Dear Folks

I hope that you all enjoyed your Heritage Day public holiday and am back in your safe working environment? Afterall it is surely safer than being outside on the streets, a park, filling up your car, drawing money from a ATM or even shopping at a shopping mall. Perhaps even safer than your own home. Yes I’m talking about crime. Something is rotten in the state of Denmark. Naturally Shakespeare would have replaced Denmark with our beloved country if it existed when he wrote Hamlet. (Thank you Google). Crime as it plays off against the OHS Act and even the soon to be promulgated National Occupational & Health (NOH&S) Draft Bill of 2005. The recent attempted robbery and subsequent shootout at my closest shopping mall, Cresta, has naturally got me going. And to think I almost found myself there on that day but got scared off by the anticipated crowd flushed with either month-end pay in their pockets or endless credit at their disposal. While the newspapers and websites are full of articles on the unacceptably high levels of crime in this country, I feel that it raises some valid questions about the quality of risk assessments that are in place to protect the public, be it at shopping malls, banks, petrol stations or even the streets. Should cash-in-transit companies be allowed to collect money on public holidays at peak shopping times? Should shopping malls not reconsider introducing metal detectors at all entrances even if it inconveniences the public or scares tourists? (For those who are too young to remember or were in exile at the time, we had them in all shopping malls during the struggle years). And I mean functioning metal detectors. Not of the type used by the Pretoria Magistrates courts. I was bemused and horrified by a recent expose on ETV where, after some official insisted that the metal detectors at those courts were effective and thus would have detected the knife which was used to repeatedly stab a prosecutor, a reporter from ETV subsequently, on camera, easily carried a knife through the detector. Naturally that official was not available for comment after that.

The recently released statistics on crime which, in any case does not reflect the recent spike, reveals that the chances are pretty good that you may be caught up in a shootout at either a shopping mall or on a public road. Section 9 of the OHS Act which is relatively broad, 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. Are the activities of cash-in-transit employers not endangering persons by collecting cash in crowded shopping malls? Or are they acting within the bounds of reasonability and practicability? Are shopping malls doing the same by allowing these mandataries to do this? The Draft NOH&S Bill proposes to expand this duty of care to persons / the public and to focus on the element of control. If you control a workplace or conduct a business you will be obliged to ensure that no person is exposed to risks to their health and safety as a result of the activities of a business, undertaking or workplace that you control.

I’ve written about this before. If I remember correctly I bemoaned the situation last year when the Christmas robberies reached a frenzy. And the peak robbery season hasn’t even commenced! Subscribers will also recall the article that I wrote on the OHS Duties of the State. Click here to refresh your memories. Perhaps all public amenities should be required to submit a Health & Safety Plan for scrutiny, as envisaged by the draft NOH&S Draft Bill. Not one expert seems to be able to agree as to why we suddenly have this spike in crime or why the crime is so violent, brazen and depraved. I believe the reason is simply because criminals feel they can do it without being caught. The depravity of the criminals is another thing. It’s pure amoral terrorism. While it is a given that the SAPS is under resourced because the State has done a lousy risk assessment and consequently introduced inadequate precautionary measures, it really irks me when I read of a R96 000 lunch hosted by our Gauteng MEC for Finance when money could be usefully spent (outside their stomachs) on, amongst other things, the police budget. Truffles for starters, mains and desserts smothered in a gravy train? I hope he works better with his own money since he undoubtedly has a penchant for wasting our money. The Star newspaper reports that he has spent R250 000 on lunches in the past five months. I also hope he regularly goes to gym lest he looks like some of Joburg’s metro cops. (I’d like to see them catch a criminal on foot)!

Enough already. Minister Safety and Security Minister Charles Nqakula says: "I feel that South Africa is enjoying better safety than the case has been in the past. Even more than this, the future looks even rosier than the present is. The light at the end of the tunnel, is the encouraging response from victims who are coming forward to report crimes."

I’m going to be dazzling you soon with the draft NOH&S Draft Bill. While I can’t say whether I’ve actually seen it, it contains some interesting innovations. Employers will finally be entitled to a copy of the inspector’s report (post an incident investigation), a luxury which currently only the mines enjoy. I believe that we are entitled to that report even though the OHS Act does not oblige inspectors to furnish a copy to the employer. I say this because the OHS Act precedes other legislation such as the Promotion of Access to Information Act as well as the Constitution which compels the State to furnish us with information. The inspectors still stubbornly refuse to furnish us with a copy of their report placing employers at a disadvantage when dealing with the prosecution. The draft Bill is an interesting mix of the OHS and MHS Acts but I have the distinct feeling that the mines will be the ones to make a greater adaptation. Apparently the draft Bill will be discussed next month at the (OHS) Advisory Council. I will analyse its contents early in the new year via countrywide workshops. So please attend.

Click here to access the previous OHS Chat & Skinner newsletter.

Click here to access the previous OHS Practitioner newsletter.

As always

The Devil’s Advocate