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Construction Health & Safety Registration to be challenged in the High Court

Durban – The indirectly forced registration of health and safety practitioners in South Africa under the Construction Regulations, 2014 have been reported ad nauseam since 2013, and recently surfaced on Social media again. The registration process is now going to be tested for the first time, in a court of law.

A Durban based HSE Practitioner has taken the matter to the High Court and invited the Ministers of Labour and Public Works, the Chief Inspector of the DOL and the SACPCMP to challenge the issue of Construction Health & Safety Registration.  According to the papers served in court under case number 14871/2017 on the 13th of December 2017 the matter was set down to be heard in July 2018.

The respondents in the matter is the Minister of Labour (1st respondent), the Minister of Public Works, (2nd respondent), the SACPCMP, (3rd respondent) and the Chief Inspector of Labour (4th respondent). None of the parties responded to the Notice  and failed delivering their Answering Affidavits to the court. The matter has been set down for hearing on the 4th of July 2018. Affected persons are invited to attend and contribute to the case.

The applicant in the matter, Warren Manning, a Durban based OHSP practitioner who runs a consulting practice, is seeking the court’s assistance to scrap registration and in his 133 page Motion document sets out the basis for this request for relief.

The State Attorney, representing the 1st, 2nd and 4th Respondents, has advised the Applicant’s legal team of their intention to oppose, which was to be expected.

The applicant seeks the court’s judgement on the enforceability of the requirement i.t.o. CR 5(5) and 8(6) pertaining to forced registration to be gainfully employed and to set aside the same.

The outcome fo the case carries significant implications for all H&S practitioners in South Africa.

The Social impact of Construction Health & Safety Registration – Is it really needed?

If we were to look back at the responses we were likely to receive on this question in 2013, most would agree that it is an absolute must. But for those who boarded this SA version of the Titanic and are still awaiting the outcome after 3 or more years, the answer would be totally different. In fact it would be a resounding “what a waste of money”.

For those gainfully employed and who were patiently sponsored by their employers, this may be irrelevant, but for the countless families out there, suffering because of the inept of the law makers, this is a serious matter which should be stopped, shot, buried and executed post mortem. Let’s look at why H&S registration is such a waste of tax payer’s money.

Success measured as failure

The main measure of H&S success is the number of dead employees. The less dead employees, the better the safety program.

During March 2016 the Federal Mutual Employers Association released their accident statistics and in comment thereon in Bizcommunity.com, Deon Bester of the Masterbuilder’s Western Region branch indicated that there was a 12% increase in accidents over the preceding 5 years.

The rate of accidents in the construction industry still remain unacceptably high.” He commented.

In the Western Cape alone, the number of accidents that have taken place over the past five years has risen by an average of 12.00% year-on-year. Between 2011 and 2015 there were 18 deaths and 202 permanent disabilities resulting from accidents. Furthermore, 29,671 man hours were lost and the average cost per accident stood at R17 532,20.

He continues, “The Western Cape remains one of the provinces with the highest accident frequency rates. At a current rate of 3.7%, versus the national average of 2.67%, we are 28% worse than the average. In other words, we have 28% more accidents per 100 people employed in the construction industry. Whilst this is a very high variation, figures would indicate that we have less severe accidents based on the average cost of an accident. The current national average is R27,244 per accident whilst we are at R 15,813 per accident – 42% less.” Bester wrote.

It should also be noted that the number of employees working in construction have decreased from 126 013 in 2013 to 103 277 in 2016. The number of dead employees went from 29 in 2013 to 31 in 2015 and 33 in 2016.

If we consider the thought that all workplace accidents are preventable, this is 93 homicides in three years.

It is this successful failure (accident statistics) that gave rise to the revision of the Construction Regulations in 2014 and the introduction of the “Work reservation scheme” of the SACPCMP. The DOL did not give them the mandate to set the rules; only to “manage” the registration process.

The Competition Commission also had its views on the issue of Registration of H&S Practitioners and found that there is no justification for the Identification of Work Rules (IDOW Rules) and establishing guideline fees for these professionals.

Based on the accident statistics it is clear that the registration of H&S practitioners have had no impact whatsoever on the improvement of H&S on construction projects and the entire purpose of the regulation therefore becomes null and void.

This brings us then to the question of Section 22 of the Constitution which states that “Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”

In essence this section does not infer a duty to regulate entry into a profession, but how a citizen conducts him/herself within that profession. The operative phrase is the “practice of a profession may be regulated” which tells us that the law can prescribe how a particular profession may be practiced, and what would be regarded as unlawful practice.

There is no law currently in SA that prescribes the practice of H&S and the Act that is used as premise for the registration process, the Project & Construction Professions Act, 48 of 2000 lacks this detail as well. As the primary function of the SACPCMP is the protection of the public against negligence on the part of registered persons, their mandate would be irrelevant where a H&S Practitioner is employed by a Construction contractor as neither the contractor nor the H&S officer they employ are responsible for the overall management of the project.

To this end it must be noted that the Masterbuilder Association presentation titled “Business Perspective Of Construction Health And Safety In South Africa” states the current form of contract predominantly used in construction, the JBCC 6.1, makes no provision for H&S. In the presentation by Itumeleng Leshoedi it also mentioned that Construction Regulations are not making an impact to promote health and safety at all project phases (procurement to handover).

Right to work – Limited to those with a ticket

Every job advert on the internet nowadays requires “proof of registration” with the SACPCMP. Due to the inability of the SACPCMP to process the number of applicants, they have resorted to the issue of a “Confirmation letter” which states that a person’s application has been received, but has not been processed yet. This in effect means that an applicant would not know what his/her level of registration will be until such time as the process is finalised. Some employers have caught up on this and have denied work for people in possession of this “Confirmation letter” which makes it a useless piece of single ply.

Interestingly enough is that the Construction Regulations of 2014 does not put a duty on an H&S Practitioner to register. It goes about it in a rather devious way by putting a prohibition on an employer to employ someone who is NOT registered. The employer is thus forced to refuse work to those without the required tickets. By no choice of the employer, it now can only employ a person who has jumped through all the hoops. The indirect result is that a person who has been working for the past 5 or more years in Construction, suddenly falls outside of the scope of the law and are suddenly deemed “incompetent”, depriving them of their basic right to continue their chosen trade or profession.

Hiding behind the skirts of the phrase that a trade “may be regulated”, the DOL and SACPCMP has placed a limitation on the right to work and in doing so, possibly acted outside the scope of the Bill of Rights.

Limiting a right of a person can be done legally yes, but certain conditions must be met. These are:

1.      A law of general application

The limitation must be enacted by a law of “general application”. In other words, a law that affects the general population, such as Basic Conditions of employment, Labour relations, Employment Equity etc. The construction regulations however are not a “law of general application” as it is limited by its own scope of application in regulation 2 to persons involved in “Construction work”.  By its very nature, the Construction Regulations therefore cannot place a limitation on the rights of persons.

If we even narrow the scope of the term “General application” to the construction industry alone, we will find that the Construction Regulations are very specific in nature as each regulation deals with a specific aspect of construction work which may affect only certain persons involved in construction work. For instance, the regulation forces a contractor to only appoint a SACPCMP registered person as a H&S Officer, but it does not place the same emphasis on the person performing a Risk assessment or preparing a Fall Protection Plan. It is clearly designed to limit the right to work in a specific trade, occupation or profession; the Construction H&S Officer.

The origin of this oversight is easy to explain.

The authors of the draft regulations had a vested interest in the outcome of the “approved body” determined by the Chief Inspector. At the time it was written (2010) the “approved body” would have been a professional association accredited by SANAS for this purpose. During the draft stages, the only professional body for Safety Professionals in SA,  applied for SANAS accreditation but their plans were short-lived after the SACPCMP took over the function even before the Construction Regulations were promulgated.*

The objections to IOSM being the registrar was based on Conflict of Interest as it was at the time run by H&S consultants in private practice and no privately owned entity should ever be given legal status as regulator. The alternative was the SACPCMP.

The changes were made, but without reviewing the legal implications of a state-owned body putting limitations on the rights of a small group of people.

2.      The nature of the right

A second factor to consider is the nature of the right to work as an H&S practitioner in Construction. Chosing a trade or occupation is a fundamental right and allows one to provide for one’s next of kin. Food, water, shelter, security etc are all derived from gainful employment. Limiting this right from one person, not only infringes on the person itself, but also on those he/she supports. Is there an alternative trade or occupation to chose, should the right to work be limited? In many cases the answer is NO. A Safety officer cannot just jump ship, as the level of training and experience is not a requirement for any other position or job.

3.      The importance of the purpose of the limitation

According to the Council for the Built Environment, in their application for exemption from the Competition Act, the importance of the limitation of the right to work was essential in the “preservation of professional standards and the ordinary function of the profession.” Yet prior to 2013, the SACPCMP may well have been oblivious to the existence of the profession they soon stood to “regulate”, having had no involvement in the establishment, advancement or protection of the H&S profession since the inception of the first H&S laws in 1922.

The Scope of services a SACPCMP H&S Practitioner is required to perform, was not something drafted by the SACPMCP, but by the profession itself. It thus already knew what it should do and merely informed the SACPCMP thereof. However, many practitioners with many years experience are being rejected due to lack of “experience”. The SACPCMP should be held responsible for clarifying this “practice” and convince the court that the selection criteria is based on “Facts” and not the perception of a few “committee members” with their own agendas or dislikes in a particular applicant.

Even at the lower levels, where a written essay is required to demonstrate competence, some highly qualified and experienced people without “adequate writing skills” are being turned away. It is much like asking a pilot to demonstrate his /her ability to fly.

In the absence of set professional standards, criteria for the appointment of “assessors” and an open and transparent interview process, there is no evidence suggesting the purpose of the limitation is “important”.

4.      The nature and extent of the limitation

Without registration, you cannot get work anywhere in the construction sector or any sector that feels digging a hole to plant a pole is construction work.

The extent of the limitation of the right to work implemented by the Construction Regulations are far-reaching; way beyond the comprehension of the Department of Labour or the SACPCMP. The Construction Regulations are preventing employment and contributing to the already soaring unemployment rate.

And as mentioned earlier, it is not the DOL or the SACPMCP that enforce this limitation, but the law-abiding employers who have no alternative but to act against the Constitution to comply with the Construction Regulations. The registration issue has also led to various incidents of abuse of dominance or power by some individuals who, regardless of current exemptions, require compliance as if these exemptions do not exist at all.

5.      The relation between the limitation and its purpose

The purpose of the OHSA is to provide for the health and safety of persons at work, the safety of the use of plant and machinery and other related matters. The purpose of the DOL is to enforce the OHSA and the Construction Regulations.

The South African Council for the Project and Construction Management Professions (SACPCMP) is a statutory body established in terms of Section 2 of the Project and Construction Management Professions Act, (Act No. 48 of 2000). The SACPCMP regulates the Project and Construction Management Professions in order to protect the public.

When looking at the purpose of registration it should be clear that the Government wants to know who is practicing in H&S, and what their qualifications are, possibly with a view to improve the skills of the “registered person” over time via some online videos or similar.

On the one side we have a regulator with a duty to protect the public from H&S Practitioners, and on the other side, we have the DOL who is to stimulate good employment practices and i.t.o. the OHSAct prevent workplace fatalities.

Shortly after the collapse of the Tongaat Mall in November 2012, the SACPCMP registrar, Nomvula Rakalote promised the public that this type of accidents will not happen again and they are putting “systems in place” to regulate H&S professionals. Her words were soon aired on Radio 702 when a concrete slab collapsed at a house in Meyersdal and the DOL soon left that incident when the bridge collapsed in Grayston Drive in Randburg. Recently a wall collapsed in Jacobs outside Durban. The public, as the apparent benefactor of the registration, has not seen any reports on the outcomes of the investigations into these occurences.

Buildings collapse and the incident rate are increasing, which should indicate that the intended purpose of registration (To protect employees and the public) has not paid off and it never will. There are too many factors beyond the input and control of the H&S Practitioner that would make a drastic improvement.

Be that as it may, the intention of the Construction Regulations to regulate practitioners is to ensure competence.

That brings us to the relation between the limitation of the right to work and the purpose of registration.

If looking at the “qualifications” approved by the SACPCMP, (Not the DOL as the law enforcement agency), the vast number of qualifications tells a story that any man and his dog can practice construction health and safety provided they manage to successfully demonstrate their competence to an elite secret team of Panellists appointed by the SACPCMP to “judge” your ability to work in construction.

This vast array of “approved programs” further dictates that it is not the intention of the SACPCMP to create a new profession or to improve an existing one, but to vacuum up anything that does not fit within the 5 remaining councils within the Built Environment. There is no direct relation between the purpose of registration and the qualifications deemed required for the “profession” for “preservation of professional standards and the ordinary function of the profession”.

There is thus no relation to the purpose of registration and the limitation imposed by it; that no work will be available if not registered.

6.      Less restrictive means to achieve the purpose.

The answer to this question is a definitive YES YES YES. There are ample less restrictive ways to regulate the profession without imposing a limitation on the right of a person to work.

The first being not to apply the requirements of the 2014 regulation in retrospect.

Those who worked as H&S Practitioners in the time prior to the promulgation of the Construction Regulations should not need to comply with the SACPMCP “rules of work” or selection criteria. New entrants into the job market will be aware of the requirement and most likely seek out a different, more attractive profession to start off with.

Secondly, a more effective system, both in cost and bureaucracy, have been maintained by the DOL for a number of other “regulated” persons, including electrical contractors, approved inspection authorities and installers of electric fences.

A Vain effort to a useless means

Based on the current available information, there is no reason to justify the registration of health & safety practitioners in South Africa.; not morally, socially or financially.

In the rest of the world, H&S practice is not regulated by law, save for Hongkong, Singapore and Mauritius. In all three of these countries, their respective Labour departments handle the registration processes.

In the rest of the world, the H&S Profession still relies on self-regulation via their various voluntarty professional bodies and associations and many larger countries have incident rates far lower than SA.

Social Media responses from Effected Persons

Nkululeko Snarto Mzana I am one of those who is in support of doing away with this registration to SACPCMP. I will play my part for that support. Down with SACPCMP down.

Brent Proctor SACPCMP is a farse… I’ve been waiting now since 2014 for feedback after registering and submitting all my documents. After numerous emails i have given up!! 22 years Safety Management of Mega projects around the world basically means nothing to them!!

Hse Connction Point That’s a fact Brent and as the people have said it’s a select few blocking other professionals from becoming Agents as they are eating the gravy with a Golden spoon.

Eric Vanderwesthuizen I also have walked this walk since 2014 i have my confirmation letter and that is that, still they want my documents over and over again, this is a stalling tactic of theirs, i have 24 years experience in safety and have worked as a safety manager for many years on big projects, namely Sasol projects in Mozambique, Sadly now i have given up on the job that i had so much passion for and have now gone into another direction, My opinion this is just another money making racket, to force us to pay a premium every year to be able to work.

SirLucas Katlego Mothibi I once asked what if you have extensive working experience but you just don’t know how to put words when writing assays. The answer was “procedure is a procedure you must find a way to write it correctly”. There are people who are registered but they know nothing about safety. Copy and paste is making people to register without knowledge and experience. As for the fees, they are ridiculously out of order.

 Johan Venter Same here submitted 2015 they informed me they lost my documents I need to re-submit. I decided to manually submit maybe I will be successful.

Goodman Tshenolo Sethaiso What’s gonna happen to those who spent hundreds of thousands of rands doing courses but are currently unemployed and can’t afford the council’s fees? Eish!

Ephonia Komane I am registered, but I want it out, or at the very least, review their concept and fees, and to be more involved…. who can tell me what the hell are they doing with our 2600? They are quick to blame safety for incidents…. they don’t even cover us… what is the use of this board?

The service of the SACPCMP is not just critised by the H&S Profession.

Here are some Q&A’s from the other persons trying to register with the SACPCMP in an extract from “thehardhatprofessional”.

There is the all too common maxim that goes; there are two sides to every story. Remember that? Well, as a follow-up to the article we published yesterday – Frustrations with the SACPCMP Registration Process at an All-time High – the SACPCMP has come back with a response to your rather pressing registration and application queries. This is what they had to say:

“The registration process takes forever. I applied for candidate category in December 2016 then I received the certificate with registration number in December 2017. Mind you, the certificate expiry date is 30 April 2018. I have to pay more money.” – Zuko Mzukoana Maqubela

SACPCMP: The reason for that is that when the applicant is approved he/she paid a prorated annual fee which is aligned to new a financial year ending on the 31st March.

“I registered in 2015. November last year my account was suspended and trying to re-apply but unable to do so. I’ve been in and out of their offices and re-submitted everything but still no luck. They promised me week before last everything will be in order and I will receive my invoice but nothing as yet.” – Thabiso Desmond Lennox

SACPCMP: We checked the name of the person. I am not sure if he provided his full names as recorded in the system. However, the affected person must enquire on the following email address and direct telephone number for accounts; Tel 010 4430 137/8. Email address; debtors@sacpcmp.org.za

“My personal experience is that majority of SACPCMP members are not happy, like said before by others, you’ll submit your application and wait. Later you’ll be politely informed that your application is not in the system. That means you have to resubmit if you still have it or have to go back and request your previous employer for info in order for you to be able prepare another one. If you are unlucky you might not get all the info you require or previous employer not agreeing to your request. This results to one no longer having an interest to be compliant or taking SACPCMP serious.” By Lebo Khumalo

SACPCMP: Like the previous complainant, there is no positive search for person named Lebo Khumalo in our records. This may be caused by him/her not using full names as per his/her ID because we use official names as per ID or Passport.  The delay might be the result of similar above mentioned reason and we will be grateful if he can send email to registrations@sacpcmp.org.za so that the query can be directly responded to.

A definite favourite:

“I registered last year in June for candidate construction project manager. Paid registration fee in July. Still haven’t had any response. The system is very slow. My colleagues who registered 2 months before me also haven’t received any feedback.” – Qaqamba Que Xoseni.

SACPCMP: The applicant application was unfortunately affected by our recent Audit process which resulted in a system shutdown from August 2014 to end of November 2017.  We are now operating fully and we are in process of reducing the backlog of Audit intervention.

[Let us get this…system shutdown for more than 3 years?]

“True story! Why is it so inefficient? There’s minimal communication from start to end. They don’t respond to emails or answer calls! There is a reason why professional bodies look down on our professional body. The demands for entry are very shady. Something needs to change!” – Bulumko Zitumane

SACPCMP: Mr Bulumko Zitimane applied for Pr CM and his payment was only allocated in 31 January 2018.  It will be processed in due course. The reason for late allocation usually occurs when companies pay for their employees and use bulk payment instead of individual applicant reference.

“I am registered as a Professional Construction Project Manager it took me a year I also experienced these challenges. Whilst applying for CPM I also applied for CHSA. I was rejected them sighting issues like I have no qualifications whilst they say if you have B tech in any of the built environment courses plus 7 years’ experience that qualifies you academically. They also say I have experience in construction management. When you appeal you don’t get an acknowledgement it becomes dead end. One department that is efficient there is accounts you register online today you get an invoice following day and reminders every week. The leadership of that association seems to be aloof of what are the challenges and one is tempted to say they are duped and not see that SACPCMP is a tool to marginalise the transformation. –  Luntu Mampana

SACPCMP: Mr Mampana applied for PrCHSA registration 30/06/2016. His application was assessed and not approved on the grounds that the applicant has no CHS related training to support the qualification in Project Management, as required and indicated in the criteria for registration. Reports provided by the applicant also did not display the required understanding and experience regarding the scope of services in CHS in general and on PrCHSA level, and CHS in general. Mr Mampana was provided with the option to appeal the outcome in the assessment outcome letter dated 14 December 2016, but no application for appeal was received.

“Its a frustrating and painfully slow process. For a body that is meant to be registering and monitoring professionals. It is highly unprofessional. The phones are always not working…..I dont see the point of it existing if it can even do the bare minimum just to provide a service that we pay so much money for” –  Buntu Fumba

SACPCMP: We understand that our telephone lines may be problematic at times and we are working on a streamlined system. Furthermore, email customer service on admin@sacpcmp.org.za. You may also communicate to us via our social media platforms- Facebook, Twitter and LinkedIn.

Comments from the H&S Professional Bodies

Sheqafrica.com wanted to know the views of the professional associations representing the H&S practitioners in South Africa on the fairness and validity of the registration regime.

At the time of publication, none of the Bodies have responded.


*Shortly afterwards, SAIOSH threatened with legal action against Sheqafrica.com for erronously referring to them as a professional body that applied for SANAS accreditation. In an email addressed to Shane Lishman, one of the founding members of SAIOSH, and co-owner of Sheqafrica.com, the Chief Executive Officer of SAIOSH, Mr Neels Nortje stated that: “You are herby requested to remove the incorrect references made to Saiosh in the article published on your 50% owned website: https://sheqafrica.com/construction-health-safety-registration-to-be-challenged-in-the-high-court/. Failing to remove the incorrect references made to Saiosh with immediate effect will result in legal action taken against the owners of Sheqafrica.com i.e. Shane I. Lishman and Africa Media Group (Rudy Maritz).


Sheqafrica.com has made a commitment to the process of fair professionalization and have committed itself to donate all proceeds from Subscriptions between now and the end of this case to the Applicant’s legal fees.

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Meanwhile, the question of the validity of Registration Certificates have surfaced after an unreported number of SACPCMP Staff members were suspended for issuing fraudulent registration certificates. Is your appointed CHS Agent really registered? How can you be sure?

More on this in our next Newsletter.

Sheqafrica
Sheqafrica.com is Africa's largest online Magazine for the Risk & Compliance profession. It is co-owned by Shane Lishman and the Africa Media Group.
The editorial team:
Shane I. Lishman

Independent Contributors and Media Partners:
Patrick Deale - Labour Lawyer
Louis Fourie - Environmental Lawyer
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Rudy D. Maritz

International Callers: +27 78 770 0002

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Originally founded by Ben Fouche of Real Babe Media, Sheqafrica.com has been serving the SHEQ industry since 2007 and contains over 1600 articles from various experts in the Safety, Health and Environmental Management fields. Today, Sheqafrica.com is proudly co-owned by the Africa Media Group(50%) and focuses on Human Resources Management, Risk & Compliance on the African Continent.
The role of the HR and IR practitioner remains undisputed in the selection and placement of competent staff, while the education and training of people goes a long way in achieving business objective.

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