Residential Estates and construction site health and safety factors to consider.
The residential estate industry in South Africa prides itself in showcasing some of the finest and most expensive homes in the country. It is then without a doubt that they treasure their homeowners and future home-owners safety, security and possible legal liability exposures just as dearly, if not more.
The statement made should leave estates with no option, but to ensure that owners are kept informed, and free from any possible repercussions of construction work on their sites. (Especially those who is soon to commence the construction process on their vacant stands, including those who have already started the construction of their homes).
As estate managers and management teams it is strongly advised that they ensure the practice of due diligence on the part of the estate management team and our owners receives the necessary and respected attention as required. Within the estates current management and fiduciary duties, it is generally seen that they try to make it clear that they must constantly monitor, detect, evaluate and implement new and unchartered territories of the law and management procedures. by virtue of the above we have the following factors to take into consideration.
The role and responsibility of the HOA in terms of the Occupational Health and Safety Act, Act 85 of 1993 and with specific reference to the Construction regulations of 7 February 2014: The estate management team are generally appointed by the Board of Directors. The Board of Directors was elected, and thereafter appointed by the homeowners, to further ensure that the duties of the estate is as contemplated in this Occupational Health and Safety Act, properly discharged.
The estate management teams’ applicability, capacity, roles and legal responsibilities can be seen and proved by virtue of the following legal abstracts:
The Management team duty can be seen by virtue of Section 16 in Occupational Health and Safety Act, where it reads: Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged. The Employer in this case would be the estate. Therefore, it is the duty of the CEO/Estate Manager to ensure compliance for and on behalf of the estate.
By virtue of the last-mentioned paragraph, and stipulations/extractions throughout the coming text, it is clearly seen that the CEO has the duty to ensure compliance for and on behalf of the Employer (Estate). We will now go about in comprehensively describing the duties of the Employer, the many roles the Employer/CEO takes on throughout the conducting of its day to day tasks.
1. FIRST REASON FOR THE MODUS OPERANDI ON CONSTRUCTION SITES WITHIN THE ESTATE.
The Employer has the duty to ensure compliance on construction sites. It must be noted and well interpreted by virtue of professional procedures attached to the practices used within the interpretation of statutes.
It must further be noted that the employer/e, in the case of a Residential Estate does not only enforce compliance on construction sites due to their “governing authority/role/fiduciary duty”. It is merely because of their joint responsibility to ensure compliance, this can be seen within the following extract: the duties of the employer in Section 8 of the Occupational Health and Safety Act, Act 85 of 1993, it includes the duty of:
Sec 8(2)(g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;
Sec 8(2)(h) enforcing such measures as may be necessary in the interest of health and safety;
With the above kept in mind, it is now very clear to see that the CEO, acting as the Employer/Estate representative is taking steps to ensure compliance on the construction sites because of the fact that they can be held jointly liable and responsible for acts or omissions that will, may or have led to a person being injured on a site. The Residential Estate and its CEO/Management team has a possible legal liability exposure in terms of the Act when it comes to construction work projects on the Estate.
2. SECOND REASON FOR THE MODUS OPERANDI ON CONSTRUCTION SITES WITHIN THE ESTATE.
The CEO of the Estate (as it is within every other estate in South Africa), within the definitions of the Act could in fact be deemed a Designer, the definition reads as follow:
A "designer" means— (a) a competent person who—
(i) prepares a design;
(ii) checks and approves a design;
(iii) arranges for a person at work under his or her control to prepare a design, including an employee of that person where he or she is the employer; or
(iv) designs temporary work, including its components;
(b) an architect or engineer contributing to, or having overall responsibility for a design;
(c) a building services engineer designing details for fixed plant;
(d) a surveyor specifying articles or drawing up specifications;
(e) a contractor carrying out design work as part of a design and building project; or (f) an interior designer, shop-fitter or landscape architect;
Taking the clear definition of a designer and holding it up against the current protocols of the estate when it comes to applying for plans to be approved, it can be clearly seen within the law, that the estate management team/CEO can be defined as “a” designer attached to the construction work projects on the estate, merely because of our function on approving plans.
Now that it is clear why the estate can be defined as “a” Designer of the construction work projects on the estate, it clearly makes the Estate CEO more together responsible for the compliance on construction sites. Within every construction project on the estate, “a designer” must inform the client in writing of any known or anticipated dangers or hazards relating to the construction work, and make available all relevant information required for the safe execution of the work upon being designed or when the design is subsequently altered;.
The above clearly shows the estate CEO/Management teams authority, capacity, role and responsibilities in terms of the Construction Regulations of 7 February 2014.
It is furthermore clearly seen within most Builders Rules that no deviation from building plans will be tolerated.
“The construction of the structure must adhere to the approved plans to the letter. Deviation will result in the suspension of the building activities and only rectification will be allowed before further construction will be allowed.”
The Health and Safety Specification as seen within Construction Regulation 5(1)(a) and (b), that by virtue of those stipulations made in the requirements attached to the design (as seen within Regulation 6) made it noticeably clear that the specification now becomes a part/one with the design.
Please find proof of the latter by looking at the Government Gazette of 2 June 2017 (40883), that stipulates the guidelines as provided by the Department of Labour, it says:
“Regulation 6 (1) (c) - Designers must ensure that designs are accompanied by a report as required in terms of this regulation.” (actual note/comment made in GZ 40883)
3. THIRD REASON FOR THE MODUS OPERANDI ON CONSTRUCTION SITES WITHIN THE ESTATE.
Within Section 38 of the Act, it stipulates that any employer (Estate) who does or omits to do an act, thereby causing ANY person (not only referring to their own employees) 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 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.
4. FOURTH REASON FOR THE MODUS OPERANDI ON CONSTRUCTION SITES WITHIN THE ESTATE.
To conclude the relevant legal reasons for the Modus operandi to be applied to the managements role in respect of construction sites, we have to inform all parties of the following fiduciary duties we have (perceived to have) as home-owner / Board of Directors / Client representatives on the estate.
Because the CEO/ESTATE Manager was appointed by the Board of Directors to act in the best interest of the HOA and its members, we will stipulate the following:
4.1 There are allot of role players with onerous roles and responsibilities on construction sites, whereby the home-owner/client is one.
4.2 The CEO is acting for and on behalf of the HOA (clients/home-owners) of the estate.
4.3 By ensuring that the estate complies with the duties imposed on them, the CEO is not only protecting the estate of possible legal liability, but also protecting the Client/home-owner of their legal liability exposures as seen within Construction Regulation 33 and Section 38 of the Occupational Health and Safety Act, Act 85 of 1993.
4.4 The CEO, by implementing the above, ensures that the members of the HOA cannot be held responsible for the acts, omissions, work injuries or fatal/deaths etc due to the negligence of Contractors on site.
Please note the following:
When taking into consideration these 4 paragraphs, one would clearly see that the duty to do something is more prevailing than the “opt out” and do nothing approach. It is strongly advised that residential estates evaluate their stance/approach and relationships out of a fresh legal perspective , and implement a strategy that would enable them to serve proof of doing what the reasonable estate would do.
Conclusion:
The estate is fully capable of preventing (generally within the current rules):
1. Contractors / employees of contractors who has a criminal record with threatening character from working on the estate. (common areas or construction sites).
2. Contractors from building illegally.
3. Contractors/employees under the influence of alcohol (intoxicated) working on the estate (common areas or construction sites).
4. Contractors building without approved plans.
5. Contractors not registered with the NHBRC.
6. Contractors that deviate from the original building plans.
7. Contractors handing over site for occupation without occupation certificate.
If you manage and monitor those rules, why would an estate choose not to monitor and enforce/require proof of this legislation being adhered to.