The Occupational Health and Safety Act, 1993 (“OHS Act”) requires that every employer

shall provide a working environment that is safe and without risk to the health of his
employees. In terms of section 16(1) of the OHS Act, every CEO (“16.1”) is, as far as
reasonable practicable, responsible to ensure that this duty is properly discharged.

The OHS Act defines a CEO as “in relation to a body corporate or an enterprise
conducted by the State, means the person who is responsible for the overall
management and control of the business of such body corporate or enterprise”. In
corporate law terms, a company usually has a CEO who is the highest ranking executive in a
company and responsible for managing the operations of the company and making high-level
strategic decisions. In smaller companies the CEO will oftentimes be part of the day-to-
day operation of the company, and will express a more hands-on approach. The CEO is
elected by the board of directors and/or shareholders’, dependant on the requirements of the
companies’ constitution (or Memorandum of Incorporation in South Africa). 

There is no requirement in South African corporate law that prohibits a company from
having more than one CEO, and this system can be prevalent in companies which comprise
of a large number of divisions. Whole Foods and Samsung are examples of large
international companies with more than one CEO. Section 16(1) states that “every chief
executive officer” which in effect implies that, for purposes of health and safety, a
company may have more than one 16.1 appointment. Like mentioned above, this will
be beneficial for large groups of companies as well as companies consisting of various
divisions. In practice a second 16.1 may be appointed, if that person is responsible for the
control of the business of that specific division, within the company. It is
however important that the duties of the various 16.1’s do not overlap. It should be noted that
there is no express provision in the OHS Act that a 16.1 must be appointed in writing, but it is
good practice to have such a document on file as tangible proof.

Section 16(2) states that “a chief executive officer may assign any duty contemplated
in the said subsection, to any person under his control, which person shall act
subject to the control and directions of the chief executive officer.” This means that the
16.1 is allowed to delegate his functions to a person under his control. This appointment is in
practice referred to as the 16.2 appointee, and there is no limit placed on the amount of 16.2’s
that may be appointed by the 16.1.

 question which often arises is whether the 16.2 may further delegate his/her duties. There
is no provision in the OHS Act prohibiting further delegation and the administrative
law rule of delagatus non potest delegare (one to whom power is delegated cannot
himself further delegate that power) is not applicable in a relationship between private
persons. In practice, for example, the 16.2 may be able to delegate to an appointed manager,
the duty to appoint health and safety representatives, firefighters, first aiders or any other
written appointments that the 16.2 would usually sign-off on. Other duties the 16.2 would be
usually be responsible for, may also be delegated, unless the 16.2 appointment letter
expressly prohibits such further delegation.

Section 8(2)(i) of the OHS Act makes provision for the appointment of “supervisors”, and
whether these “supervisors” are delegated the duties of the 16.2 will depend from company to
company. The intention of the legislator is that companies are afforded the right to create a
structure that best satisfies their own peculiar needs. This structure must be initiated by the
CEO(s) and filter down to management and persons in supervisory positions. Specific duties
may then be tailored to ensure hazards to health and safety of employees are optimally
minimised.

Whether or not a manager or a supervisor may be held criminally liable will depend on

whether a duty of care rested on that person and whether that person negligently failed to
comply or intentionally breached that duty. The employer and CEO are ultimately
responsible for all health and safety duties in terms of the OHS Act, but the fact that specific
duties may be delegated places a burden of compliance on the persons to whom those duti

re delegated. Non-compliance may lead to criminal liability. Mere delegation will however

not create any form of indemnification as there is generally a duty on a person to ensure that a
person who works under his/her supervision is competent to perform such work.

Whether or not a manager or a supervisor may be held criminally liable will depend on

whether a duty of care rested on that person and whether that person negligently failed to
comply or intentionally breached that duty. The employer and CEO are ultimately
responsible for all health and safety duties in terms of the OHS Act, but the fact that specific
duties may be delegated places a burden of compliance on the persons to whom those duties
are delegated. Non-compliance may lead to criminal liability. Mere delegation will however
not create any form of indemnification as there is generally a duty on a person to ensure that a
person who works under his/her supervision is competent to perform such work.

It should lastly be noted that a person employed in a managerial position who refuses to

sign an appointment letter in terms of the OHS Act, cannot divorce the implications of health
and safety from their job description. No person can be relieved from the duties of the OHS
Act and its Regulations by refusing to sign a piece of paper.