Industry organisation the South African Institute of Occupational Safety and Health (SAIOSH) legal expert Advocate Raynard Looch says he expects the draft Occupational Health and Safety Amendment Bill to be sent back for redrafting owing to material errors and omissions in the current draft, as well as in some cases being contrary to the stated intentions of the amendments.

"The amendments are intended to align the legislation with the Constitution, as it was promulgated in 1992 prior to the introduction of the Constitution. Further, these are amendments to the legislation, not a completely new piece of law and, therefore, only certain parts will be amended.

"However, there are many errors in the draft that have not been corrected, including omissions in the list of offences, such as the removal of the term injury, despite a new push by the Department of Employment and Labour (DEL) to implement the amendments," he says.

Further, despite the stated intention by the DEL to ensure health and safety officials at all levels, from shopfloor to the highest office, are recognised, there remains a gap in the draft amendments, as Section 16 allows for the appointment health and safety officers who report directly to the CEO, which is not always practical to ensure health and safety throughout an organisation, says Looch.

"The DEL, in workshop presentations on the draft Bill, said the aims of the amendments are to strengthen enforcement provisions and ensure the legislation is aligned with current international and national health and safety practices," he says.

However, the Bill retains a definition for "reasonably practicable", but removes any mention of this term in the text.

Reasonably practicable is an international health and safety term included in the International Labour Organisation's 1981 health and safety convention, to which South Africa is a signatory.

"Reasonably practicable requires that employers remove or mitigate risks based on the severity and scope of a risk, as well as health and safety knowledge that can reasonably be considered to be available to an organisation.

“The costs of removing or remedying the hazard or risk then need to be considered, including when the costs are prohibitive compared with the severity and scope of the hazard or risk."

The removal of this term from the text of the draft Bill means that South Africa is breaking with international best practices and that there is no conceivable limit to the actions and costs an organisation must undertake to remove or mitigate hazards or risks, he notes.

"The courts are unlikely to take this omission seriously, as legal principles stipulate that courts cannot punish an individual for something that is impossible. In some cases, the knowledge on how to mitigate or remove particular hazards or risks does not exist."

"Many comparable health and safety regulations are contained in the Mine Health and Safety Act, but are not evident in the proposed amendments," he adds.

"Owing to the many errors, omissions and gaps in the draft amendment Bill, SAIOSH proposes the introduction of an additional subsection, Subsection 16.3, to ensure there is legal coverage for companies to appoint health and safety officers,” Looch says.

The proposed Subsection 16.3 will cover statutory appointments. “We feel that currently the limitations of Subsection 16.1 do not allow for the effective appointments to ensure health and safety responsibility throughout an organisation,” he adds.

"We propose that a CEO or a person appointed in terms of Subsection 16.2, may, in writing, appoint one or more competent persons to discharge the duties as envisioned in the Act," Looch says.

Subsection 16.1 provides for the CEO and the executive members to be health and safety officers, and Subsection 16.2 allows those who directly and regularly report to the CEO to be appointed, but omits middle managers and supervisors, who are often much closer to the areas in which there are potential hazards and risks, from being appointed.

"Read with Subsection 8.2i, the proposed Subsection 16.3 will also align the Bill with the laws in other countries.

Further, the proposed new subsection and corrections to errors and omissions will mean the Bill aligns more closely with mine health and safety legislation, including the legal principle of Nulla poena sine culpa, or that one cannot be punished in the absence of culpability.

"The rationale behind our proposals is to address the vacuum regarding statutory appointments. The Bill is silent on managerial and supervisory appointments.

“Managers and supervisors are integral parts of ensuring health and safety in operational environments and are essential parts of an employer's health and safety measures. They deserve statutory recognition for their role in ensuring health and safety," says Looch.