Truworths Limited v The Chief Inspector: Occupational Health and Safety, Department of Employment and Labour and Another

Inspectors from the Department of Employment and Labour conducted inspections at two Truworths retail stores (Truworths and Identity) in Kwa Guqa Shopping Mall, Emalahleni, during September and October 2021. The inspectors issued Direction Notices: Contravention alleging non-compliance with section 8(b) of the Facilities Regulations under the Occupational Health and Safety Act (OHSA), relating to the provision of seating for employees at cash desks. Truworths appealed these notices to the Chief Inspector under section 35(1) of OHSA, arguing that providing seating was not reasonably practicable and that seating was provided elsewhere. The Chief Inspector dismissed both appeals. Truworths then appealed to the Labour Court under section 35(3) of OHSA. During the appeal, it emerged that the inspectors could not produce certificates of designation as inspectors in terms of section 28(2) of OHSA, and the Chief Inspector had relied on considerations relating to risk assessments and onus that Truworths contended were incorrect.

The appeal was upheld. The decisions of the Chief Inspector were set aside and the contravention notices issued in respect of both stores were nullified. No order as to costs was made.

The judgment clarifies that appeals to the Labour Court under section 35(3) of OHSA are wide appeals, permitting a full rehearing and the introduction of new grounds and evidence. It underscores the peremptory nature of section 28(2) of OHSA and confirms that inspectors who are not properly certificated lack authority to conduct inspections and issue enforcement notices. The case also provides important guidance on the interpretation of the Facilities Regulations, particularly the meaning of 'reasonably practicable', and reinforces judicial oversight over the exercise of extensive enforcement powers under OHSA.