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On 7 February 2014, Labour Minister Mildred Oliphant published a
notice under Section 43 of the Occupational Health and Safety Act,
1993 ("the OHASA") containing the new Construction
Regulations, 2014 which repealed the old Construction Regulations
I have prepared for you a summary of the implications of the new
Construction Regulations of the OHASA, as follows:
More stringent health and safety
The new Construction Regulations place more
stringent health and safety obligations on a wide range of parties
who are involved in construction work, including:
the client (a person for whom construction
work is being performed);
the contractor (an employer who performs
the designer (which includes an architect or
the principal contractor (an employer
appointed by the client to perform construction work).
In South Africa, the occupational health and
safety environment (outside the mining industry) is primarily
regulated by the OHASA and regulations promulgated thereunder. The
OHASA and its regulations create obligations on employers,
manufacturers, users and mandataries to ensure, as far as is
reasonably practicable, the health and safety of, employees
(amongst others) while they are working.
The OHASA also contains the new Construction
Regulations which apply to all types of construction work and
regulate all construction-related activities outside of the mining
Do the new Construction Regulations
apply to a mine or mining area?
It is very important to note that the OHASA
and its regulations (including the new Construction Regulations) do
not apply to a mine or a mining area. The OHASA and its regulations
may, however, be made applicable to a mine by the publication of a
notice under Section 80 of the Mine Health and Safety Act, 1996 by
the Minister of Mineral Resources. This was never done in respect
of the old Construction Regulations, and to date, no such notice
has been published in respect of the new Construction Regulations.
For more information on the above, please see Willem Le Roux,
Mine Health and Safety Law, loose leaf
publication, LexisNexis, 2011 at COM 28 – 29.
A client must now prepare a baseline risk
assessment to identify the major occupational health and safety
risks, as well as establish priorities and a programme for future
risk control for an intended construction work project. A suitable,
sufficiently documented and coherent site-specific health and
safety specification for the intended construction work, based on
such baseline risk assessment, must then be prepared.
Such baseline risk assessment will ensure a
proper analysis of all the activities at the construction site to
identify the high-risk activities that must be addressed in the
health and safety plans of the principal contractor and other
Notification of construction
The old Construction Regulations required, in
specified circumstances, that only the relevant provincial director
of the Department of Labour be notified before any construction
work was to be carried out.
The new Construction Regulations provide that,
in some specified circumstances, it is still required to notify the
relevant provincial director, but in other specified circumstances,
the client is obliged to apply in writing to the relevant
provincial director for a construction work permit to perform the
intended construction work. In such circumstances, it would be
impermissible for construction work to proceed without a
construction work permit.
It is important to note that the particular
regulation dealing with the requirement for a client to apply in
writing to the relevant provincial director of the Department of
Labour for a construction work permit, will only come into effect
from 7 August 2015, 18 months after the commencement date of the
new Construction Regulations.
Similarly, the requirement that an agent must
be qualified to perform the required functions and be registered
with the South African Council for the Project and Construction
Management Professions, will also only come into effect from 7
August 2015, 18 months after the commencement date of the new
Obligations of a designer (which
includes an architect or engineer)
It is noteworthy that a designer must now also
be a competent person and that several specific duties are imposed
on such a designer under the new regulations. The designer must,
amongst other things:
ensure that the relevant health and safety
standards, such as industry best practices, are complied with in a
take into consideration the health and safety
specifications submitted by a client;
inform a client in writing of any known or
anticipated dangers or hazards relating to the construction
make available all the relevant information
required for the safe execution of the work upon being designed or
when the design is subsequently altered; and
refrain from including anything in the design
of the structure that necessitates the use of dangerous procedures
or materials, hazardous to the health and safety of people (this
can be avoided by modifying the design or by substituting
The new Construction Regulations clearly make
designers more accountable, which may expose such designers to
criminal liability for non-compliance.
The new Construction Regulations amended
several definitions which form part of the old Construction
Regulations. An important change is that an agent or designer may
no longer be any person, but must be a competent person, who is
required, amongst other things, to be a person with the required
knowledge, training and experience, with the additional requirement
that such a competent person must now also be a person who is
familiar with the provisions of the OHASA and the applicable
The new Construction Regulations also
introduce new definitions. It is now a requirement for a
construction manager to be appointed with the duty of managing all
the construction work on a single site, including the duty of
ensuring occupational health and safety compliance.
The biggest challenge for the successful
implementation of the new Construction Regulations will be to
ensure that the offices of the relevant provincial directors are
properly equipped to speedily process applications for construction
work permits. It is critical during this process that there is a
consistent application of the relevant requirements to create
certainty in the construction and building industries.
We have obtained a copy of what appears to be
a notice by Chief Inspector, Thobile Lamati, under Section 40 of
the OHASA, which grants certain temporary exemptions. However, it
would appear that the notice has not yet been published in the
Government Gazette as required by the relevant provisions of the
OHASA. Nevertheless, we attach hereto a copy of the notice, for
your information, as Annexure "A"
We shall continue to monitor further
developments relating to the notice.
Please do not hesitate to contact us if you require any further
information regarding the above, or if you require any further
joint head of Mine and Occupational Health and Safety
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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