Anyone deemed to be an employer in the construction industry – including owners, developers, clients, designers such as architects, principal contractors, contractors and even supervisors – can be charged with culpable homicide or even murder in the event of a person being killed on a construction site due to non-compliance or negligence.

This is the statement from Ernst van Biljon, Director at Legislation Compliance Specialists – a law firm specialising in Occupational Health & Safety (OHS), who was a keynote speaker at the OHS compliance seminar on “Reputational Damage in the Construction Industry”, hosted by Master Builders Association (MBA) North recently.

“Many owners, managers and appointees in construction companies do not fully understand the gravity of their culpability,” he says. While none have been charged with murder as yet in South Africa, the common law makes it possible, he says.

MBA North executive director, Mohau Mphomela, says the seminar was hosted as part of MBA North’s ongoing efforts to educate its members on topical issues in the industry. “Because of how relevant culpability is in the industry, we believe it is important to have experts such as van Biljon address our members on responsibility, culpability and the far-reaching impacts of events such as the incident in George, where more than 30 workers lost their lives, and more recently, in Ballito where 4 workers were buried alive.” he says.

Van Biljon says in terms of the Construction Regulation 5.1, construction clients have to prepare a baseline risk assessment, health and safety specification, where after the principal contractor is to provide the health and safety plan. What many people are unaware of is that the regulations also apply to smaller projects and even double-storey private homes, and that a project as apparently simple as painting a roof for these projects are classified as a construction work.

If injuries occur on a construction site, an employer can be prosecuted in terms of section 38 of the OHS Act. “If the state can prove that the employer was negligent in not training the person, or not issuing PPE, or not supervising properly, and it caused an accident in which a person could have died, the employer could face a R100,000 fine or two years in prison,” he says.

“If a person dies on the construction site, any role player from designer/architect all the way down to the supervisor can be investigated, and if non-compliance or negligence are proven, they can be charged with culpable homicide. Alternative charges could include prosecution under various provisions of the OHS Act as well as regulations which include the Construction Regulations. However, if it could be argued it was foreseeable that non-compliance or negligent actions or omissions lead to people’s death, employers could also be prosecuted for murder, through dolus eventualis,” van Biljon says. “Employers have a duty of care to look after employees as well as people other than their employees such as visitors etc., and if they fail to do so, they are deemed to be negligent.”

He explains: “The reasonable person test – which courts use to determine if a person was negligent – looks at whether a reasonable person could have foreseen the possibility of the incident happening, and taken action to prevent it.”

Van Biljon says the legislation is highly prescriptive around the duties of every stakeholder in a bid to avoid negligence.

Potential penalties

The penalties if convicted in a Regional Court could be a fine of up to R600,000 or 15 years in prison. However, in the High Court, fines could amount to millions of Rands, with prison sentences up to 25 years.

Van Biljon notes employers could also face civil suits if found negligent.

In addition, because employers in South Africa are legally required to provide a safe working environment, non-compliance can result in severe legal penalties and fines should a prosecution be recommended by the Department of Employment and Labour.

Accidents on site can also lead to substantial financial losses such as medical costs, workers’ compensation claims, increased insurance premiums and legal fees. Additionally, downtime due to number of Prohibition Notices issued by the Department of Employment and Labour has notably increased. An area often overlooked are the costs of reputational damage: a company known for poor safety practices can negatively affect its ability to win new contracts, retain clients and could affect the organisation’s share price.

Improving OHS on site

Van Biljon believes the number of construction accidents, injuries and fatalities is on the increase in South Africa. “In my opinion, many people are oblivious to what could go wrong and there is a lack of proper risk assessment processes,” he says. Notably he says that since the Specialist Court for occupational health and safety matters was disbanded, the success rate in prosecutions has decreased.  We must protect workers and provide them with decent, dignified healthy and safe working environments.

According to The Federated Employers Mutual Assurance Company (FEM) statistics, the construction sector has 2383 reported accidents in 2022, with 18 fatal accidents while 2023 saw 2612 reported accidents with 13 fatalities.

“Things can go wrong very easily on a construction site. We have to be compliant, and make sure all parties are trained and competent,” he said. To reduce risk and improve health and safety on site, Legislation Compliance Specialists offer proactive legal auditing and OHS training, and MBA North offers members construction health and safety services, training and workshops.

Mphomela notes: “MBA North offers training workshops and seminars on all aspects of health and safety compliance to help contractors mitigate these kinds of risks. Education and ongoing awareness go a long way to preventing accidents and fatalities on site.”

“Focusing on workplace safety is essential for South African construction companies to avoid legal and financial risks, protect their reputation and prevent litigation, all of which are crucial for maintaining a successful and sustainable business. Supporting this, it is crucial that organisations such as the MBA and FEM ensure that contractors are accredited and reputable and that safety is prioritized,” concludes Mphomela.