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The question is often asked if a person appointed by the CEO in terms of section 16(2) of the OHSA can further appoint other persons in this capacity.

South African safety, health and environmental legislation imposes duties on employers, employees and other persons.  Where the employer is a legal entity, such as a company, it needs people to act on its behalf.

The OHSA states the following:

Occupational Health and Safety Act Section 1 Definitions

'chief executive officer', in relation to a body corporate or an enterprise conducted by the State, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise;

'employer' means, subject to the provisions of subsection (2), any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him, but excludes a labour broker as defined in section 1 (1) of the Labour Relations Act, 1956 (Act 28 of 1956);

Section 16  Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

Surely the most senior person at a specific workplace should have a legal responsibility to ensure compliance to the Occupational Health and Safety Act (OHSA) at that workplace. This person may sometimes be several organisational levels removed from the CEO, and may not report directly to the CEO.

Where companies have accepted that it is not allowed for a 16(2) to further appoint a 16(2), they often apply the following methods to delegate responsibility to the appropriate level:

1. The CEO (16(1)) signs all 16(2) appointments even if second, third and fourth level 16(2)’s do not report directly to the CEO.
2. The 16(2) appoints subordinates in some other capacity, for example in terms of section 8(2)(i) of the OHSA.

Both options have administrative and legal compliance drawbacks.

The first method is administratively burdensome on the CEO, and serves no real legal purpose if one follows the legal maxim of substance over form, as this person reports to his or her line superior and not directly to the CEO.  Signing the appointment letter becomes almost a rubber-stamping exercise, since the CEO does not have regular interaction with the appointed person to monitor and control that the requirements are complied with, and does so through the standard corporate reporting structure in any event.  It is an artificially constructed mechanism to try and comply with the literal interpretation of wording used in the OHSA, but does not really serve an effective purpose.

Following method2 is merely playing a numbers game, whereby the so-called 8(2)(i) appointment is in fact a 16(2) appointment, just with a different number, as this appointment letter almost always charges the appointee with the legal responsibility to ensure full compliance to the OHSA.  There is sufficient jurisprudence supporting the fact that with legal matters substance (or content) is more important than form.  Calling somebody an 8(2)(i) appointee would not detract from the fact that the person has basically all the responsibilities imposed on the employer by the legislation.  Delegating responsibility and authority in terms of section 16(2) of the Act is a more “honest” approach (for lack of a better word) than doing so in terms of section 8(2)(i).

Consider also that section 8(2)(i) is not really a legal appointment as such, but an obligation on the employer to ensure that supervisors (any existing role within most corporate structures) are competent to identify hazards and authorised to ensure the precautionary measures prescribed by the employer are implemented.  The supervisor is in essence an enforcer of rules, and not necessarily a maker of rules, and a section 16(2) appointee often needs to make rules.

The OHSA does not expressly provide the 16(2) appointee the right to make further appointments in terms of that section, nor does it expressly prohibit it. There are divergent legal opinions on this issue, but to date this issue has not yet been decided by a court (and it can only be finally decided by a court of law).  

The opinion that 16(2)-16(2) delegation is not allowed, is often based essentially on three grounds, set out below, with the counter-arguments to illustrate that this opinion can just as easily be defended in a court of law:

Arguments Against 16(2) – 16(2) delegation	Counter Argument
In terms of Section 16(2):” a CEO MAY assign any DUTY contemplated in this said subsection, to any person under his control”. There is no duty on the CEO to assign any of the employer’s duties to a Section 16(2) appointed person. The subsection states the CEO may assign any duty; the appointment of a Section 16(2) person is not a duty of the CEO and can therefore not be assigned to any other person.	Since section 16(2) states that an assignment in terms of this section does not relieve the CEO of responsibility, the same principle can be applied when one 16(2) appoints another 16(2).  Such a delegation does not deprive the prosecuting authority their option of prosecuting senior management for contraventions at a particular workplace.  The “duty” that is to be discharged is to ensure compliance to the Act, and allowing a senior manager to appoint other (still senior) managers is done in order to ensure compliance to the Act at a particular workplace, and not to avoid the responsibility (see the “passing the buck” discussion below).  Legislation does not always take the various circumstances of different workplaces into consideration, and complying with the spirit of the Act and intention of the legislator is commonly regarded as more important than literal interpretations.
The legal principle of delegare delegates non potest means that the delegated person (16(2) appointee) cannot delegate further.	This is a principle of administrative law governing state functions.  However, even then, the delegated person can in administrative law be given the authority to further delegate.  The principle only applies when such express authority is not given.
If a Section 16(2) appointee is allowed to appoint any other person as a Section 16(2) appointee, the latter is no longer under the control and directions of the CEO – the CEO may not even be aware of this person. How will the CEO then ensure that the employer provides for the health and safety of employees and other persons directly affected?	This argument is challenged through the practical issue of corporate governance.  The hierarchical corporate reporting structure (based on age old military principles) ensures that instructions on corporate behaviour are followed down the line, and there is no reason to believe that for health and safety instructions such a structure would not work.  It works in practice, and is also supported by the argument below relating to aligning SHE responsibilities with corporate reporting lines.

It is still important to ensure that subsequent appointing does not constitute the practice of merely passing the buck.  Criticism against the practice of one 16(2) appointed person appointing another person in the same capacity, is often based on the perception that the first person is merely passing on his or her responsibilities without taking any positive steps to discharge those responsibilities.  Everybody who has been charged with a certain responsibility must be able to show the steps he or she has taken to discharge those responsibilities over and above merely passing on the responsibility to somebody else.

It is important to align the SHE roles and responsibilities with the operational roles and responsibilities within the organisation. An appointed person should have full authority for the area of his or her appointment.  If a person appointed in terms of a particular section or regulation can be overruled by his organizational superior, that superior should have an equivalent or “higher” legal responsibility. (This was pointed out specifically during the Leon Commission of inquiry into health and safety at mines, to which the promulgation of the Mine Health and Safety Act can be ascribed.) This is also why health and safety legislation imposes the obligation to ensure compliance not on health and safety professionals but on the CEO and management members delegated from thereon.  This principle will ensure that the perceived potential conflict between production and safety is not decided by a person who has authority over production, but no responsibility in terms of safety.

Overlapping responsibilities should be avoided.  Where an appointment is made, there should be no overlapping responsibilities between two or more persons appointed as such.  Overlapping can be avoided by appointing different persons for clearly defined different geographical areas or very clearly defined functional areas.

Employers should draft and implemented proper job descriptions incorporating SHE responsibilities.  Such job descriptions would satisfy the legislative requirement that a person must be “appointed” or “designated in writing” and it would also gradually remove the problematic situation where an employee in an existing post refuses to sign or accept a legal appointment for whatever reason.

The following guidelines should be followed when establishing a corporate reporting structure for ensuring compliance to the OHSA.

1. It must be remembered that a section 16(2) appointment is not legally compulsory. In terms of section 16(2) a CEO may assign any duty contemplated in this subsection to any person under his control.
2. A multi-tiered section 16(2) appointment structure would be more acceptable in a multi-tiered corporate entity with various workplaces, where the CEO is one or more organisational reporting levels removed from the most senior person at a particular workplace (and not permanently stationed at such a workplace), than it would be where the employer has only a single workplace, and the CEO is also the most senior person at that workplace.

The person who delegates responsibility should indicate in the appointment letter whether the appointed person can delegate this responsibility further. The following sentence can be added to such an appointment letter:

You are hereby authorised to make the necessary appointments to assist you with the discharging of your responsibilities in terms of this appointment, including making further appointments in terms of section 16(2) of the Occupational Health and Safety Act.

When the employer wants the section 16(2) delegation to stop at a certain level (which it should), the lowest level 16(2) appointment should contain this statement:

You are hereby authorised to make the necessary appointments to assist you with the discharging of your responsibilities in terms of this appointment, but you may not make further appointments in terms of section 16(2) of the Occupational Health and Safety Act.

Health and safety responsibility does not stop with a section 16(2) appointee. It is possible, through the workings of section 14(c) and other provisions of the Act, to make other individuals responsible for health and safety aspects in the workplace. This can be done by the 16(2) appointee. Persons can be made individually liable through policies and procedures and not only through appointments, as well as through integrating health and safety responsibilities with job descriptions.

The intention of the OHSA is to ensure the health and safety of people.  Would this be better ensured if responsibility can be delegated to all managerial levels in a large organisation, or if 16(2) appointments are restricted to the first organisational level, reporting directly to the CEO?  The answer seems quite obvious.

The Chief Inspector of the Department of Employment and Labour granted a temporary exemption in Government Notice No. 850 of 17 August 2018 pertaining to the Application for Construction Work Permits as contemplated in the Construction Regulations, 2014.

In terms of this notice, Clients who intend to have construction work carried out must at least 30 days before that work is to be carried out, apply to the provincial director in writing for a construction work permit to perform construction work, if the intended construction work starts from the 7th August 2018 and will-

1) Exceed 365 days and will involve more than 3600 person days of construction work; or

2) The tender value limit is grade 7, 8 or 9 of the Construction Industry Development Board (CIDB) grading.

The first condition that triggers the requirement to obtain a Construction Work Permit from the Department of Labour is that the project must both exceed 365 days and 3600 person days. It is not either or.

The second condition is a little more problematic.  It is related to the tender value limits prescribed by the Construction Industry Development Board in terms of the Construction Industry Development Board Act. Regulation 17 states:

A contractor registered in a contractor grading designation indicated in column 1 of the Table 8, is considered to be capable of undertaking a contract in the range of tender values indicated in column 2 of that table in the class of the construction works to which the category of registration of that contractor relates.

TABLE 8

On 5 July 2019 the Department of Public Works published adjusted CIDB Tender Value Ranges for contractors in Notice 357 of 2019.  The ranges (as reflected in table 8 of the Regulations) are now as follows:

Contractor Grading Designation	Less than or equal to (R)
1 (class of construction works)	500 000
2 (class of construction works)	1 000 000
3 (class of construction works)	3 000 000
4 (class of construction works)	6 000 000
5 (class of construction works)	10 000 000
6 (class of construction works)	20 000 000
7 (class of construction works)	60 000 000
8 (class of construction works)	200 000 000

The Department of Employment and Labour had in the past interpreted the CIBD Table in such a way that a Construction Permit is only required if the project value is above the upper limit of Grade 7, which is currently R60 million.

So, if the triggering requirement is only the contract value, and not the man-days, the following projects will require a Construction Work Permit according to different interpretations:

Legricon Interpretation: Projects above R 20 million.

Department of Employment and Labour Interpretation: Projects above R 60 million.