.:The Lowvelder Online - Die Laevelder Op Die Web:.

Written by Desireé Rorke - Monday, 06 September 2010 16:16

Desireé Rorke

NELSPRUIT - The state will have to prove intent when prosecuting the owners and two employees of the Big Swing cable jump outside Graskop, where the 29-year-old
Ms Jo-Ann Samuels jumped to her death in October last year.
The National Prosecuting Authority (NPA) last week decided to change the charges against them from culpable homicide to murder and charges relating to sections
8 and 14 of the Occupational Health Act.
According to NPA spokesman Ms Mona Moerane, the state is of the view that there was an omissio by the company by failing to adhere to the above sections of the legislation. In terms of legal definition, omissio is the negative form of an action and thus does not exclude dolus or intent.
This can be compared to the example of a man standing in a small crowded bar, and pulling out a gun and shooting off one shot to bring calm after a brawl broke out. Should someone be injured or killed in his action, intent or dolus can be proved based on the fact that he should have foreseen death or injury by pulling the trigger - he acknowledged the fact but still continued with the action.
These relevant sections of the Occupational Health and Safety Act in short state that an employer must at all times take reasonable care to ensure the health and safety of his employees and person using the machinery on site, and to this end the Department of Labour (DOL) has to carry out annual inspections and all accidents must be reported.
The state confirmed that they received a report from the department on April 30 this year.
A few days after the accident occurred, Lowvelder established that a safety inspection was last conducted by DOL in 2007, and that the company also failed to report the accident to the department, as per legislation. A labour inspector, Mr Andrew Mnisi told Lowvelder that the first he heard of the accident was when the paper contacted him, a few days afterwards.
The NPA furthermore confirmed that the video footage of the jump was now in its possession and that requests for disclosure will be considered at the appropriate time by the affected parties.
A few weeks after the accident, the victim's husband, Capt Hendrik Samuels told Lowvelder that they had ordered a video of the jump beforehand and that it was still in the company’s possession. Owner Mr Michael Head however refused to disclose it to Lowvelder when we requested it at the time. Notwithstanding this tragic event the Big Swing continues to operate.