Section 16(2) and 37(2) of the OHS Act Explained

8 October 2026 by ASC Team

A section 16(2) letter delegates duties; it does not move accountability. Under section 16 of the OHS Act the chief executive officer must, as far as is reasonably practicable, ensure that the employer’s duties are properly discharged, and assigning them to someone under his control does not relieve him of them. A written agreement under section 37(2) with a contractor removes the presumption that the employer committed the contractor’s offences; it leaves the employer’s own duties under sections 8 and 9 exactly where they were. ISO 45001 clause 5.1 then asks the MD to show, with evidence, thirteen things that prove the duties are being carried.

What does section 16 of the OHS Act actually say?

Section 16 has four parts; people remember the second.

16(1): every chief executive officer must, as far as is reasonably practicable, ensure that the duties of the employer under the Act are properly discharged.
16(2): the CEO may assign any of those duties to any person under the CEO’s control, who acts subject to the CEO’s control and directions. The CEO is not relieved of the duties by doing so.
16(3): the section does not relieve the employer of any responsibility or liability, subject to section 37.
16(4): the head of a state department is deemed to be its CEO.

For a company, section 1(1) defines the chief executive officer as the person responsible for the overall management and control of its business. On most private sites that is the managing director, whatever the title on the door.

What does a 16(2) letter do, and what does it not do?

It names who carries a duty day to day, gives them authority to act, and records a reasonable step by the CEO.

It does not transfer liability. The Act says plainly that the CEO is not relieved of the duties by assigning them, and the CEO remains accountable for how they are done.

Take the case we use in our courses, Mzansi Fresh Meals, a Kempton Park ready meals plant. It is a training scenario built from real audit and inspection patterns; no real company is named. The managing director, Sipho Dlamini, is the section 16(1) CEO. The operations director signed a 16(2) letter for the whole site in March 2025. The engineering manager holds one for engineering, the boiler and the ammonia plant. In May 2026 an inspector issued a contravention notice for an unguarded nip point on the line 2 sleeve applicator, no hazardous chemical agents risk assessment since 2021 for the chemical store and CIP, and no record of the medical surveillance decision for the hygiene team’s chemical exposure. The nip point and the chemical items sit inside the operations director’s site letter, the mixer interlock inside the engineering manager’s. Neither left the MD’s desk.

What should a 16(2) assignment contain?

The Act requires the assignee to be under the CEO’s control. It does not prescribe a form. From experience, these are the things that make a letter hold up when someone asks what it meant:

The duties assigned, by area and by activity, not “all OH&S matters”.
The authority that goes with them: to stop work, to spend within a limit, to appoint, to discipline.
The resources the assignee can call on.
How the assignee reports to the CEO, and how often.
The assignee’s signed acceptance, and the date.
A review date, and what happens when the person changes job or leaves.

Who should hold a 16(2) assignment?

Usually the managers who control the work: an operations or works director, an engineering manager for plant and machinery, a site manager on each separate workplace. Two patterns from our other case sites show where it goes wrong.

At a restaurant group with eleven sites, each restaurant manager is in practice a 16(2) assignee without knowing it, because nobody wrote anything down. At a family citrus packhouse there is no 16(2) at all: the owner is the CEO and everything else. That can be lawful, but with up to 380 seasonal packers the system has to show who sees to each duty.

ISO 45001 clause 5.3 asks top management to assign and communicate responsibilities and authorities for relevant roles at all levels, maintained as documented information. Its note says that while responsibility and authority can be assigned, ultimately top management is still accountable for the functioning of the OH&S management system. The standard and section 16 say the same thing in different words.

What does section 37 do to the employer?

Section 37(1) is the section that makes boards sit up. Where an employee does or omits to do something that would be an offence for the employer, the employer is presumed to have done it, unless the employer proves all three of these:

(a) the employee acted without the employer’s connivance or permission;
(b) the act or omission was not within the scope of the employee’s authority;
(c) all reasonable steps were taken to prevent it.

The section adds that the fact that the employer issued instructions forbidding the act is not, on its own, sufficient proof of (c). A rule in the induction pack is not a reasonable step if nobody enforced it. This is where a management system earns its keep: risk assessments, controls chosen from the top of the hierarchy, training that was checked, supervision, inspections, audits and corrective action are the evidence of reasonable steps.

Employees and mandataries can also be convicted themselves. The presumption does not protect them.

What is a 37(2) agreement, and what does it not do?

A “mandatary” under section 1(1) includes an agent, a contractor or a subcontractor for work, without taking away their own status as an employer. Section 37(2) applies the presumption in 37(1) to a mandatary as well, unless the parties “have agreed in writing to the arrangements and procedures between them” to ensure that the mandatary complies with the Act.

So a 37(2) agreement removes the presumption that you committed the contractor’s offences. It does not transfer all liability, and it does not remove your own duties under section 8 to your employees or under section 9 to everyone else affected by your work. If the refrigeration contractor’s technician is injured in your plant room because your isolation procedure failed, the agreement does not help you.

Good agreements set out the arrangements the Act refers to: the contractor’s risk assessment and method, the site rules, permits and isolation, competence, induction, incident reporting both ways, emergencies, and how compliance will be checked.

ISO 45001 clause 8.1.4.2 asks for the same thing from another angle. The site must coordinate with its contractors to identify hazards and control risks in both directions and for others in the workplace, define and apply OH&S criteria for selecting contractors, and ensure contractors and their workers meet its system requirements.

Where the contractor is building for you, the Construction Regulations, 2014 add client duties. Regulation 5 requires the client to prepare a baseline risk assessment and a site specific health and safety specification. At Mzansi, the cold store contractor arrived with a thick safety file of its own, which the site had not reviewed. A file is not a review.

What does the MD personally sign up to under ISO 45001?

Clause 5.1 lists thirteen ways top management shall demonstrate leadership and commitment. An auditor will ask for evidence, and will usually ask the MD directly.

Clause 5.1	What it asks	Evidence an auditor asks for
a)	Overall responsibility and accountability for preventing work-related injury and ill health	The MD can describe the top risks and what is being done
b)	Policy and objectives established and compatible with strategic direction	A policy approved by top management, available and communicated; objectives in the business plan
c)	Integration into business processes	OH&S items in the operations review, budgets, procurement
d)	Resources available	A budget line, approved and spent
e)	Communicating the importance of effective OH&S management	The MD’s own messages and floor visits
f)	The system achieves its intended outcomes	Review of results against objectives
g)	Directing and supporting persons to contribute	Assignments, decisions taken on reported issues
h)	Ensuring and promoting continual improvement	Improvements decided at review
i)	Supporting other managers to show leadership in their areas	Managers’ own inspections and actions
j)	Developing, leading and promoting a culture that supports the system	How the MD responds when an incident is reported
k)	Protecting workers from reprisals when reporting	A stated rule, and cases where it held
l)	A process for consultation and participation of workers	The 5.4 process and its records
m)	Supporting health and safety committees	Committee meetings held, attended, acted on

Add clause 5.2, the policy the MD approves with its six commitments, and clause 9.3, the management review the MD chairs, whose relevant outputs must be communicated to workers and their representatives.

What happens when it goes wrong?

Section 38(1) makes contravening the listed provisions an offence carrying a fine not exceeding R50 000, imprisonment not exceeding one year, or both. Under section 38(2), where an employer’s act or omission injures a person in circumstances that would have been culpable homicide had the person died, the limits rise to R100 000 or two years, or both. The court may also order the offender to comply within a set period. A certificate is not a defence. The question under section 37(1)(c) is whether all reasonable steps were taken.

A civil claim by the injured employee is not where the exposure sits. Section 35(1) of the COID Act says no action for damages lies against the employer for an occupational injury or disease. In Paynter’s Hardware CC v Chauke [2022] ZAGPPHC 225 the High Court in Pretoria held that the bar applies even where the employer failed to register the employee: the employee claims from the Compensation Commissioner, and the employer faces a penalty. Since 1 April 2026, law firms report, an accident not reported to the Commissioner within seven days can cost an administrative penalty of 10 percent of the employee’s annual earnings. The exposure is the OHS Act offences and the COID Act’s penalties, and both turn on what the system did.

At Mzansi, both serious injuries of 2025 were investigated, and both investigations named “operator did not follow procedure” as the cause. That is where an investigation stops, not where a cause is found. If the procedure was easy to break and nobody checked it, the reasonable steps argument gets thin.

Frequently asked questions

Can a 16(2) assignee refuse the appointment?

The Act does not deal with refusal. An assignment the person does not understand or accept is weak evidence. Get a signed acceptance after a proper briefing.

Can the CEO assign duties to a contractor under 16(2)?

Section 16(2) allows assignment to a person under the CEO’s control. A contractor is a mandatary, and the instrument for contractors is a written agreement under section 37(2), together with the controls in ISO 45001 clause 8.1.4.2.

Is the safety officer automatically the 16(2) assignee?

No. A 16(2) assignment goes to the people who control the work and the resources. A safety officer usually advises and monitors.

Does a 37(2) agreement cover labour broker staff?

For the OHS Act the labour broker is excluded from the definition of employer in section 1(1), so the agency staff who work under your direction are your employees and you owe them the section 8 duty directly; a 37(2) agreement with the broker does not change that. Under ISO 45001 they are workers, and the arrangement is externally provided labour managed under clauses 8.1.4.1 and 8.1.4.3. For compensation the broker is the employer under the COID Act.

Who is top management for ISO 45001?

Definition 3.12: the person or group who directs and controls the organisation at the highest level. It can delegate authority, provided ultimate responsibility for the system is retained.

Do we need a 16(2) letter for every supervisor?

Not necessarily. Assign duties where control sits and make the rest clear under clause 5.3. A supervisor’s legal role usually comes from section 8(2)(i), general supervision by a trained person with authority.

Which ASC course prepares the MD and the 16(2) assignees?

This guide is drawn from ISO 45001 Management Awareness, FS61, for the managing director, directors, section 16(2) assignees and department managers.

R1 295, prices in rand with no VAT added. About 4 hours, self paced, lifetime access.

The letter you signed: section 16, the section 37 presumption and section 38 penalties.
Clause 5.1 a) to m) with the record behind each item, the policy you approve and the objectives you own.
Contractors, the labour broker and the construction project under section 37 and clause 8.1.4.
Fifteen prepared questions for the top management interview.

The SHEQ manager who has to build the contractor controls and the responsibility matrix needs ISO 45001:2018 Understanding and Implementation, FS62, R3 950.

Enrol now and know what you signed. See all eight courses at ISO 45001 training, or ask about the whole management team on WhatsApp ASC.

Sources

Occupational Health and Safety Act 85 of 1993, sections 1, 8, 9, 16, 37 and 38
Construction Regulations, 2014, made under the OHS Act
ISO 45001:2018, Occupational health and safety management systems: Requirements with guidance for use (ISO)
Compensation for Occupational Injuries and Diseases Act 130 of 1993, section 35(1); Paynter’s Hardware CC v Chauke [2022] ZAGPPHC 225, SAFLII
COIDA administrative penalties from 1 April 2026: CMS; Bowmans

This guide is training, not legal advice. ISO 45001 is copyright and is not reproduced here. ASC is not affiliated with ISO. Last updated 8 October 2026.