"Occupational Health and Safety Act"

31. Investigations

1. An inspector may investigate the circumstances of any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the inspector could have resulted, in the injury, illness or death of any person in order to determine whether it is necessary to hold a formal investigation in terms of section 32. 2. After completing the investigation in terms of subsection (1) the inspector shall submit a written report thereon, together with all relevant statements, documents and information gathered by him, to the attorney- general within whose area of jurisdiction such incident occurred and he shall at the same time submit a copy of the report, statements and documents to the chief inspector. 3. Upon receipt of a report referred to in subsection (2), the attorney- general shall deal therewith in accordance with the provisions of the Inquests Act, 1959 (Act No. 58 of 1959), or the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as the case may be. 4. An inspector holding an investigation shall not incur any civil liability by virtue of anything contained in the report referred to in subsection (2).

32. Formal enquiries

1. The chief inspector may, and he shall when so requested by a person producing prima facie evidence of an offence, direct an inspector to conduct a formal inquiry into any incident which has occurred at or originated from a workplace or in connection with the use of plant or machinery which has resulted, or in the opinion of the chief inspector could have resulted, in the injury, illness or death of any person. 2. For the purposes of an inquiry referred to in subsection (1) an inspector may subpoena any person to appear before him on a day and at a place specified in the subpoena and to give evidence or to produce any book, document or thing which in the opinion of the inspector has a bearing on the subject of the inquiry. 3. Save as is otherwise provided in this section, the law governing criminal trials in magistrates' courts shall mutatis mutandis apply to obtaining the attendance of witnesses at an inquiry under this section, the administering of an oath or affirmation to them, their examination, the payment of witness fees to them and the production by them of books, documents and things. 4. Any inquiry under this section shall be held in public: Provided that the presiding inspector may exclude from the place where the inquiry is held, any person whose presence is, in his opinion, undesirable or not in the public interest. 5. a. The presiding inspector may designate any person to lead evidence and to examine any witness giving evidence at a formal inquiry. b. Any person who has an interest in the issue of the formal inquiry may personally or by representative, advocate or attorney put such questions to a witness at the inquiry to such extent as the presiding inspector may allow. c. The following persons shall have an interest as referred to in paragraph (b), namely - i. any person who was injured or suffered damage as a result of the incident forming the subject of the inquiry; ii. the employer or user, as the case may be, involved in the incident; iii. any person in respect of whom in the opinion of the presiding inspector it can reasonably be inferred from the evidence that he could be held responsible for the incident; iv. a trade union recognized by the employer concerned or any trade union of which a person referred to in subparagraph (i) or (iii) is a member; v. any owner or occupier of any premises where the said incident occurred; vi. any other person who, at the discretion of the presiding inspector, can prove such interest. 6. a. An inquiry may, if it is necessary or expedient, be adjourned at any time by the presiding inspector. b. An inquiry adjourned under paragraph (a) may at any stage be continued by an inspector other than the inspector before whom the inquiry commenced, and may after an adjournment again be continued by the inspector before whom the inquiry commenced. 7. An affidavit made by any person in connection with the incident in respect of which the inquiry is held, shall at the discretion of the presiding inspector upon production be admissible as proof of the facts stated therein, and the presiding inspector may, at his discretion, subpoena the person who made such an affidavit to give oral evidence at the inquiry or may submit written interrogatories to him for reply, and such interrogatories and any reply thereto purporting to be a reply from such person shall likewise be admissible in evidence at the inquiry: Provided that the presiding inspector shall afford any person present at the inquiry the opportunity to refute the facts stated in such document, evidence or reply. 8. a. Whenever in the course of any inquiry it appears to the presiding inspector that the examination of a witness is necessary and that the attendance of such witness cannot be procured without a measure of delay, expense or inconvenience which in the circumstances would be unreasonable, the presiding inspector may dispense with such attendance and may appoint a person to be a commissioner to take the evidence of such witness, whether within or outside the Republic, in regard to such matters or facts as the presiding inspector may indicate. b. Any person referred to in subsection (5)(b) may in person or through a representative, advocate or attorney appear before such commissioner in order to examine the said witness. c. The evidence recorded in terms of this subsection shall be admissible in evidence at the inquiry. 9. At the conclusion of an inquiry under this section, the presiding inspector shall compile a written report thereon. 10. The evidence given at any inquiry under this section shall be recorded and a copy thereof shall be submitted by the presiding inspector together with his report to the chief inspector, and in the case of an incident in which or as a result of which any person died or was seriously injured or became ill, the inspector shall submit a copy of the said evidence and the report to the attorney-general within whose area of jurisdiction such incident occurred. 11. Nothing contained in this section shall be construed as preventing the institution of criminal proceedings against any person or as preventing any person authorized thereto from issuing a warrant for the arrest of or arresting any person, whether or not an inquiry has already commenced. 12. Upon receipt of a report referred to in subsection (10), the attorney general shall deal therewith in accordance with the provisions of the Inquests Act, 1959 (Act No. 58 of 1959), or the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as the case may be. 13. An inspector presiding at any formal inquiry shall not incur any civil liability by virtue of anything contained in the report compiled in terms of subsection (9).

33. Joint enquiries

1. The provisions of section 32 shall not affect the provisions of any law requiring and regulating inquests or other inquiries in case of death resulting from other than natural causes, and in respect of each incident referred to in that section in which or in consequence of which any person has died there shall be held, in addition to an inquiry under the said section, such inquest or inquiry as is required by any such law, but an inquiry under the said section and an inquest held by a judicial officer under the Inquests Act, 1959 (Act No. 58 of 1959), may be held jointly. 2. At such a joint inquiry and inquest the judicial officer shall preside and thereupon the provisions of the Inquests Act, 1959, shall apply, but the inspector and the judicial officer shall each make the report required of them by section 32(9) and that Act, respectively.

34. Obstruction of investigation or inquiry or presiding Inspector or failure to render assistance

No person shall, in relation to any investigation or inquiry held in terms of section 31 or section 32 - a. without reasonable justification fail to comply with any lawful direction, subpoena, request or order issued or given by the presiding inspector; b. refuse or fail to answer to the best of his knowledge any question lawfully put to him by or with the concurrence of the presiding inspector: Provided that no person shall be obliged to answer any question whereby he may incriminate himself; c. in any manner whatsoever advise, encourage, incite, order or persuade any person who has been directed, subpoenaed, requested or ordered to do something by the presiding inspector, not to comply with such direction, subpoena, request or order or in any manner prevent him from doing so; d. refuse or fail, when required thereto by the presiding inspector, to furnish him with the means or to render him the necessary assistance for holding such inquiry; e. refuse or fail, when required thereto by the presiding inspector, to attend an inquiry; or f. intentionally insult the presiding inspector or his assistant or intentionally interrupt the proceedings thereof.

35. Appeal against decision of Inspector

1. Any person aggrieved by any decision taken by an inspector under a provision of this Act may appeal against such decision to the chief inspector, and the chief inspector shall, after he has considered the grounds of the appeal and the inspector's reasons for the decision, confirm, set aside or vary the decision or substitute for such decision any other decision which the inspector in the chief inspector's opinion ought to have taken. 2. Any person who wishes to appeal in terms of subsection (1), shall within 60 days after the inspector's decision was made known, lodge such an appeal with the chief inspector in writing, setting out the grounds on which it is made. 3. Any person aggrieved by a decision taken by the chief inspector under subsection (1) or in the exercise of any power under this Act, may appeal against such decision to the industrial court, and the industrial court shall inquire into and consider the matter forming the subject of the appeal and confirm, set aside or vary the decision or substitute for such decision any other decision which the chief inspector in the opinion of the industrial court ought to have taken. 4. Any person who wishes to appeal in terms of subsection (3) , shall within 60 days after the chief inspector's decision was given, lodge such appeal with the registrar of the industrial court in accordance with the rules of the industrial court. 5. An appeal under subsection (1) or (3) in connection with a prohibition imposed under section 30(1)(a) or (b) shall not suspend the operation of such prohibition.

36. Disclosure of information

No person shall disclose any information concerning the affairs of any other person obtained by him in carrying out his functions in terms of this Act, except - a. to the extent to which it may be necessary for the proper administration of a provision of this Act; b. for the purposes of the administration of justice; or c. at the request of a health & safety representative or a health and safety committee entitled thereto.

37. Acts or omissions by employees or mandataries

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 a 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. 2. The provisions of subsection (1) shall mutatis mutandis apply in the case of a mandatary of any 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. 3. Whenever any employee or mandatary of any employer or user does or omits to do an act which it would be an offence in terms of this Act for the employer or any such user to do or omit to do, he shall be liable to be convicted and sentenced in respect thereof as if he were the employer or user. 4. Whenever any employee or mandatary of the State commits or omits to do an act which would be an offence in terms of this Act, had he been the employee or mandatary of an employer other than the State and had such employer committed or omitted to do that act, he shall be liable to be convicted and sentenced in respect thereof as if he were such an employer. 5. Any employee or mandatary referred to in subsection (3) may be so convicted and sentenced in addition to the employer or user. 6. Whenever the employee or mandatary of an employer is convicted of an offence consisting of a contravention of section 23, the court shall, when making an order under section 38(4), make such an order against the employer and not against such employee or mandatary.

38. Offences, penalties and special orders of court

1. Any person who -- a. contravenes or fails to comply with a provision of section 7, 8, 9, 10(1), (2) or (3), 12, 13, 14, 15, 16(1) or (2), 17(1), (2) or (5), 18(3), 19(1), 20(2) or (4), 22, 23, 24(1) or (2), 25, 26, 29(3), 30(2) or (6), 34 or 36; b. contravenes or fails to comply with a direction or notice under section 17(6), 19(4) or (7), 21(1) or 30(1)(a), (b) or (c) or (3), (4) or (6); c. contravenes or fails to comply with a condition of an exemption under section 40(1); d. in any record, application, statement or other document referred to in this Act wilfully furnishes information or makes a statement which is false in any material respect; e. hinders or obstructs an inspector in the performance of his functions; f. refuses or fails to comply to the best of his ability with any requirement or request made by an inspector in the performance of his functions; g. refuses or fails to answer to the best of his ability any question which an inspector in the performance of his functions has put to him; h. wilfully furnishes to an inspector information which is false or misleading; i. gives himself out as an inspector; j. having been subpoenaed under section 32 to appear before an inspector, without sufficient cause (the onus of proof whereof shall rest upon him) fails to attend on the day and at the place specified in the subpoena, or fails to remain in attendance until the inspector has excused him from further attendance; k. having been called under section 32, without sufficient cause (the onus of proof whereof shall rest upon him)- i. refuses to appear before the inspector; ii. refuses to be sworn or to make affirmation as a witness after he has been directed to do so; iii. refuses to answer, or fails to answer to the best of his knowledge and belief, any question put to him; or iv. refuses to comply with a requirement to produce a book, document or thing specified in the subpoena or which he has with him; l. tampers with or discourages, threatens, deceives or in any way unduly influences any person with regard to evidence to be given or with regard to a book, document or thing to be produced by such a person before an inspector under section 32; m. prejudices, influences or anticipates the proceedings or findings of an inquiry under section 32 or section 33; n. tampers with or misuses any safety equipment installed or provided to any person by an employer or user; o. fails to use any safety equipment at a workplace or in the course of his employment or in connection with the use of plant or machinery, which was provided to him by an employer or such a user; p. wilfully or recklessly does anything at a workplace or in connection with the use of plant or machinery which threatens the health or safety of any person, shall be guilty of an offence and on conviction be liable to a fine not exceeding R50 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment. 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 who does or omits 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, 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 or not 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 for a period not exceeding two years or to both such fine and such imprisonment. 3. Whenever a person is convicted of an offence consisting of a failure to comply with a provision of this Act or of any direction or notice issued thereunder, the court convicting him may, in addition to any punishment imposed on him in respect of that offence, issue an order requiring him to comply with the said provision within a period determined by the court. 4. Whenever an employer is convicted of an offence consisting of a contravention of a provision of section 23, the court convicting him shall inquire into and determine the amount which contrary to the said provision was deducted from the remuneration of the employee concerned or recovered from him and shall then act with respect to the said amount mutatis mutandis in accordance with sections 28 and 29 of the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983), as if such amount is an amount underpaid within the meaning of those sections.

39. Proof of certain facts

1. Whenever in any legal proceedings in terms of this Act it is proved that any person was present on or in any premises, that person shall, unless the contrary is proved, be presumed to be an employee. 2. In the absence of satisfactory proof of age , the age of any person shall, in any legal proceedings in terms of this Act, be presumed to be that stated by an inspector to be in his opinion the probable age of the person; but any person having an interest who is dissatisfied with that statement of opinion may, at his own expense, require that the person whose age is in question appear before and be examined by a district surgeon, and a statement contained in a certificate by a district surgeon who examined that person as to what in his opinion is the probable age of that person shall, but only for the purpose of the said proceedings, be conclusive proof of the age of that person. 3. In any legal proceedings in terms of this Act, any statement or entry contained in any book or document kept by any employer or user or by his employee or mandatary, or found on or in any premises occupied or used by that employer or user, and any copy or reproduction of any such statement or entry, shall be admissible in evidence against him as an admission of the facts set forth in that statement or entry, unless it is proved that that statement or entry was not made by that employer or user or by any employee or mandatary of that employer or user within the scope of his authority. 4. Whenever in any legal proceedings in terms of this Act it is proved that any untrue statement or entry is contained in any record kept by any person, he shall be presumed, until the contrary is proved, wilfully to have falsified that record. 5. a. Whenever at the trial of any person charged with a contravention of section 22 it is proved that the accused sold or marketed any article, substance, plant, machinery or health and safety equipment contemplated in that section, it shall be presumed, until the contrary is proved, that such article, substance, plant, machinery or health and safety equipment did not at the time of the sale or marketing thereof comply with the said requirements. b. At any trial any document purporting to be a certificate or statement by an approved inspection authority and in which it is alleged that the article, substance, plant, machinery or health and safety equipment forming the subject of the charge complies with the requirements prescribed in respect thereof or with any particular standard, shall on its mere production at that trial by or on behalf of the accused be accepted as prima facie proof of the facts stated therein. 6. Notwithstanding the provisions of section 31(3) of the Standards Act, 1993 (Act No. 29 of 1993), whenever in any legal proceedings in terms of this Act the question arises whether any document contains the text of a health and safety standard incorporated in the regulations under section 44, any document purporting to be a statement by a person who in that statement alleges that he is an inspector and that a particular document contains the said text, shall on its mere production at those proceedings by any person be prima facie proof of the facts stated therein. 7. The records to be kept by a health and safety committee in terms of section 20(2), including any document purporting to be certified by an inspector as a true extract from any such records, shall on their mere production at any legal proceedings by any person be admissible as evidence of the fact that a recommendation or report recorded in such records was made by a health and safety committee to an employer or inspector concerned.

40. Exemptions

1. The Minister may, for such period and on such conditions as may be determined by him, exempt any employer or user or any category of employers or users, generally or with respect to any particular employee or category of employees or users or with respect to any matter, from any of or all the provisions of this Act or the provisions of a notice or direction issued under this Act. 2. The period for which exemption may be granted under subsection (1) may commence on a date earlier than the date on which exemption is granted, but not earlier than the date on which application for such exemption was made to the Minister. 3. An exemption under subsection (1) shall - a. in the case of the exemption of a particular employer or user, be granted by issuing to such employer or user a certificate of exemption in which his name and the scope, period and conditions of the exemption are specified; b. in the case of the exemption of a category of employers or of a category of such users, be granted by the publication in the Gazette of a notice in which that category of employers or users is described and the scope, period and conditions of the exemption are specified: Provided that the Minister may grant exemption -- i. to an organization of employers or an organization of users in accordance with the requirements of either paragraph (a) or paragraph (b); ii. from any health and safety standard incorporated in the regulations under section 44, in any manner which he may deem expedient. 4. A certificate of exemption contemplated in subsection (3)(a) and a notice contemplated in subsection (3)(b) may at any time be amended or withdrawn by the Minister. 5. An exemption under subsection (1) shall lapse -- a. upon termination of the period for which it was granted; b. upon withdrawal of the relevant certificate or notice under subsection (4). 6. Any exemption granted under section 32 of the Machinery and Occupational Safety Act, 1983 (Act No. 6 of 1983), to the extent to which it grants exemption from the operation of a provision similar to a provision in respect of which exemption may be granted under subsection (1) of this section, which exemption has at the commencement of this Act not lapsed as contemplated in subsection (5) of the said section 32, shall be deemed to have been granted under this section.