8 October 2026 by ASC Team
Every South African site has one, usually in a plastic sleeve at the front of the safety file: the section 16(2) letter. Most of them were written to move something, and the thing their authors hoped to move was blame. Section 16(2) of the Occupational Health and Safety Act 85 of 1993 does not do that. It lets the chief executive officer assign duties to a person under the CEO’s control, who then acts subject to the CEO’s control and directions, and it says in terms that the CEO is not relieved of the duties by doing so. The letter delegates work. It does not delegate accountability, and a letter written as if it did tends to fail the assignee, the CEO and the site at the same time. This guide says what the section does, what section 37 adds, what an assignee actually needs, and how to write an assignment that works.
What does section 16 say?
Section 16(1) places a duty on the chief executive officer: as far as is reasonably practicable, to ensure that the employer’s duties under the Act are properly discharged. The Act defines the chief executive officer of a company as the person responsible for the overall management and control of its business, so the title on the door does not matter; the managing director of a food plant is the CEO for the Act.
Section 16(2) says the CEO may assign any duty under 16(1) to any person under the CEO’s control, and that person then acts subject to the CEO’s control and directions. The same subsection says the CEO is not relieved of any duty by doing so. Section 16(3) adds that nothing in the section relieves the employer of any responsibility or liability, subject to section 37.
Read together, three things are fixed. The CEO’s duty is personal and stays with the CEO. The assignee’s duty is derived and is exercised under the CEO’s control. And the employer, the company, keeps its own duties under sections 8 and 9 whatever either of them does. The Act does not require the assignment to be in writing; writing is your evidence, and an inspector will ask for it.
What does section 37 add?
Section 37(1) is the presumption. 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 it proves three things: that the employee acted without the employer’s connivance or permission, that the act was not within the scope of the employee’s authority, and that all reasonable steps were taken to prevent it. The section says that the fact the employer issued instructions forbidding the act is not, on its own, enough to prove the third.
That is why a 16(2) letter cannot be a delegation of blame. If the assignee fails, the employer is presumed to have failed, and the way out is not the letter but the reasonable steps: the training, the resources, the supervision, the checking. The letter is one of the steps. It is not the defence.
Section 37(2) applies the same presumption to a mandatary, the contractor or agent, unless the parties have agreed in writing to the arrangements and procedures between them to ensure the mandatary complies with the Act. That is the 37(2) agreement, and it is a different instrument from a 16(2) assignment: it concerns a contractor, it removes a presumption, and it leaves the employer’s own duties under sections 8 and 9 untouched. Employees and mandataries can themselves be convicted under the Act, so neither instrument protects the person who actually failed.
What happened with Anneke’s letter at Mzansi?
Mzansi Fresh Meals is the case site in ASC’s courses, a chilled ready meals plant in Kempton Park with 400 people and 60 agency workers; a training scenario built from real audit, inspection and incident patterns, with no real company named. The managing director, Sipho Dlamini, is the section 16(1) chief executive officer. In March 2025 he signed a 16(2) letter assigning the operations director, Anneke van Wyk, the employer’s duties for the whole site. The engineering manager, Ravi Naidoo, holds a second letter for engineering, the boiler and the ammonia plant.
When the inspector came in May 2026 and asked for the assignments, both letters were produced. Then she asked Anneke what had been assigned. Anneke said “health and safety”. The inspector asked whether that included the hazardous chemical agents risk assessment, which was dated 2021, and the medical surveillance decision for the hygiene team’s chemical exposure, for which there was no record. Anneke said she thought that was Ravi’s, because it was the ammonia plant. Ravi said he thought it was the SHEQ officer’s, because it was a risk assessment. The SHEQ officer, Bongani Zulu, had been appointed in January 2026 and had no letter at all.
Nothing in either letter was wrong in law. Both were simply useless as evidence of reasonable steps, because neither named the duties, neither had been followed by anything that looked like control and direction, and nobody had told the assignees what they had taken on. Sipho had signed them to show the board that safety was “handled”. Section 16(2) had never left him, and section 37(1) was waiting for the day one of the gaps hurt someone.
What does an assignee actually need?
The Act is clear about what the assignee is: a person under the CEO’s control, acting under the CEO’s control and directions. From that follow the things a working assignment has to provide, and most letters provide none of them.
| What the assignee needs | Why, in the Act’s terms | What it looks like |
|---|---|---|
| The duties, named | 16(2) assigns “any duty” under 16(1); “health and safety” is not a duty, it is a subject | A list: section 8(2)(d) hazards and precautions for the named areas; section 24 reporting; the Regulations for Hazardous Chemical Agents, regulation 5 assessment and regulation 7 decision; section 17 designations; and so on |
| A boundary | Two assignees with overlapping letters is two people each assuming the other holds the duty | Areas, plant and instruments listed, with no gap between the operations letter and the engineering letter |
| Competence | Section 8(2)(e) and (i): information, instruction, training and supervision, and work under a trained person with authority; a duty assigned to someone who cannot discharge it is not a reasonable step | Training in the law the duties come from, before or soon after the letter |
| Resources and authority | 16(1) asks for duties “properly discharged”; a person who cannot stop a line or spend money cannot discharge a duty to stop dangerous work | Written authority to stop work, a budget line, and access to the MD |
| Control and direction | 16(2): the assignee acts “subject to the control and directions” of the CEO | A standing item on the MD’s monthly meeting, a report from the assignee, and the MD’s decisions recorded |
| A period and a review | Section 17(1) requires representatives to be designated for a specified period; nothing in 16(2) requires one, but an open ended letter is never revisited | A period, a review date, and a fresh letter when the role or the person changes |
How should the letter be written?
Start from 16(2) and say what it says: that the CEO assigns the duties listed, that the assignee acts subject to the CEO’s control and directions, and that the CEO is not relieved. A letter that says the opposite, that the assignee “accepts full responsibility” or that the CEO “is hereby relieved”, misstates the Act and will be read against the site, not for it. Then list the duties by section and regulation, with the areas and plant they cover. Then say what the assignee may do: stop work, spend to a limit, instruct supervisors. Then say how the CEO will exercise control: the reporting line, the meeting, the review. Then the period. Then two signatures, the CEO’s and the assignee’s, with the date.
Put the letter in an appointments register with every other appointment the law creates: the section 17 representatives, the General Machinery Regulations competent person, the first aiders under General Safety Regulation 3(4), and the Employee Health and Wellness Representative that the COIDA regulations of 6 March 2026 require every employer to appoint, as law firms report them. The register shows who holds what, when it was signed and when it lapses, and it is the first page an inspector turns to.
And then do the thing the letter cannot do: exercise control. The MD who reads the assignee’s monthly report, asks about the risk assessment that is overdue, and records the decision to fund the occupational hygiene survey is taking the reasonable steps section 37(1)(c) will one day ask about. The MD who signed and filed is not.
Where does ISO 45001 put all this?
ISO 45001:2018 is voluntary and the OHS Act is not, but for a site that runs a system the two fit. Clause 5.1 requires top management to take overall responsibility and accountability for the prevention of work-related injury and ill health; that is section 16(1) in the standard’s words. Clause 5.3 requires roles, responsibilities and authorities to be assigned, communicated and documented, which is where the 16(2) letters and the appointments register live. And clause 5.1 a) is the reason a letter that tries to move accountability away from the top fails an audit as well as an inspection.
Frequently asked questions
Does a 16(2) letter transfer liability to the assignee?
No. Section 16(2) says the CEO is not relieved of the duties by assigning them, and section 16(3) says the employer is not relieved of responsibility or liability. The assignee can be prosecuted for their own failures, and so can the CEO and the employer.
Must the assignment be in writing?
The Act does not say so. Writing is the evidence that the assignment was made and what it covered, and an inspector will ask for it, so put it in writing.
Can the CEO assign to a consultant or a contractor?
Section 16(2) allows assignment to a person under the CEO’s control. A contractor is a mandatary, dealt with by section 37(2) and a written agreement, not by a 16(2) letter. A site that wants outside help with its duties keeps the duties inside and buys the help.
What is the difference between a 16(2) assignment and a 37(2) agreement?
A 16(2) assignment moves work to a person under the CEO’s control and leaves the CEO accountable. A 37(2) agreement is between an employer and a mandatary, such as a contractor, and removes the presumption that the employer did what the mandatary did, provided the arrangements and procedures to ensure compliance are agreed in writing. Neither removes the employer’s own duties under sections 8 and 9.
What happens if the assignee leaves?
The duty was never anywhere but with the CEO, so nothing lapses in law. In practice the work stops being done. Record the end of the assignment, assign the duties to someone else in writing, and note both in the appointments register.
Is the SHEQ officer the 16(2) assignee?
Only if the CEO assigns duties to that person. On many sites the SHEQ officer holds no assignment and the operations director holds one that nobody has read. Either way, the question is who the CEO assigned which duties to, and whether the CEO is exercising control. Decide it, write it and tell both of them.
Which ASC course teaches section 16 and the appointments the law creates?
This guide is drawn from South African Occupational Health and Safety Law, FS64, a course for SHEQ officers and managers, section 16(2) assignees, HR managers and consultants.
R1 495, prices in rand with no VAT added. About 7 hours, self paced, lifetime access.
- Sections 16 and 37 in lesson 1.2, with the 16(2) assignment and the 37(2) agreement set side by side.
- Every appointment the law creates, who signs, for how long and the competence behind it, in lesson 4.2 and the Appointments Register tab of the Legal Register tool.
- Inspectors, notices, victimisation and the section 38 penalties, and how to prepare for an inspection and respond to a notice.
- The regulations every food site meets and the COID Act as amended from 2026.
- Knowledge checks, games, scenario checks, case study assessments and a final, all at 70 percent.
Enrol now and know the law you answer to. All eight courses and the free guides sit at ISO 45001 and health and safety training. For the managing director, ISO 45001 Management Awareness, FS61, R1 295, covers sections 16 and 37 in four hours. For a team, ask about a group arrangement on WhatsApp ASC.
Related guides: Section 16(2) appointments, 37(2) agreements and what the MD personally signs up to and What the inspector asks for first.
Sources
- Occupational Health and Safety Act 85 of 1993, sections 1, 8, 16, 17, 24, 37 and 38, SAFLII consolidated text, saflii.org
- General Safety Regulations, 1986, regulation 3; General Machinery Regulations, 1988, regulation 2; Regulations for Hazardous Chemical Agents (GN R280 of 2021), regulations 5 and 7
- COIDA regulations of 6 March 2026 as reported by law firms: ENS
- ISO 45001:2018, Occupational health and safety management systems: Requirements with guidance for use (ISO), clauses 5.1 and 5.3
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.