Liability - Togaat Mall Collapse
27 May 2014
Article provided by Advocate Raynard Looch of Klass Looch Associates
Corporate Member of Saiosh
You may recall that I promised to write an article on the liability implications of the Tongaat mall collapse case. I was going to base my observations on media reports but I think I may have been over optimistic particularly regarding their accuracy. More importantly the section 32 Formal Inquiry was postponed before there was enough (reported) substance to the matter. Having said that a transcript will be generated and I hope to get my hands on it after completion of the inquiry. The Presiding Officer, Phumi Maphaha, informs that he plans to call another four witnesses before concluding the matter and making his recommendation regarding prosecution to the National Prosecuting Authority (NPA).
What is clear is that various persons, both natural (humans) and juristic (companies) will be charged. It seems common cause that there was a litany of construction regulation contraventions by various parties including the client, designer and contractors. The client will also face other non OHS Act contraventions such as Contempt of Court as the eThekwini deputy mayor had obtained a high court order to stop the construction of the mall prior to the incident. The municipality has also conceded that it did not ‘keep tabs’ on the development to ensure the Court Order was enforced which in itself is scary in the sense that the incident would not have occurred had this be done. Perhaps this omission by the municipality is a contravention of some statute?
When investigating a construction accident which results in fatalities and injuries it must be borne in mind that mere ‘administrative’ contraventions of the construction regulations do not necessarily result in culpable homicide or negligent injury (section 38(2) of the OHS Act) charges. The versari in re illicita principle prohibits this. In other words if an investigation into a fatal construction incident reveals that certain formal written appointments were not made as required by the construction regulations - which is criminal in itself – it does not follow automatically that someone is liable on a common law charge of culpable homicide. A classic example would be if someone drives a vehicle on a public road without a valid driver’s license – a crime – and goes through a green traffic light and another party goes through a red light resulting in a fatal accident. The unlicensed driver is not automatically guilty of culpable homicide because of the criminal act of driving without a valid driver’s license.
In the construction regulations there must be a link or nexus between the failure to appoint a competent construction manager or supervisor and the result namely death or injury. In the Stellenbosch Collapse case I argued that our failure to appoint in writing the construction supervisor was not linked to the subsequent injuries and fatalities since his competence was established through evidence and that our only crime was not to formalise the appointment in writing – an offence on its own. All crimes have elements and to prove culpable homicide the prosecution will have to prove that there was an act or omission casually linked to a result (death) coupled with fault in the form of or culpa (negligence). Negligence is tested objectively using the reasonable person foreseeability test as criteria.
This may be the case in the Tongaat Mall Collapse case but, judging from media reports which scream headlines like ‘Engineer absent from mall inspections’, ‘No health safety audits at Tongaat mall’ and ‘Construction workers should not have been on the site of the unfinished Tongaat shopping mall yesterday, it seems to suggest otherwise.
I have always lamented the fact that the vast majority of construction accidents are investigated via the section 31 Investigation. These investigations are usually too superficial and focus primarily on the apparent cause while neglecting the (often) various underlying causes. I have yet to represent a contractor in a section 31 investigation into a fatal construction accident where clients and other role-players are interrogated. The focus is invariably limited to contractors where a section 16(2) Assignee is interrogated along with the construction supervisor and employees. Most inspectors only demand to see a section 37(2) Written Agreement from the client and seem to regard the Written Agreement as an indemnity which it is not. An Indemnity only applies to civil law where damages are sought. The opposite is true of the section 32 Formal Inquiry where all role-players are subpoenaed to testify and cross-examination of witnesses takes place. In the Stellenbosch Collapse case the principal contractor was condemned by the media, DoL and politicians and labelled as a rogue contractor even before the Formal Inquiry began. The collapse of the structure must have been his bad workmanship they argued. And at face value it did appear so. Yet because the matter was forensically or properly examined – as only a section 32 Formal Inquiry can do – it came to light that the primary cause of the structural collapse was the non compliant and substandard telescopic props which buckled under the weight of a slab that it was supposed to support - an offence in terms of section 10 of the OHS Act for manufacturers, importers and suppliers of articles (props). I actually argued in that matter that the ‘vilified’ principal contractor was actually the victim the saga!
According to media reports two workers died and twenty nine workers were injured. The extent of the injuries is not known to me but some may be incapacitated for life. Since the Presiding Officer’s mandate is restricted to the statutes (OHS Act) he cannot recommend culpable homicide charges. (Common / unwritten law). If he finds that the employer (contractor) of the dead and injured workers failed to provide them with a safe and healthy construction site he could make a finding of a contravention of section 8 of the OHS Act. If he found that the client or designer failed to ensure the safety of these individuals who were not their employees he could find a contravention of section 9. He could also recommend charges against all in terms of section 38(2) of the Act which punishes negligent injury –citing 29 counts which currently carry a maximum penalty of R100 000 or two years in jail or both for each count!
Section 38(2) ‘Any employer who does or omits to do an act, thereby causing any person to be injured at a workplace, or, in the case of a person employed by him, to be injured at any place in the course of his employment, or any user of plant or machinery who does or omission to do an act in connection with the use of plant or machinery, thereby causing any person to be injured, shall be guilty of an offence if that employer or user of plant or machinery, as the case may be, would in respect of that act or omission have been guilty of the offence of culpable homicide had that act or omission caused the death of the said person, irrespective of whether the injury could have led to the death of such person, and on conviction be liable to a fine not exceeding R100 000 or to imprisonment not exceeding 2 years or to both such fine and such imprisonment’.
As I said above. All crimes have elements and to prove a section 38(2) contravention the prosecution will have to prove that there was an act or omission casually linked to a result (injury) coupled with fault in the form of or culpa (negligence). It would appear as if the law enforcement agencies are hesitant to make use of this unique crime as I seldom see a recommendation for section 38(2) contraventions even when there are injuries and negligence is proved. I maintain that if an employer is, prima facie, guilty of a section 8 contravention – failing to provide employees with a safe and healthy working environment or a section 9 contravention – failing to ensure their activities do not cause harm to non-employees and this results in injury, then a section 38(2) contravention should follow automatically. Naturally an employer could argue that all reasonable precautionary measures were taken to ensure a safe and healthy working environment – which incidentally is a defense - but the definition of ‘reasonably practicable’ is essentially the definition of non negligence! So if you succeed with the one then you should succeed with the other.
"reasonably practicable" means practicable having regard to -
(a) the severity and scope of the hazard or risk concerned;
(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;
(c) the availability and suitability of means to remove or mitigate that hazard or risk; and
(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.
I predict some serious charges emanating from the Tongaat Mall Collapse case. It may also be one of those rare cases where the client, designer (structural engineer) principal contractor and contractors incur liability in terms of the OHS Act and the common law (culpable homicide).
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