3.2 General Administrative Regulations (GAR) 2003: Reporting & Investigating Provisions

3.2 General Administrative Regulations (GAR) 2003: Reporting & Investigating Provisions

[!NOTE] Administrative Machinery of the OHS Act: The General Administrative Regulations (GAR), promulgated under Government Notice R. 929 of 25 June 2003 pursuant to Section 43 of the Occupational Health and Safety Act 85 of 1993, form the procedural engine of occupational safety governance in South Africa. For the Construction Health and Safety Officer (CHSO), GAR Regulations 8 and 9 govern the non-negotiable legal protocols for notifying statutory authorities of major incidents, preserving physical evidence, conducting rigorous root cause investigations, and archiving statutory documentation.

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The Statutory Nexus: OHS Act Section 24 and GAR 8

A critical distinction tested on the SACPCMP examination is the interplay between substantive statutory triggers under the primary Act and the procedural notification mechanisms established in the subordinate regulations:

• OHS Act Section 24: Defines the substantive legal criteria that classify an event as a "reportable incident".
• GAR Regulation 8: Prescribes the exact administrative method, destination, documentation format, and timeframes for notifying the state inspectorate.

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|                   OHS Act Section 24 Statutory Trigger Criteria                |
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| 1. FATALITY:                                                                   |
|    Any incident arising out of or in connection with the activities of persons |
|    at work, or in connection with the use of plant or machinery, in which any  |
|    person dies.                                                                |
|                                                                                |
| 2. PERMANENT DISABLEMENT:                                                      |
|    Any incident where a person becomes permanently disabled or is likely to   |
|    become permanently disabled.                                                |
|                                                                                |
| 3. SERIOUS INJURY / ILLNESS (THE 14-DAY RULE):                                 |
|    Any incident where a person:                                                |
|    - Suffers the amputation or loss of a limb or part of a limb;               |
|    - Becomes unconscious; or                                                   |
|    - Is injured or becomes ill to the extent that they are unable to work or   |
|      continue their normal duties for a period of AT LEAST 14 DAYS.            |
|                                                                                |
| 4. MAJOR HAZARDOUS INCIDENT (NEAR MISS / STRUCTURAL EVENT):                     |
|    An incident where a dangerous substance was spilled, uncontrolled release of |
|    gas/steam occurred, flying fragment escaped, or machinery ran out of control|
|    such that human life was directly endangered, even if nobody was struck.     |
|                                                                                |
| 5. MACHINERY COLLAPSE / FAILURE:                                               |
|    Structural failure or breakdown of a crane, material hoist, scaffold,       |
|    falsework, pressure vessel, or electrical apparatus creating serious hazard.|
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Critical Scope: Any Person on Premises

A vital legal principle of Section 24 is that it applies to any person—not merely direct employees of the company. If a visitor, professional consultant, sub-contractor worker, or a member of the public passing adjacent to the construction site boundary is killed or suffers a Section 24 injury due to construction activities (such as falling debris or scaffold collapse), the employer or user of machinery must execute Section 24 and GAR 8 reporting.

The Dual-Notification Workflow under GAR 8

GAR Regulation 8 prescribes a strict two-stage notification protocol:

                  Stage 1: IMMEDIATE NOTIFICATION (GAR Regulation 8(1))
     Occurs immediately upon knowledge of a Section 24 incident by the quickest
     practicable means (telephone, facsimile, or electronic mail) to the
          PROVINCIAL DIRECTOR: Department of Employment and Labour (DEL)
                                      │
                                      ▼
                  Stage 2: FORMAL WRITTEN REPORT (GAR Regulation 8(2))
     Must be compiled and officially submitted within SEVEN (7) CALENDAR DAYS using
       GAR ANNEXURE 1: Recording and Investigation of Incidents Form (or W.Cl. 1/2)

[!IMPORTANT] The 7-Day Written Window: Under GAR 8(1)(a) the employer or user of machinery has 7 days from the incident to give written notice of a section 24(1)(a) incident to the provincial director on form WCL 1 or WCL 2 — the Compensation Fund forms named in GAR 1. Annexure 1 is a different document: it is the internal incident record and investigation form that GAR 9 requires to be kept at the workplace. Confusing the two is one of the most common CHSO examination errors. Failure to submit this notice constitutes a criminal offense under Section 38 of the OHS Act.

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Incident Scene Preservation and Non-Disturbance (Section 24(2))

When a Section 24 incident occurs that results in death or serious injury, the incident scene becomes a potential criminal investigation site. Section 24(2) of the OHS Act establishes a strict statutory freeze:

"No person shall without the consent of an inspector disturb the site at which such incident occurred or remove any article or substance involved in the incident therefrom..."

The Three Lawful Exceptions to Scene Non-Disturbance

The law recognizes that preservation of human life and containment of catastrophe take precedence over forensic evidence. Section 24(2) permits disturbance of the scene strictly and solely under three circumstances:

1. Emergency Medical Rescue: To prevent further injury or rescue injured persons from immediate peril (e.g., extricating a trapped worker from an excavation cave-in);
2. Preventing Imminent Catastrophe: To avert imminent danger to the life or health of other persons (e.g., shutting off an active gas main, isolating a live high-voltage cable, or extinguishing an active fire);
3. Removal of Deceased Persons: To remove the body of a deceased person only after obtaining explicit authorization from the South African Police Service (SAPS) or a designated magistrate.

Outside these three narrow exceptions, altering the scene, cleaning debris, repairing damaged equipment, or removing structural components prior to the formal inspection and release of the site by a Department of Employment and Labour Inspector constitutes a criminal offense punishable by a fine or imprisonment under Section 38.

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Mandatory Incident Investigations under GAR 9

GAR Regulation 9 sets out the mandatory statutory framework for investigating incidents. It is not discretionary; it is a legally enforceable duty placed upon the employer and user of machinery.

Statutory Investigation Timeline and Competency

Under GAR 9(2) the employer or user must cause every incident recordable under GAR 9(1) to be investigated within 7 days from the date of the incident and finalised as soon as is reasonably practicable, or within the contracted period in the case of contracted workers.

• Initiation Window: Within 7 days of the incident.
• Investigator Mandate: The investigation must be conducted by:
  1. The employer or user of machinery;
  2. A person designated by the employer (in construction, this is typically the registered Construction Health and Safety Officer appointed under CR 8(5), or the Construction Manager appointed under CR 8(1)); and
  3. Mandatory H&S Representative Participation: The Health and Safety Representative designated for the specific workplace, section, or work activity where the incident occurred must be consulted and participate in the investigation.

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|               The GAR 9 Statutory Investigation Process Flow                   |
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| 1. MOBILIZATION (Within 7 Days of Occurrence):                                 |
|    Appointed investigator (CHSO / CR 8(1)) convenes investigation team.        |
|    Local Health & Safety Representative formally invited and integrated.       |
|                                                                                |
| 2. EVIDENCE COLLECTION & FORENSICS:                                            |
|    Physical site inspection, measurements, photographic logs.                  |
|    Witness statements taken from workers, supervisors, and injured party.      |
|    Review of risk assessments (CR 9), Safe Work Procedures, training logs.     |
|                                                                                |
| 3. CAUSAL & ROOT CAUSE ANALYSIS (RCA):                                         |
|    Identify immediate causes (substandard acts / conditions).                  |
|    Identify basic/underlying causes (job factors / personal factors).          |
|    Identify root organizational failures (management system deficiencies).     |
|                                                                                |
| 4. STATUTORY DOCUMENTATION & CORRECTIVE ACTIONS (CAPA):                        |
|    Findings recorded formally on GAR ANNEXURE 1.                               |
|    Remedial measures, responsibilities, and completion dates assigned.         |
|                                                                                |
| 5. INTERNAL GOVERNANCE & SIGN-OFF (GAR 9(4)):                                  |
|    Report submitted to Health and Safety Committee at its NEXT MEETING.       |
|    Formal sign-off by Section 16(1) or Section 16(2) appointee.                |
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Examination by the Health and Safety Committee (GAR 9(4))

GAR 9(3) requires the findings of the investigation to be entered in Annexure 1 immediately after completion. GAR 9(4) then requires the employer to cause every Annexure 1 record to be examined by the health and safety committee for that workplace at its next meeting, and to ensure that the necessary actions are implemented and followed up to prevent recurrence — so the completed report must be submitted to the Health and Safety Committee at its next scheduled meeting. The committee reviews the investigation to evaluate the adequacy of corrective measures and ensure organizational follow-through.

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Statutory Record Retention Mandates (GAR 9(1))

Under GAR Regulation 9(1), the employer must keep at the workplace the records of all incident investigations, including completed Annexure 1 forms, witness statements, engineering reports, and corrective action verification logs, on site or on premises for a minimum period of THREE (3) YEARS.

Exam Comparison: Statutory Retention Schedules

Candidates frequently confuse retention requirements across different South African health and safety regulations:

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Powers of Department of Employment and Labour Inspectors (Sections 29–32)

Inspectors appointed by the Minister of Employment and Labour under Section 28 wield wide statutory police and administrative powers under Sections 29 to 32 of the OHS Act. CHSOs must fully understand these powers during on-site inspections.

                                  POWERS OF DEL INSPECTORS
                                              │
     ┌──────────────────────┬─────────────────┴────────────────┬─────────────────────┐
     ▼                      ▼                                  ▼                     ▼
Section 29:             Section 30:                        Section 31:           Section 32:
Entry & Investigation   Statutory Notices                  Formal Inquiries      Joint Inquiries
- Enter site at any     - Prohibition Notice (30(1)(b))    - Subpoena witnesses  - Joint inquiry
  time without notice   - Contravention Notice (30(1)(a))  - Administer oaths      with SAPS, DMR,
- Question persons      - Improvement Directions           - Seize evidence        or specialized
- Inspect files/registers                                  - Refer for criminal    bodies into major
- Seize evidence/samples                                     prosecution (s. 38)   disasters

1. Section 29: Powers of Entry and Investigation

Under Section 29, an Inspector may:

• Enter any construction site or premises at any time without prior notice;
• Question any employer, manager, supervisor, CHSO, or worker alone or in the presence of others;
• Demand the immediate production of the site Health and Safety File, appointment letters, registers, training records, and risk assessments;
• Inspect, test, or dismantle any machinery, temporary works, scaffold, or electrical installation;
• Seize any book, record, substance, or component that may serve as evidence of an offense.

2. Section 30: Statutory Notices and Enforcement Orders

Inspectors enforce compliance primarily through three distinct instruments under Section 30:

3. Section 31: Formal Statutory Inquiries

Following a fatal accident, major collapse, or catastrophic chemical release, the Chief Inspector may direct an Inspector to conduct a formal judicial inquiry under Section 31. During a Section 31 inquiry:

• The Inspector acts with the authority of a magistrate;
• Witnesses are formally subpoenaed and testify under oath or affirmation;
• Cross-examination is permitted by legal representatives of interested parties;
• The inquiry record is submitted to the Director of Public Prosecutions (DPP) to determine criminal culpability under Section 38 (section 38(1) carries a fine not exceeding R50 000 or imprisonment for a period not exceeding one year, or both; the heavier penalty of a fine not exceeding R100 000 or imprisonment not exceeding two years in section 38(2) applies only to the separate offence of an employer or user causing a person to be injured in circumstances that would have amounted to culpable homicide had death resulted).

Penalties for Obstructing an Inspector (Section 38)

Any person who hinders or obstructs an Inspector in the execution of their duties, refuses entry to site, tampers with evidence, refuses to answer questions, or gives false information commits a criminal offense under Section 38(1).