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WORKSHOP AGENDA

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					                               WORKSHOP AGENDA
Introduction

OVERVIEW OF THE OCCUPATIONAL HEALTH & SAFETY (OHS) ACT NO. 83 OF
1993 AS AMENDED.
The Sections of the Acts & their impact.
The Regulations & their impact.
The role-players (Employers, Users, Employees, Labour Brokers, (Temporary
Employment Services, Mandataries, Owners of Structures, Medical Practitioners,
Safety Officers, Persons).

OVERVIEW OF THE MINE HEALTH & SAFETY ACT NO. 29 OF 1996 AS
AMENDED.
Annual report on OHS, Statistics & Medical Surveillance.
Codes of Practice.
Full time Health & Safety Representatives.
Full time Safety Officers & their statutory duties (Liabilities).
Forcing incriminating evidence at Investigations / Formal Inquiries via (State)
indemnities.
The right to Inspectors Reports.
Safety Factor Levies. (Mines). (Rustenburg Platinum Mines Ltd v Chief Inspector of
Mines & another [2006] (T).
Fines (Outside the Courts).
The Right to refuse dangerous work.

THE NATIONAL OCCUPATIONAL HEALTH & SAFETY INTEGRATION DRAFT
BILL 2003.
Preamble.
WHEREAS everyone has a right to a healthy and safe working environment;
WHEREAS the provision of occupational health and safety in the public sector is the
responsibility of a number of different national and provincial departments and this
has resulted in a fragmented system of occupational health and safety developing;
AND WHEREAS government is committed to developing and implementing an
integrated occupational health and safety system and considers that the most
effective way of doing this is by establishing an autonomous occupational health and
safety authority; NOW THEREFORE in order to develop an integrated occupational
health and safety system and establish an authority to implement that system.
The purpose of this Act is to –
(a) establish an integrated occupational health and safety policy for South Africa;
(b) establish a National Occupational Health and Safety Authority responsible for
implementing and administering the integrated national occupational health and
safety system established by the national policy.

THE NATIONAL OCCUPATIONAL HEALTH & SAFETY POLICY DOCUMENT.
Occupational accidents and disease impose an unacceptably high cost on South
Africa. The cost is estimated to equate to 3.5% of the national Gross Domestic
Product (GDP). Costs to employers include property damage, lost production time,
lost skills as well as the cost of engaging and retraining replacements. Costs to
workers and their families include permanent disabling injuries, debilitating disease,
loss of employment and loss of breadwinners.. Prior to 1994, the regulation of
occupational health and safety was marked by government indifference, employer
neglect and a widespread disregard for the fundamental rights of workers and their
communities. There was minimal investment in the government agencies charged
with regulating OHS. They lacked the personnel, other resources and the skills to
implement effective prevention strategies.5. The absence of an integrated policy and
framework has had the consequence that the very considerable developments that
have been introduced since 1994, have also had the result of exacerbating
inconsistencies in the regulation of OHS in different sectors.

THE INTERNATIONAL LABOUR ORGANISATION (ILO) CONVENTION NO. 155
OF 1981.
A Member ratifying this Convention may, after consultation at the earliest possible
stage with the representative organisations of employers and workers concerned,
exclude from its application, in part or in whole, particular branches of economic
activity, such as maritime shipping or fishing, in respect of which special problems of
a substantial nature arise. Each Member shall, in the light of national conditions and
practice, and in consultation with the most representative organisations of employers
and workers, formulate, implement and periodically review a coherent national policy
on occupational safety, occupational health and the working environment. The
enforcement of laws and regulations concerning occupational safety and health and
the working environment shall be secured by an adequate and appropriate system of
inspection. The enforcement system shall provide for adequate penalties for
violations of the laws and regulations.

THE NATIONAL OCCUPATIONAL HEALTH & SAFETY AUTHORITY.
The object of the Authority is to implement and administer the integrated
occupational health and safety system established by the national policy.
Composition & functions.
Specialised OHS Inspectors.
Heavy penalties for OHS violations.
Employer Health & Safety Policy. (Section 7 OHS Act / Section 8 of the MHS Act).

THE NATIONAL OCCUPATIONAL HEALTH & SAFETY DRAFT BILL. (To be
promulgated).
What is in store for Employers and Users of plant & machinery.

THE COMMON & CIVIL LAW AND RELATED STATUTORY LEGISLATION.
The Compensation for Occupational Injuries & Diseases Act (COID Act) / The right to
sue / Indemnities.

CULPABLE HOMICIDE (Fatalities).
The Right to sue Employers / users for compensation and / or damages.
Labour Brokers & the right to sue. (Rieck v Crown Chickens (Pty) Ltd t/a Rocklands
Poultry [2005] EC).
Suing the State. Section 24 of the Bill of Rights to the Constitution.
OHS & The Promotion of Access to Information Act.
Corporate & Management personal criminal liability. Section 332 of The Criminal
Procedure Act.

LEGAL APPOINTMENTS. & IMPLICATIONS & LIABILITIES.

MHS ACT : RIGID APPOINTMENT STRUCTURE.
CEO, Mine Managers, Shift Bosses, Mine Overseers etc.

OHS ACT . SECTION 16 (TACIT) EMPLOYER HEALTH & SAFETY STRUCTURE.
An In-House Arrangement.
Genuine Written Appointments. (General Machinery Regulation 2(1), Construction
Principal Contractors, Contractors etc.).

CREATING & ENJOYING EMPLOYER LEGAL OHS RIGHTS. (Train employees &
persons into their duties).
Section 14 (OHS ACT) / Section 22 MHS Act.
Person (Employee) Duties in the Regulations.
Medical Privilege v Employer Rights (Medical Surveillance, Biological Monitoring).

AUTOMATIC EMPLOYEE RIGHTS.
Duty of Care. (Common law).
Sections of the Acts. (Diluted Rights- Reasonably Practicable.
Employees. (OHS Act Section 8 & MHS Act Section).
The Regulations (Absolute Rights).
'Person' Rights. (OHS Act Section 9 & MHS Act Section 5 ).
The Rights of Purchasers, Recipients of articles & Substances. (OHS Act Section 10 &
MHS Act Section 21).
Prevention of transmission of HIV, Hepatitis Virus and other Blood-borne diseases at
the workplace.

LEGALLY SOUND MANAGING OF CONTRACTORS (MANDATARIES - GENERAL
& CONSTRUCTION).
Employers are presumed to have committed the 'sins' of their mandataries.
How to combat that nasty presumption-in-Law as contained in section 37.
OHS Act Section 37 vs. the Construction Regulations.
Contractors & the MHS Act.
Legal Manipulation of contracts using Section 37(2) read with section 41 of the OHS
Act.
Domino criminal liability impact of the Construction Regulations.
Section 10 of the OHS Act :' Construction Law is nothing new. (A look at the Inyaka
Bridge Collapse Inspector's Recommendations).
The Construction Regulations. ('Meat' the 'skeleton' of Section 10).
Construction regulations : Every Role Player polices the other.
OHS Competency.
Duties of Clients / Agents.
Duties of Principal Contractors & Contactors.
Duties of Designers.
Duties of Owners of Structures.
Written Appointments of Supervisors, other Competent Persons, Construction Safety
Officers.
Other Written Requirements.

THE HEALTH & SAFETY MANAGEMENT SYSTEM.
Health & Safety Representatives.
Health & Safety Committees.

INTERNAL INVESTIGATIONS IN THE CURRENT OHS POLICING
ENVIRONMENT.
A pro-active approach.
Gauging the Employer and Individual criminal liability exposure.
Obtain Post Mortem report (if a fatal accident). (Causality & alcohol).
Compile a Comprehensive 'Employer Summary' for DOL /DME.
Remove unnecessary incrimination.
Statement Approach.

INSPECTIONS, PRELIMINARY INVESTIGATIONS, INVESTIGATIONS, FORMAL
INQUIRIES, TRIALS.
Improvement / Contravention / Prohibition Notices & their Impact. (Apathy will come
back and haunt you).
Appeals against Inspectorate decisions and notices / Exemptions - don't be
intimidated!
DOL guideline to the General Administrative Regulations.
Preparation for OHS Inquisitorial Procedures & timeous Legal Representation /
Advice.
Compiling a 'Comprehensive Employer Report' & its relevance.
The importance of the 'Preliminary' Investigation & the reason DoL sometimes acts
ultra vires.
Obtain the Post Mortem Report from SAPS if fatal incident. (Causality).
The art of cross-examination.
The Right to the Inspector's Report & the evidence.
Oral / Written Representations to the Directorate of Public Prosecutions.
Admissions of Guilt.
Plea Bargaining.
Criminal Trials.
Convictions & their implications.
Corporate vs. personal liability.
Know the system. Work the system!

CASE STUDIES AND SCENARIOS.
RAUFF V STANDARD BANK PROPERTIES A DIVISION OF THE STANDARD BANK OF SA
LTD & ANOTHER [2002] (W). (COID ACT CLAIM).
CITY COUNCIL OF PRETORIA V DE JAGER [1997] (A). (CIVIL CASE _
REASONABILITY TEST).
SASOL SYNTHETIC FUELS (PTY) LTD & OTHERS V LAMBERT & OTHERS [2002] (A).
(CIVIL SUITS & COID ACT COMPENSATION).
AFROX HEALTHCARE LTD V STRYDOM & ANOTHER (2002) (A). (INDEMNITIES).
KRUGER V CARLTON PAPER OF SA (PTY) LTD [2002] (A). (SUPERVISION).
KNOUWDS V ADMINISTRATEUR, KAAP 1981 (1) SA 544 (C). (SUPERVISION).
SEA HARVEST CORPORATION (PTY) LTD AND ANOTHER V DUNCAN DOCK COLD
STORAGE (PTY) LTD AND ANOTHER
[1999] (A). (RISK ASSESSMENTS).
MINISTER OF EDUCATION & ANOTHER V WYNKWART 2004 C. (SUPERVISION).
FOURIE & ANOTHER v HANSEN (2000) (INDEMNITIES).
CIBA-GEIGY (PTY) LTD V LUSHOF FARMS LTD (2000) (SUPPLIERS OF SUBSTANCES).
DAVIDSON v MOSSGAS (1999) (CIVIL CASE BY CONTRACTOR).
SERFONTEIN & ANOTHER v SPOORNET (1999) (EMPLOYER DUTIES RE
TRESPASSERS).
ROFDO (PTY) LTD T/A CASTLE CRANE HIRE v B&E QUARRIES (PTY) LTD (1999)
(DEFINITION OF USER).
DURBAN'S WATER WONDERLAND (PTY) LTD v BOTHA & ANOTHER (1999)
(INDEMNITIES).
DU PISANE V RENT-A-SIGN (PTY) LTD & ANOTHER (1998) (DUTIES OF
CONTRACTORS).
STATE v LAMBERT (1996) (FIRST RECODED IMPRISONMENT ITO SECTION 38(2) OF
THE OHS ACT).
VIGARIO v AFROX (1996) (THE IMPACT OF ADMISSIONS OF GUILT / DUTIES OF
EMPLOYERS).
LANGLEY FOX BUILDING PARTNERSHIP (PTY) LTD V DE VALENCE (1991).
(CONTRACTOR DUTIES RE CLIENTS).
JOOSTE V SCORE SUPERMARKET TRADING (PTY) LTD 1998 CC (EMPLOYEES RIGHT
TO SUE THEIR EMPLOYERS).
VAN ZYL NO V KILN NONMARINE SYNDICATE NO 510 OF LLOYDS OF LONDON
(LEGAL IMPACT OF ALCOHOL IN FATAL ACCIDENTS).
RECENT CASES (STOTTS CASE OF MARCH 2004 RE INDEMNITIES
OHS EMPLOYER CULPABLE HOMICIDE CASES.
S v BLANKET MINE (PTY) LTD (1992)
S v CHIPINGE RURAL COUNCIL (1989)
S v MEYER (1971)
S v RUSSEL (1967)
R v JOPP (1949)
R v BENNETT & CO (PTY) LTD (1941)

				
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Description: WORKSHOP AGENDA