1656673127_SAMTRAC v8.pdf

SAMTRAC | Participant Manual y op...

SAMTRAC | Participant Manual y op rC ne ar Le e in nl 2021 © All rights reserved NOSA (PTY) LTD Copyright in the literary, artistic and other works capable of copyright protection contained within O these materials vests in NOSA (PTY) LTD. These materials or any part thereof may not be reproduced, adapted, published, performed in public, broadcast or transmitted in any form without the express permission of NOSA (PTY) LTD. Should you carry out any of these actions in relation to any of the works contained within these training materials without permission, you may be liable for civil law copyright infringement as well as criminal prosecution. Visit: www.safetycloud.co.za Eight Edition © NOSA (Pty) Ltd Participant Manual | SAMTRAC y op rC ne ar Le e in nl O © NOSA (Pty) Ltd  SAMTRAC | Participant Manual TABLE OF CONTENTS Module 1: Legal......................................... 1 Module 2: Health...................................... 25 Unit 1: Law And Interpretation.................. 3 Unit 1: The Occupational Health Services 1.1 Interpretation Within A Context........... 3....................................................... 27 1.2 Rules Of Interpretation Of Statutes...... 3 1.1 The Occupational Health Service – Unit 2: South Africa’s Legal Framework.... 3 Overview................................................ 27 1.2 Objectives Of An Occupational 2.1 A Hybrid Legal System........................... 3 Health Service....................................... 27 y 2.2 Legislation And Common Law............. 4 1.3 Fitness To Work....................................... 28 2.3 The Legislative Process........................... 4 op 2.4 The Constitution Of South Africa.......... 5 Unit 2: The Principal Components Of 2.5 International Sources Of Law............... 5 Occupational Health................... 29 2.6 The South African Court System........... 6 2.1 Occupational Hygiene........................ 29 rC Unit 3: Liability............................................. 7 2.2 Occupational Medicine..................... 32 2.3 PHC.......................................................... 35 3.1 Criminal Vs. Civil Liability........................ 7 3.2 Proof Of Liability...................................... 9 Unit 3: Occupational Health 3.3 Other Important Types Of Liability....... 9 ne Fundamentals............................... 38 Unit 4: Occupational Health And Safety 3.1 Toxicity – Definitions.............................. 38 Law................................................ 10 3.2 Toxic Effects........................................... 39 3.3 Exposure Limits....................................... 39 4.1 Occupational Health And Safety Act, 3.4 Routes Of Exposure.............................. 40 85 Of 1993.............................................. 10 ar 3.5 Classes Of Toxins................................... 41 4.2 Hazardous Substances Act................. 11 4.3 Compensation For Occupational Unit 4: Chemical Stressors........................ 42 Injuries And Diseases Act..................... 12 4.1 Forms Of HCAs....................................... 42 Le 4.4 Additional Safety Legislation.............. 14 4.2 Dust.......................................................... 42 Unit 5: Environmental Law....................... 15 4.3 Globally Harmonized System Of Classifications And Labelling Of 5.1 Principles Of Environmental Law........ 15 Chemicals (GHS)................................... 43 5.2 National Environmental Management e Act (NEMA)............................................ 16 Unit 5: Physical Stressors........................... 46 Unit 6: Enforcement Of HSE Legislation.. 17 5.1 Illumination............................................. 46 in 5.2 Noise........................................................ 48 6.1 Occupational Health And Safety 5.3. Ventilation.............................................. 50 Enforcement - Department Of 5.4 Thermal Conditions............................... 51 nl Employment and Labour.................... 17 5.5. Radiation................................................ 53 6.2 Environmental Enforcement - 5.6 Vibration................................................. 55 Department Of Environmental Affairs O.............................................................. 19 Unit 6: Biological Stressors........................ 58 Unit 7 Corporate Governance............... 21 6.1 Definitions............................................... 58 6.2 Sources Of Hazardous Biological 7.1 What Is Corporate Governance?..... 21 Agents..................................................... 58 7.2 A Governance Framework................. 21 7.3 King IV Code On Corporate Unit 7: Ergonomics................................... 60 Governance, 2017................................ 22 7.1 Definition................................................. 60 7.4 Notable Corporate Governance 7.2 Purpose Of Ergonomics....................... 61 Failures.................................................... 24 7.3 Ergonomics Related Diseases............ 61 © NOSA (Pty) Ltd Participant Manual | SAMTRAC 7.4 Ergonomics / Manual Handling 5.1 Working At Heights – The Obvious Assessment............................................. 62 Dangers.................................................. 96 7.5 Manual Handling Controls.................. 63 5.2 Fall Protection Plans............................. 96 5.3 Scaffolds................................................. 97 Unit 8: Mental Health In The Workplace. 64 8.1 Mental Health – Defined And Unit 6: Lifting Equipment.......................... 98 Examples................................................ 64 6.1 Lifting Gear............................................. 98 8.2 Mental Health As Taboo...................... 65 Unit 7: Pressure Equipment.................... 101 8.3 Risks To Mental Health In The Workplace.............................................. 65 7.1 Pressure Equipment Defined............ 101 7.2 Important Safety Features For Pressure y 8.4 Signs And Effects Of Mental Health Issues........................................................ 65 Equipment............................................ 101 op 8.5 Mental Health Costs............................. 66 Unit 8: Fire Safety.................................... 103 8.6 Stress........................................................ 66 8.1 The Anatomy Of Fire.......................... 103 8.7 Depression And Anxiety...................... 67 8.2 Flammable Liquids.............................. 103 8.8 Addiction................................................ 68 8.3 The Spread Of Fire And Heat Radiation rC 8.9 Strategies For Mental Health.............. 69............................................................ 104 8.10 Fatigue Management......................... 70 8.4 General Sources Of Ignition............. 104 Unit 9: Trends In Occupational Health... 73 8.5 Classification Of Fires......................... 105 Module 3: Safety...................................... 75 8.6 Fire-Extinguishing Elements................ 106 8.7 Flammable Liquid Storage................ 108 Unit 1: A Safe Worksite............................. 77 ne Unit 9: Security Management............... 108 1.1 The Site Plan........................................... 77 1.2 The Site Layout...................................... 78 9.1 Definition And Scope......................... 108 9.2 Security And Safety – Differences And ar 1.3 Storage And Stacking.......................... 79 Commonalities.................................... 109 Unit 2: Portable Tools................................ 81 9.3 Plant Security....................................... 110 2.1 Introduction To Portable Tools............ 81 9.4 Industrial Control Systems................. 110 Le 2.2 Hand Tools Classifications................... 81 Unit 10: Beyond Technical Safety......... 111 2.3 General Checklist For Power Tools.... 83 10.1 Behaviour-Based Safety.................... 111 Unit 3: Safeguarding................................ 83 10.2 Critical Control Management.......... 112 3.1 Definitions Of Safeguarding................ 83 10.3 Emergency Planning.......................... 112 e 3.2 Hazards When Working With 10.4 Leadership In Safety........................... 113 Machinery.............................................. 84 10.5 Employee Engagement.................... 113 in 3.3 The Hazards Of Moving Components Module 4: Environment.......................... 115.............................................................. 85 3.4 Machine Guarding............................... 86 Unit 1: Environment: Terms And nl Momentum................................. 117 Unit 4: Electrical Safety............................ 90 1.1 Key Terms And Definitions................. 117 4.1 Definition................................................. 90 O 1.2 Multilateral Environmental Agreements 4.2 The Basics Of Electricity....................... 90............................................................ 119 4.3 Electricity In South Africa..................... 91 1.3 Responses By Business And Industry 119 4.4 Safety Measures For Electricity........... 92 4.5 Risks Relating To Electricity.................. 94 Unit 2: Environmental Degration........... 120 4.6 The Dangers Of Arc Flash.................... 95 2.1 The Evolution Of An Environmental 4.7 Lockout–Tag-Out.................................. 95 Crisis....................................................... 120 4.8 General Electrical Safety Checklist... 95 2.2 Examples Of Environmental Unit 5: Working At Heights....................... 96 Degradation........................................ 120 © NOSA (Pty) Ltd  SAMTRAC | Participant Manual 2.3 Overpopulation, Overconsumption = Module 5: Risk Management................ 151 Environmental Degradation............. 122 Unit 1: The Evolution Of Risk Management 2.4 Pollution And Waste........................... 123..................................................... 153 Unit 3: The Environment And Human 1.1 Risk Management – A Short History. 153 Health.......................................... 125 Unit 2: The Many Faces Of Risk............. 154 3.1 The Environment–Human Health Nexus 125 2.1 Categories Of Risk.............................. 154 3.2 Environmental Factors For Human 2.2 Risk Management Models................ 157 Health.................................................... 126 2.3 Other Risk Considerations................. 159 y 3.3 Diseases Caused By Environmental Unit 3: Risk Assessment Considerations. 161 Factors.................................................. 126 op 3.1 Risk Assessments – The Human Element Unit 4: Climate Change........................ 127............................................................ 161 4.1 Definitions And Principles Relating To 3.2 Risk Controls......................................... 164 Climate Change................................. 127 Unit 4: Technology And Risk Management rC 4.2 The Anthropogenic Greenhouse Effect..................................................... 167 And Global Warming......................... 128 4.3 Contributing Factors For Climate 4.1 Technology As Pervasive Risk Tool... 167 Change................................................ 130 4.2 The Internet Of Things (Iot)................ 167 4.4 Solutions To Minimise Global Warming 4.3 Artificial Intelligence (Ai) / Cognitive And Climate Change........................ 131 ne 4.4 Technologies........................................ 167 The Benefits Of Technology.............. 168 Unit 5: Energy......................................... 132 4.5 Vigilance And Resilience As Risk 5.1 Fossil Fuel-Based Energy.................... 132 Management Tools............................ 168 ar 5.2 Renewable Energy............................. 135 Unit 5: Risk Financing.............................. 169 Unit 6: EIA And Monitoring Environmental 5.1 Introduction......................................... 169 Performance............................... 137 5.2 Cost-Of-Risk.......................................... 169 Le 6.1 Environmental Impact Assessment. 137 5.3 Pre-Loss Financing Mechanisms....... 170 6.2 Monitoring Environmental 5..4 Post-Loss Financing............................. 171 Performance........................................ 139 Unit 6: Further Risk Management Unit 7: Improving Environmental Concepts.................................... 172 e Performance............................... 142 6.1 Risk As A Multi-Faceted Discipline... 172 7.1 Cleaner Production – An Overview 142 6.2 Risk As A Positive Force...................... 172 in 7.2 Cleaner Production: Eco-Efficiency 143 6.3 Integrated Risk Management / 7.3 Cleaner Production: Pollution Enterprise-Wide Risk Management Prevention............................................ 144 (Erm)...................................................... 173 nl 7.4 Life Cycle Analysis.............................. 146 6.4 People Skills In Risk Management.... 173 Unit 8: Sustainability............................... 146 Module 6: Management Systems Part I 175 O 8.1 Sustainable Development In Context Unit 1: Management And Systems Theory............................................................ 146..................................................... 177 8.2 The Triple Bottom Line........................ 147 1.1 Leadership.............................................. 177 8.3 Sustainability And Business................ 147 1.2 Other Facets Of Management........ 177 8.4 Sustainability Reporting..................... 148 1.3 Management Systems Theory.......... 178 Unit 9: Environmental Trends................. 149 Unit 2: The Deming Cycle...................... 179 9.1 Blockchain For Sustainability............. 149 2.1 Deming – A Management System 9.2 Big Data................................................ 150 Guru....................................................... 179 9.3 The War On Packaging..................... 150 © NOSA (Pty) Ltd Participant Manual | SAMTRAC 2.2 The Strength Of PDCA....................... 180 Module 7: Management Systems Part II Unit 3: HSE Management Systems........ 182..................................................... 203 3.1 The Integration Of HSE....................... 182 Unit 1: Performing Measurement 3.2 International Management System Monitoring................................... 205 Standards For HSE............................... 183 1.1 The Role Of Monitoring And 3.3 The CMB 001 – The Nosa Hse Measurement...................................... 205 Management System Standard...... 185 1.2 The Inspection Process...................... 206 Unit 4: Commitment And Policy........... 186 1.3 Monitoring And Measurement Template.............................................. 207 4.1 Inputs Into The Policy.......................... 186 y 1.4 Evaluation Of Controls....................... 210 4.2 Requirements For An HSE Unit 2: Incident An Non-Conformance op Management Policy.......................... 186 4.3 Example Of An HSE Policy................. 187 Management............................. 211 Unit 5: Legal And Other Requirements. 188 2.1 Definitions And Context..................... 211 2.2 The Purpose Of Incident Investigation 5.1 Legal Requirements........................... 188 rC 212 5.2 Other Requirements........................... 189 2.3 Incident Investigation Planning....... 213 Unit 6: HIRA............................................. 189 2.4 The Investigation Process.................. 215 6.1 HIRA As A Systemic Process.............. 189 2.5 Root Cause Analysis........................... 216 6.2 Prioritisation Of Risk............................. 190 2.6 Incident Costing.................................. 218 ne 2.7 Incident Reporting.............................. 218 Unit 7: Operating Controls..................... 190 2.8 Incident Recall.................................... 219 7.1 Operational Controls As Systemic 2.9 Corrective And Preventive Actions. 220 Necessity.............................................. 190 Unit 3: Audits........................................... 221 ar 7.2 Objectives, Targets And Management Programme/S...................................... 191 3.1 Definitions............................................. 221 3.2 The Purpose And Features Of An Audit Unit 8: Documented Information Le 222 (Documentation)....................... 195 3.3 Internal Audit....................................... 223 8.1 Developing HSE Documentation..... 195 3.4 External Audit...................................... 224 8.2 Retained Documented Information 197 Unit 4: Management Review................ 225 Unit 9: The Management Of People.... 197 4.1 Management Review In Context.... 225 e 9.1 Structure, Roles And Responsibility.. 197 4.2 Management Review Issues............. 226 4.3 Management Of Change................ 227 in 9.2 Training, Awareness And Competence............................................................ 198 Unit 5: Conituous Improvement............ 227 9.3 Communication, Participation And nl Consultation......................................... 200 O © NOSA (Pty) Ltd  SAMTRAC | Participant Manual Code Of Conduct For Prospective, Existing And Past Students General Students are expected and required to conduct themselves in accordance with accepted standards of social behaviour, to respect the rights of others, and to refrain from any conduct which tends to obstruct the work of NOSA or its employees or to be injurious to NOSA or its employees. The word “student”, refers to prospective, existing and/or past students. Misconduct The following actions, inter alia, constitute misconduct: 1. Dishonesty, in connection with any NOSA activity. Acts of dishonesty include, but are not limited to: a. Committing acts of cheating, lying, stealing and deceit in any of their diverse forms. y b. Cheating, plagiarism or other forms of academic dishonesty. c. Knowingly furnishing false information to NOSA op d. Knowingly aiding and abetting, directly or indirectly, other parties in committing dishonest acts. e. Forgery, alteration or the unauthorised use of NOSA documents, records or identification. f. Bribery or intimidation in relation to results of competency. 2. Obstruction or disruption of any NOSA activity, or inciting, aiding or encouraging other persons to engage in such conduct. rC 3. Physical or verbal abuse, threats, intimidation, harassment, coercion of any person and/or other conduct which threatens or endangers the health and safety of any other person, whether or not such conduct occurs on NOSA property. 4. Theft or attempted theft of, or the unauthorised use or possession of, or the unauthorised exertion of control over, or causing damage to property of any kind belonging to NOSA, a member of NOSA, a visitor, or a person participating in a NOSA activity. 5. 6. ne Unauthorised entry or access to, or unauthorised use or occupancy of, any NOSA property. Use, possession, or distribution of narcotics or dangerous drugs, except as expressly permitted by law. 7. Lewd, indecent, or obscene conduct or expression on NOSA property or in connection with a NOSA activity. 8. Attempting to influence the impartiality of a member of NOSA. 9. Deliberate destruction of, damage to, malicious use of, or abuse of property, wherever located, or the deliberate ar destruction, damage to, or malicious use of, public or private property 10. Any conduct that substantially threatens or interferes with the maintenance of appropriate order and discipline. 11. The possession or use of alcoholic beverages in or on any NOSA property. 12. The possession, use, or distribution of any explosives, guns, or other deadly or dangerous weapons. Le 13. Actions which unreasonably interfere, obstruct or prevent the regular and essential operations of NOSA or infringe upon the rights of others to freely participate in its programmes and services. 14. Misconduct also includes, but is not limited to: a. Being openly disruptive. b. Engaging in verbal outbursts, and talking loudly to classmates independent of class discussion. c. Talking in an openly abusive manner or disrespectful manner to the facilitator and/or to classmates. e d. Disregarding verbal and/or written instruction relative to expected conduct during classroom instruction. e. Initiating or participating in inappropriate conduct that disrupts classroom activities. f. Using any device to cause disturbance inside or outside the classroom during instruction. in Sanctions The following sanctions may be imposed upon any student found to have violated the student code of conduct: nl 1. Warning – Issuance of a written warning, admonition or reprimand. 2. Restitution – Required reimbursement for damages to, or misappropriation of, property. 3. Denial of access – Denial of rights to access NOSA premises or areas where NOSA conducts its activities, either O permanently or for a specified period of time. 4. Suspension – Denial of enrolment for a specified period of time after which the student is eligible to return, under specified conditions for re-enrolment. 5. Expulsion – Permanent denial of enrolment at NOSA. 6. Revocation of admission – Admission to a learning programme may be revoked for fraud, misrepresentation, or any other violation of NOSA standards. 7. Where appropriate, charges may be laid against students, or any person aiding or abetting a student in activities that violate the code of conduct. Certificates may be withheld should students not comply with NOSA requirements, such as, but not limited to, not making payments and not submitting required documentation. © NOSA (Pty) Ltd  Participant Manual | SAMTRAC y op rC ne ar Le e in nl O Module 1: Legal © NOSA (Pty) Ltd | 1 SAMTRAC | Participant Manual UNIT 1: LAW AND INTERPRETATION UNIT 5: ENVIRONMENTAL LAW UNIT 2: SOUTH AFRICA'S LEGAL FRAMEWORK UNIT 6: ENFORCEMENT OF HSE LEGISLATION UNIT 3: LIABILITY UNIT 7: CORPORATE GOVERNANCE UNIT 4: OCCUPATIONAL HEALTH AND SAFETY LAW Outcomes For Module One y Upon completion of this module, fundamental legal-related knowledge should have been acquired which will allow you to have a theoretical and practical understanding of the following: op The issue of interpretation in law The South African legal system The importance of the Constitution in South Africa rC The role of international law as a source for health, safety and environmental (HSE) law The difference between legislation and common law as well as criminal and civil liability The difference between criminal and civil liability Important occupational health and safety-related legislation The most important aspects the National Environmental Management Act (NEMA) ne How HSE is enforced in South Africa, including the role and functions of HSE-related inspectors What is corporate governance and the King IV code A Recap Of What Was Covered In Introduction To Samtrac: ar Different types of legislation – Acts and Regulations Correctly writing a legal citation Basic aspects and provisions of the OHS Act and Regulations Le Basic aspects and key provisions of NEMA Legal appointments What types of HSE-related legal documentation can be enforced? The Golden Rule Of Law And HSE Management e There continues to be a misconception by certain HSE practitioners that the ultimate goal of an HSE in management system is to comply with the law. It is not. Legal compliance is indeed both necessary and desirable in any HSE management system. That should be obvious – after all, no organisation can wilfully break the law. But legal compliance cannot be considered the most important aspect nl of a system; if anything, it should be considered a good starting point. O Note: Legal compliance should always be considered a minimum requirement in an HSE management system – important, yes, but not its end goal or best achievement. 2 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC Unit 1: Law And Interpretation 1.1 Interpretation Within A Context Legislation (written or statutory law) is perhaps the best-known source of contemporary law. Often, when someone refers to 'the law', they are referring to legislation. But legislation is a human construct and, as such, can be subject to any of the limitations of human effort –legislation can be too vague or ambiguous, it can be poorly written or even confusing. y Therefore, our courts, and entire legal system for that matter, are constantly battling with legal issues op that actually concern the interpretation of the meaning and application of what the law is effectively trying 'to say'. This is what is known as statutory interpretation, which refers to the process by which a court studies a statute to determine what the statute provides or means within a given context. rC NB: Words have different meanings in different contexts. The way to interpret this is not to look at a word in isolation but rather in the context in which it is used in a given sentence or situation. That is critical when reading and trying to interpret legislation. In law, context is everything. ne 1.2 Rules Of Interpretation Of Statutes In order to resolve this uncertainty, the rules of ar interpretation of statutes must be followed. The first task is to ascertain the legal meaning of the relevant words of the statute, which is not necessarily the same as the grammatical Le meaning. If the word is defined under 'Definitions', which is usually located at the beginning of a piece of legislation, then this is easier. If not, then the grammatical meaning should be used but always within the context of e the given legislation. in The other (and very important) rule of interpretation is that of the intent of the legislator: What is the purpose of the piece of legislation? nl Unit 2: South Africa’s Legal Framework O 2.1 A Hybrid Legal System South African law is largely based on Roman–Dutch law. However, owing to South Africa's historical legacy as a former British colony, the country's legal system is also closely aligned with the English common law system. There are more similarities than differences between the South African legal system and the legal systems of other common law countries such as England, Wales, Australia, Kenya, Ireland and nearly all of the United States and Canada. Due to this mixed legal heritage of Roman–Dutch and English common law, South Africa is said to have a hybrid legal system. Other countries and regions with hybrid legal systems include India, Lesotho, Namibia, Swaziland, Japan, Quebec and Scotland. © NOSA (Pty) Ltd | 3 SAMTRAC | Participant Manual 2.2 Legislation And Common Law South Africa's legal framework comprises the Constitution, legislation and common law. Common law explains why countries that follow the English legal system are referred to as common law countries or jurisdictions. y op rC ne 2.2.1 Legislation ar As you should know from Introduction to SAMTRAC, legislation is law that is passed by a legislature or other governing body, such as a body of representatives that have been democratically or otherwise elected or appointed. It can be considered the body of written law. The Constitution is an Act of Le Parliament and, therefore, is also considered legislation. 2.2.2 Common law Common law is that part of South African law that is not contained in legislation but is an equally important aspect of the country's legal system. It is sometimes referred to (rather confusingly!) as the e unwritten law of the land. Common law in South Africa comprises: Roman-Dutch law – given the country's past as a Dutch colony. in English legal principles – due to the country being a former British colony. Tribal/traditional law – in accordance with the Constitution of the country and a further aspect nl of the country's hybrid legal system. Law of contract between parties – an aspect of common law that many consider to be a fundamental cornerstone of any legal system, i.e. the entrenched respect for contracts between O parties. Precedent – this refers to the rationale behind a judge's decision that establishes a principle or rule of law that must be followed by other court's lower in the same hierarchy when deciding future cases that are similar on points of law. Only a higher court can create new precedent over that of lower courts. 2.3 The Legislative Process Legislation or statutory law must be promulgated (enacted) by the given legislature and, thereafter, in accordance with a prescribed date for promulgation and other legal requirements (for example, 4 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC the assenting by the State President to an Act passed by the national legislature), it becomes binding law. Only a legislature can debate, devise and thereafter vote on legislation. Acts of Parliament, which are those Acts passed by the national legislature in Cape Town, are not the only examples of legislation in South Africa. You should know that legislation can also be enacted by the respective legislatures at the various provincial and municipal/metropolitan levels. 2.4 The Constitution Of South Africa The Constitution of the Republic of South Africa (Act 106 of 1996), took effect on 4 February y 1997. Constitution Hill in Johannesburg has been the seat of the Constitutional Court op (sometimes referred to as the ConCourt) since February 2004. The Court consists of 11 judges, who are headed by a Chief Justice and Deputy Chief Justice. The Constitution is the supreme law of the land. Thus, any legal provision that is in conflict with a provision rC of the Constitution can be challenged and may be declared invalid by the Constitutional Court. South Africa's Constitution is said to be one of the most progressive and comprehensive in the world, and enjoys high acclaim inter-nationally. Chapter 2 of the Constitution – the Bill of Rights – provides every South African citizen with inalienable, ne fundamental rights, which include the rights to equality, human dignity, freedom, privacy and freedom of expression, among others. Section 24 of the Constitution states the following: ar 24. Environment. Everyone has the right- (a) To an environment that is not harmful to their health or well-being; and Le (b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that- (i) Prevent pollution and ecological degradation; e (ii) Promote conservation; and (iii) Secure ecologically sustainable development and use of natural resources while in promoting justifiable economic and social development. 2.5 International Sources Of Law nl Legislation and common law do not arise in a vacuum. This is true of HSE legislation in this country. Like most countries, South Africa also derives some of its HSE-focused legislation from sources beyond O the country, i.e. as per international law and custom. This law forms an important supplementary role in the formulation of South African HSE law. Sources of international HSE law are multi-dimensional and include: The International Labour Organization (ILO) World Health Organization (WHO) United Nations Environment Programme (UNEP) © NOSA (Pty) Ltd | 5 SAMTRAC | Participant Manual International Court of Justice (ICJ) United Nations Educational, Scientific and Cultural Organization (UNESCO) Conventions* Protocols* Multilateral environmental agreements (MEAs) or treaties* Judicial decisions in other jurisdictions Jurisprudence by legal scholars Customary law y * Particularly those to which South Africa is a signatory and op have even ratified within Parliament. 2.6 The South African Court System rC In South Africa, the judiciary is an independent branch of government, which should not be unduly influenced by either of the other two branches of government, namely, the legislature and the executive, which are the national government and various ministries of the day. ne The Constitution ensures that the judiciary is fully independent of both the executive and legislature and that it is subject only to the Constitution of South Africa and the laws of the country. This ensures that legal matters are ar not unduly influenced by political trends and intrigues. Judicial independence is thus a crucial part of the country's democracy. Le e in nl O The court system in South Africa is quite complex and not always easy to comprehend, which is why Figure 2 is helpful in understanding where the various courts fit within the overall court system of the country. 6 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC Unit 3: Liability Introduction As you should know from Introduction to SAMTRAC, liability is legal responsibility, or responsibility before the law. Under law, liability can be incurred by either a natural person (any man or woman) or a juristic/ legal person (a non-natural entity that exists only due to its legal persona, for example, any corporation or private company, or a government department or parastatal). In theory, all 'persons', whether natural or juristic, should be y equal before the law. op 3.1 Criminal Vs. Civil Liability There are two main types of liability in South African law. Once again, context is everything in determining the type of liability applicable. They are: rC Criminal liability (public law) Civil liability (private law) 3.1.1 Criminal liability Criminal liability falls within the ambit of public law. In South Africa, the National Prosecution Authority ne (NPA), on behalf of the State, charges a subject (which can be either a natural person or a juristic/legal person) with a crime. Criminal liability falls within the ambit of public law because it is understood that a criminal act is an offence against society and the 'greater good', i.e. it is within the public realm. Examples of crime include murder, culpable homicide, rape, assault, extortion and ar fraud. The intent of criminal liability is two-fold i.e. it acts as a deterrent (to put people off breaking the law) and also as a punitive measure (making a person responsible for their criminal acts). One can incur Le either statutory or common law criminal liability. 3.1.2 Civil liability Civil liability falls within the ambit of private law because it remains within the private realm. e Civil liability arises between two or more subjects or parties, whereby they litigate in against each other. Where a person, for example, sues the South African Police Service (SAPS) for wrongful arrest, it is still civil liability, nl although one of the parties in the lawsuit is the State. O The general rule in civil liability is that victims must bear their own harm. The intent of civil liability is compensation for loss, which can be either monetary (in a form known as damages) or by redressing (correcting) the civil wrong that was committed. Ordinarily, a party will hold another party (or parties) responsible for the harm they have suffered. This can be on the grounds of delict (a violation of the law or what is also known as a tort, i.e. a wrongful act) or due to breach of contract. One can incur either statutory or common law civil liability. An important aspect of civil liability is that the person instituting the action need only prove their claim on a balance of probabilities. The evidence presented does not need to be overwhelming but © NOSA (Pty) Ltd | 7 SAMTRAC | Participant Manual merely compelling and persuasive to the court. A case in point is that of Bezuidenhout v Woolworths (Pty) Ltd in which the applicant tripped and fell when the heel of her shoe hooked into a hole in the floor at the entrance to the respondent's supermarket. She fractured her wrists, bruised two ribs and injured her face. She sued the supermarket for damages. The respondent denied all allegations made, in particular denying that there had been a hole in the floor. The Court found that the applicant had shown on a balance of probabilities that there had been a hole in the floor that had been the most likely cause of her tripping in the way that she had alleged. The supermarket was ordered to pay the plaintiff's damages with costs. y op rC ne ar Le An example of common law criminal liability is culpable homicide, which involves the illegal killing of a person, even if there was no intention to kill. In South Africa, culpable homicide has been defined as “the unlawful negligent killing of a human being”. In this instance, negligence replaces intent as a means of assessing culpability/liability. Its equivalent in the United Kingdom and other jurisdictions is that of manslaughter. One can see where culpable homicide fits under criminal liability in Figure 3. e in nl O 8 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC 3.2 Proof Of Liability Whether it is a criminal or a civil matter, liability or legal fault must be proven in order for a prosecution or legal action to be successful. One of the most important elements in proving liability is that of intent, which is a conscious decision to commit a given act or omission, for example, the conscious intent to commit fraud or the conscious intent to pollute the land. Where there appears to be a lack of intent, the burden of proof would require that either negligence or recklessness be proven. Negligence is where a person did not take the necessary care that a reasonable person would have taken in the same circumstances, for example, a supervisor not ensuring that a worker is using their safety harness while working at height. y Recklessness is where intent may not be present, but the act could not be considered negligent op either, for example, a person speeding in a forklift may not have the intent to kill a person on a worksite, but the excessive speed of the forklift could be considered likely to cause an accident and, as such, the driver could be held liable for the death of the worker due to their dangerous (reckless) speeding. rC This need for the law to ascertain whether or not a negligent or reckless act could occur or was likely to occur given the circumstances is very important. However, it is not an exact science. After all, how can anyone know exactly what ne was going on in someone's mind? Often the courts will refer to what is known as the reasonable person test in order to create an objectivity test: What would a reasonable person assume would be the possible outcome of a given act or omission? The reasonable person test is a ar principle of English law and is firmly entrenched in South African jurisprudence. 3.3 Other Important Types Of Liability Le Vicarious liability was covered in Introduction to SAMTRAC, but there are other types of liability that are equally important for HSE management in South Africa. These include: Joint and several liability Strict liability e 3.3.1 Joint and several liability in More than one party can be held liable for a given offence. Parties can be held liable both together as a group (jointly) and individually (severally). Different parties may be ascribed different penalties for the same offence in accordance with their levels of culpability. This is normally at the discretion nl of the regulatory body or, should the offence be prosecuted (in a criminal trial) or actioned (in a civil suit), by the presiding court. O The concept of joint and several liability has been particularly used within environmental law, which makes sense given that there can often be more than one offending party for a given environmental offence or harm, for example, multiple parties that pollute a local river. 3.3.2 Strict liability In this type of liability, there is no need to prove intent for a person's acts or omissions in order to make them liable. Committing the act or omission is de facto culpability: you committed the act or omission and you are instantly liable. Strict liability applies in both criminal and civil law. © NOSA (Pty) Ltd | 9 SAMTRAC | Participant Manual Even being genuinely ignorant that one has broken the law is not a valid excuse from liability, for example, driving at 80km/h in an area with which one is unfamiliar where the speed limit is set at 60km/h would not prevent one from getting a fine. Unit 4: Occupational Health And Safety Law 4.1 Occupational Health And Safety Act, 85 Of 1993 Some of the most important provisions of the OHS Act and Regulations were covered in Introduction to SAMTRAC. The OHS Act is immensely important within the context of occupational health and y safety in South Africa. Hereafter is a brief overview of some other important aspects relating to the OHS Act. op 4.1.1 Application of the Act The OHS Act is hugely influential in South Africa but it is not actually applicable to all South African workplaces. According to the Department of Labour, the following are workplaces not covered by rC the OHS Act: Mines, mining areas or any mining works (as defined in the Minerals Act); Load line ships, fishing boats, sealing boats, whaling boats (as defined in the Merchant Shipping Act) and floating cranes; whether in or out of the water; and ne People in or on these areas or vessels. 4.1.2 Important requirements in the OHS Act There are some important statements written in the OHS Act, which are specific to the Act and which ar must be clearly understood. These include: Removing or mitigating the hazard or risk': The law recognises that an employer may not always be able to remove or eliminate a hazard or risk. Therefore, steps should be taken to lessen said hazard Le or risk (lessen the seriousness or extent of the hazard or risk concerned). This is what is defined as mitigation, which means “to lessen or to try to lessen the seriousness or extent of”' State of knowledge and the means available: The expectation is that the employer will consider both the severity of the risk involved (risk level) and try to remove or mitigate that hazard or risk. To achieve this, the employer must obtain the appropriate knowledge or means in order to take the necessary e steps or precautions. This means that an employer needs to make informed decisions about hazards and risks based on knowledge that is reasonably available. This knowledge can be according to in either local or international understanding thereof. The cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom: nl The implication is that the employer needs to only take reasonable measures to safeguard employees and other persons wherever possible, but which does not mean having to spend excessively to do so. This can be considered a cost benefit analysis in which health and safety gains O are considered against the costs of attaining such gains. The fundamentals of the OHS Act were covered in the Introduction to SAMTRAC course, so the following has already been covered: Rationale for the OHS Act Duties of the employer (section 8) Duties of the CEO [section 16(1)] Duties of the CEO's designate [section 16(2)] Duties of the supervisor of all machinery [GMR 2(1)] Appointment and functions of health and safety representatives (section 17) or 10 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC Appointment and duties of first aiders [GSR 3(4)] In Introduction to SAMTRAC you were introduced to two important provisions of the OHS Act: OHSA 8: General Duties of Employers to their Employees and OHSA 14: General Duties of Employees at work. Herewith another important provision in the OHS Act: 4.1.3 OHS Act 37: Acts or omissions by employees or mandatories y The employer is not liable for acts or omissions IF it can be proven that the employee or mandatory was in breach of the OHS Act in any of the following ways: op Without the connivance or permission of the employer; Went beyond their scope of authority or company procedure; OR It can be proven that all reasonable steps had been taken by the employer to ensure the rC prevention of the act or omission by an employee or mandatory. 4.2 Hazardous Substances Act The Hazardous Substances Act, 15 of 1973, is an important piece of occupational health and safety ne legislation. The purpose of this legislation is: To provide for the control of substances that may cause injury or ill health to, or death of human beings by reason of their toxic, corrosive, irritant, strongly sensitising or flammable nature, or the generation of pressure thereby in certain circumstances, and for the control of certain electronic ar products. To provide for the division of such substances or products into groups in relation to the degree of danger. Le To provide for the prohibition and control of the importation, manufacture, sale, use, operation, application, modification, disposal or dumping of such substances and products. To provide for matters connected therewith. The Act divides substances into four specific groups in relation to the degree of danger, and provides e for prohibition and control of importation, manufacture, sale, use, operation, application, modification, disposal or dumping of such substances or products. in These four groups are: Group I: Hazardous substances of a toxic, corrosive, irritant, strongly sensitising or flammable nl nature and potentially hazardous to human health. Group II: As above, but of a more hazardous nature. Group III: Electronic products potentially hazardous to human health. O Group IV*: Radioactive material that is outside a nuclear installation as defined in the Nuclear Energy Act, 1993, and is not a material that forms part of or is used or intended to be used in the nuclear fuel cycle, and that is used or intended to be used for medical, scientific, agricultural, commercial or industrial purposes, and any radioactive waste arising from such radioactive material. NB: It is important to note that any Group IV substance in any machinery or used in any form must be overseen by a radiation protection officer (RPO). Assistant RPOs can also be appointed to assist RPOs. They are also referred to as radiation © NOSA (Pty) Ltd | 11 SAMTRAC | Participant Manual workers. These appointments must be registered with the Department of Health Directorate: Radiation Control, which grants licences to which there must be strict compliance, including the use of radiation-specific personal protective equipment and monitoring devices. The Act also deals with the transportation of hazardous substances, whether by road, rail, water ways, air and pipelines. It classifies substances thus: Explosives Flammable, non-flammable and toxic gasses y Flammable liquids Flammable solids op Oxidizers and organic peroxides Toxic and infectious materials Radioactive materials Corrosives rC Miscellaneous The above can be found in the form of vapours, mists, dusts and liquid droplets and can have a negative effect on health, safety and the environment. This Act should not be viewed in isolation as there are links to other legislation such as the OHS Act, NEMA, Compensation for Occupational ne Injuries and Diseases (COID) Act, Road Traffic Act, Road Transportation Act, National Water Act (NWA) and any applicable provincial legislation or local by-laws. 4.3 Compensation For Occupational Injuries And Diseases Act ar The COID Act, 130 of 1993, is the legislation applicable in the event of an employee who is injured, becomes ill or dies due to an occupational injury or disease. Le 4.3.1 Entitlement to compensation A claim for compensation will arise when an employee is involved in an incident that results in disablement or death, or when an employee has contracted an occupational disease or other disease arising out of the course of his employment. e Section 22 of the COID Act entitles employees who are injured on duty to claim this compensation, which includes reason-able costs incurred by them or on their behalf in respect of medical aid in necessitated by an accident or an occupational disease. This claim is paid not by the employer, but from the Compensation Fund as established under section 15 of the Act. nl Only two categories of people are entitled to compensation for injuries suffered or diseases contracted because of work, namely: Employees; or O Direct dependants of employees. These provisions of this legislation are not extended to non-employees, for example, visitors and customers. Other persons who may receive compensation include: Persons employed as casual employees but due to the nature of their work contribute to their employer's business Members of closed corporations, body corporates and directors or members of companies who have entered into an employment contract with such particular body corporate 12 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC Persons who are paid by a labour broker to do work for others. Persons excluded in the Act who may not receive compensation are: Persons (including State employees) who are performing military training. Members of the SAPS and South African National Defence Force (SANDF). In terms of Section 89 of the COID Act, the staff of contractors will be regarded as the principal's employees if the contractor is not registered and paid up with the Compensation Commissioner. The principal should require that the contractor supply a certificate of good standing issued by the Commissioner. This certificate (a Section 89 certificate) is only valid for a year, and must be renewed annually. This document is commonly known as a letter of good standing. y It is worth noting that the Act makes provision for employers to recover expenses incurred as a result op of the contractor not being in good standing with the Commissioner. Once more, it is better to include this type of remedy in a written contract with the contractor. The contract can be a permanent one, and it is not necessary to conclude new contracts for every job done by the same contractor. rC 4.3.2 Claims for compensation: procedure The following steps must be followed for each claim. However, it is recommended that the Act be consulted to ensure that the correct documents are submitted in each case. Please note that the process listed below can be done electronically and is non-exhaustive, but serves as a basic guide ne as to how the compensation process works: The employee must give, as soon as possible after such accident occurs, notice thereof to the employer and the notice may also be given, as soon as possible, in the prescribed manner to the Commissioner. Should the employer fail to report the accident, the employee must complete a Notice of Accident and ar Claim for Compensation (WCL.3.). The employer must within seven days after having received notice of the accident report same to the Commissioner in the prescribed manner i.e. by completing the Employers Report of an Accident (WCL.2.) Le Part B of the report is a carbon copy and should be handed to the employee to give to the doctor/hospital who is going to treat him/her. Obtain First Medical Report (WCL.4.) from the treating doctor – medical evidence plays an important part when liability for payment of compensation and medical expenses is considered. Obtain Progress Medical Reports (WCL.5.) when an employee is receiving prolonged medical treatment e and is off duty as a result of injuries sustained. Progress reports should be submitted to the Compensation Fund on a monthly basis to ensure that compensation is paid out timeously. in Final Medical Report (WCL.5.) should be submitted as soon as the employee's condition has become stable. The doctor has to describe the impairment as a result of the accident, if any, to enable the fund to assess permanent disablement, if any. nl Resumption Report (WCL.6.) must be completed by the employer immediately after the employee has resumed work. The Commissioner may conduct an inquiry O into the incident. The employee is required to undergo a medical examination. The claim must be submitted within 12 months from the date of injury or disease. The Commissioner considers the claim and then makes payment or repudiates the claim. © NOSA (Pty) Ltd | 13 SAMTRAC | Participant Manual 4.3.3 Section 35 of the COID Act Section 35 bars employees from recovering money from their employers for injuries and diseases sustained at work. No employee or their dependants can sue an employer due to an occupational injury, disease or death. They can only claim from the Commissioner. The constitutional validity of this section was challenged in the landmark 1999 case of Jooste v Score Supermarket Trading (Pty) Ltd. The applicant, Jooste, fell and was injured at her workplace. She brought a common law claim for damages against the employer, Score Supermarkets, who she claimed was negligent in creating a safe workplace. The supermarket claimed that it was immune from a lawsuit for damages by virtue of section 35 of the COID Act. Jooste claimed that the provision was unconstitutional in that it denies employees their common law right to claim damages from their y employers. This, she maintained, placed employees at a disadvantage in relation to people who are op not employees and who retain such a right. The High Court agreed with the claim and found that section 35 was a violation of the Constitution. On appeal, the Constitutional Court held that section 35 was not unfair and did not create undue discrimination and, as such, could not be considered unconstitutional. rC But may an employee institute a lawsuit against a third party for their occupational injury or disease? Yes, an employee may do so. Who or what constitutes a third party was put to the test in the important case of Minister of Defence and Military Veterans v Thomas, as decided in the Constitutional Court in 2016. Dr Liesl-Lenore Thomas fell and injured herself at a military hospital in Cape Town where she was working as a medical registrar. Dr Thomas lodged a claim for ne compensation under the COID Act with the Western Cape Provincial Department of Health (a provincial department). But she also instituted a civil claim for damages against the applicant, the Minister of Defence and Military Veterans (Minister) in the Western Cape High Court since she contended the Ministry was a third party in the negligence. ar The state department contended that it could not be considered a third party since Dr Thomas was employed by a provincial government department and, as such, was effectively a state employee of the national government, which would therefore exempt the national department from being Le sued. Dr Thomas argued that she was employed by the provincial department and not the national department, which therefore meant that the national department was a third party to her. The Western Cape High Court agreed with the Minister that all departments are one and the same entity. The Supreme Court of Appeal overruled that decision on the basis that the national and e provincial departments must be considered separate entities. The appeal was upheld by the Constitutional Court and Dr Thomas was granted the right to sue the national department in a civil in court. 4.4 Additional Safety Legislation nl Disaster Management Act 57 of 2002 Safety at Sport and Recreational Events Act 2 of 2010 O Road Transportation Act, 74 of 1977 Explosives Act, 15 of 2003 Firearms Control Act, 60 of 2000 Fire Brigade Service Act, 99 of 1987 National Road Traffic Act, 93 of 1996 SANS 10228:2012: The identification and classification of dangerous goods for transport SANS 10229-1:2010 & SANS 10229-2:2010: Transport of dangerous goods - Packaging and large packaging for road and rail transport 14 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC SANS 10232-1:2007 & SANS 10232-2:2011 (road & rail): Transport of dangerous goods - emergency information systems SANS 10232-3:2011 & 10232-4:2012 (road & rail): Transport of dangerous goods - Emergency information systems: Emergency response guides & Transport emergency card SANS 10233:2011: Transportation of dangerous goods - Intermediate bulk containers. Unit 5: Environmental Law 5.1 Principles Of Environmental Law y Environmental law encompasses principles op of law and practical concepts in the form of legal jargon that are unique to this branch of law. It is important to understand some of these principles in order to be able to better rC read and understand the provisions within environmental legislation. 5.1.1 Polluter pays principle The polluter pays principle has been a standard principle in environmental law for many years. Its roots are in 1970s ne environmental law from the United States relating to pollution. The principle is self-explanatory: where pollution occurs, it will be the polluter who pays for the clean-up, remediation and any other costs relating to the said pollution. ar 5.1.2 Cradle-to-grave responsibility Responsibility for the environmental consequences of a policy, programme, project, product, Le process, service or activity exists throughout its life cycle. This responsibility commences with conceptualisation and planning of a product, project or service, and runs through all stages of implementation to reuse, recycling and ultimate disposal of products and waste or decommissioning of installations. It is a literally an “every step of the way” approach to how an organisation must bear the responsibility for all its environmental impacts. e 5.1.3 Best practicable environmental Option in Best practicable environmental option (sometimes referred to as BPEO), is the option that provides the most benefit - or causes the least damage - to the environment as a whole, at an acceptable cost to society, both in the short and long term. This is somewhat similar to the OHS Act's reasonably nl practicable principle. Other options that have also appeared in environmental legislation include the best available O technology and best available technology not entailing excessive cost. 5.1.4 Precautionary principle This principle refers to the idea that the lack of scientific certainty should not be used as a reason to postpone action when there is a threat of serious or irreversible damage and/or harm. In short: if you cannot ascertain the environmental impacts of something proposed, you cannot proceed until you have more information and understanding thereof. Allied to this is the principle of environ-mental due diligence, which is what any organisation or person should do before undertaking any project, product or service that may have environmental impacts. © NOSA (Pty) Ltd | 15 SAMTRAC | Participant Manual Environmental due diligence has become very common with entities acquiring a business, land, other types of property or other forms of acquisition from another party. It allows the acquiring party to have a clear and proactive understanding of the environmental impacts and detriment that may be inherited with the proposed acquisition. 5.2 National Environmental Management Act (NEMA) In Introduction to SAMTRAC, the basic provisions of section 28 of NEMA were covered. Section 28 is of fundamental importance in the Act given that it pertains to the duty of care that anyone must undertake regarding the environment as well as potential detriment to the environment. y It is important to note that the State also bears environmental responsibility as per various provisions within NEMA and, as such, can be held to task by any party regarding these obligations. An important op example of this is the 2017 case of Earthlife Africa Johannesburg v Minister of Environ-mental Affairs and Others, as heard in the North Gauteng High Court, which became known as the first climate change case in South Africa. The applicant, an environmental action group and non-governmental organisation, had argued that the authorisation granted by the Department of Environmental Affairs rC for the proposed Thabametsi coal-fired power station in the Waterberg region of Limpopo had not first established what effect the power station would have on climate change. The Court agreed with Earthlife Africa Johannesburg and held that the Department had erred in this regard. The Court ordered the Minister to consider a proper climate change assessment for the facility. The Department's assertion that there was no South African legislation that expressly ne stipulated a climate change impact assessment be carried prior to an authorisation being granted was rejected by the Court. Judge Murphy held that climate change impacts were undoubtedly a relevant consideration under NEMA. ar There are other sections in NEMA that are especially important to industrial, business and commercial entities. Their most important provisions will be briefly outlined hereafter: 5.2.1 Section 29: Right of refusal to do work harmful to the environment Le No legal or disciplinary action may be taken against an employee who refuses to work while in good faith (the subjective measure) and reasonably (the objective measure) believing that the work would be harmful to the environment. The potential harm must however be imminent. 5.2.2 Section 30: Control of incidents e In terms of section 30(1), an incident means an unexpected sudden occurrence, including a major emission, fire or explosion leading to serious danger to the public or potentially serious pollution of or in detriment to the environment, whether immediate or delayed. An incident report should be filed regarding: nl The nature of the incident; Any risks posed by the incident to public health, safety and property; The toxicity of substances or by-products released by the incident; and O Any steps that should be taken to avoid or minimise the effects of the incident on public health and the environment. A report must be filed within 14 days of the incident to the Director-General of the applicable national department, the applicable provincial head of department, and the local municipality. The information in this incident report must include the following: The nature of the incident; Such information as is available to enable an initial evaluation of the substances involved and an estimation of the quantity released and their possible acute effects on persons and the environment, and data needed to assess these effects; 16 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC Initial measures taken to minimise impacts derived from the incident; Causes of the incident, whether direct or indirect, including equipment, technology, system, or management failure; and Measures taken and to be taken to avoid a recurrence of such an incident. All reasonable measures should be taken as soon as practicable to minimise the effects and impacts of the incident. Clean-up procedures must be undertaken. 5.2.3 Section 31: Protection of environmental whistle-blowers NEMA protects any whistle-blower from criminal or civil prosecution as no person is civilly or criminally liable for disclosing evidence of an environmental risk. The disclosure needs to have been necessary y to avert an imminent and serious threat to the environment in order to ensure that the threat to the environment was properly and timeously investigated or to protect themselves against serious or op irreparable harm from reprisals. A whistle-blower may not be dismissed, disciplined, prejudiced or harassed on account of having disclosed any information if the person acted in good faith at the time of the disclosure. rC 5.2.4 Section 32: Legal standing to enforce environmental laws Any person/group (class) of persons may seek relief in respect of a breach or threatened breach of NEMA or other environmental legislation in the interest of protecting either: Their own interest (where they or their own property may be affected by the environmental degradation); or ne Groups unable to institute action (for example, where an environmental attorney or environmental action group choose to represent a poor community or any other party for that matter); or Groups whose interests are affected (for example, this could be in the form of a class action lawsuit ar by a community or group of interested parties); or The environment itself (for example, on behalf of a species of bird or a protected wetland, etc.). 5.2.5 Section 33: Private prosecution Le Any natural person can institute a private prosecution (civil suit) against another party. The other party can be either a natural person or juristic person. This can be done in the interest of the greater public or in the interest of protecting the environment. 5.2.6 Section 34: Criminal proceedings e If a serious offence (as more clearly identified and defined in NEMA's Schedule 3) is committed, a criminal court can establish and grant damages and institute criminal charges against a party. There in is vicarious liability vested in this provision in that an employer can be held liable for the acts or omissions of a manager, agent or employee. It is worth noting that a manager, agent or employee nl can also be held personally liable and convicted and sentenced as if they were the employer. Both an individual (manager, agent, employee or director) and the company can be held criminally liable for a given environmental offence. O Unit 6: Enforcement Of HSE Legislation 6.1 Occupational Health And Safety Enforcement - Department Of Employment and Labour 6.1.1 Chief directorate The OHS Act is administered by the Chief Directorate of Occupational Health and Safety within the Department of Employment and Labour (DoEL). Provincial offices have been established to ensure the health and safety of workers. Occupational health and safety inspectors from these provincial offices carry out inspections and investigations at workplaces. © NOSA (Pty) Ltd | 17 SAMTRAC | Participant Manual 6.1.2 Inspections Inspections are usually planned on the basis of accident statistics, the presence of hazardous substances, or the use of dangerous machinery in the workplace. Unplanned inspections, on the other hand, usually arise from requests or complaints by workers, employees or members of the public. These complaints or requests are treated confidentially. 6.1.3 Powers of inspectors If an inspector finds dangerous or adverse conditions at a workplace, he may set requirements to the employer in the following ways: Prohibition notice y In the case of threatening danger, an inspector may prohibit a particular action, process, or the use op of a machine or equipment, by means of a prohibition notice. A prohibition notice in the extreme may include closing an entire facility or site. No person may disregard the contents of such a notice and compliance must take place with immediate effect. Contravention notice rC If a provision of a Regulation or a section of the Act is contravened, the inspector may serve this particular notice on the employer. A contravention of the Act itself can result in immediate prosecution, but in the case of a contravention of a Regulation, the employer may be given the opportunity to correct the contravention within a time limit specified in the notice, which is usually 60 days. ne Improvement notice Where the health and safety measures that the employer has instituted do not satisfactorily protect ar the health and safety of the workers, the inspector may require the employer to bring about more effective measures, usually within a specified amount of time and at the discretion of the inspector. This 'lesser' notice, which prescribes the corrective measures needed, is then served on the employer. Le Please note that the above powers of inspectors are not absolute and all reasonable measures need to be taken to ensure the rights of people and organisations when conducting inspections. The inspector may: Request that any documents be submitted to them, to be investigated as they deem necessary and that copies be made of the documents. e Demand an explanation about any entries in such documents. Interview anyone with or without a witness present. in Inspect any condition or article and take samples of it, and seize any article that may serve as evidence. nl A receipt for any article or substance seized must be issued by the inspector. It is important to further note that an inspector does not need to give prior notice before entering a O site or premises and they may choose to visit the said site or premises at any time of the day. 6.1.4 The inspection process An inspection by a Department of Employment and Labour inspector or team of inspectors can be a daunting prospect for some employers. What can be expected of the inspection process? LWO, a labour law consultancy, lists the following items that typically feature in a Department of Employment and Labour inspection: Proof of registration with the Compensation Commissioner and Unemployment Insurance Fund (UIF), as well as proof of the last payments made. A summary of legislation displayed in the workplace for the: 18 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC o OHS Act and the Regulations o BCEA o EEA The appointment of health and safety representatives for the workplace. This appointed person should have a letter of appointment, and the labour inspector will request the minutes of previous meetings that were held. The employer and employees trained to recognise health and safety hazards and risks including: o Are moving parts like drive belts and chains guarded? o Are chemicals used safely and stored in a safe place? y o Are emergency exits clearly marked and easily accessible? o Are fire extinguishers accessible and serviced regularly? op o Are flammable materials stored and used correctly, for instance not near hot surfaces or areas? o Are all electrical wires insulated and proper plugs used in the workplace? rC The provision of fully equipped first-aid boxes on the premises. Whether or not the employer reports occupational injuries and diseases to the Department of Labour in the manner and time required. Whether there are clean and hygienic toilets and washing facilities provided for both sexes. ne 6.2 Environmental Enforcement - Department Of Environmental Affairs 6.2.1 The Environmental Management Inspectorate Like the Department of Labour, the Department of Environmental, Forestry and Fisheries also has ar inspectors who are tasked to ensure enforcement of environmental legislation. The Environmental Management Inspectorate is not a single inspectorate like that for occupational health and safety. Rather, it is a network of environmental enforcement officials from different government departments Le at all three levels of government: national, provincial and municipal. The five primary areas of enforcement for the inspectorate are: Pollution and waste Biodiversity e Protected areas Marine and coastal in Environmental impact assessment 6.2.2 Environmental Management Inspectorate designated officials nl The following officials may be designated as environmental management inspectors: Officials employed by the Department of Environmental, Forestry and Fisheries O Officials employed by provincial environment departments, or other provincial organs of State Municipal officials Officials employed by “other organs of State” The legislation does not provide for members of the public, volunteers or representatives of non- governmental organisations to be environmental management inspectors. Before designation, officials must successfully complete an environmental management inspector training course. © NOSA (Pty) Ltd | 19 SAMTRAC | Participant Manual 6.2.3 Environmental management inspectors – mandates and functions Environmental management inspectors must monitor compliance with and enforce the specific environmental legislation they have been mandated to enforce in their designations by the Minister or relevant member of executive council (MEC) or member of provincial legislature. At present, environmental management inspectors can be mandated to enforce a range of legislation depending on their particular functions. Environmental management inspectors are also empowered to enforce any authorisations issued under their mandated legislation, including permits, licences and environmental impact assessment authorisations (also referred to as 'records of decision' or RoDs). y 6.2.4 Environmental management inspectors – powers and responsibilities A range of powers can be conferred on environmental management inspectors, including powers op of: Routine inspection: o Entering premises to ascertain compliance rC o Seizing evidence of non-compliance Investigation: o Questioning witnesses o Copying documents o ne Inspecting and removing articles or substances o Taking photographs and audio-visual recordings o Taking samples o Removing waste ar Enforcement: o Searching and seizing premises, Unlike their Department of Employment and Labour containers, vessels, vehicles and Le colleagues, environmental management inspectors cannot aircraft actually prosecute a case. All cases must be handed over to the NPA for prosecution. Also, an important ally for an o Searching pack animals environmental management inspector is the SAPS, which o Establishing roadblocks actually has a crucial role in enforcing environmental o Arresting legislation in South Africa – this central role of the police in environmental enforcement is not the norm in many other e Administrative powers: countries. o Issuing compliance notices in 6.2.5 Environmental management inspectors and criminal offences under NEMA In addition to standardising enforcement powers, NEMA's Chapter 7 also provides for extensive nl powers for environmental management inspectors (see below), as well as a set of new criminal offences and other enforcement provisions. Criminal offences include: O Giving false information to an environmental management inspector, or refusing to comply with an inspector's request. Hindering or interfering with an environmental management inspector’s duty, or pretending to be an environmental management inspector. Failure to comply with a compliance notice, which can be issued by certain environmental management inspectors when that inspector has reasonable grounds for believing that a person has not complied with environmental legislation, or with a term of a permit issued under that legislation. Further penalties and legal sanctions under Chapter 7 include: 20 | © NOSA (Pty) Ltd  Participant Manual | SAMTRAC Forfeiture provisions Cancellation of permits Disqualification of permits Unit 7 Corporate Governance 7.1 What Is Corporate Governance? Fundamentally, governance relates to the way in which a business is directed and governed. This encompasses the policies, strategies and procedures which have an impact on organisational y performance, accountability to stakeholders and stewardship. Governance is a guiding principle for management and directors to operate in the best interest of all stakeholders. op The leadership in a company is provided by the board of directors and the management team. The board acts as a fulcrum between the shareholders and the management of the company. The role of the management team is to manage the company’s operating, finance and corporate activities rC on a daily basis, remaining accountable to the board of directors. Governance is not about ownership versus leadership, but about both issues (aspects) combining to manage the business in the best interest of both stakeholders and shareholders. “Corporate governance is the set of processes, customs, policies, laws, and ne institutions affecting the way a corporation is directed, administered or controlled. Corporate governance also includes the relationships among the many stakeholders involved and the goals for which the corporation is governed. The principal stakeholders are the shareholders, management, and the board of ar directors. Other stakeholders include labor (employees), custome