Statutory

The Construction Regulations 2003 are aimed at improving the overall management and co-ordination of health, safety and welfare throughout all stages of a construction project to reduce the large number of serious and fatal accidents and cases of ill health which happen every year in the construction industry.

The Regulations have placed duties on all those who can contribute to the health and safety of a construction project. Duties and obligations are not only placed upon clients, designers and contractors, but the Regulations have also introduced new documents – Health and Safety Plans, Specifications, Files and various Appointments. The degree of detail, as well as the time and effort required to comply with legal duties, needs to be in proportion to the nature, size and level of health and safety risks involved in the project.

The Regulations promotes a holistic approach, with co-operation between all role players and compliance with regulations must be seen as absolute minimum. The aim must be to improve actual safety on site and thus not only escape Criminal Liability by complying with the OHS Act and Regulations, but also manage the risk of Civil claims.

The proposed methodology or strategy towards Project Safety is from a Project Management perspective and more specific the application of general Risk Management principles. All construction risks, including safety risks, need to be identified, analyzed and assessed. Risk Assessments and Health and Safety Plans need to form part of a holistic Project Risk Management Plan and Project Procedural Manual. For this reason we recommend that the proposed services as Safety Agent need to be rendered from the position of the Project Support Office and fully integrated with the other nine areas of Project Management ie, integration, scope, time, cost, quality, risk, procurement, human resources and communication. The Safety Agent needs to ensure compliance of the Regulations through an all-inclusive holistic approach, integrating the Designers duties and responsibilities, with those of the Contractors.

The Client’s responsibilities in terms of Regulation 4 is to ensure compliance with the provisions of the Act. In terms of Regulation 4(5), it is possible for the Client to delegate his responsibilities to an Agent on condition that he is satisfied in terms of Regulation 4(6), that the Agent has the required competencies and resources. The responsibilities as are imposed by this regulations upon a Client, shall as far as practicable apply mutandis mutatis to the Agent so appointed and shall include the following to ensure compliance with the provisions of the Act:

In order for the Client to comply with Regulation 4(5) and (6), the Scope proposed for the agreement must incorporate all the obligations in terms of Regulation 4 and formally refer to section 37(2) of the OHS Act. It is also important to draw the Client’s attention to Regulation 9 which provides as follows and is more often not being complied with.

9(4) “Any owner of a structure shall ensure that inspections of that structure upon completion are carried out periodically by competent persons in order to render the structure safe for continued use: Provided that the inspections are carried out at least once every six months for the first two years and thereafter yearly and records of such inspections are kept and made available to an inspector upon request.”

Another major statutory obligation is the compliance with the Government Procurement Legislation including Section 217(1) of the Constitution, stipulating that a tender process must comply with: fairness, equity, transparency, competitiveness and cost-effectiveness, and the Preferential Procurement Policy Framework Act 5 of 2000 (“the PPPFA“). In this sector the CIDB Procurement Guidelines fulfils a valuable role to assist the Organs of State to comply with same. Case Law also affords valuable intake on how courts construe the often ambiguous legislation, especially on the Tender Conditions including the criteria for non-responsiveness and eligibility to tender.