5.1. Introduction
This chapter discusses the implications of the findings tabled in chapter 4, which include the non-compliance actions by stakeholders, and the role played by the DoL as the regulating body. This chapter will further provide the conclusions by considering the research objectives in chapter 1. Finally, the chapter will provide recommendations that will further the work that has been done in this research.
5.2. Discussion
The findings provide important lessons as they unveil the level of non-compliance in the Tongaat mall case. The findings in this single case study give an informed idea of what is happening in the industry in terms of non-compliance. The findings in this research are further supported by the outcomes of investigation conducted by the DoL in similar cases. The following are similar cases investigated by the DoL:
• Parkview shopping centre (Pretoria, SA): A section of a shopping centre under construction collapsed in April 2009. One worker died and a co-worker was paralysed. The DoL submitted their findings to the NPA for a possible prosecution (ProjectPro, 2012).
• Stellenbosch (SA) renovation collapse: Three workers were killed and four injured when a building that was being renovated collapsed in June 2008 (DoL, 2009). The report from the DoL was finalized 2012 and handed over to the NPA (ProjectPro, 2012)
The literature underpins the importance of enforcing compliance in order to minimize accidents in the construction industry. The regulating body, the DoL, must be empowered to enforce compliance, and to hold offenders accountable for their actions/inactions. This case presented a situation in which compliance with statutory requirement was fairly poor. A good
47 example, both the client and the contractor opted to procced with construction work without permit to work, or at least informing the department as per statutory requirement. The contractor also failed to develop an H&S plan and a risk file, the client did not ensure that it is in place in terms of the responsibility bestowed on him/her.
To scale down to the event that led to the accident, it can also be attributed to non- compliance of stakeholders. A competent construction manager or an alternate (supervisor) ought to be appointed by the contractor to manage construction work and ensuring occupational H&S compliance. Had there been a competent supervisor doing the work, they could have ensured the construction method is of the required standards. Further, the concrete test results could have given an indication of an incident waiting to happen.
The findings against the contractor suggest that he was not competent to carry out the work, the failure to work from drawings and the failure to conduct cube test were some of the factors highlighted as proof of incompetence. The client was expected to have appointed a competent contractor and ensure that he carries out the work accordingly. The client’s involvement in the project was very minimal; majority of the responsibility was surrendered to the contractor. It can be argued that it is as a result of a lack of willingness to comply with legislation on the part of client.
The client was involved in only two occasions; the appointment of the contractor and halting work when issued with court papers. As discussed in the literature, the client has an active role to play throughout the project lifecycle, in particular, at the beginning of the project where he/she is expected to apply for permit to work. Furthermore, he/she was expected to ensure that the contractor has an H&S plan in place. The client also confirmed to be not fully aware of the requirements of the Construction regulations. Such a position automatically places client in position where he is likely to non-compliant.
The DoL as the regulating body has a duty to ensure the legislation is upheld and respected by all construction stakeholders. Parties failing to comply with the statutory requirement must be held accountable, and key to accounting is the ‘punishment’ of non-compliant parties. After a lengthy rigorous process of accountability the commission failed to punish the non- compliant parties, instead, the commission recommended an investigation by the NPA for a possible prosecution. One and a half years since the report was handed over to the NPA nothing has materialized. The minister of the DoL did concede the shortcomings in the legislation, in particular the lack of power to prosecute or hand down harsher punishments. As it is, the DoL can issue a fine for non-compliance, which appears to be ineffective given that the amount is relatively low for corporate companies.
48 ECSA has also announced the investigated into possible misconduct of registered person in the design and construction of the mall (De Bruyn, 2013). The outcome of the investigation was never made public. However, the designer of the Tongaat mall remains a register professional engineer with ECSA (ECSA, 2018).
The National Union of Mineworkers (NUM) has voiced their concern in the growing number of accidents in the construction industry and the lack of decisive action by the DoL (Mail & Guardian , 2013). The outcomes of the inquiry justify the concerns of NUM. A decisive regulating body is required to combat the grpwing H&S challenges in the construction industry.
Another great concern noted from the part of the regulating body is the amount of time it takes to complete the inquiry; the longer it takes to complete these inquiries and lack of accountability continues add pain to the victims. The Sandton bridge collapse is another example of delays in the accounting processes; 2 years later since the collapse, the inquiry is yet to convene to commence its work.
In literature it was uncovered that the South African legislation does not involve the designer as much as it should. Studies have already shown the importance of involving the designer in the matters of H&S.
5.3. Conclusions
Chapter 1 set out research objectives to be evaluated in this study. In chapter 1 it was then stipulated that literature review and case studies will be used to satisfy the research objectives.
Literature was reviewed in chapter 2; with a focus on H&S in construction, and construction accidents. On H&S in construction, policy and legislation was discussed. In so doing, the roles of a client, contractor and designer (as stakeholders) were identified. It was noted that the role played by each of the stakeholders were equally important for construction H&S. The roles identified were compared with roles identified by first world countries. This was done to test the strength of the SA policies and legislation on construction H&S. The gap identified in the South African legislation was the minimal involvement of the designer in the matters of H&S.
On construction accidents, accident causation and prevention was discussed as build up to compliance and accountability. This review was conducted to build knowledge on the impact of non-compliance on construction H&S, and the role of accountability in combating non-
49 compliance. To improve on this knowledge, lessons in previous accidents were extracted to produce an H&S framework.
Chapter 3 outlined and discussed the methodology in conducting the case study. It explained in detail the reason the case study method was best to achieve the objectives of this study. Data collection and analysis were also discussed.
In chapter 4, findings were presented and analysed. These findings were then discussed in the beginning of this chapter. A theory was developed and tested, this theory (below) proved to be correct in the Tongaat case.
The South African regulating body is not effective in holding stakeholders accountable, and as a result encourages non-compliance of stakeholders in construction sites.
Research Objective: To establish the required duties and responsibilities from construction stakeholders in a construction site.
The client, contractor, and designer were identified as the main stakeholders in the construction legislation. The study has established that the H&S policies and legislation are well drafted to meet the international standards. These adopt the multi-stakeholder approach where responsibility is shared by all stakeholders. The following were established in the Tongaat study
• The client failed to assume the leading role which includes the acquiring of a work’s permit and preparing an H&S specification.
• The client also failed to appoint a competent contractor, which is one of the responsibilities given to the client.
• The contractor failed to notify the department of the works it was conducting as per statutory requirement
• The contractor did not prepare H&S plan, which is one of the primary contractor’s responsibility.
Through literature it was found that the SA legislation does not give the designer an active role in the matters of H&S. Studies have recognized the need to have the designer playing a more active role in the matters of H&S.
Research objective: To identify whether or not construction stakeholders are held accountable for the failure to comply with the H&S act requirements
50 The purpose of accountability in construction is to ensure parties are liable for their actions/inactions. The study conducted presented several findings suggesting the lack of respect for the rule of law; the client, contractor and designer on this project were generally non-compliant with the statutory requirements. Furthermore, the study concluded that non- compliance by stakeholders in the Tongaat case contributed greatly to event that left two people dead.
The research also established the failure by the regulating body to punish the non-complying parties. The high rate of non-compliance in the construction industry was partly attributed to the rather “lenient” punishments imposed on non-complying parties. The DoL as the regulating body has a responsibility of ensuring compliance.
In Literature, the accounting process was characterized by three phases, namely; the information phase, the debating phase, and the consequence phase. The section 32 inquiry successfully went through the first two phase and failed on the consequence phase. Several studies have emphasized on the importance of the consequence phase. Accountability without the consequence phase is ineffective.
This case study has shown how non-compliance by stakeholders has contributed to the accident. Furthermore, this study demonstrated how the section 32 inquiry was not effective in holding stakeholders accountable.
5.4. Research limitations
The limitation of the study is that only one project was studied in detail. However, the findings were supported by outcomes of other similar cases conducted by the DoL, and as such the results are scientifically justifiable. The results provide the challenges faced by the DoL as the regulating body. The gaps in the legislation with respect to application of accountability encourage non-compliance.
It has been established that the construction industry does not boast a good H&S record. The DoL as the regulating body has an important role to play in ensuring non-complying companies are held accountable in an effective manner.
51
5.5.
Recommendations
• The theory below must be tested in other construction accidents/cases to give strength to theory:
The South African regulating body is not effective in holding stakeholders accountable, and as a result encourages non-compliance of stakeholders in construction sites.
• This study has identified the minimal involvement of the designer in the matters on H&S. Further research is required to study how the designer can play a more active role in the SA construction industry
• Research on how the SA legislation could be improved to ensure suitable punishments for non-compliance.
52
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