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Legionella · Duty holder · Responsible person · Contractors
Key facts
- Duty holder the employer (OHS Act s8 for employees, s9 for everyone else)
- Answerable the CEO (s16), even after assigning duties under s16(2)
- Responsible person the named competent person appointed in writing
- Contractors employer presumed liable for its employees and contractors unless it proves it did not permit the act, the act was outside their authority, and it took all reasonable steps (s37)
- Employees take reasonable care (s14), report possible exposure at once (HBA reg 5)
- H&S representatives where there are more than 20 employees (s17), told before assessments (reg 4(1))
Just been handed Legionella? Start here.
Legionella Responsible Person Training is written for the person the employer appoints: the law, your water systems, the risk assessment, the water management plan, sampling, results and what to do when someone falls ill, with a full hotel workshop. Ten hours, online, R2 950, HPCSA CPD accredited.
Who is the Legionella duty holder in South Africa?
The employer. “Duty holder” is the UK term from ACOP L8, which names employers, the self-employed and people in control of premises. South African law reaches the same place through the OHS Act.
- Section 8 requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to employees’ health, including training and supervision.
- Section 9 requires employers and the self-employed to run their undertakings so that people who are not their employees are not exposed to hazards. Hotel guests, care centre residents, patients and the public walking past a cooling tower are section 9 people.
- Section 16 makes the chief executive officer responsible for seeing that the employer’s duties are properly discharged. The CEO may assign duties to others under section 16(2), but that does not relieve the employer.
The HBA Regulations, 2022, which list Legionella spp. as a Risk Group 2 agent, then put the specific duties on the employer in regulations 4 to 12. In a shared building, write down who controls which system.
Getting it wrong is expensive. Section 38 of the OHS Act provides for fines of up to R50 000 or a year’s imprisonment for listed offences, and up to R100 000 or two years’ imprisonment, or both, where an employer negligently causes an injury (conduct that would have been culpable homicide had the person died). The HBA Regulations add up to 12 months’ imprisonment or a fine, plus up to R200 a day for a continuing offence. The bigger cost is a closed wing, a lost contract and a family asking why nobody checked.
Who does what? The roles in one table
| Role | Usually | Legal basis | Responsible for |
|---|---|---|---|
| Employer (duty holder) | The company, owner or operator | OHS Act s8, s9. HBA regs 4 to 12 | Providing and funding the controls, appointing competent people, training, records |
| Chief executive officer | MD, general manager, owner | s16, including s16(2) | Seeing the duties are discharged, assigning them in writing |
| Responsible person and deputy | Chief engineer, facilities, SHEQ, QA or engineering manager, frail care manager | s16(2) assignment. Competent person under HBA regs 6, 7, 12 | Running the risk assessment and water management plan day to day |
| Water treatment contractor | An outside company (a mandatary) | s37 | The work in its written scope, reported in full |
| H&S representatives and committee | Designated staff | s17. HBA regs 4(1), 6(7) | Being told beforehand and receiving the results |
| Employees | Everyone who works with or near water | s14. HBA reg 5 | Following procedures, recording honestly, reporting at once |
| Doctor or laboratory | Whoever diagnoses a case | Notifiable Medical Conditions Regulations | Notifying within 7 days |
What are the Legionella responsible person’s duties?
South African law does not use the phrase “responsible person”. ASC uses it, as ACOP L8 does, for the named, competent person the employer appoints in writing to manage day-to-day control. In South African terms that person holds a section 16(2) assignment and acts as the “competent person” the HBA Regulations require, with the knowledge, training and experience the task needs. L8 adds authority and knowledge of the installation.
This is how regulations 4 to 12 turn into the job. The full legal table is in Legionella regulations in South Africa.
| HBA regulation | The employer’s duty | What the responsible person does |
|---|---|---|
| 4 | Inform H&S representatives beforehand. Train exposed staff before exposure, with a refresher every year or at intervals the health and safety committee or representative recommends | Keeps the training matrix, trains new starters before they flush or clean, puts Legionella on the committee agenda |
| 5 | Employees follow instructions and report possible exposure | Makes reporting easy and acts on every report |
| 6 | Risk assessment by a competent person, action plan, review at least every 24 months | Leads or commissions it, owns the action plan, watches the review triggers |
| 7 | Monitoring programme, intervals never more than 24 months | Runs the weekly and monthly checks, arranges sampling where needed |
| 8 | Medical surveillance where the assessment or an occupational health practitioner calls for it | Refers to the practitioner. Surveillance is risk based, as there is no routine screening test |
| 9 | Records: 40 years, 5 years, training while employed | Keeps logs complete and open to inspectors and representatives |
| 10 | Reduce exposure, documented procedures including maintenance | Writes and maintains the water management plan |
| 11 | PPE and RPE where engineering controls cannot prevent exposure | Makes sure tower cleaning has the right RPE |
| 12 | Protocols for every control, examination and test at least every 24 months | Holds the protocols and examination records |
The responsible person also reads every contractor report, signs off corrective actions, and tells management in writing when something needs money. A responsible person without a budget is a scapegoat in waiting. The plan they run is set out in our water management plan template, and the assessment in Legionella risk assessment in South Africa.
Appointed, but never trained for it?
Many responsible persons inherit the job with a contractor already in place and no plan on file. Legionella Responsible Person Training takes you from the law to a signed water management plan, with a full hotel case to practise on first. Ten hours, online, R2 950.
What should a Legionella appointment letter contain?
Amanzi Dairy, the food plant case in our courses, has an engineering manager, Mr Pillay, who “looks after Legionella“. He has no written appointment and no training. The water treatment contractor works on purchase orders with no written agreement, and the health and safety committee has never discussed Legionella. Ask who is responsible and the honest answer is no one. A written appointment fixes that. It should contain:
- The legal basis: an assignment by the CEO under section 16(2) of the OHS Act, with duties drawn from the HBA Regulations, 2022.
- The appointee and deputy: names, job titles, and who covers leave.
- Scope: the sites and systems covered, including cooling towers and spa pools, and who holds anything excluded.
- Duties drawn from regulations 4 to 12, as in the table above.
- Authority: to take an outlet or system out of use, instruct contractors, call in specialist help and spend up to an agreed limit.
- Resources: time, budget, a calibrated thermometer, access to SANS 893 Parts 1 and 2.
- Competence: training done and planned, and relevant experience.
- Reporting line: to whom, how often, and how a High risk is escalated.
- Contractors overseen, and where the written agreements are kept.
- Review: when the appointment is reviewed. A change of appointee also triggers a risk assessment review (ACOP L8, para 47).
- Signatures of the CEO and the appointee, dated, copied to the health and safety committee.
A sample opening to adapt to your company’s format:
In terms of section 16(2) of the Occupational Health and Safety Act 85 of 1993, I assign to [name], [job title], the duty of managing the control of Legionella in the water systems at [site], as set out in the attached schedule, with [name], [job title], as deputy. This assignment does not relieve the employer of its duties under the Act. You have the authority to take any outlet, system or plant out of use where you believe there is a risk to health, and to instruct the contractors listed in the schedule.
Free tool: put the names on paper today
Step 1 of the free Legionella Risk Assessment and Water Management Plan Builder records the accountable manager, the responsible person and deputy, the date of the written appointment, the team and each contractor’s scope. The export flags a missing responsible person before sign-off.
The builder gives you the form. Legionella Responsible Person Training (R2 950) teaches the judgement behind every rating and limit.
Is the water treatment company responsible for Legionella?
For the work it agrees to do, yes. For the outcome, the employer stays responsible. Section 37 of the OHS Act presumes the employer liable for the acts and omissions of its employees and mandataries, such as contractors, unless it proves all three of these: it did not connive at or permit the act, the act was outside the person’s authority, and it took all reasonable steps to prevent it. A written instruction is not enough proof on its own. A written agreement with a mandatary under section 37(2) removes that presumption for the mandatary’s acts, but not the employer’s own duties, which is one more reason to have one. Nothing in a contract moves the employer’s own duties under sections 8 and 9, and ACOP L8 (para 57) agrees: using contractors does not absolve the duty holder.
In the hotel case in our courses, dip slides are done “when they remember”, no Legionella sample has been taken in 18 months, and last month’s report reads, in full: “Cooling tower. Visit done. Biocide topped up. Dip slide OK. System in good condition. Next visit next month.” The written agreement should fix:
- the services and frequencies, taken from your water management plan (for a cooling tower, dip slides weekly and Legionella at least quarterly under HSE HSG274 Part 1),
- what every report shows: date, readings with numbers, doses, defects, actions, the technician’s name,
- how fast out-of-limit results reach the responsible person,
- sampling by a SANAS-accredited laboratory with ISO 11731 on its schedule,
- competence evidence, and access to records if the contract ends.
Then someone on site must read the reports. That is the responsible person’s job, not the contractor’s. See Legionella in cooling towers.
What are employees and health and safety representatives responsible for?
Section 14 of the OHS Act requires every employee to take reasonable care for their own and others’ health and safety and to co-operate with the employer. Regulation 5 of the HBA Regulations requires them to follow lawful instructions and report any possible exposure immediately. On the floor that means: flush when it is due, write down the real temperature, and report slime in a tank or a shower that never gets hot.
They can only do that if they are trained. Regulation 4 requires training before possible exposure, with a refresher every year or at intervals the health and safety committee or representative recommends. That is what Legionella Awareness Training is for: four hours on a phone, R799 a person. Section 17 requires an employer with more than 20 employees at a workplace to designate health and safety representatives, and regulation 4(1) says they must be told before the risk assessment, monitoring and training take place.
Who is responsible when someone falls ill?
Legionellosis is a Category 2 notifiable medical condition: the doctor or laboratory that diagnoses it notifies within 7 days, not the employer. Municipal environmental health practitioners investigate. Frontline staff take the suspected outlet or system out of use but do not drain, flush, dose or disinfect it on their own. The responsible person agrees the next steps with the investigating EHP so samples can be taken first, and puts the records on the table. That is when every gap in this article shows. More in Legionnaires’ disease in South Africa.
Awareness Training for your team (R799) →Start the Responsible Person course (R2 950) →
Frequently asked questions
Who is responsible for Legionella in a workplace?
The employer. Sections 8 and 9 of the OHS Act require it to protect employees and other people its work could affect, and section 16 makes the chief executive officer answerable. Day-to-day control is assigned in writing to a competent responsible person.
Who is the Legionella duty holder?
In UK guidance (ACOP L8), the employer, the self-employed person or the person in control of premises. In South Africa the equivalent is the employer under sections 8 and 9 of the OHS Act, with the chief executive officer responsible under section 16.
What are the duties of a Legionella responsible person?
To manage day-to-day control: keep the risk assessment current, run the water management plan and monitoring, keep records, oversee contractors, make sure staff are trained before exposure, act on failed checks and results, and report to management. The person needs written authority, resources and competence.
Does South African law require a Legionella responsible person?
Not by that name. The HBA Regulations require a competent person for the risk assessment, monitoring and control protocols, and section 16(2) of the OHS Act lets the chief executive officer assign duties in writing. A named responsible person meets both.
Is the water treatment company responsible for Legionella?
For the work it agrees to do, yes, but the employer stays responsible. Section 37 of the OHS Act presumes the employer liable for its employees and contractors unless it proves it did not permit the act, the act was outside their authority, and it took all reasonable steps. Keep a written agreement and read every service report.
What should a Legionella appointment letter include?
The section 16(2) basis, the appointee and deputy, the sites and systems covered, the duties, the authority to take systems out of use and instruct contractors, resources, competence, the reporting line, contractors overseen, a review date, and signatures of the CEO and appointee.
Who has to train staff on Legionella?
The employer. Regulation 4 of the HBA Regulations, 2022 requires training in theory and practice for employees who may be exposed, before possible exposure, with a refresher every year or at intervals the health and safety committee or representative recommends.
Know exactly what you were appointed to do
Ten hours, online. You walk away with the risk assessment method, a water management plan, a contractor oversight checklist and a results reader, all worked on a full hotel case. Already pay a water treatment company? The course teaches you to read and challenge their reports.
Start the Responsible Person course (R2 950) →Awareness Training for your team (R799)Self-paced, works on a phone. HPCSA CPD accredited. Certificate on passing.