On Thursday, 06 March 2025, Notices 5952, 5953, and 5954 were published in Government Gazette No. 52226, in terms of which the Minister of Employment and Labour, under sections 43(1)(a) and (b) of the OHASA, promulgated the following:
- Physical Agents Regulations, 2024;
- Noise Exposure Regulations, 2024; and
- Notice regarding amendment to the General Safety Regulations.
The Physical Agents Regulations, 2024 – Notice 5952
The Physical Agents Regulations will replace the Environmental Regulations for Workplaces, 1987 (published in Government Notice No. R. 2281 of 16 October 1987). Regulation 21 of the Physical Agents Regulations specifies that the Environmental Regulations for Workplaces, 1987 "...will be repealed 18-months after the date of promulgation of the Physical Agents Regulations". Simply put, as the Physical Agents Regulations date of promulgation is 06 March 2025, the Environmental Regulations for Workplaces will remain in force and effect until 06 September 2026, whereafter these regulations will be repealed in its entirety and the Physical Agents Regulations will be in force and effect.
The Physical Agents Regulations will apply to "any employer or self-employed person who carries out work at a workplace which may expose any person to a physical agent in that workplace; and a designer, manufacturer, importer or supplier of plant and machinery for use at a workplace" (Regulations 2(1)(a) and 2(1)(b)).
The term "physical agent" is defined as meaning "...a source of energy which may result in injury or disease after exposure and includes, but is not limited to, cold stress, heat stress, vibration, non-ionising radiation and illumination". To ensure that the risks of exposure to a physical agent are minimised and/or controlled at a working place where such exposure is possible, the Physical Agents Regulations make provision for several measures to be implemented.
Click here to view a copy of the Physical Agents Regulations (Notice No. 5952).
The Noise Exposure Regulations, 2024 – Notice 5953
The Noise Exposure Regulations will replace the Noise-Induced Hearing Loss Regulations, 2003 (published in Government Notice No. R. 307 of 7 March 2003). Regulation 18 of the Noise Exposure Regulations specifies that the Noise-Induced Hearing Loss Regulations, 2003 "...will be repealed 18-months after the date of promulgation of the Noise Exposure Regulations". As the Noise Exposure Regulations date of promulgation is 06 March 2025, the Noise-Induced Hearing Loss Regulations will remain in force and effect until 06 September 2026, whereafter these regulations will be repealed in its entirety and the Noise Exposure Regulations will be in force and effect.
The Noise Exposure Regulations will apply to the employer or self-employed person at any workplace under their control where "... persons are exposed to continuous or impulse noise at or above either the noise-rating limit or the noise action level where there is concomitant exposure to ototoxic chemical agents and or whole-body vibration" (Regulation 2(1)(a)) and a designer, manufacturer, imported or supplier of plant or machinery for use at a workplace (Regulation 2(1)(b)).
The Noise Exposure Regulations make provision for, amongst others, the control and/or prevention of exposure to noise at a workplace as determined by a noise risk assessment and noise exposure monitoring programme, as well as training requirements and medical surveillance.
Click here to view a copy of the Noise Exposure Regulations (Notice No. 5953).
Notice regarding Amendment to the General Safety Regulations – Notice 5954 ("the Notice")
The first page of the Notice provides that the Minister of Employment and Labour has "...made the regulations in the Schedule". In terms of the Interpretation Act 33 of 1957, a law/regulations comes into operation on the day when it was first published in the gazette as a law, unless a specified date is provided in the gazette for the commencement thereof. The date of operation of the Notice is 6 March 2025.
No explanations are provided in the "Notice regarding Amendment to the General Safety Regulations".
The Notice references "Regulation 2: Personal Safety Equipment and Facilities" and provides:
"(1)[Subject to the provisions of paragraph (f), (g), (h) and (i) of regulation 5 of the General Administrative Regulations published under Government Notice R2206 of 5 October 1984] Every employer and every use of machinery shall make an evaluation of the risk attached to any condition or situation which may arise from the activities of such employer or user, as the case may be, and to which persons at a workplace or in the course of their employment or in connection with the use of machinery are exposed, and he shall take such steps as may under the circumstances be necessary to make such condition safe".
The purpose of the square brackets at the beginning of the abovementioned extract is unspecified. If the intention of the amendment is to delete the words contained in the square brackets, this must be stated in the Notice. The remaining portion of the section in the Notice appears to be a repetition of the current wording of regulation 2 of the General Safety Regulations, albeit that there appear to be two omissions in the wording in the Notice. Instead of "user" of machinery, the proposed amended section references "use" and in the last sentence the words "or situation" have been omitted (which does not make sense if one considers the wording of the regulation in context, which requires an employer to evaluate risk/s attached to any condition or situation). In our view, the proposed amendment is unclear and unintelligible.
The Notice continues by referencing Regulations 13H (Housekeeping), Regulation 13I (Precaution against flooding) and Regulation 13J (Fire precaution and means of egress), which regulations are underlined. Again, no explanation is provided, and it is assumed that the intention is for these regulations to be included in the General Safety Regulations.
Regulation 13B is the last regulation in force in the General Safety Regulations (Regulations 13C to 13G were repealed in terms of Government Notice 1010 of 2003). It is unclear why the underlined regulations in the Notice commence as Regulation 13H onwards.
Regulations 13H, 13I and 13J are a duplication of Regulations 6, 8 and 9 of the Environmental Regulations for Workplaces, 1987. The question that arises is whether the promulgation of the Notice containing Regulations 13H, 13I and 13J is an implied repeal of Regulations 6, 8 and 9 of the Environmental Regulations for Workplaces, 1987? From a legal perspective, this requires a more complicated legal analysis requiring consideration of the maxim lex posterior derogate priori, as applied and interpreted in case law and reference material. In terms thereof, a latter statutory provision which conflicts with an earlier provision is deemed to have been impliedly repealed. Without going into detail, we are of the view that the Notice does not constitute an implied repeal of Regulations 6, 8 and 9 of the Environmental Regulations for Workplaces, 1987 bearing in mind inter alia the content of Regulation 21 of the Physicals Agent Regulations as discussed above.
The Notice is unclear, contradictory and creates confusion. The most prudent course of action is for the Department of Employment and Labour to withdraw the Notice and promulgate a proper notice.
Click here to view a copy of the Notice (Notice No. 5954).
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