The Occupational Health & Safety Act and Regulations have received quite a few changes. For example, the Pressure Equipment Regulations replaced the previous Vessels under Pressure Regulations. Our new books reflect all these changes.

Every book contains the latest full version of the OHS Act as well as the Regulations.

You can now order a minimum of five (5) copies of the Occupational Health and Safety Act with the Regulations.

To place your order, please contact Roz on (012) 8094210

The morning was kicked off with guest speaker, Sheldon Barnett from African Human Logistics, as he explained how their new, innovative occupational health and safety software solution can help attendees in their companies.

MD, Christel Fouché, opening the Business Breakfast

Afterwards, Christel Fouché, MD of Advantage ACT, launched into why SHEQ is important to all industries through spoiling attendees by presenting the introduction to her Legal Liability course. This was followed by a vast breakfast, catered for to satisfy even the greatest appetites among the 20 attendees.

Ria Swanepoel explained how our Associate Programme is an innovative solution that Advantage ACT offers to companies who need to be able to train their own staff successfully.

Important aspect of the training that Advantage ACT offers was explained by Riekie van den Berg and Caroline Motloba. They talked about our flexible training solutions, namely on-site and public course training, respectively.

All 20 attendees enjoyed their breakfasts whilst showing much interest by participating in the SHEQ discussions and the solutions that are offered by Advantage ACT.

To end off a lovely morning there was a lucky draw, of which Paul Masuku from NECSA and Tebogo Thlopile from Orbit FET College walked away with the mystery prises.

Advantage ACT's Riekie van den Berg handing over mystery prize to Paul Masuke, Senior Technical Officer at NECSA

Advantage ACT's Riekie van den Berg handing over 2nd mystery prize to Tebogo Thlopile, Campus Manager at Orbit FET College

Our next Business Breakfast will be held on the 12th of August 2011. Will you be one of the attendees?

Our outcomes-based courses enable the SHEQ practitioner to implement and proactively manage the critical elements of the SHEQ management system.

Advantage ACT is HWSETA accredited on a wide range of SHEQ topics. Our Associate Programme is an expression of our commitment to seeing SHEQ professionals play their rightful, pivotal role in the workplace.

Our Train the Trainer course, facilitated by Ria Swanepoel, is a fundamental aspect of this Associate Programme.

Two new members of our Associate programme, Group 5’s Carel Broekman and Ruan Kidson, have taken full advantage of this innovative Programme.

Associate Programme Administrator, Ria Swanepoel, with new Associates, Group 5's Carel Broekman and Ruan Kidson

Broekman and Kidson need to train delegates in South Africa, as well as Zambia, and saw the Associate Programme as an opportunity for them to be able to train their people without disrupting usual working schedules.

As they explained, they will be able to train people for half a day at a time if necessary, as they can continue working half-days instead of groups of employees being away from their work for days at a time. “It is well worth it.”

The Associate Programme will provide Broekman and Kidson with the tools, techniques and confidence necessary to effectively transfer knowledge and skills to learners regarding the following courses:

• SHE Supervisor
• JSA (Critical Task Analysis)
• HIRA (Hazard Identification and Risk Assessment)
• Safety Representative
• Incident Investigation

Broekman and Kidson will join the rest of our Associates in annual professional development seminars, held to update them on the latest applicable facilitation, legislative and operational developments and trends.

Advantage ACT supports Associates with easy access to our knowledge base and prompt problem resolution.

We welcome our new Associates warmheartedly.

It was then arranged that 16 key personnel visited Advantage ACT from 28 February to 18 March 2011. Most of the arrangements were made by Rodney Machimani and Bafana Nhlapo.

The delegates came from across the country to attend a special From Zero to Hero program at the Advantage ACT Training centre in Pretoria. It is a telling testament to the division’s commitment to this project that Adelaide Sheszi, the Head Of Quality SAPS Forensic Services, also attended the training program.

SAPS Criminal Record & Forensic Science Services Division delegates on Advantage ACT's From Zero to Hero Program.

Delegates came to attend a special 3-week program called “From Zero to Hero in SHEQ”. The program consists of a range of short courses (including Advantage ACT’s SHEQMAN course), chosen and customized to suit the client’s specific circumstances. Every course in the program was chosen because they contain a necessary “building block” of SHEQ knowledge and skill that is important for managers or supervisors to master.

One of the big advantages of having all your key personnel on such an intensive program is the ability of the delegates to discuss their organisation’s specific situation and needs on an open forum with other people from the same environment.

The Record & Forensic Science Services Division will find that at the end of the program, a measure of synergy will have established across their different sites about how their organisation will address SHEQ issues that they face on a daily basis as a unit.

Advantage ACT is well known for the quality of our management-level courses and we are proud of the fact that we were chosen to support the SAPS’ Criminal Record & Forensic Science Services Division.

During 2010 many delegates interested in attending this course, found themselves on a waiting list or had to book on a course later in the year due to the success and popularity of this course.

This time, the course was even attended by a delegate from Dubai.

Delegates frequently comment that the approach and methodology followed on Advantage ACT’s Integrated SHEQ Lead Auditor course to address the integration of the OHSAS18001, ISO9001 and ISO14001 standard requirements is what they actually came for.

Integrated SHEQ Auditor course delegates pose nervously before writing a big test.

Valuable tools such as the integrated audit checklist, integrated audit matrix, how to generate integrated non-conformances and how to classify these non-conformances in a completely integrated management system are shared.

So it is clear that it is not only auditors that attend this course, but also system implementers that seek to understand how an integrated management system should function using the three international disciplines.

Of course, the highlight of the week is the on-site audit day on the Thursday of every course. This provides the auditors-in-training with a practical opportunity to hone their auditing skills in the presence of a SAATCA registered auditor.

This week, delegates had the opportunity to visit the Mercedes Benz head-office in Centurion. We want to use this opportunity to thank Mercedes Benz for their willingness to contribute towards the education of South Africa’s future system auditors.

This course is exclusively presented by Christel Fouché.

What Should Supervisors Know About The Occupational Health and Safety Act and the Regulations?

This simple question guided the design of the new course from  beginning to end and you will be able to see the impact it had on the content and focus of the course.

In answering the question, we felt that the most important component of this in-depth course should be a focus on the implementation requirements of, not only the Occupational Health and Safety Act, but also the Regulations.

Rob Allcock, a GCC Maintenance Engineer presents Advantage ACT's OHS Act Legal Compliance Course for Supervisors.

After a decision was made on the curriculum of the OHS Act Legal Compliance Course for Supervisors, it was clear that a very special facilitator would be needed to do justice to the topic.

The ideal course facilitator should be knowledgeable, well educated and experienced.

This is why we have asked Rob Allcock, a GCC Maintenance Engineer with more than 30 years experience in implementing the requirements of the Act,  in numerous industrial environments, to present this specific course.

In Rob, you have a facilitator that has worked with the Occupational Health and Safety Act and the Regulations for most of his life, and will be able to provide insightful answers to your site-specific questions based on his work experience.

Advantage ACT’s OHS Act Legal Compliance Course for Supervisors is one of those rare occasions where the topic of a course and the credentials of the facilitator makes perfect sense.

You should take advantage of this opportunity.

In this case study, Hendrik Visser looks at court cases to establish legal liability guidelines in cases that involve the negligence of contractors.In a recent decision in the Supreme Court of Appeal, Viv’s Tippers (Edms) Bpk vs. Pha Phama Staff Services (Edms) Bpk 2010 (4) SA 455 (SCA) , the Court had to determine whether a third party (Pha Phama) were indeed liable through delict (wrongful negligence) for the financial loss of Viv’s Tippers.

You can download your own copy of this Case Study here.

The facts of the case were as follows:

The appellant, Viv’s Tippers (Edms) Bpk (Viv’s Tippers) lets trucks to construction firms. In September 2004 it let several trucks to Lone Rock Construction (Pty) Ltd (Lone Rock) which was carrying out construction works on a site at Kibler Park, Johannesburg.

The site was guarded by security guards employed by the respondent, Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security (Pha Phama) in terms of a contract between Lone Rock and Pha Phama. Viv’s Tippers was aware of the security provided. The evidence of Mr Viviers, a director of Viv’s Tippers, was that it was a term of its contract with Lone Rock that the site should be secured.

There was a long weekend from 23 to 26 September 2004. A Mercedes Benz truck, belonging to Viv’s Tippers, was parked on the site, which was enclosed, and which could be entered only through a locked gate.

A security guard employed by Pha Phama was on duty. Two men arrived at the site on Sunday 26 September and presented a letter to the guard, purporting to be from a firm of truck repairers.

I shall deal with the terms of the letter more fully when dealing with the question whether the security guard acted negligently. In essence it stated that mechanics would be sent to the site on that date to repair the diesel pump of the truck in question, for which the vehicle registration number was given.

The letter also stated that while the truck would be fixed on site, the mechanics would test drive it. The guard allowed the men to drive the truck away from the site – and it was never seen again.

Viv’s Tippers instituted an action in delict against Pha Phama claiming the value of the truck (which was agreed), contending that as owner of the stolen truck it had suffered loss as a result of the theft; that Pha Phama was vicariously liable for the conduct of the security guard; and that Pha Phama owed it a legal duty, rendering it liable for the loss. Pha Phama denied liability on the basis that it had no legal duty and that even if it did have, the guard was not negligent.

Du Plessis J dismissed the claim finding that there was no legal duty on Pha Phama towards external parties and that the guard had not been negligent.

This decision raises some interesting questions, for instance:

1. What would be the case if it was a person that was injured on a site?
2. Is the third party contractor still not liable?
3. What if wrongful negligence can be proven?
4. Would an indemnity clause in the contract protect the contractor from liability as it did in the above case?

A recent decision in Chartaprops 16 (Pty) Ltd and Another v Silberman (300/07) [2008] ZASCA 115; 2009 (1) SA 265 (SCA) (25 September 2008) should answer these questions.

In this case the facts were as follows:

The respondent in this appeal, Mrs Silberman, visited a shopping mall in Johannesburg. In one of the passageways of the mall was a pool of slippery substance (what the substance was has not been established) that had been spilt on the floor.

Oblivious to its presence Mrs Silberman slipped on the substance and was injured.

The shopping mall was owned by and under the control of the first appellant (Chartaprops), which had contracted with the second appellant (Advanced Cleaning) to keep the floors of the shopping mall clean.

Mrs Silberman sued both appellants in the High Court at Johannesburg for the recovery of her damages. The action was tried by Boruchuwitz J who held both appellants jointly and severally liable (the amount of the damages has yet to be determined) but granted them leave to appeal to this court.

Precisely how the substance came to be on the floor has not been established. It is possible that it was spilt by one of the cleaners but it might just as well have been spilt by a member of the public.

The complaint against the appellants is not that they, or those for whose conduct they are legally responsible, created the hazard. The complaint is that they or their employees negligently omitted to detect and remove the hazard and that the respondents are liable for the consequences of the omission.

According to the decision, Chartaprops16 had a duty to provide a safe and healthy environment for its shoppers. Therefore it had to take steps to prevent harm to its customers. Chartaprops16 therefore had to conduct supervision of the contractor to exempt itself from liability.

Chartaprops16 could be held liable for the injury based on the following grounds:

1. Its duty to the public to provide safe and healthy shopping premises,
2. Vicarious Liability

The Appeal Court distinguished between 2 situations:

• Where the duty had to be accompanied by the performance of actual actions to discharge the property owners from liability, such as was the case in Langley Fox Building Partnership (Pty) Ltd v de Valence 1991 (1) SA 1 (A) 8F-H, due to the inherent dangers associated with a specific job, and
• a situation where only the fact that the property owners reasonably contracted a competent contractor to perform the duties for them, would be sufficient, as was the case in Rhodes Fruit Farms Ltd vs. Cape Town City Council 1968 (3) SA 514 (C) at 519. This option would only apply in circumstances where the work was of a routine nature and not inherently dangerous.

The Appeal Court ruled that Chartaprops16 was not liable for damages due to the fact that the employees of Chartaprops16 acted as a reasonable man would in the circumstances, namely having regular meetings with the cleaning company, and doing the necessary inspections, to try and avoid incidents from happening.

The Appeal Court was of the opinion that vicarious liability for the incident as a basis for liability for Chartaprops16 was not applicable, due to the decision in Colonial Mutual Life Assurance Society Ltd vs. McDonald 2 1931 AD 412 in which the head note reads as follows:

A principal is liable for the acts of his agent where the agent is a servant but not where the agent is a contractor, sub-contractor or the servant of a contractor or sub-contractor.

There must therefore be a special relationship between principal and contractor for vicarious liability to apply, eg. Employer/employee or principal/representative.

In this case there was no such special relationship between Chartaprops16 and the contractor, only a normal contract for the cleaning of the floors.

Chartaprops16 was therefore declared not liable for the incident.

Advanced Cleaning, on the other hand, was found liable for the injuries sustained by the plaintiff. Whether the staff of Advanced cleaning did not follow company procedures or were negligent, is irrelevant, the fact is the potential hazard was not identified and mitigated in time.

Nugent JA in his verdict in par 47 states…

“Neither the terms of Advanced Cleaning’s engagement , nor the terms of its contract with Chartaprops, can operate to discharge it from a legal duty to persons who are strangers to those contracts, nor can they directly determine what it must do to satisfy its duty to such persons. That duty is cast upon it by law, not because it made a contract, but because it entered upon the work.”

In conclusion, the difference between the 2 cases should be clear now. In the first case, the security company could only be held responsible to the third party, if negligence could be proven. Also it was able to absolve itself from liability from the site owners, by the use of indemnity clauses.

In the second case, the contractor was held liable, whether it was negligent or not, because the duty of care was placed on it by law, and it could not be limited or delegated by the use of indemnity clauses.

Author: Hendrik Visser (LLB) is a SHEQ Legal Advisor at Advantage ACT.

Disclaimer

The information contained in this article has been compiled from various sources. Although all reasonable care has been taken to ensure that the information within is correct at the time of publication, Sheqafrica.com and Advantage ACT does not make any representation or give any warranty of whatever nature in respect thereof. The contents of this article are purely for information purposes only, and do not constitute a legal opinion or formal legal advice. Sheqafrica.com and Advantage ACT accepts no liability whatsoever for any loss, consequential, direct or indirect, including without being limited to, any loss of profit arising from information made available in this article and actions and transactions resulting therefrom.

You can participate and contribute towards the education of tomorrow’s auditors by volunteering your site for audits during our Auditing Sessions.

During a 5-day Auditing Session, the auditors-in-training will visit 5 different organisations and perform audits in the presence of a Lead Auditor. On successful completion of such an Auditing Session, candidates will receive a certificate stating the number of auditing days completed.

So how can your organisation also benefit from this?

These audits can be used as either part of your internal or external audit programme since it is being lead by a SAATCA lead auditor (free of charge).

After our visit, we will also forward an audit report to you for further action.

Isn’t it time for you to get an independent opinion on the status of your management system?

Organisations that currently and repeatedly volunteer their sites for use during the Auditing Sessions has commented on the real opportunity for continual improvement these visits represent.

To learn more about this opportunity and/or the dates available for a visit to your site on the Auditing Sessions schedule, please contact Riekie van den Berg on 012 809 4210 or use the form below.

This registration will enable candidates that have completed any of the above courses, to submit their certificates as part of the registration criteria when applying for SAATCA Auditor status.

At Advantage ACT, we believe in career path development and for professionals who specialise in ISO/OHSAS management systems. That is why we now have a fully developed suite of courses developed to assist clients with the knowledge and skills development side of their career:

Quality

Introduction to ISO9001→Implementing ISO9001→ISO9001 Lead Auditors→Auditing Sessions

Environment

Introduction to ISO14001→Implementing ISO14001→ISO14001 Lead Auditors→Auditing Sessions

Health & Safety

Introduction to OHSAS18001→Implementing OHSAS18001→OHSAS18001 Lead Auditors →Auditing Sessions

Advantage ACT’s main aim is to help our client’s be more successful. We believe that SAATCA registration for our Auditor courses will enable our clients to go so much further.

For more information about our SAATCA registered auditing courses, please contact us using the form below.

One of the charities we were able to support was Tshedimosetso Community Development is based in Hammanskraal. The area has the highest rate of HIV/AIDS and domestic violence in Tshwane Municipality which leads to the area having more orphans and homeless children.

Ozzie Tawineyi, Advantage ACT's Financial Manager, in Hammanskraal during the presentation.

Tshedimosetso saw the need to establish a drop in centre for children where they provide free food, assist with school homework to students who doesn’t have parents to assist them, provide daily nutritious cooked meal and skills development.

It also actively engage the wider community within the areas at large in raising their awareness of the HIV/AIDS pandemic and help facilitate their active participation in its future prevention.

At the presentation, Mr Andries Malatsi, who is the Chairperson of the Tshedimosetso board of directors, thanked Advantage ACT for the generous donations and wished all companies in the country would follow this good example and start working with local community development organisations.

Advantage ACT also made donations to Laerskool Kameldrift, SOS Children’s Home, Mamelodi Society for Care of the Aged and the Crux Urban Poverty Project.