and, holding a gun to her head, forced her to accompany them as they fled. Outside the shop they called upon the security personnel to "back off" otherwise they would shoot Rieck. Then they bundled Rieck into the rear seat of a vehicle belonging to a customer that was parked outside the shop and, with some of the robbers on either side of Rieck in the rear seat, the vehicle sped away, swaying from side to side as the wheels spun on the gravel.

[2]  The appellant's loss control officer was in his office at the time the robbery occurred. He was alerted to the fact that a robbery was taking place and rushed to investigate. He saw three men leave the shop with Rieck and force her into the vehicle. He ran to the main access gate. As the vehicle sped past him he fired two shots from his handgun at the departing vehicle, intending to strike one of the wheels and prevent its escape. He also heard two shots being fired by one of his colleagues. The vehicle continued on its way and security personnel clambered into vehicles and gave chase.

[3]  Meanwhile, one of the shots had struck the rear of the departing vehicle, penetrated the rear seat, and had hit Rieck on the arm. She said that when the robbers became aware that she had been shot they appeared to panic. They sped into a nearby township, stopped the vehicle, and fled, leaving her behind. Residents of the nearby houses came to Rieck's assistance and soon the police arrived and she was taken to hospital.

[4]  Rieck sued the appellant in the South Eastern Cape High Court for damages arising from her injury. She alleged that the person who shot her acted wrongfully and negligently and that the appellant was vicariously liable for the consequences of his conduct. The action was tried by Plasket J. With the agreement of the parties the learned Judge tried only the question, whether appellant was liable for the harm that was caused, leaving the quantification of damages for later adjudication. He held that the appellant was liable to Rieck for the damages that she suffered in consequence of being shot.

[5]  After the conclusion of the trial, but before judgment was delivered, the appellant applied to amend its plea so as to introduce a special defence that the claim against the appellant was precluded by section 35(1) of the Compensation for Occupational Injuries & Diseases Act 130 of 1993. The application to amend the plea was considered by the court below, but refused, on the grounds that the evidence that was sought to be relied upon by the appellant did not disclose a defence.

[6] This appeal is against both those orders, and it is before us with the leave of this Court.

[7]  It is not disputed that the bullet that struck Rieck was fired by either of two employees in the appellant's loss control division. Although the appellant denied throughout the trial that the employee concerned was acting within the course and scope of his employment when he fired the shot, that denial has since been abandoned. What remained in issue before us – apart from the special defence that was sought to be introduced into the plea – was only whether the employee (and hence the appellant) incurred liability for the harm that he caused.

[8]  The evidence does not establish which of the two employees fired the material shot and only one of them gave evidence. He said that he fired at the vehicle in order to stop it because he feared that Rieck might be killed by the robbers if they managed to escape. I have assumed, in favour of the appellant, that the other employee shot at the vehicle for the same reason. All the submissions that were advanced on behalf of the appellant really came down to this: it was submitted that it was reasonable to shoot at the vehicle to avoid the risk that Rieck might be killed and accordingly, so it was submitted, the conduct of the employee concerned was neither wrongful nor negligent.

[9]  To cause bodily injury to another by a positive act is generally wrongful and will be visited with delictual liability if the actor was negligent. The positive invasion of bodily integrity falls within what in comparative English law has been described as "the range of interests which the law sees fit to protect against negligent violation", and which our law classifies as wrongful conduct. Expressed in the idiom of one variation of the general test for wrongfulness in our law, it is conduct in relation to which "public policy considerations demand that . . . the plaintiff has to be compensated for the loss caused by [a] negligent act . . . of the defendant".

[10]  But our law also recognises that there are circumstances in which even positive conduct that causes bodily harm will not attract liability. That is so where the harm is caused in circumstances of necessity, which have been described as occurring when the conduct is "directed against an innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person) against a dangerous situation".

It is well established that whether particular conduct falls within that category is to be determined objectively.

That the actor believed that he was justified in acting as he did is not sufficient. The question in each case is whether the conduct that caused the harm was a reasonable response to the situation that presented itself.

[11]  But while it is clear that there is no liability for harmful conduct that occurs in circumstances of necessity, and that the standard for assessing the conduct is objective, it has yet to be authoritatively determined where necessity fits in the jurisprudential scheme of delictual liability. The weight of academic opinion is that necessity operates to justify conduct that would otherwise be wrongful, thus taking it outside the class of conduct that is susceptible to an action for damages, a view that seems largely to draw upon analogous principles that have been developed in criminal law. On the other hand it also seems at times to have been suggested that it might operate instead to avoid a finding of negligence.

[12]  It is not necessary in the present case to question the correct jurisprudential niche that is occupied by necessity in the scheme of delictual liability. Whether it operates to justify conduct that would otherwise be wrongful, or to avoid a finding of negligence, the test for whether it operates at all calls for an objective evaluation. For the classic test for negligence, as it was articulated by Holmes JA in Kruger v Coetzee, itself requires not only that the harm was foreseeable, but also that a reasonable person would have guarded against it occurring.

[13]  Thus whatever the correct jurisprudential approach, a person who causes bodily injury by a positive act will avoid liability for the harm that he caused, on either approach, only if a reasonable person in the position in which he found himself would have acted in the same way. Considerations that are to be brought to account in determining whether the conduct was reasonable are described by Van der Walt and Midgley as follows:

"A person may inflict harm in a situation of necessity only if the danger existed, or was imminent. . . . The means used and measures taken to avert the danger of harm must not have been excessive, having regard to all the circumstances of the case. The nature of the threat, the extent of harm, the likelihood of serious injury to persons, and the value of the interest threatened must, for example, be taken into consideration. It must have been the only reasonably possible means of averting the danger. Similarly, although any interest may be protected, the interest infringed or the harm inflicted should not be greater than the interest protected or the harm prevented."

[14]  Essentially, what is called for is a weighing against one another of the gravity of the risk that was created by the defendant, and the utility of his conduct.

As it is expressed by Boberg:

"Proportionality, in the sense of a preponderance of avoided over inflicted harm, is a traditional postulate of necessity . . ."

In short, the greater the harm that was threatened, and the fewer options available to prevent it, the greater the risk that a reasonable person would be justified in taking, and vice versa.

[15]  In the present case there was no outward indication that Rieck would be killed once the robbers had made their escape. What presented itself to the employees who fired the shots was that Rieck had been taken hostage by the robbers as a means of enabling them to make their escape without interference. It is true, as pointed out by counsel for the appellant, that we live in times in which robbers at times kill their victims for no apparent purpose, and that there was the potential that they would do so in this case, particularly if they feared that Rieck might be able to identify them. But as the court below observed, the wanton killing of a hostage who has served her purpose has not become the norm. While the possibility that that might have occurred is not to be discounted, it was a possibility that was founded only upon what sometimes occurs, and not on any indication that this would be such a case.

[16]  What falls to be weighed against that risk is the more immediate risk of the harm that was brought about by firing shots at the departing vehicle. And, in my view, that immediate risk was great indeed. Quite apart from the risk that Rieck might be struck by a wayward bullet, or that she might be injured if the shots caused the driver to lose control of the car, there was the even greater risk of what might occur if the shots achieved their purpose. For if the flight of the vehicle had indeed been arrested, without harm being caused to Rieck in the process, she would have been exposed to the risk of again being held with a gun to her head, while the robbers persisted in attempting to escape, and on this occasion the risk of her being killed or injured would have been a grave one. What was to happen once the flight of the vehicle was arrested (which was the purpose for which the shots were fired) seems not to have been considered at all. In my view, it was no less than foolhardy to attempt to prevent the escape of armed robbers who were holding Rieck hostage. It exposed her to very real and immediate danger, from any of a number of causes, which far outweighed the possible risk to her safety if the robbers escaped.

[17]  I agree with the finding of the court below that a reasonable person would not have fired at the vehicle. In the circumstances the causing of bodily harm to Rieck was wrongful (on any jurisprudential approach) in accordance with ordinary principles. The harm was clearly foreseeable, and ought reasonably to have been avoided by refraining from shooting at the vehicle, and in the circumstances it was negligent to have caused it. It follows that the court below was correct in finding that the appellant is vicariously liable for the damage that was caused.

[18]  There remains the question whether the claim against the appellant is excluded by section 35(1) of the Compensation for Occupational Injuries & Diseases Act 130 of 1993, the material provisions of which are as follows:

"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. . ."

[19]  It is not disputed that Rieck was an "employee", and that she sustained an "occupational injury", as those terms are defined in the Act. What is in issue is only whether the appellant was her "employer". The material facts in that regard are not in dispute. What is in dispute is only what is meant by that term as it is used in the Act.

[20]  The Act has a history that stretches back over more than a century. The pre-Union statutes were consolidated in the Workmen's Compensation Act 25 of 1914, which entitled a workman or his dependants to receive compensation from his employer, in accordance with a tariff, in the event that the workman was accidentally incapacitated or killed in the course of his work. A person was a "workman in relation to work if he has entered into, or works under, a contract of employment . . ." (subject to exceptions that are not material).

On the other hand a person "having a contract of employment with a workman to perform work" was to be "regarded for purposes of this Act as the employer of that workman".

[21]  Those definitions make it clear that a workman could have only one "employer" at any time, which was the person with whom he was in a contractual relationship of employment, whether he performed his duties for that person or for someone else. Any doubt in that regard was removed by the following additional provision:

"If the services of a workman be temporarily lent or let on hire to another person by the person with whom such contract of employment is made, the latter shall . . . be deemed to continue to be the employer of the workman, while he is working for that other person."

[22]  Those provisions (with the addition of others that are not material) were retained in the Workmen's Compensation Act 59 of 1934, which replaced the 1914 Act. The 1934 Act was, in turn, replaced by the Workmen's Compensation Act 30 of 1941. The 1941 Act transferred the obligation to compensate workmen for workplace injuries from the employer (who until then had effectively been an insurer against workplace injuries) to a compensation fund to which employers were required to contribute. The material part of the definition of a "workman" remained substantially unchanged.

An "employer" was redefined (in form but not in substance) to mean "a person who employs a workman" (subject to certain provisos and extensions that are not material). In ordinary language that means the person with whom he has a contract of employment. Any doubt in that regard is once more removed by the express provision that if the services of the workman were temporarily lent or let on hire to another person then the employer would "be deemed to continue to be the employer of such workman whilst [the workman] is working for that other person". That was still the position at the time the 1941 Act was replaced by the Compensation for Occupational Injuries & Diseases Act 130 of 1993.

[23]  The long legislative history of workmen's compensation in this country (at least until 1993) has thus consistently recognised that a workman has only one employer at any time (there are exceptions that are not material), which is the person with whom the workman is in a contractual relationship of employment, and that that person remains his employer even if the workman performs his services for another.

[24]  The 1993 Act defines an employee to mean (in so far as it is now material):

"a person who has entered into or works under a contract of service . . . with an employer . . . and includes . . . a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker."

An "employer", in turn, is defined to mean:

"any person . . . who employs an employee, and includes

(a)

. . .

(b)

if the services of an employee are lent or let or temporarily made available to some other person by his employer, such employer for such period as the employee works for that other person;

(c)

a labour broker who against payment provides a person to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker."

[25]  Rieck was a party to an employment contract with a labour broker, TMS-Shezi Industrial Services (Pty). TMS-Shezi paid her salary, deducted and remitted her income tax, and made the required contributions in relation to her employment to the unemployment insurance fund and the workmen's compensation fund. TMS-Shezi, in turn, supplied her services to the appellant in return for a fee, and Rieck performed her employment duties for, and under the direction and control of, the appellant.

[26]  The first submission on behalf of the appellant was that the relationship that existed between Rieck, TMS-Shezi and the appellant was one that is contemplated by subsection (b) of the definition of an "employer" (a relationship that involves three people: an employer, and employee, and "some other person"). It was submitted that in such a relationship, the client (the appellant) of the labour broker (TMS-Shezi) becomes the "employer" for so long as the employee's services are made available to the client by the broker. Support for that submission was sought in Clive Thompson and Paul Benjamin

South African Labour Law, in which the following assertion is made in relation to the meaning of subsection (b):

"Where an employee's services are lent or let or temporarily made available by the employer to some other person, that person becomes the employer for the period that the employee works for them."

As the court below correctly pointed out, that assertion as to the meaning of subsection (b) is not correct. The words "such employer" in subsection (b) refer back to the word "employer" that immediately precedes it, and not to the phrase "some other person". Apart from its inconsistency with the plain language of the subsection, the construction that was advanced on behalf of the appellant would reverse the position that had prevailed for over a century, for which there is no apparent reason, and would also be inconsistent with the scheme of the Act as a whole.

[27]  It was also submitted, as I understood it, that the rationale for extending the definition of "employer" to include labour brokers was that labour brokers are not employers as that word is used in the opening phrase of the definition. It follows, so went the submission, that where such a relationship exists, as in the present case, the person referred to as the employer in the opening phrase of the definition must be the client of the labour broker. That is a most dubious construction of the definition, which falters in logic in at least two places. But that apart, the effect of such a construction would be that, for the first time in the long history of workmen's compensation, a concept of two simultaneous employers was introduced, for no apparent reason, and then only in relation to labour brokers. It would also have the effect that a person receives the benefit of being an "employer" (the benefit of an exemption from liability for workplace injuries) but no obligation to contribute to the fund that compensates for such injuries (merely because he secures the services of the employee from a labour broker). Had it been intended to introduce these startling consequences into the Act it is most unlikely that they would have been introduced merely through a process of dubious inferential reasoning. It is far more likely that the definitions were extended to include labour brokers not because they would otherwise not be "employers" but rather to avoid any misunderstanding in that regard.

[28]  In my view, the proper meaning of the definitions in the 1993 Act (leaving aside the various extensions and qualifications that are not material to the appeal that is before us) is one that is consistent with the pattern of the earlier legislation: the Act contemplates that an employee generally has only one employer at any time, which is the person with whom he is in a contractual relationship of employment, even when he performs his contractual obligations for some other person. The appellant was admittedly not such a person and is not immunised against actions for damages by section 35. In the circumstances the evidence relied upon by the appellant did not support the proposed special defence and the application to introduce it into the plea was correctly refused.

[29]  The appeal is dismissed with costs, including the costs of two counsel.

 

Rieck v Crown Chickens (Pty) Ltd t/a Rocklands Poultry
[2005] 
EC

Delict – Claim for damages – Armed robbery – Conduct of security guard – In course and scope of duty – Negligent – Defendant liable – Labour Law – Workman's compensation – Remunerated by labour broker – Service rendered to defendant – Employee of labour broker – Defendant not liable

– Compensation for Occupational Injuries and Diseases Act 130 of 1993 – Compensation for Occupational Injuries and Diseases Act 130 of 1993, sections 1 and 35 – Compensation for Occupational Injuries and Diseases Act 130 of 1993, section 35(1)

Mini Summary

As a result of an armed robbery at the defendant's place of business, a security guard working for the defendant fired shots at the getaway car belonging to a customer and containing, amongst the robbers, the plaintiff who was taken hostage. She rendered a service, which was provided and paid by a labour broker, for the defendant. She was under the control of the defendant. In her claim for damages against the defendant the issues raised were answered as follows:

Held that, in terms of the definitions provided by the Compensation for Occupational Injuries and Disease Act 130 of 1993, the plaintiff was not an employee of the defendant and therefore section 35(1) the Act did not apply to her claim.

Held, on the facts that the security guard shot the plaintiff. He was acting in the course and scope of his duty and his conduct was unreasonable. The plaintiff had discharged the onus resting on her to establish that the defendant's employee who fired the shot that struck her, acted negligently when he did so. The defendant was liable for the damages, which the plaintiff still has to prove.

PLASKET J

Introduction

[1]  It is common cause that, on 13 June 2003, an armed robbery was committed at the factory shop on the premises of the defendant near Uitenhage. It is also common cause that the plaintiff, who worked in the factory shop as a cashier, was abducted by the robbers and taken hostage to secure their getaway in a motor vehicle that they stole from a customer who was shopping in the factory shop at the time of the robbery.

[2]  The plaintiff alleges that, as the robbers sped away from the defendant's premises, shots were fired by members of the defendant's security or loss control personnel and that one of these shots struck her in the left elbow as she sat in the back seat of the vehicle.

[3]  She claims damages from the defendant in the total amount of R1 535 938,60 alleging that the defendant is vicariously liable for what she alleges to be the unlawful and negligent act of a member of its security personnel.

[4]  The crux of her claim is encapsulated in the following paragraphs of her particulars of claim:

"4.

Ten alle relevante tye, in die besonder 13 Junie 2003, was daar sekuriteitsbeamptes en verliesbeheerpersoneel in diens van die verweerder, wie diens verrig het op verweerder se bovermelde perseel en was hulle besig met die uitvoer van hulle werksaamhede as sekuriteitsbeamptes en verliesbeheerpersoneel van die verweerder.

5.

Tydens die voormelde ontvoering van eiseres het een of meer van die voormelde sekuriteitsbeamptes of verliesbeheerpersoneel op die voortvlugtende voertuig waarin eiseres haar gevind het, skote afgevuur en is eiseres in die linker elmboog getref en doen sy ernstige beserings, soos meer volledig hieronder ulteengesit, op.

6.

Die omstandighede waaronder die skote afgevuur was, waarvan een skoot die eiseres getref het, was op 'n nalatige wyse deur die sekutiteitsbeamptes of verliesbeheerpersoneel afgevuur deurdat:

6.1.

dit bekend aan die sekuriteitsbeamptes of verliesbeheerpersoneel was dat eiseres regs agter in die voortvlugtende motor gesit het;

6.2.

die sekuriteitsbeamptes of verliesbeheerpersoneel besef het of moes besef dat eiseres beseer kon word as daar op die voortvlugtende voertuig geskiet word."

[5]  The defendant pleaded as follows to these allegations and to paragraph 7 of the particulars of claim (which set out the injuries sustained by the plaintiff as a result of the "voormelde nalatige optrede van die sekuriteitsbeamptes of verliesbeheerpersoneel in diens van die verweerder"):

"2.

2.1.

The defendant admits only that on the day in question members of the defendant's security and loss control section were on duty.

2.2

Any allegation inconsistent with the aforegoing is denied as if specifically traversed and the plaintiff is put to the proof thereof.

3.

Each and every allegation herein contained is denied as if specifically traversed and the plaintiff is put to the proof thereof.

4.

4.1.

The defendant is aware (having inter alia been so informed by the plaintiff) that she sustained a gunshot wound to her left arm on the day in question.

4.2.

The defendant pleads that the gunshot wound was not inflicted by an employee of the defendant acting during the course and scope of his/her employment with the defendant.

4.3

In the alternative, the defendant avers that the gunshot wound was inflicted by one of the robbers who abducted the plaintiff.

4.4

The defendant is aware that the plaintiff sought medical intervention, has no knowledge of the extent and ambit of such medical treatment, does not admit same and puts the plaintiff to the proof thereof."

[6]  At the commencement of the trial, I was requested to order a separation of the merits and quantum. This I duly did. After the trial had been concluded, the defendant brought an application in which it sought leave to amend its plea by introducing a special plea to the effect that the plaintiff was precluded from suing the defendant by virtue of section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993.

[7]  The issues that have to be determined are the following: firstly, whether leave ought to be granted to the defendant to amend its plea; secondly, in the event of that application being dismissed, whether the plaintiff was shot by a member of the defendant's security personnel or loss control personnel in the circumstances alleged by her; thirdly, if so, whether that person was acting within the course and scope of his employment in the service of the defendant; fourthly, if so, whether his conduct was negligent; and fifthly, whether a costs order should be made at this stage in the event of the plaintiff succeeding on the merits.

The issues

Leave to amend the plea

[8]  In its application to amend its plea, Mr Christopher Coombes, the Financial Director of the defendant, stated that the defendant wished to amend its plea by introducing a special plea that would read:

"3.1

The plaintiff is barred by the provisions of section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, from instituting action against the defendant by reason that the claim against the defendant is in respect of an occupational injury sustained.

3.2

Accordingly, the defendant prays that its special plea be upheld and that the plaintiff's claim be dismissed with costs."

[9]  In essence, the issue concerning the special plea amounts to this: if the plaintiff is employed by the defendant, she is precluded by section 35(1) of the Act from claiming damages from her employer.

[10]  It is noteworthy that, in the particulars of claim, the plaintiff did not allege that she was an employee of the defendant and the defendant did not allege in its plea that it was her employer. The reason for this emerges from the affidavit of Coombes, and is admitted by the plaintiff in her answering affidavit: the plaintiff is in fact employed by a labour broker, TMS Shezi Industrial Services (Pty) Ltd. She received her salary from this firm but her services were rendered at the premises of the defendant as a cashier in its factory shop. She was, however, "subject to the day to day instructions and control of the defendant and reported to management of the defendant".

[11]  Mr Beyleveld, who appears for the defendant, accepted that if section 35(1) of the Act did not apply in the circumstances, the special plea would be excipiable and there would, accordingly, be no basis for allowing the amendment. In order to determine this issue, it is necessary to turn to the Act and to interpret its provisions of relevance.

[12]  Benjamin says the following about the purpose of the Act and the way in which it functions:

"COIDA provides a system of 'no fault' compensation for employees who are injured in accidents that arise out of and in the course of their employment or who contract occupational diseases. Employees are therefore entitled to compensation regardless of whether their injury or illness was caused by the fault of their employer or any other person. At the same time employees are prevented from instituting damages claims against their employers (and managers and certain categories of fellow employees) for the damage suffered as a result of the accident or disease.

A system of 'no fault' worker's compensation such as that established by COIDA can be seen as representing a balance between the competing interests of employers and employees. How fairly that balance is struck by a particular compensation system requires an analysis of the costs and benefits of compensation. In principle, there are advantages for all in the removal of compensation for occupational accidents and disease from the realm of the common law. The employer is relieved of the prospect of costly damages claims and in return is required to make regular contributions to the Compensation Fund. The employee, on the other hand, is able to receive compensation without having to prove that any person's negligence caused the accident or disease and without the worry that the employer may have no assets to satisfy a successful claim for damages. (This latter concern is particularly important for the employees of small employers.) Society as a whole should benefit in that its funds can be used to offer benefits to claimants and not be spent on wasteful litigation over whether an accident was caused by a negligent act or omission."

[13]  Section 15 of the Act creates a compensation fund, which is funded, inter alia, by "the assessments paid by employers in terms of this Act".

Section 22(1) then creates the right to compensation by providing that if "an employee meets with an accident resulting in his disablement or death such employee or the dependants of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act".

[14]  Section 35(1) of the Act is the provision that gives effect to the trade-off that is at the heart of the compensation scheme created by the Act. It provides:

"No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death."

[15]  An occupational injury is defined in section 1 – the definitions section of the Act – as "a personal injury sustained as a result of an accident", while an accident is defined in the same section as "an accident arising out of and in the course of an employee's employment and resulting in a personal injury, illness or the death of the employee".

[16]  An employee is defined in section 1 as:

"a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind, and includes . . . (c) a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker."

[17]  Finally, an employer is defined in the definitions section as "any person, including the State, who employs an employee" and this specifically includes three categories of persons, namely:

"(a)

any person controlling the business of an employer;

(b)

if the services of an employee are lent or let or temporarily made available to some other person by his employer, such employer for such period as the employee works for that other person;

(c)

a labour broker who against payment provides a person to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker."

[18]  It is common cause that the plaintiff was the victim of an occupational injury and is therefore entitled to compensation in terms of the Act. Indeed, it would appear that she has already received R5 631,43 from the Compensation Commissioner.

It is also common cause that she was an employee: she was "a person who has entered into or works under a contract of service . . . with an employer". Her position is specifically included in the definition because she is "a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work" she was paid by the labour broker.

[19]  The final issue to be decided is the identity of her employer. If her employer was the defendant, she is precluded by section 35(1) of the Act from suing the defendant but if her employer is TMS Shezi Industrial Services (Pty) Ltd, then section 35(1) does not prevent her from suing the defendant.

[20]  The definition of an employer contemplates that a person is an employer if he, she or it employs an employee in terms, obviously, of a contract of service. In order to ensure that all employees (except those specifically excluded), receive the protection of the Act, and to eradicate grey areas, the Legislature has expressly included certain categories of persons in the definition: because of the rule that the State is not usually bound by its own statutes, the State is expressly included as an employer; because of the uncertainty that may be created when an employee's services are lent or let by an employer to another, subsection (b) of the definition provides that in such circumstances, the "permanent" employer, rather than the person to whom the employee's services are let or lent, remains the employer for purposes of the Act;

and to clarify the position when labour brokers are involved in providing labour to businesses, subsection (c) of the definition makes it clear that, irrespective of where the employee's services are rendered, and who controls the employee's day-to-day conduct in the workplace, the labour broker remains the employer for purposes of the Act. This is logical for two reasons: firstly, the contract of service is entered into by the labour broker and the employee and there is no contractual nexus between the employee and the person to whom he or she provides services; secondly, the labour broker is the employer who pays contributions to the Compensation Fund, and not the person to whom the services are rendered.

[21]  My conclusion, on interpreting the relevant sections of the Act and applying it to the facts of this case, is that the defendant was not the plaintiff's employer for purposes of the Act and consequently, section 35(1) of the Act does not prevent the plaintiff from suing the defendant. That being so, the amendment to the plea would be excipiable because it would disclose no defence. The defendant's application to be granted leave to amend its plea must therefore fail. An appropriate order to this effect will be made at the end of this judgment.

Who shot the plaintiff?

[22]  Six witnesses testified on behalf of the plaintiff. Apart from the plaintiff herself, they were: Sharon du Toit, a customer present at the factory shop at the time of the robbery and the partner of the late Ernest Jordaan, the owner of the vehicle that was stolen by the robbers; Francois Hendricks, a member of the security personnel of the defendant, who was on duty at the premises when the factory shop was robbed and who alerted his superiors to the fact that a robbery was in progress; Johannes Strydom, an inspector in the South African Police Service, who was notified about the robbery and who arrived on the scene where the robbers abandoned the stolen vehicle (having fled), finding the plaintiff there in an injured state; Shaun Collocott, who was employed by the defendant as Group Loss Control Officer and who, together with one Stopforth (one of his subordinates), fired shots at the vehicle in which the robbers, together with the plaintiff, sped away from the defendant's premises; and Irene Mbuqu, a resident of Nkulu Street, KwaNobuhle township where the vehicle was abandoned, who testified that she heard no shots being fired there when the vehicle arrived opposite her home.

[23]  Only one witness was called for the defendant. He was Mr Christopher Coombes, the defendant's Financial Director who testified that Collocott and Stopforth were not acting in the course and scope of their employment when they fired the shots at the vehicle.

[24]  The plaintiff's evidence was that, on 13 June 2003, she was on duty at the factory shop when three armed men entered the shop, robbed the cashiers of their money, robbed the customers and cashiers of personal valuables, stole Jordaan's vehicle and, when they became aware that security personnel of the defendant where alerted to the robbery in progress, took her hostage to secure their getaway.

[25]  She was forced into the back seat of Jordaan's vehicle, sitting with two of the robbers to her left and one to her right. (On her evidence, only three robbers entered the shop, so two of them must have been waiting outside.) She testified that she saw three men, whom she described as security personnel of the defendant, when she was being taken out of the factory shop to the vehicle. They were Hannes Durr, Collocott and a person whom she named as Thomas. (This appears to be a person by the name of Weatherall-Thomas who was, at the time, the Duty Manager of the factory and a subordinate of Collocott.) As the vehicle in which she had been placed by the robbers left the defendant's premises, travelling, as she put it, at "'n vreeslike spoed" and weaving from side to side on the road, she heard shots being fired and she felt a burning sensation in her arm. She saw that she was bleeding from a wound. She realised that she had been shot.

[26]  The robbers drove to KwaNobuhle township. They stopped the vehicle, alighted from it and ran away, leaving the plaintiff at the vehicle. The driver of the vehicle then returned. With his jacket he wiped the steering wheel and the door handle, took the keys out of the ignition and ran away.

[27]  People from the neighbourhood came out of their houses to render assistance to the plaintiff. A short while later a police vehicle arrived. Then Durr and Stopforth also arrived. They took the plaintiff to the Cuyler Clinic in Uitenhage where she was treated.

[28]  The plaintiff stated that she was in a state of severe shock and experienced such pain that she said that "ek het gevoel of ek uit wou pass van die pyn".

[29]  She stated that the only occasion on which shots where fired during these events was at the premises of the defendant. No shots were fired at any stage by the robbers. She said that she saw that, at the defendant's premises, Collocott, Durr and Weatherall-Thomas were armed with firearms.

[30]  When she was cross-examined, it was put to her that she had told Durr and other members of the defendant's staff, at the hospital, that she had been shot by one of the robbers. In answer to this she said:

"Ek was in skok, ek kon enige iets sê in daardie oomblik. Ek kon dit sê want ek was in skok. Ek weet nie wat ek gesê het nie."

It also appears that when the injury was reported to the Compensation Commissioner, it was described as follows in the claim form:

"Armed robbery took place and employee was taken hostage – during chase robbers shot her in left arm."

When Inspector Strydom testified, he stated that when he found the plaintiff at the vehicle, she told him that she had been shot. He asked her who had shot her, to which she replied that she did not know. He conceded that she was in a state of shock to such an extent that he was not even sure if she was aware that he was a policeman.

[31]  In my view the probabilities are overwhelming that the plaintiff was not shot by the robbers but was shot by either Collocott or Stopforth. What she told Durr and the other employees of the defendant at the hospital, as well as what she told Inspector Strydom, must be discounted on the basis of her state of shock. She has satisfactorily explained, in my view, the contradiction between what she told these witnesses and what she has said in court. It must be borne in mind too that the form that was completed for purposes of applying for compensation was completed by Durr, who would, no doubt, have used his knowledge of what the plaintiff told him in filling in the description of how the accident occurred. I note from the form that it was signed by Durr on 14 June 2003, a day after the incident.

[32]  In addition, the plaintiff's version that she was shot by employees of the defendant is corroborated by the evidence of Ms Du Toit (whose evidence was satisfactory in all respects), Hendricks (who similarly impressed me as a witness) and Collocott (also a good and satisfactory witness) who, after all, was one of those who fired shots at the vehicle. In addition, Inspector Strydom testified that neither he nor the policeman with him fired shots at the vehicle and Ms Mbuqu testified that when she heard the vehicle arrive near her house she heard no gunshots at all. It is furthermore apparent from the photographs of the vehicle that it had been struck by bullets and a hole was identified in the back seat as being a bullet hole. Ms Du Toit stated that when the vehicle was returned to her and her partner there was blood on the seat which she assisted in removing. I also have some difficulty with the idea that one of the robbers may have been responsible for shooting the plaintiff from behind in the left elbow. If the robbers had wanted to shoot her, the probabilities are that a far more serious wound of a fatal or life-threatening nature would have been inflicted in a more vulnerable place on her body.

[33]  From the above, I conclude that the plaintiff has discharged the onus of proving that she was indeed shot by an employee of the defendant. That being so, the remaining issues to be determined are whether that employee was acting in the course and scope of his employment and, if so, whether he acted negligently when he fired the shot that struck the plaintiff.

Vicarious liability

[34]  Collocott testified that he, Stopforth, Durr and Weatherall-Thomas carried their own personal firearms at all times when they were on duty. Their duties, as loss control officers, involved the prevention or minimisation of all forms of loss to the defendant, ranging from work stoppages to theft of company property. Their duties thus included a security component. This is not in dispute. Collocott testified that, before this incident, he and his colleagues had dealt with a number of robberies before and that they were required to effect arrests from time to time of people found committing offences such as theft. This was not denied by Coombes.

[35]  The senior management of the defendant knew at all material times that the four men carried firearms and permitted them to do so. They also knew, according to Collocott, that to allow them to arm themselves with their own firearms while at work contravened the regulations made in terms of the Private Security Industry Regulation Act 56 of 2001. They knew this because he told them so. This was not disputed or denied when Coombes testified.

[36]  Collocott testified that when he and his colleagues were informed of the robbery that was in progress, they acted in their capacity as employees of the defendant when they attempted to foil the robbery and rescue the plaintiff from the robbers. When it was put to Coombes that when they responded in this way they were acting to protect the interests of the defendant, he stated: "I would imagine so, yes." He conceded that for them to do this fell within the scope of their duties (although he later qualified this in relation to the use of firearms).

[37]  After the plaintiff had been found in KwaNobuhle and taken to hospital by two of them, Collocott and his colleagues returned to the defendant's premises to attend a function that was also attended by senior management. The four of them were, Collocott said, congratulated for a job well done. Coombes testified that while the four men were not expressly congratulated, senior management was satisfied that the situation had been brought to a more or less successful conclusion. They certainly were not taken to task for using their firearms. Because they were allowed to carry firearms while on duty and they had never been given any guidelines or told of any policy about when they could use their firearms (even though Coombes stated they could only do so for personal safety), there was no basis upon which it could be said that they acted improperly when, in the execution of their duties, they drew their firearms.

[38]  Despite this, Coombes testified that while they were acting within the course and scope of their employment when they began to take action to foil the robbery and rescue the plaintiff, they ceased to so act the moment they drew their firearms. They again began to act within the course and scope of their employment the moment their firearms were placed back in their holsters.

[39]  Before proceeding further, it is necessary to say a few words about the quality of the evidence of Coombes. I found him to be an unsatisfactory witness. He was evasive in the extreme. He was reluctant to make concessions when concessions had to be made and each concession had to be wrung out of him. He displayed a marked reluctance to answer questions in a straightforward and forthright manner. In other instances, such as when he was cross-examined on having signed a cheque to pay the fees of the attorney whom Collocott and his colleagues consulted, his explanation was so improbable that the conclusion was inescapable that he was lying. He was most ill at ease in the witness box. I have found Collocott to have been a satisfactory witness and, where his evidence differs from that of Coombes, I accept his evidence. In my view, the version of events testified to by Collocott accords more with the probabilities than that of Coombes.

 [40]  It is upon these facts that the issue of whether the defendant may be held vicariously liable for the shooting of the plaintiff must be determined.

The nature and character of vicarious liability have been described as follows:

"Vicarious liability exists where one is liable, not for a delict committed by oneself, but for a delict committed by another person. It is strict liability, or liability without fault, on the part of the defendant and is additional to that of the other person. The decision to treat a class of cases differently and to impose vicarious liability is based on social policy regarding what is fair and reasonable and amounts to an expression of a society's legal convictions that victims of delictual conduct should be able to recover damages from someone who has the ability to pay. Factors that play a role include the interests being served, control over another's conduct, the creation of risk, who benefits from the activity, and who can afford to pay.

It is usual to approach the question of vicarious liability first by enquiring whether a relationship exists between the person who commits the delict and the person purportedly liable, and secondly, by establishing a link between the delict and either the latter's instruction or his or her work. In other words, liability is based upon a relationship which is capable of founding liability and an activity which can be linked to the person who is sought to be held liable."

[41]  At the heart of the enquiry are the questions whether the person who committed the delict was employed by the defendant (or, if not, what the nature of their relationship was) and whether he or she was acting within the course and scope of his or her employment when the delict was committed.

  In order to take account of the variable nature of employment relationships in the modern age, particularly those cases in which employees are employed

for their special expertise or are granted a large measure of discretion in the performance of their duties, the test to be used to determine whether a person is an employee is not a mechanical test, but a nuanced one, a broad "multi-faceted test" that takes into account "all relevant factors, including questions of policy and fairness".

This aspect presents no difficulties in this matter as it is common cause that at the relevant time Collocott and Stopforth were employees of the defendant.

[42]  The proper approach to determining the second aspect, namely whether the employees were acting within the course and scope of their employment, has been set out as follows by Zulman JA in ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd:

"The standard test for vicarious liability of a master for the delict of a servant is whether the delict was committed by the employee while acting in the course and scope of his employment. The enquiry is frequently said to be whether at the relevant time the employee was about the affairs, or business, or doing the work of, the employer. It should not be overlooked, however, that the affairs of the employer must relate to what the employee was generally employed or specifically instructed to do. Provided that the employee was engaged in activity reasonably necessary to achieve either objective, the employer will be liable, even where the employee acts contrary to express instructions. It is also clear that it is not every act committed by an employee during the time of his employment which is for his own benefit or the achievement of his own goals which falls outside the course and scope of his employment. A master is not responsible for the private and personal acts of his servant, unconnected with the latter's employment, even if done during the time of his employment and with the permission of the employer. The act causing damage must have been done by the servant in his capacity qua servant and not as an independent individual."

[43]  In determining whether the delict was committed in the furtherance of the employer's interests or in the furtherance of the employee's own interests, a court must have regard to the employee's subjective intention and an objective assessment of the link between the employee's interests and the business of the employer. 

[44]  In this case, as already stated, it is not in dispute that an employment relationship existed between those who fired shots, namely Collocott and Stopforth, and the defendant. Both were acting within the scope of their employment when they took action to deal with the robbery that was in progress, and they subjectively intended to further the interests of their employer, rather than their own interests, when they did so. They acted within the ambit of their duties in general in the sense that their duties involved preventing, limiting and otherwise dealing with threats to the security of the defendant and its staff and customers: they were about their employer's business when they took action, and intent on safeguarding its interests.

[45]  They carried firearms with the knowledge and consent of the defendant, in the sense that the defendant had no objection to them being armed while on duty. There were no guidelines laid down by the defendant on the use of firearms and neither was there a policy in place in this regard that may have limited their discretion. Their actions met with the approval of the senior management of the defendant, a contemporaneous indication that they had no misgivings about the use of force in the circumstances. As against this, the contention of Coombes that, despite there being no internal guidelines or policy concerning the use of firearms, Collocott and his colleagues ceased to be acting within the course and scope of their employment the moment they drew their firearms, is simply untenable and irrational.

 [46]  I accordingly find that the plaintiff has discharged the onus of establishing that the defendant is vicariously liable, in the event of the shooting being a delict.

Was the shooting negligent?

[47]  In order for the plaintiff to succeed in her claim she bears the onus of proving that she suffered loss as a result of the voluntary, either intentional or negligent, but unlawful conduct of Collocott or Stopforth.

The extent of her loss is not an issue before me. It is also not in dispute that, once the identity of the person or persons responsible for shooting the plaintiff was established, their conduct was unlawful.

The only issue that remains to be decided is whether the act of shooting the plaintiff was negligent.

[48]  The test for whether a particular act was negligent or not has been formulated by Van der Walt and Midgley as follows:

"Traditionally, the foreseeability test is applied to determine whether or not conduct was negligent. The test basically comprises three elements: reasonable foreseeability of harm; reasonable precautions to prevent the occurrence of such foreseeable harm; and failure to take the reasonable precautions. Conduct is therefore negligent if a reasonable person in the same position as the defendant would have foreseen the possibility of harm and would have taken steps to avoid the harm, and the defendant failed to take such steps."

[49]  It was argued on behalf of the defendant that the conduct of Collocott or Stopforth was not negligent because they acted proportionally in an attempt to prevent "imminent or future death or grievous bodily harm".

The argument was that, having taken the plaintiff hostage, the chances were that, if the robbers managed to effect their getaway, they would kill the plaintiff at the first opportunity because she would have been in a position to identify them. On this argument, Collocott and his colleagues had to take the calculated risk of shooting at the vehicle, even though they were aware of the presence of the plaintiff in the vehicle. This, it seems to me, relates more to the issue of unlawfulness, rather than to fault, as it seeks to justify the force used to infringe the plaintiff's right to physical integrity.

[50]  To the extent that it is necessary, in the light of this, to deal with the issue of unlawfulness, I take the view that the use of force in the circumstances was unreasonable, particularly in the light of the constitutional right of everyone to be "free from all forms of violence from either public or private sources" and the fundamental importance of the right to life in our legal system: 

there were other means of dealing with the problem less extreme than shooting with a handgun at the rear of a fast-moving vehicle that was not travelling in a straight line at the time. It is, furthermore, an historical fact that the plaintiff was not shot, or otherwise harmed physically, by the robbers, as Collocott feared, and that absolutely no attempt was made by them to shoot her. It does not follow as a matter of logic that people engaged in an armed robbery who take a hostage to secure their getaway will kill the hostage in cold blood when he or she is no longer needed as a "human shield". Collocott's assumption that this would happen was speculative and, I would venture to suggest, not borne out by experience, in this country at least. It is, in my view, offensive to the legal convictions of the community that a person should be allowed to fire at fleeing suspects in circumstances in which an innocent person may be killed or injured.

 The conduct of Collocott and Stopforth in so doing was unreasonable.

[51]  I turn now to the central issue of negligence. It is not in dispute that Collocott and his colleagues knew that the plaintiff was in the vehicle when the shots were fired at it. Indeed, they saw her being led out of the factory shop by the robbers and forced into the vehicle. Collocott and Stopforth, even if they thought they were acting properly, were in fact acting negligently. Reasonable men in their positions would have foreseen the possibility that, by shooting with handguns at a speeding vehicle that was not travelling in a straight line, they may have injured the one innocent person in it, yet they proceeded to fire four shots at the vehicle, one of which struck the plaintiff. This conduct is at odds with the conduct one would expect of a reasonable person in their position.

[52]  I accordingly find that the plaintiff has discharged the onus that rested on her to establish that the defendant's employee who fired the shot that struck her, acted negligently when he did so.

Costs

[53]  Costs will follow the result in respect of the application to amend the defendant's plea. The only issue to be decided is whether the plaintiff should be allowed the costs of two counsel. I take the view that she should be: the matter was of crucial importance to the plaintiff because, if she was unsuccessful in opposing the amendment, she would have lost her claim without further ado, having in the first three days of the trial established every element that she was required to prove. In these circumstances, engaging the services of senior counsel to appear with counsel who appeared in the trial was both a sensible and a reasonable step to have taken.

[54]  In respect of the plaintiff's costs on the merits, it was argued by Mr Beyleveld that the plaintiff stood little chance of eventually proving her damages in an amount anywhere close to what she claimed, and that she was unlikely to establish damages in excess of R100 000. No order as to costs should, as a result, be made at this stage and the matter should stand over for determination by the court that eventually hears the matter on quantum. Mr Mouton, for the plaintiff, argued, however, that she should be awarded costs at this stage on the High Court scale.

[55]  In my view, it would be inequitable to make the plaintiff wait for the eventual end of the matter for her costs in respect of the merits. I say this because: firstly, the parties agreed in a pre-trial conference that the matter should proceed in the High Court;

  and secondly, while I foresee that the issue of quantum may present difficulties in separating the damages suffered by the plaintiff as a result of the shooting by the defendant's employee, on the one hand, and as a result of the actions of the robbers, on the other, it is not obvious that her damages will be less than R100 000. I am also persuaded that, in these types of cases where the question of liability has been separated from that of quantum, it is generally speaking undesirable to deviate from the general rule of costs following the result, for the reasons of policy set out in the judgment of Jones J in Brauns v Shoprite Checkers (Pty) Ltd.

  In these circumstances, I am of the view that the plaintiff is entitled to costs on the High Court scale.

 

The order

[56]  I accordingly make the following order:

1.

The defendant's application to amend its plea is dismissed with costs, such costs to include the costs of two counsel.

2.

The defendant is liable to the plaintiff for such damages as the plaintiff may prove she has suffered in consequence of her having been shot by an employee of the defendant, acting within the course and scope of his employment as such, on 13 June 2003.

3.

The defendant is directed to pay the plaintiff's costs in respect of the merit of her claim, such costs to include the costs of photographs and of a pre-trail inspection in loco attended by the plaintiff's attorney.

 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

I find it odd that the plantiff did not rely on section 9

 

Chartaprop 16 (Pty) Ltd v Silberman 2008 SCA.

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.

NUM & others v Chrober Slate (Pty) Ltd [2007] (LC)

In terms of section 23of 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

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.

Crown Chickens t/a Rocklands Poultry v Rieck 2007 (SCA)

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)

See Rie ck v Crown Chickens (Pty) Ltd t/a Rocklands Poultry [2005] (SE).

Please be patient while this page is being resurrected off my previous website.

This is a test. RAF v Mojane. Can an employee sue his / her employer?

http://docs.google.com/View?id=dv9tzdc_0c5tttghk