Prosecutorial Mind

A supervisor works for company XYZ, a user of plant and machinery. He is instructed by his immediate manager to arrange for the cleaning of the inside of a tank. The tank contained a hazardous chemical substance which had previously been drained but which still may contain residual dangerous gases. The supervisor instructs two workers to enter the tank and to remove any remaining liquid inside. The supervisor leaves the workers to carry on and returns later to find the one worker dead inside the tank and the other barely alive. After a period in hospital the one worker recovers but a post mortem on the deceased reveals that he succumbed to poisonous gases which remained inside the tank. An inspector from the Department of Labour’s Inspection & Enforcement Service investigates the incident in terms of section 31 of the OHS Act and compiles a report to the Director of Public Prosecutions recommending that the supervisor, his manager, the factory manager and the company be charged for contravening section 8, section 38(2) and General Safety Regulation 5 of the OHS Act. (An inspector is not empowered to make recommendations for prosecution in terms of the common law e.g. culpable homicide but the prosecutor uses the evidence and OHS Act contraventions to built of case of culpable homicide). The prosecutor receives the report and decides, since the evidence attained by the inspector revealed that the supervisor was not trained to understand the dangers involved in entering and cleaning of confined spaces, to prosecute the company, the Factory Manager and his Manager with culpable homicide but not the supervisor. All three are charged alternatively with contravening section 8(2)(a) of the OHS Act in that they failed to provide the workers with a safe and healthy working environment by not having a safe system in place for the entering of confined spaces. Alternatively to those charges all three accused are charged with contravening General Safety Regulation 5. Another charge is added and all three are charged with contravening section 8(2)(i) for failing to train the supervisor to understand the hazards involved in entering and cleaning confined spaces. The final charge against all three accused is for contravening section 38(2) of the OHS Act in that they caused injury to the surviving worker.

The charges are :

Accused no 1 XYZ Company as represented by the Chief Executive Officer

Accused No. 2 Factory Manager (personally)

Accused No. 3 Manager (personally)

Count one.

Culpable homicide in that they negligently caused the death of the worker.

Alternative charge.

Contravention section 8(2)(a) of the OHS Act by failing to have a proper safe system of work in place to enter confined spaces.

Alternative charge.

Contravention General Safety Regulation 5 by failing to ensure the tank was safe to enter.

Second Count.

Contravening section 38(2) of the OHS Act by negligently causing injury to the surviving worker.

Count Three.

Contravening section 82(i) of the OHS Act in that they failed to train the supervisor to understand the hazards involved in the cleaning of confined spaces.

The inspector is the expert witness for the prosecution and hands into evidence his Report which contains the recommendations for prosecution in terms of the OHS Act. The supervisor is the reluctant witness for the prosecution who testifies that he was not trained to understand the hazards involved. There various other scenarios regarding charges and much depends on the prosecutor personally. The inspector could also investigate the matter formally utilising the section 32 Formal Inquiry where oral evidence is obtained, unions, family members and other interested parties are invited. All interested parties have the right to legal representation and to cross examine witnesses at a Formal Inquiry.

representation and to cross examine witnesses at a Formal Inquiry.

Not too many other interesting developments. The Minister is bemoaning the lack of commitment to NEDLAC by employers. He has been a busy traveler. Firstly China then on to the ILO in Geneva. His speech and the 93^rd session of the ILO got me galvanized into action and I found loads of interesting information on the various ILO conventions. I also wondered whether we are complying with all these conventions, particularly the one which stipulates that ‘Ensuring compliance with OSH legislation is a major challenge for all countries, and multiple approaches are required, including enforcement and self-compliance. The task of enforcement falls to the labour inspectorates or to specialist OSH inspectorates whose functions are described in the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129). Inspectors gain much valuable expertise about risks and how to avoid them through the inspection and investigation of accidents. They are thus in a good position to share that expertise with others through their educational and promotional activities and by giving practical advice on preventive measures. Inspectorates may also have the duty to carry out statutory technical examinations of workplace equipment, such as pressure vessels. Such The pillars of a global strategy for occupational safety and health'.

As you know DoL has removed the OHS specialty from their inspectors and they have become generalist ‘labour law’ inspectors. Anyway, the South African delegation to the OHS Committee of the ILO told the Committee that the SA Government was giving OHS high priority and that advocacy and awareness campaigns as well as inspection blitzes were being carried out regularly. This was coupled with continuous training of Inspectors.

I notice that the trade union Solidarity is calling for employers to sign the ILO’s Prevention of Major Industrial Accidents Convention. So as you all can see I have not been sitting on my bum doing nothing.

Still room at the workshops if anyone is interested. The venues are adapted at the very last moment to suit the numbers.

To register click on http://www.klasslooch.com/june_booking.htm or contact me.

Please forward this Newsletter to anyone who may wish to receive it. I am busy rebuilding my Distribution List which was on my laptop which I guess is now in some hotel in Hillbrow as collateral for a few hits of a white pipe! They just have to click here to be on my List.

Regards

The Devil’s Advocate.

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