South Africa: Review Of The New Construction Regulations, 2014 As Part Of The Occupational Health And Safety Act, 1993

Last Updated: 10 April 2014
Article by Pieter Colyn

Most Read Contributor in South Africa, September 2016

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of the Occupational Health and Safety Act, 1993 ("the OHASA") containing the new Construction Regulations, 2014 which repealed the old Construction Regulations of 2003.

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 obligations
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 construction work);
the designer (which includes an architect or engineer); and
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 industry.
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.

Baseline risk assessment
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 contractors.
Notification of construction work
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 Construction Regulations.
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 design;
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 work;
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 materials).
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 regulations thereunder.
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
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.

Temporary exemptions
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.
We also attach hereto a copy of my article entitled "Tightening up - New construction regulations stipulate more stringent safety obligations" as Annexure "B". The article appeared in Mining Weekly online, Engineering News online, and in the print edition of Engineering News on 21 March 2014. For your ease of reference, we also include the hyperlinks to the respective online publications:

Please do not hesitate to contact us if you require any further information regarding the above, or if you require any further assistance.

Pieter Colyn
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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