From: "Raynard Looch" 
Subject: KLASS LOOCH ASSOCIATES: OHS CHAT & SKINNER.
Date: 21 July 2001 03:05 PM

Dear Colleagues

I assume you are all waiting with bated breath to hear how my audience went with Faiza (we are on first name terms now!) Salie, the Chief Director: Occupational Health and Safety? The good news is I'm still around. Perhaps that's because I wasn't even offered tea! 

Well, I moaned alot and she took notes. I complained that many of my clients never get any response to things such as applications for exemptions and that generally the Inspection and Enforcement Service (I&ES), as they are now known, are very unresponsive. I had a few gripes about access to Inspectors Reports, the unilateral determining of dates for investigations or inquiries by inspectors which makes us legal practitioners livid etc. In fact I moaned ad nauseam. I didn't mince my words either. Naturally we touched on the backlog situation and its (delaying) effect on deceased estates, insurance claims and the general limbo scenario which causes everyone such stress. In fact it amounts, in my view, to a violation of human rights and believe me, I have informed the necessary monitoring commissions and they are currently investigating this aspect! 

Faiza also said her door is always open to me.......does that sound right? So people let me hear your gripes. I want to exploit that open door! I think I covered all the problems areas that some of you mailed me. But, as I always say....don't hold your breath, we  have a long way to go before things will change.  On that note, if I haven't responded to all your queries please send them again. I'm still agonising over one or two but I have the annoying habit of losing computers (redistribution), crashing my computer and being able to restore everything but my e-mail! I'm now in throes of upgrading to Windows 2000 so hold thumbs! And I promise I will make hard copies next time!

Back to more serious stuff. The Lenasia accused appeared briefly in court and the matter was postponed to 10 September  "for the inspector to complete his report". Between you and me, the inspector held a section 32 formal inquiry and completed his report already in February! I even told you what charges he recommended under the OHS Act. To compound matters, it seems the report has vanished into thin air. I believe it inadvertently went to the wrong Government Department. The other incident in the limelight is Inquiry into the Ellis Park tragedy. Based on media reports, I would venture to say that someone's in trouble there too. A risk analysis, along the lines which employers need make in terms of section 8 of the OHS Act, was apparently rejected by the management of Ellis Park. The risk analysis concluded that Ellis Park was totally unsuitable / unsafe for a soccer match of that profile. As I type the GM of Ellis Park is entering his fifth day of cross examination and this aspect has him sweating! It's live on ETV and the person who compiled the risk analysis testifies on Monday 23 July. So tune in if you can.

I also decided to utilise the Promotion of Access to Information Act to try and obtain the Inspectors reports directly from the I&ES (inspectorate), but my request was rejected until further notice. To me that means that they aren't quite sure of their case in terms of that Act. In fact they cited, as reasons for refusal, two different sections of the Act which only apply to records after criminal proceedings have already been instituted and which obviously do not apply here.  Criminal proceedings cannot be instituted before the report has been submitted and they are invariably, but not always, based on the report. (You all know that the inspectors reports are compiled after a workplace incident and contain recommendations to the Director of Public Prosecutions).  In fact I'm confident that one of these days these reports will be e-mailed directly to employers and / or their legal representatives upon request.

Did you know that in the first 6 months of this year only 13 cases were referred for prosecution? I got this from The Inspection and Enforcement Services Strategy Document page 22. Quite an indictment of their effectiveness. Invariably employers and users of plant and machinery are on the receiving end when it comes to prosecution so perhaps we shouldn't complain? Don't ask how I got hold of this information!  Now that's a countrywide statistic I assume!  When I was a OHS prosecutor I did 13 cases in a week!  

I'm taking my show, The OHS Act "Liability, Sinking Ships & Life Rafts" on the road again and would appreciate it if you would encourage your colleagues to attend. They can get all the information from Juliette on (011) 880-4517 or fax (011) 880-4752. Her e-mail address is klooch@cybertrade.co.za.  We have one show is Johannesburg on 22 August and then again on 28 November. We are in Durban on 20 November, PE on 21 November and Cape Town on 22 November. We will be sending out mailers soon in this regard but bookings are now open.

Then finally. It appears as if one cannot restore an e-mail Distribution List when upgrading so I may have included some of you who would want to be removed. I apologise if this has happened before but let me know and I'll remove your name.

Kind regards

The Devils Advocate