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Is Government Above the Safety Law?

The compliance double standard in the South African State, and what ordinary citizens can do about it.

Every South African has stood in a government queue and felt it. The crowded corridor. The blocked exit. The wiring that looks like it was last touched before democracy. We expect the State to be the example of compliance. Too often it operates as the exception.

Meanwhile, a private factory in Durban gets a visit from an inspector and is expected to have its fire equipment tagged, its electrical certificate current and its evacuation plan on the wall. Same country. Same Act. Very different outcomes.

The law has no exemption for the State

The Occupational Health and Safety Act 85 of 1993 binds the State. Government departments, hospitals, police stations and municipal offices are employers, and employers have duties.

  • Section 8 requires a safe and healthy workplace for employees.
  • Sections 17, 18 and 19 require health and safety representatives and committees at workplaces with more than 20 employees. A police station with 50 staff or a hospital with 500 is well past that line.
  • The Electrical Installation Regulations require a valid Certificate of Compliance (COC) for every electrical installation, whoever owns the building.

Section 9: the forgotten mandate

This is the part most people have never heard of. Section 9 says an employer must also protect persons other than employees who may be affected by the work being done.

When you queue at Home Affairs, wait in a clinic or collect a grant at a pay point, you are one of those persons. The State has a legal duty to keep you safe while you are there. If the public is on the premises, the duty is not optional.

The enforcement paradox

If the law is so clear, why do the problems stay? Part of the answer is politics.

A Department of Labour inspector can issue a fine to a small business with little political friction. Serving a prohibition notice on a government department that delivers services to thousands of people is a different matter. Nobody wants to be the person who shut down a pay point. So the notice rarely comes, and unsafe facilities stay open.

The tender trap: Regulation 5

On construction sites, the Construction Regulations put heavy duties on the client. A client is expected to prepare a health and safety specification, appoint a Professional Construction Health and Safety Agent (PrCHSA), approve the contractor's safety file and make sure audits happen.

On many state projects the process stops at a sentence in the tender document: "contractor must work safe." The file sits unread. No agent is appointed. No one audits. If a contractor falls from an unprotected scaffold, the client still carries responsibility, and on a government project that client is the department.

Why it keeps happening

  1. Budget. Money is allocated for bricks. A safety agent is seen as an extra cost.
  2. Competence. Project managers are not safety professionals, so they do not know what to demand in a specification.
  3. Consequence. When a CEO is negligent and a worker dies, criminal prosecution is a real possibility. When a government official is negligent, the matter tends to be referred to another internal committee.

A reform blueprint

None of this requires a new law. It requires the existing one to be applied to the State. Four practical changes would move things quickly:

  1. The Treasury rule. No government construction tender is awarded without a PrCHSA appointment letter and a client safety specification. No agent, no tender.
  2. A ring-fenced budget. Five percent of every public works project budget protected for safety compliance: COC renewals, risk assessments and independent audits.
  3. A public sector inspectorate. A dedicated unit in the Department of Labour whose only job is inspecting state buildings and publishing the findings.
  4. Citizen action under PAIA. Which brings us to you.

What you can do this week

The Promotion of Access to Information Act (PAIA) lets any person request records from a public body. A COC, an evacuation plan and safety committee minutes are exactly the kind of records a compliant workplace can produce quickly.

  1. Pick a facility you use: a municipal office, clinic or police station.
  2. Submit a written PAIA request to the information officer for the specific records.
  3. Allow the statutory response time, which is 30 days under PAIA.
  4. If the records cannot be produced, you have learned something important. Share what you find.

Think you know the OHS Act?

We turned this article into a 10-question quiz. Find it on our TikTok and tell us your score in the comments.

Safety in the State, goes deeper into every point above. Pre-order details are coming soon.

There is only one OHS Act. It is time the State complies. Government must stop saying "contractor must work safe" and start saying "we will ensure they work safe."

 

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