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

Truworths Limited operates clothing retail stores throughout South Africa. On 9 September 2021, Inspector Ngcobo inspected the Truworths store in Kwa Guqa Shopping Mall, Emalahleni, and issued a Direction Notice: Contravention alleging non-compliance with section 8(b) of the Facilities Regulations under OHSA, directing the provision of seats with backrests at cash desks. On 14 October 2021, Inspector Mabena conducted a similar inspection at the Identity store in the same mall and issued a similar contravention notice. The appellant appealed both notices to the Chief Inspector under section 35(1) of OHSA, arguing that seating facilities were provided elsewhere in the store, that it was not reasonably practicable to place chairs at cash desks due to obstruction and service issues, and that employees did not ordinarily perform work while seated. The Chief Inspector, Tibor Szana, dismissed both appeals on 20 October 2021, reasoning that the employer failed to prove it was reasonably practicable not to provide seating at cash desks and that the risk assessment did not assess hazards from standing. The appellant then appealed to the Labour Court under section 35(3) of OHSA.

• Whether the appeal under section 35(3) of OHSA is an appeal in the wide or narrow sense
• Whether inspectors who have not been issued with certificates under section 28(2) of OHSA have authority to conduct inspections and issue contravention notices
• Whether the inspectors properly applied section 8(b) of the Facilities Regulations
• Whether the concept of 'reasonably practicable' in section 8(b) was properly considered by the inspectors and the Chief Inspector
• Whether the Chief Inspector properly considered the appellant's appeal under section 35(1) of OHSA
• Whether a costs order is appropriate

The appellant's appeal under section 35(3) of OHSA was upheld. Both Direction Notices: 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 is an appeal in the wide sense, entitling the Labour Court to conduct a complete rehearing de novo, consider additional evidence, and entertain new grounds not raised before the Chief Inspector. (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 who have not been issued such certificates lack authority to conduct inspections or issue contravention notices, rendering such actions invalid and unauthorised. (3) The concept of 'reasonably practicable' in section 8(b) of the Facilities Regulations requires a balanced, objective assessment considering: the severity and scope of the hazard, available knowledge, availability and suitability of means to mitigate risk, and cost-benefit analysis. It does not entitle inspectors to impose their subjective preferences or dictate specific compliance measures. (4) Section 8(b) of the Facilities Regulations requires employers to provide opportunities for employees who work standing to sit and to provide seating facilities for that purpose; it does not dictate where such seating must be located. (5) In OHSA enforcement proceedings, the onus is not on the employer to prove it is not reasonably practicable to comply with a directive; rather, inspectors must properly assess whether the employer's actual arrangements achieve statutory objectives in a reasonably practicable manner.

The Court made several non-binding observations: (1) The certificate requirement under section 28(2) serves multiple important purposes: providing conclusive proof of proper designation, establishing locus standi of inspectors, protecting affected persons who may demand production of certificates, and ensuring only qualified persons exercise extensive inspector powers that can lead to criminal prosecution. To ignore this requirement would violate the presumption that the legislature does not legislate superfluous provisions. (2) Inspectors under OHSA are not merely administrative officials but can be characterized as investigative officers whose investigations can competently lead to criminal prosecution, making proper certification analogous to certification of police officers. (3) In exercising costs discretion under section 162(1) of the LRA in employment-related matters, courts should be cautious about awarding costs against functionaries performing statutory duties without malice or mala fides, as this may cause trepidation and inhibit proper discharge of duties. (4) This being the first appeal under section 35(3) of OHSA, the novel issues raised deserved the Court's attention, and neither party conducted litigation in a manner worthy of censure, supporting the decision not to award costs. (5) The principle from Union for Police Security and Corrections Organisation v SA Custodial Management requiring courts to give reasons for departing from the ordinary rule against costs and to apply fairness considerations applies by analogy to OHSA appeals despite not being LRA disputes strictly speaking.

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 permitting de novo review with new evidence and grounds; (2) the mandatory requirement that inspectors be issued with certificates under section 28(2) and the invalidity of actions by uncertificated inspectors; (3) the proper interpretation of 'reasonably practicable' in OHSA and its regulations as requiring a balanced, objective assessment rather than subjective preferences; (4) the limits of inspectors' powers to dictate specific compliance measures rather than assessing overall statutory compliance; and (5) the allocation of burden of proof in OHSA enforcement proceedings. The judgment provides important guidance on the supervisory role of the Labour Court over the OHSA inspectorate and the protection of employers from arbitrary enforcement actions.