Legislation, Duties, Policing, Offences and Penalties

Two Acts govern the safety of operations of railways in South Africa, namely :

1. Act 85 of 1993 : Occupational Health and Safety Act

To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work;to establish an advisory council for occupational health and safety; and to provide for matters connected therewith.

In terms of this act, it is the duty of Every employer to conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety;Identify the hazards and evaluate the risks associated with such work constituting a hazard to the health of such employees, and the steps that need to be taken to comply with the provisions of this Act ;As far as is reasonably practicable, prevent the exposure of such employees to the hazards concerned or, where prevention is not reasonably practicable, minimize such exposure.

Inspectors, appointed by the Department of Labour, may:Whenever an employer performs an actor requires or permits an act to be performed, or proposes to perform an act or to require or permit an act to be performed, which in the opinion of an inspector threatens or is likely to threaten the health or safety of any person,the inspector may in writing prohibit that employer from continuing or commencing with the performance of that act or from requiring or permitting that act to be continued or commenced with, as the case may be:Whenever a user of plant or machinery uses or proposes to use any plant or machinery, in a manner or in circumstances which in the opinion of an inspector threatens or is likely to threaten the health or safety of any person who works with such plant or machinery or who is or may come within the vicinity thereof, the inspector may in writing prohibit that user from continuing or commencing with the use of such plant or machinery or in that manner or those circumstances, as the case may be.

Whenever an employee does or omits to do any act which it would be an offence in terms of this Act for the employer of such employee or a user to do or omit to do; had he been the employee or mandatary of an employer and had such employer committed or omitted to do that act, he shall be liable to be convicted and sentenced in respect thereof as if he were such an employer; Any employee or mandatary may be so convicted and sentenced in addition to the employer or user.

Any Employer who wilfully or recklessly does anything at a workplace or in connection with the use of plant or machinery which threatens thee health or safety of any person, shall be guilty of an offence and on conviction be liable to a fine not exceeding R50000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment;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 such person, and on conviction be liable to a fine not exceeding R100000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment;The Act is State bound- This Act shall also bind the State.

2. Act 16 of 2002: National Railway Safety Regulator Act

To provide for the establishment of a Railway Safety Regulator; to provide for its objects and functions and for the manner in which it is to be managed; to provide for its staff matters: to provide for safety standards and regulatory practices for the protection of persons, property and the environment; and to provide for matters connected therewith.

Regulations regarding design, construction, operation and alteration The Minister may make regulations on new or proposed construction which may impact on safe railway operations and have an impact on safe railway operations.

Appoint a railway inspector, who may:Powers of railway safety inspector to deal with unsafe conditions If a railway safety inspector believes that a condition or activity is a threat or might be a threat to safe railway operations, the railway safety inspector may issue a directive to any person responsible for that condition or activity to the effect that-(a) the activity be restricted or suspended and the inspector may place conditions Ib) action be taken within a specified time by the person concerned to remove the safety hazard(2) Any person issued with a directive must, within the specified period, comply with it.

Any person who contravenes or fails to comply with the Act or hinders a railway safety inspector in the exercise of his or her powers or the performance of his or her duties in terms of this Act is guilty of an offence.

A person convicted of an offence is liable on conviction to a fine or imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment;The Act is State bound.- This Act shall also bind the State. Several acts govern the environmental safety of the railways in South Africa, namely ;

Act

51 of 1977 : Criminal Procedures Act

Act

73 of 1989 and Amendment Act 50 of 2003 : Environmental Conservation Act

National

Environmental Management Act of 1998, and Act 56 of 2002 (Amendment to NEMA)

ACT The National Environmental Management

Act (NEMA) creates the fundamental legal framework that ensures the concretisation of the environmental rights guaranteed in section 24 of the Constitution of the Republic of South Africa, 108 of 1996 by all organs of state as well as private parties in South Africa. The Act repeals the greater part of the Environmental Conservation Act 73 of 1989. NEMA sets out the fundamental principles that apply to environmental decision making, some of which derive from international environmental law and others from the Constitution. The core environmental principle is the promotion of ecological sustainable development.

 

NEMA also reconfirms the State’s trusteeship of the environment on the behalf of the country’s inhabitants. This Act introduces co-operative governance of environmental matters by establishing the necessary governmental institutions that will ensure proper enforcement of environmental protection. As such environmental crimes are contained in the Schedules to the Act. NEMA also makes provision for fair environmental decision making and for conciliation and arbitration of conflicts. As part of the process of integrated environmental governance, NEMA introduces a new framework for environmental impact assessments. Based on the doctrine of strict liability, NEMA also introduces a far reaching general duty of care to prevent, control and rehabilitate the effect of significant pollution and environmental degradation.  Similarly, it indicates the duty of care to address emergency incidents of pollution. Criminal prosecution of environmental crimes, amongst other, may lead to the incarceration of managers as well as directors of companies for the conduct of such legal persons. Employees, however, may refuse to perform environmentally hazardous work and whistle blowers are protected. NEMA reconfirms the wide standing that the constitution provides for the protection of the environment by the courts and ensures wide access to environmental information.

 

OFFENCES AND PENALTIES

The range of offences and penalties are myriad, but range up to R5 Million in fines and Fifteen years in jail. There are also several municipal, regional and provincial bylaws and legislation with arbitrary penalties. Conviction for one event can lead to penalties on several fronts, including civil damages and litigation.