Joubert v Buscor Proprietary Limited (2013/13116) [2016] ZAGPJHC 340 (9 December 2016)

Joubert v Buscor Proprietary Limited (2013/13116) [2016] ZAGPJHC 340 (9 December 2016)

The court held that section 9(1) of OHSA imposes a statutory duty of care on employers towards persons other than employees, including subcontractors and the public. The wording of the section is broad and covers foreseeable third parties affected by the employer's activities. The court found that OHSA, together with Regulation 5, hard-wires both the duty and the standard of care, and that liability flows directly from a breach of these statutory duties. The statutory scheme creates strict liability, meaning that the employer is liable for harm resulting from a breach of the prescribed standard, regardless of fault. The respondent's argument that negligence must be proved was rejected, as...

Citation
[2016] ZAGPJHC 340
Parties
Applicant: Ilana Cedar Joubert; Respondent: Buscor Proprietary Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 December 2016
Case Number
2013/13116
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim
Outcome
Application for amendment granted; costs awarded to applicant except for the unopposed date amendment.
Judges
Siwendu
Legal Topics
Amendment of Pleadings, Strict Liability, Occupational Health and Safety Act, Duty of Care, Vicarious Liability, Workplace Safety
Civil Procedure Delict Labour Law Amendment of Pleadings Strict Liability Occupational Health and Safety Act Duty of Care Vicarious Liability +1 more

Case Brief

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Parties

Ilana Cedar Joubert

Applicant

Buscor Proprietary Limited

Respondent

Procedural Posture

Civil Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the applicant may amend the particulars of claim to introduce strict liability under OHSA.
  2. 2 Whether OHSA imposes strict liability on employers for harm to non-employees.
  3. 3 Whether a claim at common law can be pleaded alongside a statutory breach under OHSA.

Ratio Decidendi

The court held that section 9(1) of OHSA imposes a statutory duty of care on employers towards persons other than employees, including subcontractors and the public. The wording of the section is broad and covers foreseeable third parties affected by the employer's activities. The court found that OHSA, together with Regulation 5, hard-wires both the duty and the standard of care, and that liability flows directly from a breach of these statutory duties. The statutory scheme creates strict liability, meaning that the employer is liable for harm resulting from a breach of the prescribed standard, regardless of fault. The respondent's argument that negligence must be proved was rejected, as...

Court Disposition

Application for amendment granted; costs awarded to applicant except for the unopposed date amendment.

Orders

  • The amendments sought in paragraphs 4.2, 4.3, and 4.4 are granted.
  • The respondent is ordered to pay the costs of the applicant, except in respect of the amendment regarding the date, which was not opposed.