Dear Folks

I hope that most of you received my last newsletter which dealt with the (common law) right of persons to sue employers if they are injured or become ill at the workplace. This right also extends to their dependants should they be killed at the workplace. If you did not receive it because of your overzealous firewalls you may retrieve it by clicking here.  

Another relatively slow month – for me at least. Things always hot up in November as if there is one last sprint before the holidays. I am concluding my bi-annual OHS Legislation Workshops with a Roadshow commencing on 22 November and concluding on 25 November. It will be the last time I present these workshops in this format and am considering shorter specific topic-related workshops next year. So in a way they are my swansong workshops. 

Of interest is the development in the Inyaka bridge collapse case where 14 people died in 1998. The Inspectorate recommended that numerous persons and companies be charged for a variety of offences, the majority being contraventions of section 10, the only real construction-orientated OHS law at the time. Click here for that Report. Well, I think many persons and companies must be sighing with relief after the Chief OHS Specialist Prosecutor in Pretoria announced in an interview with the Engineering News that there would, for the moment at least but in all likelihood, be no prosecution. The matter would be referred to an inquest court to determine, inter alia, whether any person or entity could be held liable. I will not repeat the entire interview which you can access by clicking here. The irony is that ECSA (Engineering Council of SA) is going ahead to institute disciplinary action against three of its members involved in the construction of the bridge since they feel they may have been negligent. 

I always felt that the prosecution had lost its appetite for such a stale case. Seven years later I’m sure that many of the potential accused natural and juristic persons are no longer around. I know for a fact that one construction company in particular is about to be absorbed into another. In the unlikely event that the Inquest Court recommends prosecution, the same OHS Specialist Court in Pretoria will have to determine whether it is viable to prosecute and we know the answer to that already. It is highly improbable that the Inquest Court would find, at this late stage, any new compelling evidence to warrant a prosecution. (An Inquest Court can only determine, on a balance of probabilities, whether a crime has been committed. The National Prosecuting Authority must then still determine whether there is enough evidence to obtain a conviction beyond a reasonable doubt, a much stronger onus of proof. It’s become a legal merry-go-round. 

In view of the strong recommendations of then the OHS ‘Specialised’ Inspectorate which, incidentally, already needed outside help, I thought that it would all fizzle out in a plea bargain where no evidence is lead and justice is served with no real prejudice to anyone. Injured persons and dependants of the deceased are in any case compensated and those injured persons and dependents, who have the right to institute civil action, could have proceeded in any case without the results of a criminal trial. If they haven’t then prescription (verjaaring) has already kicked in and they won’t be able to sue. In fact most OHS-orientated civil suits do take place without the benefit of a criminal trial. This is naturally because of the weak policing of OHS criminal matters. Section 56 of the COID Act also provides for increased compensation to injured persons or dependants where an employer has been found to have been negligent but I personally have never seen this provision utilised. I assume that a criminal conviction for negligence is required and that once obtained, the injured persons or dependants have a prescribed period in which to lodge the application to the Compensation Commissioner? And that could be a problem too. The office of the Compensation Commissioner was, and most probably still is, a mess and most injured persons or dependants are, in any case, unaware of the right to claim increased compensation.  And getting a matter to court is another obstacle. Don’t be fooled into thinking that the much publicised Turnaround Strategy 2001 to 2004 has borne fruit. In my view it’s amounted to virtually nothing.  

Naturally the Inyaka Bridge issue could have been handled differently. The OHS Act provides, in section 33, for a Joint Inquiry / Inquest, where the magistrate presides and the Inspector acts as an assessor. If that procedure was followed it would have been unnecessary to now refer the matter back to an Inquest Court which, with due respect,  is not going to orally hear all that stale complicated evidence again. I predict that the Inquest Court will informally - without evidence being led - make a finding to the effect that no-one can be held criminally liable for the collapse of the bridge. Call me cynical but I've been around too long. At a Joint Inquiry / Inquest an experienced magistrate could have been appointed to preside while the matter was still fresh. Or even a Judicial Commission would surely have produced better results? Taxpayers could also have saved a few million rands in the process. Not that I want to see people prosecuted! I just want things to be done properly.

Other newsworthy matters are the spate of armed robberies at shopping malls particularly in Gauteng where gangs of up to 20 criminals routinely roam the shopping malls with automatic firearms which they readily use. ‘Hit the floor’ has taken on a whole new meaning for us beleaguered shoppers. On my homepage at www.klasslooch.com I pose the question whether the OHS Act imposes a duty on supermarkets and shopping malls to protect the public and the answer is to be found in section 9. Or, for that matter, the common law (culpable homicide) if members of the public are killed. (It has long been established that they do owe their customers a duty of care and there have been many successful civil suits against supermarkets). As employers they are obliged to ensure that their activities do not cause harm to persons. (Members of the public). Let’s vote on this one. If you think that they are doing enough to protect the public click here. If you don’t click here. I’ll publish the results in the next Newsletter. I personally think that we need a few aircraft permanently in the air, surveying the cities in general and soft targets such as shopping malls in particular. Perhaps, with tax breaks from government, the big supermarket chains can sponsor them? The SAPS obviously doesn't have the resources.

Another interesting OHS matter emanates from the Mine Health & Safety Act  where an investigation was held after two miners were killed earlier this year during an earthquake. A media report quotes May Hermanus, Chief Inspector of Mines as saying ‘While the investigation into the incident could not determine whether the quake was natural or caused by mining operations, it discovered breaches of safety laws. A lot [of] things like this are seen in mines which are under financial stress," said Hermanus, who is the country's top safety official. "We would expect employers to know when they can no longer operate safely. This is not something we should be finding as inspectors." Two miners were killed and 40 others were trapped underground in the incident on March 9 at mines near Stilfontein, west of Johannesburg, during the country's worst earthquake since 1967. Hermanus said DRDGold might be fined as much as R200 000 and the case would be referred to the justice ministry for prosecution of the company or individuals. Further investigations would be needed to decide whom to prosecute. The minerals and energy department said the mines - Hartebeesfontein and Buffelsfontein - were short of materials, improperly staffed and had "poor management control" and inadequate ventilation. "The department is seeking an opinion on whether we can prosecute them," said Malebo Mahape, the director of communications for the ministry. Labour union Solidarity said it backed the call for prosecutions. DRDGold spokesperson Ilja Graulich yesterday denied "the correctness of the conclusions" drawn by the department and said no evidence was presented to support the conclusion that there was any shortage of support required to make areas safe, inadequate ventilation, or poor management control, as alleged. He said the accident was caused by a natural earthquake and there was no basis for imposing any administrative fine.