The Failure of the Court to Hold an Employer Liable under OHSA: Lonwabo Hobongwana v Benteler South Africa (Pty) Ltd

Lonwabo Hobongwana v Benteler South Africa (Pty) Ltd 2011 JDR 1831 (ECP) ("Lonwabo") is a significant case that highlights the limitations of the Occupational Health and Safety Act 85 of 1993 ("OHSA") in protecting workers' health and safety. The failure of the court to hold the employer liable under OHSA, despite clear evidence of negligence and non-compliance with safety regulations, is a worrying development that undermines the practical effectiveness of OHSA. Furthermore, this decision sets a legal precedent that may encourage other employers to neglect their legal obligations under OHSA and put their workers' health and safety at risk without facing the consequences.

Under Section 8 of OHSA, employers are legally required to provide and maintain a safe working environment for their employees. Specifically, section 8(1) of OHSA obliges employers to take all reasonable steps to ensure their working environment is free from any hazards that could endanger their employees' health or safety. Meanwhile, section 8(2) of OHSA stipulates that employers must ensure that their work, plant, and mechanical systems are safe and without health risks, as reasonably practicable. These provisions clarify that employers have a significant duty of care towards their employees and must take proactive measures to mitigate any risks to their health and safety while at work.

Failure to comply with section 8 provisions constitutes an offence under section 38(1)(a) of the Act. Section 38(1)(a) of OHSA stipulates that any person who contravenes or fails to comply with a provision of Section 8 is guilty of an offence and, upon conviction, may be liable to a fine not exceeding R50,000 or imprisonment not exceeding one year, or both. However, the penalty provisions outlined in Section 38(1)(a) are often deemed inadequate for reflecting the gravity of the offence. Subsequently, Section 38(2) of OHSA provides more stringent penalties for offences committed by employers. It states:

"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 a 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."

In the case of Lonwabo, the court failed to recognise the seriousness of the employer's breach of their legal obligations under OHSA. By only observing the wrongfulness and negligence under the law of delict, the court failed to hold the employer accountable for failing to comply with OHSA—brief facts of the case.

I submit that the court's decision sends a concerning message to employers, suggesting they can evade their obligations under OHSA and put their workers at risk without facing the consequences. This case highlights the need for greater enforcement of OHSA and for the courts to take a stronger stance in holding employers accountable for breaches of the legislation. Employers must be made to understand that the safety and well-being of their employees are not optional but a legal obligation that must be taken seriously. Failure to comply with OHSA should result in significant penalties, including fines and imprisonment if necessary.

While I appreciate the court's decision to hold the employer liable for damages sustained by the employee in the case of Lonwabo, it is concerning that the court did not consider the employer's breach of section 8 of OHSA. Had the court observed OHSA and other sector-specific legislation, it would have sent a strong message to employers to guard against their responsibilities under section 8. The failure to hold employers accountable for breaches of OHSA raises questions about the legal system's effectiveness in enforcing OHSA and protecting workers' rights. Employers must recognise the gravity of their legal obligations under OHSA and take proactive measures to ensure a safe working environment for their employees. This is not just a moral obligation but also a legal one. Only by upholding OHSA can we ensure the well-being of our workforce and safeguard against workplace injuries and fatalities.

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