Since 2014, working in Construction Health & Safety has become a difficult task. This is because of the introduction of the Construction Regulations that stipulates a person who is to be appointed as a “Health & Safety Agent”, must be registered with the South African Council for Project & Construction Management Professions, a public protector against the misconduct of these professions.
Unless you are a “registered person”, you will find it extremely difficult to get an appointment in the construction industry, or any industry impersonating the construction industry for that matter.
But what if you are not a registered person? What is your legal liability as a Health & Safety Agent, Consultant or Advisor?
Let’s take a closer look:
A Registered person is a person registered in terms of Section 18 of the PCPM Act, 48 of 2000. This section informs us that we may register with the Council in any of the categories listed in Section 19, if we can jump through all the hoops in the “process of assessment of competency of applicants for the purpose of registration”. Even then, you are not yet a registered person, as your name has to entered into a register first. Once that is done, you are a “registered person.”.
This means you have to adhere to every requirement of the Act, the Council’s Code of Conduct and the Scope of services published by the Council from time to time.
Should you fail to comply with the above, the Council may sanction you in a variety of ways. But we will not look into these matters.
The bottom line is this: The SACPCMP may only act against a registered person. The Act does not allow them to institute any dicsiplinary action against a practitioner who is NOT registered in any of the categories described in Section 19.
The Act also allows for the state to prosecute any person for an offense committed in terms of the Act.
Let’s have a look:
Section 41. (1) A person contravening section 18(2), 23, 25(8) or 31(8)(a), (b), (e) or (f) is guilty of an offence.
Section 18(2) A person may not practise in any of the categories contemplated in subsection (1), unless he or she is registered in that category. This means that if you are not registered, you may not practice as a CHSO, CHSM or Pr.CHSA and perform the work described in the Scope of Services.
A bit of an oxymoron exists in section 26(3) of the Act, in that a person who is not registered in terms of this Act, may not—
(a) perform any kind of work identified for any category of registered persons;
(b) pretend to be, or in any manner hold or allow himself or herself to be held out
as a person registered in terms of this Act;
(c) use the name of any registered person or any name or title referred to in
section 18 or 21; or
(d) perform any act indicating, or calculated to lead persons to believe, that he or
she is registered in terms of this Act.
It then goes on in subsection 4 to say that subsection (3)(a) may not be construed as prohibiting any person from performing work identified in terms of this section, if such work is performed:
- in the service of or
- by order of
- and under the direction, control, supervision of or
- in association with a registered person entitled to perform the work identified and who must assume responsibility for any work so performed.
This means you can work with, or be employed by a registered person, without having to be registered yourself.
Notably, a person contravening Section 26 of the Act is NOT guilty of an offence.
Section 23 states that any person whose registration has been cancelled in terms of this Act, must return his or her registration certificate to the registrar within 30 days from the date on which he or she is directed by the registrar in writing to do so. If you do not give it back, you are guilty of an offence. It therefore does not apply to person who is not registered.
Section 25(8) refers to Voluntary associations whose recognition have lapsed and who failed, within 30 days from the date on which it is so directed in writing by the council, return its certificate of recognition.
Section 31(8) (a), (b), and (e) is applicable to witnesses summoned to attend a disciplinary hearing against a registered person. In particular it would be an offence to:
- without sufficient cause, fail to attend the hearing at the time and place
specified in the subpoena;
- refuse to be sworn in or to be affirmed as a witness;
- without sufficient cause, fail to answer fully and satisfactorily to the best of his
or her knowledge to all questions lawfully put to him or her; or
- fail to produce any book, document or object in his or her possession or
custody or under his or her control which he or she has been required to
- fails to remain in attendance (leave) until excused by the chairperson of the disciplinary tribunal from further attendance.
- after having been sworn in or having been affirmed as a witness, give a false statement on any matter, knowing that answer or statement to be false.
- prevent another person from complying with a subpoena or from giving evidence or producing a book, document or object which he or she is in terms of
this section required to give or produce.
Section 31(8)(f) prohibits a person to prevent another person from complying with a subpoena or from giving evidence or producing a book, document or object which he or she is in terms of this section required to give or produce.
For the average OHS Practitioner the criminal liability under the PCMP Act is limited to the offenses above.
To put it in simple terms. The SACPCMP is a tiger in a cage. It can only bite you if you are inside the cage.