18.1 Enforcement: Inspector Powers, Notices, Inquiries and Penalties
Key Takeaways
- Section 30 gives inspectors written prohibition powers over an employer's act, the use of plant or machinery, and exposure, plus directions under section 30(3) and 30(4) to take steps within a specified period.
- Section 30(2) allows an inspector to block, bar, barricade or fence off the affected area, and makes it an offence for any person to interfere with or remove that barrier.
- Section 30(6) obliges the employer to bring the contents of a prohibition, direction or notice forthwith to the attention of health and safety representatives and the employees concerned.
- A prohibition is lifted only by written revocation under section 30(1)(d) once the inspector is satisfied, and an appeal to the chief inspector under section 35 must be lodged in writing within 60 days without operating as a stay.
- Section 38(1) carries a fine up to R50 000 or one year's imprisonment for the listed contraventions, while section 38(2)'s R100 000 or two years applies only to an employer causing injury in culpable-homicide circumstances.
18.1 Enforcement: Inspector Powers, Notices, Inquiries and Penalties
[!NOTE] SACPCMP Blueprint Context: Enforcement sits inside "Health and Safety Legislative Framework", item 1 of the Construction Health and Safety core knowledge list in Annexure B and one of the five Initial Professional Development Modules listed for the CHSO in Annexure C. A construction health and safety officer must know exactly what an inspector may do, what each written instrument is called, what timeframes attach to it, and what the penalties are — because the CHSO is usually the person who receives the inspector at the gate.
1. Who Enforces
The Occupational Health and Safety Act is administered by the Department of Employment and Labour. Section 27 provides for the appointment of a chief inspector, and inspectors are appointed to perform the functions of the Act. In each province a provincial director is the officer to whom incidents are reported under section 24 and General Administrative Regulation 8, and GAR 1 lists the provincial directors and their addresses by magisterial district.
For construction specifically, note that Notice R. 85 of 7 February 2014 — published alongside the Construction Regulations 2014 — records the chief inspector's approval of the SACPCMP as the statutory body contemplated in regulation 5(8), which is what makes SACPCMP registration the qualifying route for the CR 5(7)(b) agent and the CR 8(6) construction health and safety officer.
2. What an Inspector May Do on Site
An inspector's powers are broad and exercisable without notice.
Entry, examination and seizure (section 29). An inspector may enter premises, question any person, require the production of and examine any book, record or document, remove or seize any article, substance, plant, machinery, book, record or other document, and require an employer to make available a person with full knowledge of the workplace's hazards to accompany the inspector during the visit — the latter reinforced by GAR 2(2). Where an inspector removes or seizes an item, section 29(4) requires the inspector to issue a receipt to the owner or person in control. GAR 2(1) provides that no person may refuse an inspector entry unless authorised to do so by another law.
Special powers (section 30). These are the instruments a CHSO must be able to name precisely:
| Instrument | Section | Trigger | Effect |
|---|---|---|---|
| Prohibition on an employer's act | s 30(1)(a) | An act performed, required or permitted — or proposed — which in the inspector's opinion threatens or is likely to threaten the health or safety of any person | The employer is prohibited in writing from continuing or commencing that act |
| Prohibition on use of plant or machinery | s 30(1)(b) | Plant or machinery used, or proposed to be used, in a manner or circumstances that threaten health or safety | The user is prohibited in writing from continuing or commencing that use |
| Prohibition on exposure | s 30(1)(c) | Exposure of an employee or category of employees to an article, substance, organism or condition beyond a specified period | The employer is prohibited from requiring or permitting longer exposure |
| Physical enforcement | s 30(2) | To enforce a prohibition under 30(1)(a) or (b) | The inspector may block, bar, barricade or fence off the affected part of the workplace, plant or machinery, and no person may interfere with or remove it |
| Direction to take steps | s 30(3) | Health or safety threatened by an employer's or user's refusal or failure to take reasonable steps | Written direction to take specified steps within a specified period |
| Direction to comply with a regulation | s 30(4) | The inspector's opinion that a regulation has not been complied with | Written direction to take the steps necessary to comply, within a specified period |
Two further subsections are frequently examined. Section 30(5) permits an inspector to extend a period specified under subsection (3) or (4) by written notice. Section 30(6) obliges the employer to forthwith bring the contents of any prohibition, direction or notice under section 30 to the attention of the health and safety representatives and the employees concerned — a duty sites routinely overlook, and one the CHSO should discharge the same day by tabling the notice at a site meeting and posting it.
Revocation. A prohibition may be revoked in writing under section 30(1)(d) once arrangements satisfactory to the inspector have been made to dispose of the threat that gave rise to it. Work does not resume because the contractor believes the problem is fixed; it resumes on the written revocation.
3. Investigations and Formal Inquiries
Section 31 — investigation. An inspector may investigate the circumstances of any incident which occurred at or originated from a workplace or in connection with the use of plant or machinery, and which resulted or in the inspector's opinion could have resulted in injury, illness or death, in order to determine whether a formal inquiry under section 32 is necessary. After completing that investigation the inspector must submit a written report, with all relevant statements, documents and information, to the Director of Public Prosecutions for the area, and simultaneously to the chief inspector.
Section 32 — formal inquiry. The chief inspector may direct an inspector to conduct a formal inquiry into any incident. The inquiry is a quasi-judicial proceeding: witnesses may be subpoenaed under section 32(2) on the form in GAR Annexure 2; evidence is taken on oath; and the record goes forward for prosecutorial decision. GAR 10 places administrative duties on the employer: to be notified of the date, time and place; to forthwith advise in writing the persons who witnessed the incident, the recognised union and any other person specified by the inspector that their attendance is required; and to tell the inspector which of those persons are likely to refuse to attend so that they can be subpoenaed.
Under section 18(2)(b), a health and safety representative may attend any investigation or formal inquiry held in terms of the Act.
4. Appeals
Section 35(1) allows any person aggrieved by a decision of an inspector to appeal to the chief inspector, who may confirm, set aside or vary the decision, or substitute the decision the inspector ought to have taken. Section 35(2) requires the appeal to be lodged in writing within 60 days after the inspector's decision was made known, setting out the grounds.
Two practical consequences follow. First, an appeal is not a stay: a prohibition remains in force while the appeal is considered, so a contractor cannot resume prohibited work by lodging an appeal. Second, the 60-day period is short relative to a construction programme, so the decision whether to appeal must be taken quickly and on advice.
5. Offences and Penalties
| Provision | Offence | Penalty on conviction |
|---|---|---|
| s 38(1) | Contravening or failing to comply with the listed sections — including sections 7, 8, 9, 10, 12-16, 17(1)/(2)/(5), 18(3), 19(1), 20(2)/(4), 22-26, 29(3), 30(2)/(6), 34, 36 — or a direction or notice under sections 17(6), 19(4)/(7), 21(1) or 30; hindering or obstructing an inspector; furnishing false information; tampering with or misusing safety equipment; failing to use safety equipment provided; or wilfully or recklessly doing anything that threatens health or safety | Fine not exceeding R50 000, or imprisonment not exceeding one year, or both |
| s 38(2) | An employer or user who does or omits to do an act thereby causing a person to be injured, where that act or omission would have made them guilty of culpable homicide had it caused death | Fine not exceeding R100 000, or imprisonment not exceeding two years, or both |
| s 38(3) | — | The convicting court may, in addition, order compliance with the provision within a period it determines |
| s 38(4) | Conviction for contravening section 23 (levies on employees) | The court must determine the amount unlawfully deducted and deal with it as an underpayment |
| CR 33 | Contravening the specified Construction Regulations | The penalty prescribed by that regulation |
| GAR 12 | Contravening the listed General Administrative Regulations | Fine or imprisonment not exceeding 12 months, plus, for a continuous offence, an additional fine of R200 per day or one day's additional imprisonment per day, capped at 90 days |
[!WARNING] Do not merge the two section 38 penalties. Failing to report a section 24 incident, obstructing an inspector, or contravening section 26 all fall under section 38(1): R50 000 or one year. The R100 000 or two years in section 38(2) attaches only to the distinct offence of an employer or user causing injury in circumstances that would have amounted to culpable homicide had death resulted. Options that attach two years' imprisonment to a reporting failure are wrong.
Alongside the OHS Act, section 37(3) makes an employee or mandatary liable to be convicted and sentenced as if he or she were the employer, and section 37(5) permits that conviction in addition to the employer's — which is why a construction manager or supervisor can be prosecuted personally on the same facts as the company.
6. Receiving an Inspector: The CHSO's Practical Protocol
- Verify and record the inspector's identity and note the time of arrival.
- Provide the accompanying person with full knowledge of the workplace hazards, as GAR 2(2) permits the inspector to require.
- Produce the health and safety file — CR 7(1)(b) requires it to be kept on site and made available on request. Do not delay production.
- Accompany, listen and record. Write down what is examined, what is said, and what is asked for. Do not argue on site.
- Obtain the written instrument. A prohibition or direction under section 30 is a written instrument; establish precisely what is prohibited, what is directed, and by when.
- Discharge section 30(6) the same day by bringing the notice to the attention of health and safety representatives and the affected employees.
- Close out and seek written revocation under section 30(1)(d) before resuming any prohibited activity.
- Diarise the section 35(2) appeal window — 60 days — even if no appeal is intended.
An inspector issues a written prohibition under section 30(1)(a) halting all work at height on a site. The contractor rectifies the anchor points the same afternoon and instructs crews to resume the next morning, having emailed photographs to the inspector. Assess this.
A principal contractor fails to report a section 24 incident to the provincial director. What penalty does the OHS Act provide on conviction?
Which statement about section 32 formal inquiries and the employer's related duties is correct?