The incident
On 6 May 2024, a building that would be known as the 74 Victoria Apartments catastrophically collapsed in George, resulting in the tragic death of 34 persons and serious injury to many others.
The incident received much media coverage on the day of the incident and the weeks that followed, and rescue workers were lauded for their relentless efforts in rescuing those who were trapped under the rubble.
The question on everyone’s lips is who is to blame for the incident, and what is being done about it. Reports indicate that various different investigations are underway, but no official reports have been released.
In November 2024, Marianne Tham, writing for Daily Maverick, reported that the disaster remained shrouded in silence. [1] She also wrote that a request for access to information under PAIA was refused by the George Municipality, adding to the public’s frustration about the apparent lack of information concerning the investigations.
On 4 December, Western Cape Premier, Alan Winde, said that the Western Cape Government’s investigations have been completed and are being peer reviewed. He stated that the results will be made public soon, and this is expected to happen in January 2025.[2]
Suspension of the Engineer
We know so far that the Paarl-based engineer who signed off on the plans for the project had been placed on precautionary suspension by the Engineering Council of South Africa (ESCA). Although the engineer’s conduct is under scrutiny, construction projects are complex and there are many role players involved.
As such, the cause for the collapse should be thoroughly investigated. Prof Gideon van Zijl, a distinguished professor in civil engineering at Stellenbosch University (SU), commented that there could be a number of causes for the implosion.[3] According to Van Zyl, some of the potential causes may include that:
“…the original design made insufficient provision for all phases of construction, the quality of the material did not match what was specified in the design, the quality of construction was not of a high enough standard or an accident or accidents occurred.”[4]
The purpose of this article is to briefly set out the duties imposed on various parties involved in the project by the Occupational Health and Safety Act 85 of 1993 (“OHS Act”), to demonstrate that the duty to provide a safe working environment is a multi-faceted, collective duty that rests on more than one person.
The Employers
Section 8(1) of the OHS Act imposes a statutory duty on employers to provide and maintain a working environment that it safe and without risk to the health of employees.
In the construction industry, the term “employer” usually refers to the property owner who commissions the construction work. Under the OHS Act, however, an employer is not the property owner, but an employer as understood in the context of labour law.[5] This means that an employer under the OHS Act is usually the employment providing professionals and contractors on site.
Based on section 8(1), all professionals and contractors on site are ultimately responsibility for ensuring the safety of their workers. Because multiple professionals and subcontractors would have been involved in the project, the duty of health and safety is a collective one and does not necessarily rest on any one professional or contractor.
The Employees
Although the primary duty of health and safety rests on employers, section 14 of the OHS Act specifically provides that each employee must take reasonable care for their own health and safety, as well as the health and safety of others who may be affected by their acts or omissions. Again, this underscores the principle that health and safety is a collective duty. No doubt, the role of the employees in the collapse will also be investigated.
Health and Safety Representatives
For organisations with more than 20 employees, employers must appoint a health and safety representative who has certain functions as prescribed under section 18 of the OHS Act. These functions include a duty to review the effectiveness of health and safety measures and to identify potential hazards and potential major incidents at the workplace.
The Client
In term of Regulation 5 of the Construction Regulations 2014, the client has a duty to prepare a baseline risk assessment for intended construction work, as well as a health and safety specification. The client also has the duty to ensure that the designer takes the health and safety specification into account during the design stage, and must ensure that the designer carries out the responsibilities contemplated in regulation 6. In addition, the client must ensure that the principal contractor has the necessary competencies and resources to carry out the construction work safely.
These are only some of the duties of the client, but it should be evident that the client has an ongoing duty to proactively manage the risks and is responsible for ensuring that the designer and principal contractor complies with their health and safety obligations.
The Designer
The Construction Regulations define the ‘designer’ as the competent person who prepares the design, or checks and approves the design, as well as the architect or engineer who has contributed to the design or has overall responsibility for the design. It also includes the building services engineer, the surveyor drawing specifications, or any contractor who has carried out any design work as part of a design and building project.
Accordingly, it should be evident that the definition of designer is a broad one and not limited to the architect or engineer involved in the project. For purposes of the George project, it would be crucial to identify all the designers of the project, and to assess their role in potential design faults.
The duties of the designers of the project are set out in regulation 6. These include the duty to ensure that the applicable safety standards are complied with in the design; the duty to provide the client with the health and safety information relating to the design of the specific structure; the duty to provide a report on the geotechnical science aspects; the duty to report on the loading that the structure is designed to withstand; and the duty to inform the client of any known or anticipated hazards relating to the construction work.
A negligent failure on the part of the designers to comply with the duties imposed upon them by regulation 6 could potentially give rise to liability.
The Contractors
Regulation 7 sets out the duties imposed upon the principal contractor and other contractors on site.
Regulation 7(1)(a) provides that contractors must provide and demonstrate to the client a suitable, sufficiently documented and coherent site-specific health and safety plan, which must be applied from the commencement of the project. The contractors must also keep a health and safety file that must include all documentation required in terms of the OHS Act and Regulations.
A crucial duty is imposed on contractors by Regulation 9(1), which provides that contractors must ensure that all reasonably practicable steps are taken to prevent the uncontrolled collapse of any new or existing structure or any part thereof, which may become unstable or is in a temporary state of weakness or instability due to the carrying out of construction work.
Because of the uncontrolled way in which the George building collapsed, the contractor would no doubt be called upon to demonstrate compliance with Regulation 9(1).
The contractor also has the duty to ensure that no structure is loaded in a manner that would render it unsafe, and that all drawings pertaining to the design of the relevant structure are kept on site. Although a structural engineer would typically have been involved in the design process, the Construction Regulations impose significant duties on the contractor.
The Construction Manager
Regulation 8 imposes a duty on the principal contractor to appoint a full-time competent person as construction manager with the duty of managing all construction work on a single site, including the duty of ensuring occupational health and safety compliance. Because of the crucial role played by the construction manager, his conduct will also come under careful scrutiny.
The Health and Safety Officer
The contractor must appoint a full-time health and safety officer to assist in the control of all health and safety related aspects on the site. As such, the performance of the Health and Safety Officer will also be investigated.
Construction Supervisor
As an additional safeguard, the construction manager is obliged to appoint a construction supervisor responsible for construction activities and ensuring occupational health and safety compliance on the construction site.
Competent employees
To assist the construction supervisor, and based on the size of the project, the contractor must appoint competent employees with responsibility for health and safety in respect of different sections of the project.
The Competent Person who conducted the pre-construction risk assessment
Before construction may commence, a pre-construction risk assessment must be carried out by a competent person mandated by the contractor, with a view to identifying, analysing and documenting the risks involved in the project (regulation 8).
What is the penalty for violating the OHS Act?
Before we look at the types of investigations under the OHS Act, it is useful to briefly deal with the penalties for violating the OHS Act. These can be found in section 38 of the OHS Act which provides for fines of between R 50 000 and R 100 000, and direct imprisonment of up to two years.
While this may seem light in view of the number of deaths arising from the incident, these penalties are in addition to any criminal charges that may be brought against the perpetrators.
To this end, any person who is found to have unlawfully and negligently caused the death of any of the workers on site may potentially be charged with culpable homicide. A conviction of culpable homicide could carry prison sentences of up to 15 years. This is serious.
Additionally, the wrongdoers may be incurring civil liability towards the owners of the building, the survivors of the incident, and the dependents of the deceased workers. The civil remedies available to these persons is a topic for separate discussion and fall beyond the scope of this article.
The Section 31 Investigation
Section 31 of the OHS Act provides that an inspector designated by the Minister may investigate the incident. The inspector must then submit a written report to the attorney general and the chief inspector for further action under the Inquests Act 58 of 1959 or the Criminal Procedure Act 51 of 1977. This report will usually shed some light on potential causes of the incident and any health and safety failures.
One of the features of the section 31 investigation is that it is conducted in private. There is no obligation on the Department to publicise the results on an interim basis or at all. Given the public’s interest in the matter, however, it is expected that the Department will publish the report once it has been finalised. It should be borne in mind that it is dangerous to publish details of ongoing investigations before they are finalised, because new information might be discovered that could have a bearing on the investigation. In addition, and because of the potentially serious consequences of the report, it is crucial that the report is accurate. Any inaccurate statements and findings will no doubt give rise to a defamation suit against the authors and publishers of the report.
It is understood that the Department of Labour is currently at an advanced stage of its section 31 investigation. On 13 December 2024, SABC news reported that the Department of Labour indicated that its investigation will be completed by the end of January 2025.
Although the perception might be that it has taken a long time for the report to be complied, the investigation would have taken less than 12 months, if the report is published in January 2025. Given the importance and complexity of the investigations, this appears to be a reasonable period of time. Whether the report will be conclusive or inconclusive remains to be seen.
Potential section 32 inquiry
In addition to the section 31 investigation, the chief inspector may direct an inspector to hold a formal inquiry under section 32 of the OHS Act.
Unlike the section 31 investigation, which is private, the section 32 inquiry must be held in public.
While the chief inspector has a discretion to hold a section 32 inquiry of his own accord (if no one asks him to do so), he is obliged to hold one “when so requested by a person producing prima facie evidence of an offence” under the OHS Act, where a workplace incident has resulted in death or injury.
It is unclear whether anyone has requested a section 32 inquiry, but it is difficult to see how the chief inspector would be able to avoid it, if duly requested. If the section 31 report does not provide the answers that the victims, survivors or public have been waiting for, section 32 may be invoked to request the chief inspector to hold a public inquiry.
About the author
Freddie Terblanche is an attorney with more than 15 years post qualification experience in the field of litigation and dispute resolution.
[1] https://www.dailymaverick.co.za/article/2024-11-06-shrouded-in-silence-key-information-on-may-6-george-building-collapse-still-remains-secret/
[2] https://www.ewn.co.za/2024/12/05/george-building-collapse-survivors-want-those-responsible-held-accountable
[3] https://www.georgeherald.com/News/Article/Local-News/unravelling-the-george-disaster-expert-explains-how-the-cause-could-be-determined-202405090326
[4] Ibid.
[5] Section 1 defines “employer” as any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes.