Legal Liability and the Manufacturer: The duty to inform

1. Legal Liability and the Manufacturer: The duty to inform Jaco Swartz 24 October 2012

2. Duties of the Employer • “”Health and Safety Legislation may be seen as the sum of written obligations placed on those involved in mining and industrial activities” • The Employer shall…. • Defining the employer: • MHS Act: • Employer = Owner

3. Duties of the Employer MHS Act: Section 5 As far as reasonably practicable, every employer must provide and maintain a working environment that is safe and without risk to the health of employees. Includes responsibilities for equipment and infrastructure, including plant for the conveyance of minerals. RECONSTRUCTION -photograph removed-

4. Reasonably practicable • reasonably practicable means practicable having regard to- • the severity and scope of the hazard or risk concerned; • 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;

5. Defining the manufacturer • Not defined in Section 102 • Section 21, includes reference to: (one installation may have multiple manufacturers) • Designers, • Manufacturers, • Performance of repair work • Importers • Suppliers • Erectors • Installers

6. Duties of the manufacturer • 21. Manufacturer's and supplier's duty for health and safety • (1) Any person who - • designs, manufactures, repairs, imports or supplies any article for use at a mine must ensure, as far as reasonably practicable – • (i) that the article is safe and without risk to health and safety when used properly; and • that it complies with all the requirements in terms of this Act; • (b) erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health and safety when used properly;

7. Manufacturer: duties summary • Comply with all legal prescriptions, i.e. Statute, Regulations and incorporated standards • Duty to inform – “when used properly” – implies knowledge of end use. • Communicate risk through risk assessments, procedures

8. Duty to inform • ….State of knowledge reasonably available….(Section 102) • Implies obligation on Employer to obtain information • In conjunction with Manufacturers duty to inform

9. Duty to inform • Examples of aspects affected: • MHSA Regs, Chapter 8 (Machinery) • Reg. 8.8(2)(d)..proper operating or safety procedures • Reg. 8.8(3)(b)..fully aware of risks attached to moving of machinery • Reg. 8.8(3)(g)..written lock out procedure • Reg. 8.8(9)(10)..written procedure on belt splicing

10. The price of non compliance Section 92 MHSA, failure to comply with Sections: Section 21, manufacturer duties: R 500 000, and/or 5 years imprisonment Section 11, risk assessment R 1 000 000, and/or 5 years imprisonment Section 86, …any person…through negligent act or omission Causes serious injury or illness… or Endangers health and safety…commits an offence In case of negligent death – Culpable Homicide

11. Conclusion • Establish the baseline in terms of design • Manufacturers have a legal obligation to inform • Can you prove that you enable the employer to comply? (knowledge reasonably available) • Common law test: Reasonable designer, manufacturer, supplier, installer/erector • Tool for employer: align procurement practices.

12. QUESTIONS: Jaco Swartz Managing Director Legislative Compliance Specialists (Pty.) Ltd. jacos@legalcs.co.za 011 704 4814 082 898 9463