The Daily Maverick recently reported1 that the Minister of Public Works and Infrastructure, Dean Macpherson, announced the completion of two technical investigations2 into the tragic building collapse in George, Western Cape, in which 34 construction workers died. These reports will form part of the ensuing criminal investigations into the culpability of persons statutorily responsible for the project.
One of the health and safety shortcomings identified in the Council for the Built Environment's (CBE) investigation report, as reported by the Daily Maverick, was:
"The resignation of the health and safety agent during construction, with the agent stating that it was 'impossible to safeguard the interests of both the client and contractors amid continuous safety violations." (emphasis added)
On reading this finding, our thoughts turned immediately to our lived experience of the architecture and efficacy of the Construction Regulations, 2014 (CRs 2014), promulgated under section 43 of the Occupational Health and Safety Act 85 of 1993 (OHSA). Having represented 'clients', 'principal contractors' and 'contractors' (as defined in the CRs 2014) at statutory investigations and inquiries, it appears that there continues to be a misunderstanding of, and improper implementation of, the role of an 'agent' at construction sites.
Let us explain. The CRs 2014 apply to all 'construction work', which is defined as:
"any work in connection with - (a) the construction, erection, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure; or (b) the construction, erection, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway, sewer or water reticulation system; or the moving of earth, clearing of land, the making of excavation, piling, or any similar civil engineering structure or type of work."
Albeit a mouthful of a definition, we can take it that the construction of the apartment block in George falls within the definition of 'construction work'. Furthermore, the CRs 2014 define various roles and powers in a construction project and their concomitant responsibilities - and it starts at the very top with the 'client'.
A 'client' is defined in the CRs 2014 as the "person [entity] for whom construction work is performed." This person or entity need not be a construction company, but simply an entity for whom construction work is undertaken. While all the responsibilities of the client are set out in the CRs 2014, to keep your attention, let's say that, in the main, a client must supply a baseline risk assessment and a coherent health and safety specification to the 'designer'3 of a construction project. Usually, a client will outsource these duties to specialist construction companies or engineers. A client's duties continue while the construction work is being performed, which, as discussed below, becomes relevant.
Enter the next crucially important role player, the 'agent'.
An 'agent' is defined as "a competent person who acts as a representative for a client". (emphasis added)
The CRs 2014 distinguish between what we term 'bigger' and 'smaller' construction work. The regulations make it mandatory for a client to appoint an agent for larger construction work, while for smaller work, the appointment of an agent is discretionary. We assume that the construction work undertaken in respect of the George apartment block made it peremptory for that client to have appointed an agent.
Under CR 5(7) an agent must be "registered with a statutory body approved by the Chief Inspector as qualified to perform the required functions." The statutory body with whom agents must be registered is the South African Council for the Project and Construction Management Professions (SACPCMP).
This then is what the law understands to be an agent, and it appears at this point that there is a disjunction between the architecture and implementation of the CRs 2014 in theory, and how it is implemented in practice.
Based on the legal understanding of an agent, that person or entity enjoys, or should enjoy, significant power at a construction site. Under case law, it can be said that an agent owes a duty of utmost good faith towards its principal (ie the client). As such, an agent at a construction site is, for all intents and purposes, actually the client. It follows legally then that the client can be said to have delegated the responsibilities and powers it holds to the agent. For example, CR 5(1)(q) permits a client to: "stop any contractor from executing a construction activity which poses a threat to the health and safety of persons which is not in accordance with the client's health and safety specifications and the principal contractor's health and safety plan for the site." (emphasis added)
Accordingly, it seems to us that the role and power of an agent is far greater than what might colloquially be understood by the term "health and safety" agent. There are some who may argue that words do not matter on a construction site, a view with which we disagree, especially if those words inaccurately or insufficiently describe the role of a specific party. The nomenclature of “health and safety agent”, in our view, relegates what should be understood as a complete substitution of the client, its powers and duties, to (possibly) a superfluous entity interested only in the paperwork exercise of ensuring that health and safety files are kept up to date.
In our experience, it is easy for a 'designer', 'principal contractor' and a 'contractor'—all terms defined in the CRs2014—to think that the agent works for them, and not vice versa. On this basis, it is easy to imagine an agent in name only, reverse engineering health and safety files to suit the requirements of the contractors. To make matters worse, now imagine that agent issuing an instruction on behalf of the client—as it is entitled to do under the CRs 2104—to a principal contractor or any other contractor, to immediately stop construction work.
Bearing in mind the legal (and reputational) risks to a client for health and safety accidents under the CRs 2014 and the OHSA more broadly, if we were a client, we would want to insist that all appointed construction role players knew, firstly, who our agent was, and secondly, that our agent was clothed with our full powers and authority over all construction work, including the power to implement immediate work stoppage instructions.
We are, of course, not privy to the evidence and information made available to the CBE during its investigation of the George building collapse, and we shall not speculate as to the culpability of any person or entity involved. However, we would certainly focus our interrogation on what the true capacity of the appointed agent was. It would be puzzling to us if, after the "health and safety" agent in the George building collapse resigned, the client did not immediately halt all construction work. The risk of not doing so is unnecessary and significant. If we accept that the agent is actually the client, then an agent resigning is tantamount to the client resigning from the project, which can never occur. The resignation of the health and safety agent ought to have been an immediate red flag for all continuing and future construction work.
A problem that likely occurs in the South African construction industry is that a client, often not an expert in construction, selects a principal contractor to manage the construction work before it selects an agent. By then working backwards, a "health and safety agent" is nominated and recommended by the very same principal contractor appointed by the client. We advocate for a different approach: first appoint the agent, who will then appoint a principal contractor. This will put real power in the hands of the agent.
However, the current situation seems to reinforce the adage that she who pays the piper calls the tune. Once an agent is engaged via the conduit of a principal contractor or contractor, one does not need to make a big leap to understand the compromised position of the agent. Such an agent sits more as the principal contractor's agent than as the clients. In this context, a very real scenario comes to mind: what if an agent, recommended to a client by a principal contractor, issues a work stoppage instruction to that same contractor due to health and safety infractions? Relationships will quickly turn frosty between agent and contractor, and that agent can kiss future work from that contractor goodbye. Such practicalities, in our opinion, contribute to why health and safety shortcomings are ignored, or worse, covered up.
So where to from here?
It seems to us that there are relatively easy short-term solutions as well as medium to longer term solutions to such a problem.
In the short-term, and given the proposed repeal of the CRs 2014 by the Construction Regulations, 2025 (CRs 2025), clients must take care to writing clear roles and expectations from each role player in the construction process, starting with themselves. Clients should take all practical steps to ensure that the agent they appoint is aware of its powers, duties and responsibilities, and understands that the client expects, and is paying for, that agent's independence in health and safety matters. A good start is for a client to ensure that it has an overall suitable appointment structure with valid letters of appointment in place as prescribed.
In the medium to longer term, there is room, and possibly a market, for the establishment and growth of competent, independent construction agents capable of properly executing the duties of a client' These agents must avoid, at all costs, any subservience to principal and other contractors alike.
The proposed amendments to the CRs 2014 introduces some changes to the duties of a client and, naturally, to the duties of the agent. The CRs 2025 require that a client play a more active role in co-ordinating co-operation between multiple contractors to ensure health and safety. Furthermore, clients must ensure that role players such as the 'designer' not only take the prepared health and safety specifications into account during the design stage but also produce a written report to demonstrate such consideration.
While the definition of 'agent' has been slightly tweaked in the CRs 2025, we take the view that in substance it remains the same, save that it is now clear that an agent may also be a juristic person.
In effecting such changes, we hope we are never again faced with a finding that a "health and safety" agent resigned and that construction work was not immediately suspended and remedial measures put in place before any employees were exposed to unnecessary risk.
