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

Truworths Limited operated two retail stores (Truworths and Identity) in Kwa Guqa Shopping Mall, Emalahleni, Mpumalanga. On 9 September 2021, inspector Hlenglwe Ngcobo inspected the Truworths store and issued a Direction Notice: Contravention alleging non-compliance with section 8(b) of the Facilities Regulations under OHSA, directing the appellant to provide seats with backrests at cash desks. On 14 October 2021, inspector Ntombifuthi Mabena conducted a similar inspection at the Identity store and issued a similar contravention notice. The appellant appealed both notices to the Chief Inspector under section 35(1) of OHSA on 16 September 2021 and 14 October 2021 respectively, arguing that it had complied with section 8(b) as seating facilities were available elsewhere in the stores and it was not reasonably practicable to have seats behind cash desks due to space constraints and customer service considerations. On 20 October 2021, the Chief Inspector Tibor Szana refused both appeals, stating the employer had not shown it was reasonably practicable not to provide seating at cash desks and the risk assessment did not assess the hazard of standing for periods. The appellant then appealed to the Labour Court under section 35(3) of OHSA.

• Whether an appeal under section 35(3) of OHSA is a wide appeal or narrow appeal
• Whether inspectors were validly designated under section 28(2) of OHSA where they had not been issued with the required certificates
• Whether the inspectors properly applied the 'reasonably practicable' standard in section 8(b) of the Facilities Regulations
• Whether the Chief Inspector erred in refusing the appellant's appeals under section 35(1) of OHSA
• Whether the contravention notices were validly issued

The appeal was upheld. Both Direction Notice: Contravention dated 9 September 2021 (issued by Inspector Ngcobo) and 14 October 2021 (issued by Inspector Mabena) were set aside. No order as to costs was made.

The binding legal principles established are: (1) An appeal under section 35(3) of OHSA to the Labour Court is a wide appeal permitting complete reconsideration de novo, including new evidence and legal grounds; (2) The requirement under section 28(2) of OHSA that designated inspectors be furnished with certificates signed by or on behalf of the Minister is peremptory, not merely administrative - inspectors not properly certificated lack authority to conduct inspections and issue notices; (3) The 'reasonably practicable' standard in OHSA and its regulations requires a balanced assessment considering severity of hazard, available knowledge, availability and suitability of mitigation means, and cost-benefit analysis - it does not require the 'best' solution but a feasible solution that achieves health and safety objectives; (4) Inspectors under OHSA cannot dictate specific operational measures to employers based on personal preference, but must assess whether the employer's actual measures achieve compliance with applicable standards in a reasonably practicable manner; (5) Where an employer provides seating facilities for employees whose work is normally performed standing, even if not at the specific work station, this may constitute compliance with section 8(b) of the Facilities Regulations depending on the reasonably practicable assessment.

The Court made several non-binding observations: (1) Inspectors under OHSA have wide-ranging and materially intrusive powers, including the power to stop business operations and initiate criminal prosecution, which justifies strict compliance with designation requirements; (2) The certification requirement serves multiple purposes: proving proper designation of qualified persons, establishing locus standi to exercise inspector functions, and protecting affected persons who can demand production of certificates under section 28(3); (3) The absence of any explanation from respondents regarding missing certificates, or evidence that certificates were issued and perhaps lost, permitted the inference that no certificates were ever issued; (4) Section 8(c) of the Facilities Regulations (requiring seats with backrests) only applies where the nature of work is such that employees can use such seats while working, which was not the case here; (5) In labour-related matters, costs should not be readily awarded against functionaries carrying out statutory duties without malice, as this may create a chilling effect on proper enforcement activities; (6) The first appeal under a statutory provision deserves judicial attention even if ultimately successful, which is a relevant consideration against awarding costs.

This is the first reported appeal under section 35(3) of OHSA to the Labour Court. The judgment establishes important principles regarding: (1) the nature of appeals under section 35(3) as wide appeals allowing complete reconsideration; (2) the mandatory nature of the certification requirement for OHSA inspectors under section 28(2) and the consequences of non-compliance; (3) the proper interpretation and application of the 'reasonably practicable' standard in OHSA and its regulations; (4) the limits of inspectors' powers - they cannot dictate specific operational measures but only assess compliance with statutory standards; and (5) the supervisory role of the Labour Court over the OHSA enforcement regime. The judgment provides important guidance on balancing workplace health and safety objectives with operational practicality and employer interests.