Dear Folks

Many of you may have attended the recent DoL OHS Conference that was held in Boksburg from 31 October to 1 November 2006. I recognised a number of name tags on the registration table and assume that many OHS practitioners did indeed attend. Unfortunately I could only stay to hear to the first three speakers which didn’t include the Minister of DoL as he opted to ‘Red Card’ himself in an antic which I never fully appreciated. I believe that he preferred a different slot and did ultimately speak. While I must applaud DoL and, in particular, the chief inspector and his staff, for a sterling effort, I did, however, come away feeling no wiser as to the time frames involved in the implementation of the National Occupational Health & Safety Integration Bill and ultimately the National Occupational Health & Safety Bill.

I was led to believe that the National Occupational Health & Safety Integration Bill, which lays the foundation for new OHS legislation, would be promulgated during this parliamentary session but its sitting is almost over. Since we signed the OHS International Labour Organisation (ILO) Treaty we are apparently duty bound to report back every two years on the progress made towards meeting its goals. So what progress has been made? We have two OHS Bills and neither have been promulgated into law. The National Occupational Health & Safety Integration Bill is dated 2003 while the National Occupational Health & Safety Bill is dated 2005? Could it be that DoL’s preoccupation with other more popular labour legislation such as the Employment Equity Act and UIF is to blame? Every time the Minister of DoL opens his mouth it invariably relates to other labour legislation. And while he basks in the glory of his department’s achievements in this regard, it must be remembered that demise of an effective OHS law enforcement agency occurred during his watch!

I was pleased to hear this admission at the conference by Tibor Szana of DoL. While he naturally soft-soaped the purge of the early nineties (of experienced OHS inspectors) which was the result of arrogant and stubborn management on the part of DoL, he said that the Inspection & Enforcement Service of DoL faces huge ‘challenges’ since it has virtually a zero knowledge base. Well what do you expect if you stubbornly, and in the face of a barrage of criticism, (yes from me too) allow your department to haemorrhage its experienced inspectors. We told them this would happen and they refused to listen. I recall that at the time of the purge over 80 former inspectors lodged a mass grievance against management and I assume the outcome led to the flight of expertise. The question is how are they going to rectify the situation especially since we have signed an international treaty which essentially requires the situation to be rectified. Are they going to woo them back and if  so, will it not be prohibited in terms of equity legislation? OHS specialised inspectors cannot be churned out of colleges after short training courses. They need years of field experience before they can really call themselves specialist OHS investigators. I guess that the proposed National Occupational Health & Safety Authority will rely heavily on the mining inspectors since the Mine Health & Safety Inspectorate was wisely spared the purge. The Minister did hint at this.

When was the last time an inspector from DoL, as ‘expert’ witness in court and thus entitled to give opinion evidence in court, actually testified? If I was a still a prosecutor, I would have severe misgivings about putting most of the current bunch in the witness box for fear of screwing up my case. I fondly recall my prosecuting days when inspectors held my hand through OHS criminal trials lest I screw up! This was particularly true of mining cases when I still thought that a shaft was an adult club in Amsterdam.

Another interesting speaker at the conference was Richard Spoor. In a similar vein to Tibor of DoL, he lamented the lack of legal precedents in OHS matters particularly as regards the yardstick ‘reasonably practicable’, the test against which employers are measured to determine whether they could incur criminal liability for transgressions of the OHS Act, in particular section 8. He mentioned that in other countries such as Australia their case studies are riddled with guidelines as to what would be considered reasonable and practicable for an employer in discharging its OHS duties. Unfortunately in South Africa OHS criminal matters are heard in the Magistrates courts which do not generate Law Reports. For this reason my website is riddled with OHS civil cases (where persons sue corporate body employers) since they are invariably heard in the High Court, Supreme Court of Appeals and Constitutional Court where Law Reports are generated. Subscribers can access them by clicking here. (Remember your Username and Password). The latest listed OHS cases are Bezuidenhout v Woolworths (Pty) Ltd [2006] (T)  and Skhosana v Eskom [1999] (W). The latter has been rehashed but it does contain some interesting legal principles which I will discuss in the Subscriber Newsletter and is, afterall, OHS orientated.

Richard Spoor did make a plea at the DoL Conference for strict liability using environmental law to make his point. He called for a similar provision to “The Polluter Pays’ – irrespective of fault – to be incorporated into OHS legislation. In other words if a worker is injured or killed at the workplace, whether the employer is at fault or not, the employer be held criminally liable. Now I’m not quite sure I get his drift. Our compensation legislation disregards the element of fault and surely compensation to the victim or his / her dependants or more important to them than (employer) punishment?

Other news. I see lubricant has an added value in prison. You can use it to escape from our equivalent of Alcatraz! Our escape-proof C Max prison in Pretoria. I wonder if he made any phone calls to our National Commissioner before escaping?

OHS practitioners can expect a dissection of a new provision in the draft NOH&S Bill pertaining to internal investigation reports in their next newsletter. In terms of this provision these reports will have to be delivered to DoL within 30 days. They are also legally privileged in the sense that their contents cannot be used in a criminal or civil proceeding without the employer’s consent. But how privileged are they? Watch this space.

My thanks to The Institute of Health & Safety Management for inviting me to speak at their annual conference in Durban and welcome aboard MTN as a Subscriber. My thanks as well to Cell C for allowing me to address their top management.

Previous newsletters can be accessed by clicking on www.klasslooch.com

As always

Your Devil’s Advocate.

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