Firstly I would like to use this opportunity of wishing you all a safe, profitable and enjoyable 2008! I started up ‘unofficially’ on 7 January which in essence means I sit in front of my monitor for a few hours a day to get into the ‘mood’ and then officially on 14 January when hopefully the mood is there!  I had a very enjoyable break, staying in Jo’burg to avoid gridlock and shopping mall crowds while spoiling myself with a few new gadgets. I’m a self-confessed gadget junkie and may even need some help in overcoming this addiction. Naturally it’s coupled with another vice. A few drinks, a wireless laptop on the patio, a credit card and on-line shopping. Hopefully I’ll soon have a wireless camera monitoring my guests cars outside my home- 6 have disappeared since 2002, one even with a wheel clamp – which will start recording any movement on my computers, be seen on my TV and even send me a SMS! My last encounter with these bastards was a few days ago when they broke the window of a guest’s car, then brazenly drove past and even did a doughnut in front of us. Umshini Wami..…But we remain the rainbow nation. The only problem is that too many government officials have helped themselves to the pot of gold at the end of it and other criminals (are they synonymous?) are willing to butcher anyone to get their greedy paws on that pot. I guess we will see quite a few of these criminals in the ruling party soon since a criminal record now seems a prerequisite. Perhaps the hordes of criminals stalking our streets are in training for a government position? 

Imagine an unrepented convicted fraudster, such as an employer, who is convicted for willfully / fraudulently, in terms of section 38(1)(p) of the OHS Act, doing something which endangers his workers, being carried to prison on the shoulders of members of an employer organisation and then voted onto that organisation's executive committee! Add to that a top DoL official interfering with evidence after that very same employer is caught committing another criminal offence. And then that DoL official is subjected to protracted disciplinary hearing with no end in sight! Blood, the same substance that should be taken within two hours of a driver being caught driving erratically on 'flu medication', would flow as a COSATU spokesperson recently said.....out of context ofcourse, regarding the prosecution of JZ. Can you imagine how COSATU, that organisation that still thinks it’s an extra parliamentary political party and not a Federation of Trade Unions looking after the (OHS) interests if its members, will bleat.

Arrest warrants are being issued and withdrawn left right and centre.  What the hell is going on? Who are the good guys and who are the bad guys? In 1994 I thought we would all be going hand in hand to the promised land but, judging from my own family experience at least, that land is either the UK, Canada, New Zealand or Australia. I guess I’ll just sink with the ship. Does the women and children first rule still apply?  My dad always used to say that when the Jews leave you are in trouble but when the Portuguese leave you are stuffed.

Now all this talk of crime has an OHS point. Can the SAPS or the Ministry of Safety and Security be called to account in terms of the OHS Act if their actions or inaction (conduct) causes the public the threat of harm? It happened recently in the UK when it was recommended by an Independent Commission - something we envy here - that the Office of Commission of Police be prosecuted under the Health & Safety at Work Act of 1974 (HSWA) for the killing of Jean Charles de Menezes who was mistaken for a terrorist in a tube station. The Police were ultimately convicted and fined. We have an similar provision in the OHS Act.

The day after the second (failed) terrorist attack on 21 July 2005 two UK policemen shot and killed a Brazilian citizen in a tube station who, according to their version which was subsequently dismissed by the Independent Police Complaints Commission, failed to respond timeously to their warning to freeze after they genuinely believed he was a suicide bomber. He died after being shot numerous times. In order to prosecute the officers for murder or culpable homicide, it would have to been shown, beyond reasonable doubt, that they did not honestly and genuinely hold those beliefs. The evidence, however,  supported their claim that they genuinely believed that Mr de Menezes was a suicide bomber and those criminal offences were discounted. They could therefore not be prosecuted for murder or any other related offence. The Commission concluded, however, that  the operational errors indicated that there had been a breach of the duties owed to non employees  under the Health and Safety at Work Act 1974 by the Office of Commissioner of Police and  authorised a prosecution under that Act.

Section 3 of the UK Health & Safety At Work Act of 1974  places general duties on employers and the self-employed to conduct their undertakings in such a way as to ensure, so far as is reasonably practicable, that persons other than themselves or their employees are not exposed to risks to their health or safety.

Section 9 of the (SA) OHS Act states that every employer shall conduct his undertaking in such a way 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. Almost identical wording. Almost identical implications.

Since section 9 of the OHS Act, like every other provision in the OHS Act, has never been tested in our higher courts, in fact seldom used even when warranted, the UK has given us some guidelines as to its use.

For section 3 of the HSWA to apply:

• there must be a duty-holder - either an employer or a self-employed person, and
• there must be a risk to the health or safety of a person who is not the employee of the duty holder or the self-employed duty holder themselves, and that risk must arise from the conduct of the duty holder's undertaking. An 'undertaking' means 'enterprise' or 'business'. NB Whether a particular activity is part of the conduct of the undertaking is determined by the facts of each case.

HSWA section 3 does not apply to:

• welfare issues (such as the provision of toilets or washing facilities);
• nuisance or amenity issues that have no health or safety implications (such as unpleasant smells arising from work activities);
• poor workmanship, where trading standards or contractual remedies may exist, unless it has demonstrably compromised health and safety.

Where a work activity has finished the Health & Safety Executive (HSE) is sometimes asked to intervene - e.g. where people have experienced illness after a building such as a school or private house has been insulated with urea-formaldehyde foam, or where the standard of plumbing or electrical work in domestic premises has been inadequate. Generally, the HSE will not get involved in what may be essentially contractual or civil disputes except in cases where death or serious injury has occurred and initial enquiries, or information from other sources, indicate that a breach of section 3 of the Health & Safety at Work Act was the probable cause or significant contributory factor. In such cases:

•  established  HSE complaint or incident selection criteria should be used to determine if an investigation is required;
• inspectors should take into account the length of time since the work activity took place. Though it should not of itself deter inspectors from investigating, in practice the longer the time-lapse, the more difficult it can be to collect evidence and the public interest arguments for action, weaken.
• once a section 3 HSWA investigation is underway, decisions on enforcement should be made in the usual way.

In the OHS Act a "hazard" means a source of or exposure to danger while a "risk" means the probability that injury or damage will occur. The HSWA uses the term ‘risk’ while section 9 of the OHS Act uses the term ‘hazard’. So we must assume that the potential of damage to a person’s property by the conduct of employers would not trigger section 9 of the OHS Act while the potential of danger, not actually injury or ill health would suffice. If injury occurred then section 38(2) would be more appropriate and if death occurs, the common law crime of culpable homicide.

So could section 9 of the OHS Act be used against the SAPS or, for that matter, the Ministry of Safety & Security, if their conduct endangers the public? Lets assume you are, as persons are daily, subjected to a house invasion, and your neighbour summonses the SAPS. They fail to respond timeously – something I often read in the press – and you and your family are endangered. A firearm is pointed at you but luckily you are not shot. The SAPS uses the lame excuse that there were no vehicles available to respond. Have they not, prima facie, contravened section 9 of the OHS Act? In theory yes. But then again DoL is not the UK’s HSE. In the de Menezes’ case the Independent Police Complaints Commission even considered whether the Police Commissioner, Sir Ian Blair, could be held personally liable for the shooting but felt that there was too weak a linkage to him personally.

I guess that Sir Ian Blair is the equivalent of Jackie Selebi and need I say more. While his conduct is definitely unbecoming let’s remember that he has not….yet…been convicted of any offence. Perhaps the fact that the SAPS felt it necessary to use 20 armed policeman to arrest Gerrie Nel of the Scorpions, resulted in valuable resources been diverted from the streets and that, per se, resulted in a hazard to the public?

You all know how I feel about the State’s duty in the Bill of Rights to ensure us security of person. Also that we taxpayers have forked out millions of Rands in settling successful lawsuits against the Ministry where they failed in their Constitutional duty. Perhaps the time has come to go after individuals using the criminal law (OHS Act).

As always

Your Devil’s Advocate