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[2016] ZAGPPHC 1024
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Joubert v Buscor Proprietary Limited (2013/13116) [2016] ZAGPPHC 1024 (9 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
CASE
NUMBER: 2013/13116
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
9/12/2016
In
the matter between:
ILANA
CEDAR
JOUBERT
Applicant
and
BUSCOR
PROPRIETARY
LIMITED
Respondent
JUDGMENT
SIWENDU,
AJ
INTRODUCTION
[1]
The plaintiff seeks the court's leave to amend Particulars of Claim
in proceedings instituted against the defendant. She seeks
to recover
the past and future loss of earnings due to her as well as to her two
minor children. The loss follows the death of
her husband ('the
deceased'). The plaintiff alleges that the defendant requested or
permitted or allowed the deceased to enter
a sump with a submersible
pump. The sump is a confined oxygen-deficient space with oil, toxic,
hazardous vapour, dust, and fumes.
As a consequence of the exposure,
the deceased suffered severe injuries to his central nervous system
leading to his death.
[2]
At the time, the deceased, held the position of an apprentice with
Lira Electrical CC ('the close corporation'). The close corporation
was in turn contracted by the defendant to carry out electrical,
mechanical repairs and maintenance of equipment owned by the
defendant, situated at the defendant's premises and depot.
[3]
For convenience, the parties will be referred to as they appear in
this application, as 'the applicant' and 'the respondent'
through out
the judgment.
AMENDMENTS
SOUGHT
[4]
The applicant seeks to leave to effect four amendments to the
particulars of claim which are that:
[4.1]
the reference to the year 2012 in para 11 of the particulars is
deleted and substituted by the year 2011.The amendment is
not
opposed;
[4.2]
the insertion of the word 'alternatively' between paragraphs 24 and
25 of the particulars of claim the consequence of which
is that it
will read as follows:
24
"
In the premise, the defendant owed
a
statutory
duty of care to the deceased and his dependeants to compligation its
duties in terms of OHSA and the regulations, which
duty it breached.
Alternatively
The
defendant owed the deceased and his dependants a common law duty of
care to take reasonable measures to ensure the saftey of
persons
employed in the work place, which included a duty of ensure that the
provisions of the OHSA and regulations were complied
with."
[4.3]
once the amendment in 4.2 has been effected, the addition of the
following wording to para 25 of the particulars:
'and to take
reasonable measures to ensure the safety of persons entering upon the
premises of the defendant , and in particular
persons who accessed,
used, maintained and repaired the defendant 's waste run-off removal
system, of which the sump forms part,
because the system is an
inherently dangerous installation and further creates a source of
danger';
[4.4]
the amendment of the wording in para 26 of the particulars to read as
follows:
'The defendant
is strictly liable for the plaintiff's damages as a result of its
breach of its statutory duties, alternatively,
the defendant breached
its statutory duties and/or common law duty that it owed to the
deceased and his dependents, by negligently
failing to take the
measures set out in paragraph 17, which it could and should
reasonably have done'.
[5]
Other than the amendment in respect of the date, the application for
amendment was opposed. It merits mention at this stage
that the
notice of objection filed on record was in respect of the amendment
to para 26 of the particulars of claim only. The objection
states
that:
The defendant's
objection is in respect of a portion of paragraph 4 of the proposed
amendment where the proposed amendment reads:
'the
defendant is strictly liable for the plaintiff's damages as
a
result of its breach of its statutory duties.
'
[6]
The main thrust of the amendment is to introduce an alternative plea
to the initially pleaded case solely based on a breach
of a common
law duty of care. The applicant seeks to introduce an amendment which
places reliance on the duties imposed by sec
9(1) of the Occupational
Health and Safety Act, 85 of 1993, ('the OHSA')
[1]
read together with the Reg 5
[2]
under the OHSA. In this regard, she seeks to plead in the alternative
that the respondent must be held strictly liable for what
is alleged
to be a negligent a breach of a statutory duty.
THE
APPLICANT'S ARGUMENT
[7]
Mr. Bester for the applicant argued that strict liability is not a
novel legal concept in our law. It has found application
in numerous
cases overtime. He submitted that if Ijuxtaposed sec 9 of the Act
with secs 28(1)
[3]
and 49 of the National Environmental Management Act ('NEMA'), I will
find that the provisions of these sections are similar. Given
this,
based on the decision in
Bareki
NO and others v Gencor
[4]
,
the
court in considering the nature of the duty imposed, held that sec 28
of NEMA created strict liability on the part of the owner
or the
possessor of the premises. He submitted that I should adopt a similar
approach in interpreting sec 9(1) of OHSA. The wording
with regards
to the measure of the duty is similar in both statutes. Both make
reference to the taking of reasonable measures to
prevent harm.
[8]
The second leg of the argument, is that I should apply the holistic
approach and follow the principles laid down in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[5]
read
together with
Bothma-Batho
Transport (Edms) Beperk
[6]
in
interpreting the provisions of the OHSA. In doing so, I will find
that a breach of sec 9 and the regulations results in strict
liability on the part of the employer. He further submitted that
interpretation of the legislation engages matters of policy in
the
context of all the relevant facts. In this regard, I should consider
the dictum in
PMB
Armature Winder v Pietermaritzburg City Council,
Didcott
J stated that:
'as industry and
technology spread, as their complexities multiply, as their
destructive potential grows, so the case for their
absolute liability
gains strength'.
He
argued that when the account of the inherent dangers, in this case,
is considered , it should be indicative that sometimes it
is
appropriate to allow for strict liability.
THE
RESPONDENT'S OBJECTION AND ARGUMENT
[9]
Mr. Redding SC for the respondent argued as the first ground for
objection that the OHSA does not make provision for the strict
liability contended for in the event of a breach of the duties
imposed by the Act. He submitted that a pleading based on strict
liability would be bad and non-existent in law as it will render the
pleadings excipiable if allowed. As a second ground, he submitted
that the deceased cannot institute a claim against the respondent as
he was not an employee as envisaged in OHSA. Employees are
required
to act in a manner conducive to safety.
[7]
It is common cause that the deceased was an employee of a
subcontractor engaged by the respondent at the time.
[10]
As a third ground, Mr. Redding SC argued that I should distinguish
OHSA from NEMA. OHSA's aim is not to give cause for action
or
compensation as it is a preventative statute. The criminal sanction
provided in the OHSA is the indicator
[8]
that the aim of the legislation is not compensation for accidents but
is preventative in its prescripts. He argued that where the
legislation like OHSA imposes a standard of care, it is an indication
that strict liability was never intended. He submitted that
I should
distinguish the
Lascon
and
Bareki
decisions
in the interpretation of the OHSA.
[11]
On other substantive aspects, Mr.Redding SC submitted that the
amendment would create confusion in that, two causes of action,
one
based on a common law duty and the other based on a breach of
statutory duty would result. This would, in turn, create two
trials,
one based on strict liability and one based on common law. He argued
further that the respondent would be prejudiced at
the trial stage in
that it would be prevented from leading evidence about whether or not
it was negligent as negligence would be
irrelevant if strict
liability is allowed. This would constrain the respondent in mounting
a defence to show that it was not negligent,
as it would be
effectively prevented from leading this evidence.
[12]
He argued that it was not the intention and interest of the
Legislator to make a defendant liable in spite of them not being
negligent. There is no indication that the intention of the
legislator was that negligence need not be proved.
ISSUE
FOR DETERMINATION
[13]
The objection raised engages numerous questions of law. In
determining whether a case been made out for an amendment, I am
bound
to determine not merely the procedural requirements and the effect of
the amendment sought, but also whether the amendment
renders the
pleadings excipiable if granted. This is linked inextricably with two
further issues raised by the respondent. The
first is whether OSHA
imposes strict liability. The second is whether the applicant is
precluded from instituting a claim based
on a breach of a duty of
care at common law simultaneously with that based on the breach of
OHSA, pleaded in the alternative. The
latter touches on the claim
that the Respondent will be prejudiced thereby.
APPLICABLE
LEGAL PRINCIPLES
[14]
It is essential to refer to the provisions of OHSA as a starting
point, to deal with the argument by the respondent, that the
deceased
in turn his dependents cannot institute a claim for compensation
against the respondent for want of a direct employment
relationship.
Is
applicant excluded from instituting a claim against the employer by
OHSA?
[15]
I am in agreement in part with the respondent that the scheme of OSHA
is to ensure preventative measures against health and
safety hazards
and injuries. OSHA provides for reciprocal obligations by employers
and employees as well as joint governance structures
for workplace
safety through safety committees.
[9]
[16]
The submission that, the deceased, an erstwhile employee of a
subcontractor , is not owed a duty of care derives from a common-
law
principle evident in
Peri
.
Urban Areas Health Board v Munarin
[10]
.
The court in
Peri-
Urban
held
that a duty of care is not owed to workers of a contractor unless the
terms of a contract or other factors create a duty. This
common law
principle predates OHSA. Consequently, a reference to some of the
provisions of OHSA is necessary. The preamble to the
act refers to
the protection of persons other than persons at work against hazards
to health and safety arising out of or in connection
with activities
of persons at work.
[17]
Section 9(1) of OSHA imposes general duties on employers towards
other persons other than employees
[11]
over and above duties of employees at work
[12]
for workplace health and safety. The section refers to 'persons other
than those in his employment' who are owed the general duty
and
protection. In my view, the wording of sec 9(1) is broad enough to
include subcontractors like the deceased and the public
at large if
they may be affected by the employer's activities.
[18]
Regard also is to be had of the recent decision in
Health
Resource Group and
,
others
v Minister of Labour and others
[13]
dealing with the reach of the OHSA to third parties other than
employees. The court, in this case, dealt with access to information
emanating from inquiries conducted under the act. In interpreting sec
32 of OHSA, the court held that reference to 'any person'
in the act
means that the provisions are not directed at employees only.
[19]
Relevant to the case at hand is secs 37(1) and (2)
[14]
of OHSA. The sections create the rebuttable presumption that the
prohibited act or omission if it occurs, is that of an employer
or
users. It introduces vicarious liability of an employer or user for
workplace health and safety injuries and hazards. In my
view, this
somewhat alters the common-law position relied upon by the
respondent.
[20]
For completion, it is also necessary to have regards to sec 35
[15]
of the Compensation for Occupational Injuries and Diseases Act, 1993
('COIDA') for the context and understanding of health and
safety
regulation. While COIDA is only relevant in so far as the right to
compensation for employees and dependents is concerned,
it provides a
material backdrop against which to view the respondent's
interpretation and argument. Section 35 of COIDA specifically
precludes any employee or the dependent of any employee from
instituting civil proceedings against an employer for recovering a
loss flowing from occupational injury or disease in the civil courts.
[21]
As a result of the factors above, I part ways with the restricted
interpretation argued by the respondent. It is not a tenable
one. It
would lead to an absurd result which precludes not only employees but
third parties and the public at large from instituting
civil claims
for workplace-related health and safety injuries against An employer.
Activities of an enterprise extend beyond employees
and may include
families and surrounding communities where the enterprise operates.
OHSA was not only enacted for the benefit of
employees but for the
benefit of third parties and the public. I am satisfied that the
applicant's right of action or that of a
third party who is not an
employee enjoys protection, and is thus not limited.
[22]
I hold that sec 9(1) covers the deceased and in turn, the applicant
as a person contemplated thereof. Consequently, she can
institute
proceedings against an employer like the respondent in the present
case
Does
OHSA envisage strict liability on the part of the employer?
[23]
The hallmark and accepted principles of strict liability is a
reference to and a finding of liability or guilt despite the
absence
of fault. It arises in respect of civil and criminal claims disputes.
Strict liability offences are generally of a regulatory
nature and
where it is particularly important to maximise compliance, for
example, public safety or protection of the environment.
[24]
The view has prevailed in the past that our courts have demonstrated
a reluctance to impose strict liability. On the other
hand,
legislative developments demonstrate that strict liability is a
modern feature of our law.
[16]
[25]
The first clear indication of acceptance is evident in the
PMB
Armature
Winders
and Bareki NO and another v Gencor Ltd
[17]
decisions
[18]
.
In the
PMB
Armature
Winders
decision
Didcott J draws a court faced with such a matter to the basic
principles of interpretation of a statute, namely whether
the
interpretation proffered accords with the intention of the
Legislature as opposed to a court's predilection and consideration
of
the concomitants on the matter. The
Bareki
NO and
Another
v Gencor Ltd
decision
enjoins a court to have regards to nature of the duty or obligation
created by the statute as well as the circumstances
under which it
arises. The constitutional court in Coo/
Ideas
1186
CC
v
Hubbard and Another
[19]
affirms the fundamental tenant and starting point that the words in a
statute must be provided with their ordinary grammatical
meaning.
Where the wording of the section is clear and unambiguous, the Court
is obliged to ascertain the intention of the Legislature
from the
language which it employed
[20]
.
Cool
Ideas
further
states that the legislation must be interpreted purposively, having
due regards to context, in a manner consistent with
and that
preserves constitutional validity.
[26]
I have placed reliance on these preexisting principles and must as a
starting point revisit sec 9 (1) which states that:
'Every employer
shall conduct
his undertaking in such a manner as
to
ensure
,
as far as
reasonably practicable
,
that
persons other than those in his employment who may be directly
affected by his activities
are not thereby exposed to hazards to
their health or safety
(own emphasis).'
Regulation
5 (1) states that:
'An employers or
user of machinery
shall take steps to ensure
that a confined
space is entered by an employee or other person
only
after the
air therein has been tested and evaluated by a person who is
competent to pronounce of the safety thereof, and who has
certified
in writing that the confined space is safe and will remain safe while
any person is in the confined space taking into
account the nature
and duration of the work to be performed therein' (own emphasis).
[27]
In providing context for the interpretation of OHSA, Mr. Redding SC
placed reliance on Prof Paul Benjamin commentary on OHSA
to argue
that the aim of the legislation was preventative and was not intended
to impose strict liability. Prof Benjamin states
that OHSA aims at
amongst others,
[27.1]
a reorientation of the employer's general duties to a more active
approach to the elimination or mitigation of hazards;
[27.2]
the extension of the employer's obligations to supply workers, with
information on dangers present in the work environment
as well as
provide; and
[27.3]
a more comprehensive protection of the public from safety and health
hazards emanating from workplaces.
[28]
Mr. Redding's argument placed an over-emphasis on the preventative
aspects relating to employer-employee responsibilities.
It fails to
account for the broader import and protections afforded to third
parties and the public already alluded to in above.
It is incorrect
to interpret OHSA in a manner that holds that outsiders who are not
connected with the day to day operations of
an employer's business
and activities have similar obligations to those of employees.
[29]
When an account of the ordinary grammatical meaning of the section is
considered, it reveals from its plain reading and the
language dual
components or elements. The first instance is in the use of the words
"shall conduct" and "ensure".
In my view, this
indicates the imposition of duty on an employer in imperative terms.
The second instance is the legislation of
the standard of care
through the use of the words as far as "'reasonably
practicable". The elements of this standard
required of an
employer are articulated in the regulation 5.
[30]
In my view, the effect is that the section and regulation have not
only imposed a duty of care on the employer. They have,
also,
hard-wired the standard of care. In this regard, the liability of an
employer flows directly from the malum prohibitum conduct
of the
breach of the duty as well as the breach of the prescribed standard
imposed by OHSA.
[31]
When an account of section 37(1) in respect of the presumption of
acts or omissions by an employer is considered, there is
more
required of an employer. The section states that the fact that an
employer has issued instructions forbidding any act or omission
of
the kind in question shall not, in itself, be sufficient proof that
it took all reasonable steps to prevent the act or omission.
In my
view, this puts the conduct of the employer under scrutiny beyond the
incidence of the onus of proof. To exculpate itself
from liability,
the employer must show that it met the prescribed standard by
demonstrating the actual measures taken to prevent
or mitigate the
safety risk or hazard created.
[32]
In my view, liability flows naturally from the regulation of the
foreseeable risk inherent in the employer's hazardous activity
and
operations as well as the conduct which if proved, is found wanting
by falling below the standard of care prescribed for the
nature of
activity or operations in which it is engaged . In this regard, OHSA
imposes both a duty and a standard of care in absolute
terms. For
this reason, on the plain reading of OHSA, and the reasons above, the
liability of the employer is a strict one. It
is thus not necessary
to consider other paralell legislation in this regard.
[33]
Other than the intrinsic interpretation of OHSA Mr. Redding's
contention against the imposition of strict liability is that
negligence will not be a factor and the Respondent will be prejudiced
by this. I understood this to mean that the respondent will
be
deprived the opportunity of proving the converse, that is, the
absence of negligence on its part. Since I have accepted that
the
section sanctions and imposes strict liability, this argument must
first be evaluated against what the applicant would need
to prove to
succeed. She would need to show that:
[33.1]
the respondent owed a duty of care to the deceased as a foreseeable
third party or bystander contemplated in OHSA;
[33.2]
a breach of that duty in that the respondent's conduct fell below the
applicable standard of care referred to in Regulation
5 of the
activity and operations in which it is engaged;
[33.3]
as well as injury to the deceased in turn the applicant that was
caused by the breach; and
[33.4]
the damages suffered.
[34]
The elements above are to be contrasted with the principles to
determine the traditional common law test of negligence. These
were
developed and restated in numerous cases over time.
Kruger
v Coetzee
[21]
and
in
Ngubane
v South African Transport Services.
[22]
The assessment is an objective test applied in both criminal and
civil cases. The common denominator from case law is that a system
of
assessment of liability based on a breach of a standard of care
expected of a reasonable person has evolved. The dScision in
Herschel
v Mrupe
is
emphatic that the test is grounded in the circumstances of the
particular case and is not one in the air. I have already held
above
that OHSA imposes dually, a duty and a standard of care on an
employer resulting in a strict liability of an employer. The
test of
reasonableness of the employer's measures is entrenched.
[35]
Given that the standard of care is already hard wired in OHSA
together with the regulations, any existing fault (whether dolus
or
culpa) is inherent and can be inferred from the failure to meet the
prescribed standard if it is found to be so from the facts.
Furthermore, the enacted measure of reasonableness touches squarely
on the extent of the employer's negligence or otherwise. I
must
accept that the effect of section 37 of OHSA is that the onus would
be shifted to the respondent to demonstrate the reasonable
measures
taken. In my view, the absence of negligence on the part of the
respondent will be an inherent component of discharging
the onus of
proving that it took the reasonable measures required of it. Under
such circumstances, in a claim based on the breach
of the provisions
of OHSA, it would not be necessary to deal with negligence
separately. It will be inherent or can be inferred
from the failure
to meet the prescribed standard should the failure be proved. Thus,
an employer would not be deprived of showing
an absence of negligence
on its part as contended. To hold to the contrary would result in yet
another absurdity. The complaint
by the respondent is not well
founded.
Whether
a claim at common law can lie side by side, with an alternative claim
of a statutory breach?
[36]
The respondent alleges a confusion will result if I were to allow
strict liability simultaneously with the alternative common
law
claim. I have examined the respondent's complaint against the
decision in
In
Perre v Apand (Pty) Ltd
[23]
as
well as the decision
in
Premier, Western Cape v Fair Cape Property Developers (Pfy) Ltd. In
Perre,
McHugh
J held that in most delictual cases, the facts which establish
negligence are precisely the same as those which establish
wrongfulness even though that characteristic does not detract from
the distinction between the legal elements and the necessity
for the
success of any claim under the aquillian action that both must be
established. In
Premier,
Western Cape decision,
Lewis
JA held the test of reasonableness goes not only to negligence but
also to determine the boundaries of lawfulness .'
[37]
In
Le
Roux v Dey (Freedom of Expression Institute and Restorative Justice
Centre
as
amici
curiae),
[24]
the constitutional court cautions against confusion. The court held
that what is meant by reasonableness in the context of wrongfulness
has nothing to do with the reasonableness of the defendant's conduct
(which is part of the element of negligence). Reasonableness
in
respect of wrongfulness concerns the reasonableness of imposing
liability on the defendant for the harm resulting from that
conduct.'
In my view, the malum prohibitum conduct has, in the wisdom of the
legislature already been regulated.
[38]
The question is whether the codification of the duty and standard of
care excludes a claim in delict based on common law. In
my view, the
respondent confuses the nature of the inquiry with regards to
wrongfulness to be proved at common law and that flowing
from the
statutory imposition of the duty in OHSA It seems to me that an
onerous task lies ahead on the applicant who seeks to
plead her case
in the manner sought than on the respondent. I am of the view that
the respondent's claim that it will be prejudiced
is not well
founded. Nothing in the reading of the provisions of OHSA indicates
that the codification of the duties excludes or
is intended to
exclude or limit a common law claim a party may have. Both actions
can lie side by side, pleaded in the alternative
as sought.
[39]
Given the findings above, the application for the amendment of the
pleadings constitutes a matter that is deserving of consideration
by
the courts. There is surprisingly thin case law developed on the
question of liability of an employer or user under OHSA It
is a
matter that is deserving of proper ventilation. The proceedings are
not at an advanced stage that they would prejudice the
respondent.
The prejudice claimed by the respondent is not well founded and is
not one that cannot be cured by proper narrowing
of the issues
through an effective pretrial conference.
Costs
[40]
The respondent argued substantive points of law some of which fell
outside of The Notice of the Objection to the Amendment
filed. It was
not succesful. Mr. Redding called on me to adopt a more flexible
approach as these issues were dealt with in the
heads of argument. He
conceded that if I was not with him, then he is constrained by the
terms of notice objection filed.
[41]
I am of the view that while the respondent can be criticised for the
handling of some of the apsect of the objection, it is
not a matter
that warrants that punitive costs be awarded . The questions of law
were not raised spuriously. Nevertheless, the
respondent was not
successful. It follows that the applicant should not be deprived of
her costs. The costs must follow the result.
[42]
In the result, I make the following order:
1. The
amendments sought in 4.2, 4.3 and 4.4 above are granted.
2. The
respondent is ordered to pay the costs of the applicant except in
respect of the amendment with regards to the date which
was not
opposed.
__________________
Siwendu
AJ
Acting
Judge of the High Court
Counsel
for the Applicant:
ADV A BESTER
Attorneys
for the Applicant:
RICHARD SPOOR INC
(012)
430 4303
Counsel
for the Respondent:
ADV A REDDING SC
Attorneys
for the Respondent:
NORTON ROSE FULBRIGHT
(011)
685 8708
Date
of hearing:
15 September 2016
Date
of judgment:
09 December 2016
[1]
Section 9(1) 'Every employer shall conduct his undertaking in such a
manner as to ensure, as far as is reasonably practicable,
that
persons other than those in his employment who may be directly
affected by his activities are not thereby exposed to hazards
to
their health or safety'.
[2]
An employer or? shall take steps to ensure that a confined space is
entered by an employee or other person only after the air
therein
has been tested.
[3]
Every person who causes, has caused or may cause significant
pollution or degradation of the environment must take reasonable
measures to prevent such pollution or degradation from occurring,
continuing, recurring, or in so far as such harm to the environment
is authorised by law or cannot reasonably be avoided or stopped, to
minimise and rectify such pollution or degradation of the
environment
[4]
Bareki N 0 and another v Gencor Ltd and Others 2006(1) Sa 432 (T)
page 8 of 20
[5]
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4)
SA 593 (SCA)
[6]
Bothama-Transport(Edms) Beperk v S Botham & Seun Transport
(Edms) Beperk 2014 (2) SA 494 (SCA)
[7]
Paul Benjamin:Commentary on the Occupational health and Safety Act;
Juta's Occupational Health and Safety Library
[8]
Paragraph 26 of the Respondent's Head of Argument.
[9]
Sections 17,18,19 and 20 of OHSA
[10]
1965 (3) SA 367 (A).
[11]
Section 9
of the
Occupational Health and Safety Act 85 of 1993
.
[12]
Section 14
of the
Occupational Health and Safety Act 85 of 1993
[13]
2015 (4) ALL SA 78 (GP).
[14]
Section 37(1)
Whenever an employee does or omits to do any act which
it would be an offence in terms of this Act for the employer of such
employee
or user to do or omit to do, then, unless it is proved
that- (a) in doing or omitting to do that act the employee was
acting
without the connivance or permission of the employer or any
such user; (b) it was not under any condition or in any circumstance
within the scope of the authority of the employee to do or omit to
do an act, whether lawful or unlawful, of the character of
the act
or omission charged; and (c) all reasonable steps were taken by the
employer or any such user to prevent any act or omission
of the kind
in question, the employer or any such user himself shall be presumed
to have done or omitted to do that act, and
shall be liable to be
convicted and sentenced in respect thereof; and the fact that he
issued instructions forbidding any act
or omission of the kind in
question shall not, in itself, be accepted as sufficient proof that
he took all reasonable steps to
prevent the act or omission. Section
37 (2) The provisions of subsection (1), shall mutatis mutandis
apply in the case of a mandatary
of an employer or user, except if
the parties have agreed in writing to the arrangements and
procedures between them to ensure
compliance by the mandatary with
the provisions of this Act.
[15]
Section 35 of the Compensation for Occupational Injuries and
Diseases Act 1993 states that.
[16]
See The Consumer Protection Act 68 of 2008;Telkom (SA) v
Duncan[1995)
3 All SA 412(W)
,CibaGeigy(Pty)Ltd v Lushof Farms
(Pty) Ltd en n' Anders 2002{2)SA 447 (SCA),National Environmental
Management Act, 107 of
1996
[17]
Paragraph 7 supra
[18]
Supra.
[19]
2014 (4) SA 474 (CC)
[20]
This is as pointed out by Innes CJ as long ago as 1907 in the
well-known case of Venter v R
1907 TS 910
at 913.
[21]
1966(2) SA 428 A 'For the purposes of liability culpa arises if -
(a) a diligens paterfamilias in the position of the defendant
- (i)
would foresee the reasonable possibility of his conduct injuring
another in his person on property and causing him patrimonial
loss;
and (ii) would take reasonable steps to guard against such
occurrence; and (b) the defendant failed to take such steps.'
[22]
Kumleben JA, states that 'Once it is established that a reasonable
man would have foreseen the possibility of harm, the question
arises
whether he would have taken measures to prevent the occurrence of
the foresseable harm. The answer depends on the circumstances
of the
case. There are, however, four basic considerations in each case
which influence the reaction of the reasonable man in
a situation
posing a foreseeable risk of harm to others: (a) the degree or
extent of the risk created by the actor's conduct;
(b) the gravity
of the possible consequences if the risk of harm materialises; (c)
the utility of the actor's conduct; and (d)
the burden of
eliminating the risk of harm.'
[23]
[1999] HCA 36
;
(1999) 198 CLR 180
(H C of A), para 132.
[24]
2011 (3) SA 274
(CC) para 122.