Dear Folks

Well I’m back after a well deserved holiday in Singapore and Malaysia. What a pleasure to be in safe and clean environments. And what a treat to be exposed to friendly and efficient service.  I’m afraid we are quite a dikbek bunch when it comes to service. I arrived back to quite a baptism of fire as I ‘accidentally forgot to declare my new laptop, digital camera etc. – my former camera was removed at a SA airport out of a locked suitcase and naturally they accept no liability – and was subjected to a rather undignified 2 hour search by our over zealous SARS personnel. For a moment I thought I was going to be subjected to a cavity search and was braced to plea for an epidural. I guess that I was a prime target for singling out what with labels dangling out all over my suitcases. How was I to know that R3000 is the tax free limit? I mean that’s about a meal in the UK! My first attempt to draw ZAR at an ATM prompted an individual to try a scam on me. As I was drawing money he flashed some ID card in front of me and tried to stick something into the machine feigning that he needed to ‘work’ on the machine. I gave him a big klap since all the security personnel in the vicinity didn’t seem too phased by the entire saga. Welcome back to the second most dangerous county in Africa I said to myself!

What really struck me while on holiday was the horror on the locals’ faces when I explained that I live behind electric fences, activate an alarm when I sleep save for my bedroom and suffer from stress whenever I leave for the airport at some ungodly hour lest I fall victim to a hijacking. (I don’t have an alarm in my toilet lest it go off and I pee or do worse in my pyjamas)! I have yet to see SAPS patrol cars around at that time – or for that matter ever)! The concept of smash-and-grab window protection naturally pushed these poor Singaporeans over the edge! Well let’s see if I can hold onto this laptop. My former two were redistributed though a broken window in my office.

The Honourable Minister of Labour said on  Friday that ‘No worker should die on duty and is concerned over the number of deaths in the workplace. Spokesperson Zolisa Sigabi said that by March 2007, 350 workers had died in the workplace. A Mozambican national, Americo Diaz, recently died at a construction site in Brooklyn, Pretoria after slipping and falling two floors to his death. "Preliminary findings by the department of inspectors revealed that the area where he was working did not have guard rails to protect workers from falling off," Sigabi said. Diaz was working as a foreman for Ohlhorst Africa Pty Ltd, a construction company. "There is no worker who should die on duty especially not due to non-compliance with labour laws," Mdladlana said. Sigabi said labour inspectors were continuing with investigations into the incident'.  I say nobody (read 50 murders a day) should die unnaturally full stop - especially at the hands of criminals! Where does their loot go? Perhaps a minimum sentence of 15 years for anyone buying or possessing stolen property will help. And while the President is on a firing and suspending spree he should give Nqakula the boot. Selebi may be arrested anyway? The Minister of Health, thanks to a fast tracked new liver and who has now taken to holy communion (wine), seems to have the staying power of Robert McBride and Truman Prince.

Let’s think of an analogy. Mbeki is the group CEO of a company. Nqakula the MD and Selebi the GM.   The fatality rate (murders) are unacceptably high at the workplace. (Country). The unfazed MD admonishes persons who whinge about the high fatality rate to leave the company. The GM is suspected of colluding with suppliers of cheap non-compliant PPE and is served with a notice by DoL. The group MD, whose struggle credentials are impeccable (Mbeki), steps in and uses his influence to make the Notice disappear. The official from DoL (Pikoli), who served the Notice, is suspended and the company continues operating with impunity. The beleaguered workers resort to buying their own PPE to safeguard their lives and are offered no tax relief. The Group CEO maintains there is no crisis within the company. He blames it all on the previous inequitable economy, a boring and convenient lament designed to stifle any dissention. Afterall who wants to be accused of complicity! And afterall his company is hosting a big economic conference in 2010 and he doesn't want to scare potential participants. The Board of Directors continue to support the CEO lest they lose their perks and the fund managers continue to keep their clients happy. The unions remain mum since they are all in bed together. They toyi-toyi and sing songs glorifying the instruments that cause workplace deaths and routinely go on destruction rampages in the streets with impunity while stretching the (all ready thin) policing authorities to the limit. As a result they are unable to effectively police other unsafe workplaces.

And to think that employers have a duty in section 8 of the OHS Act to provide employees with a safe and healthy environment just as the state has a constitutional duty of providing us with security of person. Guess who equips themselves best? While I was away and to this day DoL is conducting a blitz on  construction companies / sites.  According to reports most companies have been found to be non-compliant and Prohibition Notices have become the order of the day. I was speaking to a top ranking DoL official about this the other day and he mentioned that the focus will turn to clients who are invariably in a position to influence OHS compliance on a construction site. In fact construction regulation 4 obliges clients or their appointed agents to ‘get their hands dirty’ when construction work is being performed.  I have always maintained that if a client dutifully fulfils  its duties, there would be a greater degree of compliance by construction contractors. Surely the (at least monthly) audits by the client / agent would detect deviations? Clients are duty-bound to stop any unsafe work on a construction site or for that matter any deviation from the approved Health & Safety Plan.  Clients are having an easy ride at the moment but this may not last for much longer.

Imagine a scenario where a fatal accident occurs at a construction workplace. Let’s say a worker fell to his death from a height. (One of the most common causes of death and injury on construction sites). Upon investigation it  is found that the client failed to obtain and negotiate a Health & Safety Plan from the contractor including a Risk Assessment which in turn includes a Fall Protection Plan.  Currently DoL investigators would focus solely on the contractor but if I was a prosecutor I would argue that, had the client obtained the Health & Safety Plan including the Fall Protection Plan, the accident could have been avoided. I would charge the client along with the contractor with culpable homicide, alternatively or additionally charges under section 8 (duties of employers to employees) and section 10 (duties of installers, designers and erectors of articles at the workplace) of the OHS Act and then charges in terms of the construction regulations.  Once the NOH&S Bill is law I would add Corporate Homicide as an alternative charge and bolster the State’s coffers potentially with a million bucks fine.  That would buy a nice BMW for some government official! For more on Corporate Homicide click here and here). Unlike the current OHS Act, the Bill will allow inspectors to recommend homicide charges albeit not for individuals. Currently only the NPA can decide on a culpable homicide charge which will remain a more serious common law crime than Corporate Homicide. Corporate bodies can and may still be charged with culpable homicide once the Bill is promulgated.

And while on the topic of construction.  There seem to various schools of thought regarding the Health & Safety Specifications that client’s are obliged to furnish to their principal contractor. One school maintains that they must be specific to the type of construction work being performed while others, who appear to be in the majority, require broad compliance with all the provisions of the OHS Act.  It’s interesting that Health & Safety Specifications are defined as meaning a documented specification of all health and safety requirements pertaining to the associated works on a construction site, so as to ensure the health and safety of persons. So I guess a client can require any broad OHS requirements, not necessarily specific to the construction work, to be in place. These broad requirements are, after all, relevant to construction work as with any other work. Perhaps this whole argument is academic since construction regulation 4(1)(b), which requires clients to promptly provide the principal contractor and his or her agent with any information which might affect the health and safety of any person at work carrying out construction work, would entail more specific construction site related information?

I have always felt that our construction regulations lack another role player. While our regulations make the appointment of a (client’s) agent optional, the UK Construction (Design & Management) (CDM) Regulations 2007, makes the appointment of a CDM Co-ordinator obligatory to advise and assist the client. For more click on http://www.hse.gov.uk/pubns/indg411.pdf

Some interesting articles of late.

Chamber of Mines launches study into seismicity, rockburst management. Mining News of 24 September 2007. 'South Africa’s Chamber of Mines has begun a study into seismicity and rockburst management, the industry body said last week. Chamber of Mines gold producers committee chairperson Robbie Lazare said that the study was initiated to provide employers with “insights” which would assist them to better exercise their role in rockburst risk management, as well as to provide them with more informed input into processes needed to improve intervention in the event of seismic and rockburst occurrences. “Our intention is to ensure that the outcomes of this initiative contribute towards improved management of seismic events and rockbursts to protect human life and safeguard property.” Government and labour are becoming increasingly intolerant of the poor safety records in South African mines. The biggest mineworkers’ union, the National Union of Mineworkers, said last week that it was considering various actions to protest the regularity of fatal accidents, including possible strike action. Outgoing AngloGold Ashanti CEO Bobby Godsell had agreed to assist in the management of the study process, as chairperson of the study panel of national and inter- national experts, Lazare added. “Employers fully share with other stakeholders the concern [over] the unacceptably high level of seismic and rockburst-related accidents,” he said. “South Africa is an acknowledged world leader in ultradeep underground mining technology, [but] we need to become a world leader in underground safe mining as well.”

Corporates have made great strides in raising safety standards. The same can’t be said for policing of roads.

Impala Platinum recently reported record results for the financial year end June 30 2007. Production exceeded 2 million ounces and headline earnings were up 75percent. There was a lot to boast about but instead the company chose to highlight its deteriorating safety record. Fatal accidents cost 13 people their lives. Sasol followed a similar line announcing results last week. It maintained that safety standards remained a top priority for the group. Their record of illnesses and injuries was improving. A few months ago Anglo Platinum went as far as suspending operations while it reviewed its safety standards after a sequence of accidents. Working eight hours a day, blasting rock in claustrophobic conditions up to 4km below the earth’s surface is hazardous toil for any work force and it is no surprise that the South African mining industry has suffered frequent accidents in its 120-year history. Yet in an age where technology and machinery have improved immeasurably, investors and communities are pressurising industry to eliminate unnecessary mishaps and deaths at the workplace through education, training, reliable equipment and a safer working environment. The measures extend beyond safety. While profits are critical for success, groups of people are naming and shaming those companies that achieve their financial objectives at the expense of the environment, at the cost human and animal life and without showing charity towards the society in which they operate. Annual general meetings are no longer cosy gatherings where minority shareholders snuggle up to directors, showering praise over a cup of tea and a scone. Investors closely monitor management’s behaviour, illuminating any issue that may exceed acceptable standards of corporate governance, from use of the company’s jet to the chairman’s choice of social acquaintances. Warren Buffett was challenged at this year’s Berkshire Hathaway Shareholder’s Meeting for his investments in a utility company that was distressing a native community’s reliance on salmon fishing and for a stake in a Chinese oil company that supposedly supported the rebel faction in Darfur. South African corporates have made great strides adapting to the fresh demands of consciousness. They have tackled matters like transparency, sustainable development and the safety and training of their employees with genuine concern and purpose. Unfortunately, the same can’t be said about the people in charge of running the country. Two weeks ago a driver of a 4x4 attempting to overtake a slow moving truck on the left-hand side mounted a pavement and killed two siblings, aged six and 13, who were on their way to school. The incident didn’t make headlines like the Madeleine McCann case or the Springbok victory over England, because stories like this occur daily. The driver will face charges of culpable homicide but sentencing, if it ever gets to the courts, will be passed over by the media. I hold the government, the provincial councils and the local authorities equally accountable for the children’s deaths. For it is their insufficient and ineffective policing combined with deteriorating infrastructure that has led to a systematic decay of driving standards on South African roads. Each day that passes witnesses increasing contempt by drivers for road signs and traffic signals; intensifying the prospects of serious injury on our streets. The brazen antics and unpunished lawlessness rubs off onto their passengers as well, especially young children who imitate their seniors’ deeds and gestures in the classroom and in the playground, abusing teachers and bullying colleagues. This deliberate anti-social behaviour lays the seeds for rejection of any form of authority and discipline in later life; a perpetuating cycle of delinquency. The lack of care for the safety and protection of our people by the authorities goes further. It is obvious from the diggings on our pavements and on our roads that money is being spent attempting to improve our living standards, whether it is drainage, communication or power supply. But poor organisation and non- existent supervision has produced even greater impediments for drivers and pedestrians. Unprotected trenches make pavements unusable, while mounds of earth piled on the side of the road obstruct traffic lanes. In a civil society, citizens would show extra care, but in South Africa, where drivers display scarce regard for any obstruction that may delay their journey by a few seconds, the outcome is extremely dangerous. South Africa’s code of corporate governance is highly regarded by the international community. Investors ensure that local businesses adhere to them, including making certain that workers perform their duties in a hazard free environment. That’s one thing; getting to work in one piece is another.

 New regulations to lower SA's high construction industry incident rate. Eng. News.

Department of Labour (DoL) executive manager Tibor Szana states that a high incident rate in four different sectors, namely, construction, iron and steel/manufacturing, food and beverage, and agriculture, has accounted for about 47% of all injuries reported to the department over the past four years. During the 11 months from April 2006 to February 2007, more than 130 deaths were reported in the construction sector, with over 330 reported injuries.

The high incident rate prompted the DoL to set in motion the finalisation of the review of the construction regulations in order to ensure that they remain in line with current worldwide trends and future expectations. Szana says that part of the review included working closely with industry stakeholders in identifying the most important issues. A training programme for 60 new inspectors was initiated, followed by blitz inspections, which began in March this year.

A conference was also conducted earlier this year in Rustenburg, where employers and worker organisations, together with inspectors were hosted to presentations by construction experts from the International Labour Organisation, featuring Frank Muchiri and Professor John Smallwood from the Nelson Mandela Metropolitan University.

Szana states that anyone participating in construction work, as defined by the regulations, has the responsibility of notifying the DoL’s local provincial director in the prescribed format. A database of all construction activity, as defined by the regulation, is compiled by the DoL local offices, along with the completion date of each project in order for inspectors to plan their inspections at such sites.

Within a short period after the initial notification, an inspector is sent to the construction site as part of an inspection programme. The inspector has the responsibility to enact several legislations while on site or at the head office of construction companies, including the Employment Equity Act, the Unemployment Insurance Act, the Occupational Health and Safety Act, the Compensation for Occupational Injuries and Diseases Act, the Basic Conditions of Employment Act, as well as the Skills Development Act.

A three-tier model is followed by inspectors, states Szana. The first tier is that of advocacy. “That role normally plays itself out in the education and training of employers and employees. “The inspector goes out with the necessary materials and supplies them to the stakeholders, free of charge.”

The second tier in the model is the inspections. “Inspections are often undertaken for different reasons. “It could be that there has been a request for exemption from certain parts of the regulations, or a complaint has been lodged.”

The final tier of the model is enforcement. “If there has been non-compliance on the part of the employer, the inspector will enforce the legislation,” states Szana. He adds that in the case of non-compliance, three different notices could be issued. The first is an improvement notice. “This notice is issued when an employer complies with the legislation to a degree, but the inspector has determined a possible danger in the workplace, and the employer needs to improve on what is currently in place. “The employer is given 60 days to comply.”

The second notice is a contravention notice. This is issued when a company does not comply with both the Act and the regulations; this includes South African Bureau of Standards codes. Once again, the company is given 60 days to comply, before the case is handed over to the prosecuting authority.

The final notice that can be issued is the prohibition notice. Once an inspector finds a situation in a company that poses a danger to life and limb, the inspector will issue the notice on site and it will be effective immediately.

“The employer may appeal against any of the three notices,” states Szana. “An extension of the 60 days compliance deadline can also be requested if the employer can prove that it can not comply within the prescribed period.” In considering the request, four key issues are looked at: the capital expenditure, the severity and scope of the hazard, the state of knowledge reasonably available concerning the hazard, and the means of removing the hazard or risk.

In terms of the Occupational Health and Safety Act, non-compliance and prosecution could incur a fine of up to R50 000 or a year in jail. In certain cases, common law can also be enacted. “One of the interesting areas of our legislation is that sometimes you can have the possibility of death, but not a death, that is, the potential severity of an injury could have led to a death and, in such instances, an inspector could still charge the company with culpable homicide.”

Szana states that the DoL is willing to assist any company with queries on the regulation or legislation. “Come and talk to us before an accident takes place, because, once an accident happens, we have to invoke the enforcement part of our process.”

In cases where the employee fails to comply with regulations, even after the insistance of the company, the employee could be prosecuted in accordance with the legislation. Where two or more companies are sharing the same construction site, on a co contracting basis, both companies will be held liable should there be non-compliance with legislation.

All inspectors employed at the DoL go through an orientation phase within their respective provinces and thereafter training is carried out under their respective personnel development plans, states Szana, but a starting requirement is a degree or equivalent in either one of five preferred disciplines. “We look at mechanical engineers, civil engineers, electrical engineers, chemical engineers, and a degree in occupational health and hygiene.” He adds, however, that the DoL is not closed to other variants, such as a degree in microbiology as it is relevant to the work that it performs in the various provinces.

Structured programmes are in place to train inspectors in certain fields, such as boiler training, to conduct the inspections of pressure vessels or vessels under pressure, or lift training to conduct inspections on lifts. “In some instances there would be an introduction to give an inspector the necessary understanding of a certain field, and thereafter the inspector would be linked with a tertiary education facility to get a formal qualification. “I think the time has come for employers to realise that the DOL is taking its work very seriously, and that inspectors going out to do inspections are in the process of being trained in what they are required to do.”

Szana states that, statistically, the view is that about 80% of work, related accidents could have been prevented if proper safety measures had been put in place. “We are looking at between five and nine deaths for every 100 000 people in developed countries, so South Africa’s rate of about 44 per 100 000, based on the assumption that there could be about 300 000 workers currently employed in the sector, is completely unacceptable.”

Implementing safety measures in the work place, says Szana, will save the company

money and improve on the quality of both the product and the services. He warns, however, that in several cases, where the risk assessment was done by a person not familiar with risk assessment procedure, or working on a short deadline, the process often costs the company more.

“You will find that these companies have allocated a lot of money in areas where it was unnecessary. When a proper risk assessment is done, certain areas within a working environment would be identified as possible hazards.”

Szana states that all accidents which result in the loss of life or limb, or part of a limb, should be reported to the DoL. The loss of part of a limb is defined as the loss of the bone in the first digit of the appendage. A work-related accident resulting in loss of consciousness, runaway machinery, or the escape of noxious gas should also be reported in line with Section 24 of the Occupational Health and Safety Act.

Szana urges employers and workers within the industry to work with the DoL prior to accidents or incidents. “Too many lives are lost unnecessarily. It is time to change the prevailing culture at the workplace.”

Man plunges down lift shaft. IOL of 27 September 2007. 'A horrified Sharmla Pillay watched helplessly as her husband, Prega, 37, plunged four floors to his death in a lift shaft at the Wild Coast Sun Casino on Wednesday morning. Just metres away, the couple's two small children, 10-year-old Mikhail and six-year-old Caitlyn, lay asleep in the family's hotel room, unaware of the tragedy. Prega Pillay was the owner of the Durban-based company East Coast Container Services. An employee, Rodney Pillay, (no relation to the deceased) spoke of his "sense of disbelief" at his boss's sudden death. "I raced to the casino as soon as I got the news and arrived at 4am. It was the saddest sight," Pillay said. "Sharmla is absolutely devastated." According to Rodney Pillay, the couple had been enjoying the evening in the Wild Coast Casino, where they were holidaying, and decided to return to their room at about 1am. Prega Pillay allegedly pressed the lift button, waited for the lift to reach the fourth floor, turned to offer his wife his outstretched hand and then stepped in. The lift, however, had not arrived, and he tumbled into the dark shaft, sustaining massive head injuries and broken limbs. Capt Decca Mhlelembana of the Community Service Centre affiliated to the Mzamba Police Station, was one of the first police officers at the scene. "The lift doors were wide open, and I could see the body of the deceased in the basement," he said. While investigations are still under way, the lift company that installed the elevators at the casino expressed their condolences to the family. Communications officer of Otis, Jean Biddulph, said: "We would like to extend our deepest sympathy and concern to the family of the deceased. "The investigation has been handed over to officials of the department of labour, who will conduct extensive tests before a legal process begins. We will do everything possible to co-operate with them and assist them in their investigation." Sue Klerck, spokesperson for Sun International, said: "The company is not able to speculate at this point about the incident, as an investigation is under way." Shocked relatives and employees of Prega Pillay gathered at his Somerset Park, Umhlanga, home to support his widow and children. The father of the deceased, M Prega, said: "I don't know how we will get over this loss. I have three sons, but Prega was very special. He was an exceptional son who always put the needs of others before his." Pillay's death is the latest involving malfunctioning lifts. In February this year a man's body was found jammed in the goods lift at the Stamfordhill Road nightclub One Four Four. In April last year, a 30-year-old man plunged to his death when he fell down a lift shaft at John Ross House on Durban's Victoria Embankment. Police said the man forced open the door of the lift, which was stuck on the sixth floor, slipped and fell down the shaft. He died at the scene. In February 2004, 18-year-old Lungile Mathebula died after sustaining serious injuries when a cable snapped and a lift in the same building plunged 15 floors. Three others, Zinhle Mathebula, Mondli Mthethwa and Thembi Chule, were seriously injured in the incident. The speed of the lift was reduced by brakes before it hit the ground.

NPA to act soon on deadly Sasol plant blast. SABC of 2 September 2007. 'The National Prosecuting Authority (NPA) will soon announce what action they will be taking after receiving the report about the Sasol blast in which 10 people were killed and more than 300 injured in 2004 in Secunda, Mpumalanga three years ago. The cause of the blast has never been made public until recently when the labour department submitted their findings to the NPA. Today marks the third anniversary of the Sasol blast. The families of those who died say they were never compensated for their loss. After the accident the department of labour conducted their own investigation and handed over their findings to the NPA at the beginning of last year, but there has still been no movement from the prosecuting body. The NPA has also conceded that the investigation has taken too long.

Durban fire: Missing worker presumed dead. IOL of 20 September 2007. 'One man is missing, and presumed dead, after Tuesday night's explosions at the Island View storage depot in Durban. The blasts sent tremors through the neighbourhood and released pungent fumes into the air. Meshail Reddy, 22, a contract employee working on the Island View Storage company site when the incident occurred, is unaccounted for. He is presumed dead by family and friends. Officials were still containing a fire in one storage tank on Wednesday afternoon as the entire area surrounding the preceding evening's blaze was damped down and monitored. The toxicity level in the air at schools and residences around the port area will be known on Thursday when a full report is submitted to the eThekwini Municipality. However, preliminary test results have indicated that the pollutants are not sufficiently concentrated to be harmful. Municipal officials took samples at schools and homes surrounding the scene of the explosion on Wednesday. The containers affected by the fire and the subsequent explosions were believed to have contained paraffin, alcohols, solvents and cresol. Selvan Mudaly, the head of City Health in the south Durban region, said that tests would be done for the presence of volatile organic compounds including caradol, paraffin, diesel and ethanol. Preliminary results have shown the levels to be from two parts per million to six parts per million. For ethanol, the worst concentration would be 1 000 parts per million, Mudaly said. Officials were also sent to announce to Bluff residents that they should not have any concerns about their children and families as the situation "was safe". The explosions at the liquid storage tank zone were followed by huge blazes that could be seen from as far away as Durban North. The cause of the incident is still not known, but it is believed that the fire that caused the explosion was the result of a road tanker catching alight. However, Kobus Ehlers, the Managing Director of Island View Storage, said the incident was still being investigated. He said that the fire had been contained to one area within bay three of the terminal. Eight tanks were destroyed or damaged, with one alcohol tank still burning under controlled conditions on Wednesday afternoon. "The environmental effects of the incident are still being assessed," he said. "However, with the current wind conditions, the concentration of air pollution appears minimal. "Likewise, water pollution within the harbour is minimal." Mudaly said that one of the lessons learned from the event was that the people needed to know where to take their families in such instances. He said other lessons learned included that data showing the wind direction needed to be readily available as well as the toxicity level dosages of chemicals. That told people of the dosage level of a chemical that one would need to be exposed to to fall ill. In a full-page advertisement in The Mercury on Thursday, Bidvest, the owner of the Island View storage complex, thanks the Durban fire department, the Transnet National Ports Authority, the police, other emergency services and the Island View Storage executive and staff for containing the fire. Bidvest also apologises to people who were inconvenienced by the blaze.

Appalling safety statistics for railway. Advantage A.C.T. 'The Railway Safety Regulator’s (RSR) Annual Safety Report concluded that South African railroads have a long way to go for improved safety. During 2005/6 there were 1 994 reports of collisions and derailments at Spoornet and 412 cases at Metrorail. In 2004/5 there were 1 436 reported cases at Spoornet and 75 at Metrorail. Due to the fact that the National freight Logistics Strategy encourages competition in the rail sector, the RSR, will among others, have to determine safety regulations and assessment of safety standards of licensed operators.’ Corresponding safety standards will also have to be considered.

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Your Devil’s Advocate.