The 16.2 appointment: what the CEO hands over under the OHS Act, and what they keep

01

What section 16 of the OHS Act says

Section 16 of the Occupational Health and Safety Act 85 of 1993 (the OHS Act) is headed "Chief executive officer charged with certain duties". It is short, and every word of it matters to the appointment.

• Section 16(1): "Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged." This is the 16.1 duty.
• Section 16(2): "Without derogating from his responsibility or liability in terms of subsection (1), 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 is the 16.2 appointment.
• Section 16(3) keeps the employer itself answerable: the CEO's duty does not, subject to section 37, relieve the employer of any responsibility or liability under the Act.
• Section 16(4) makes the head of department the chief executive officer of a department of State.

The Act defines the chief executive officer, in relation to a body corporate or an enterprise conducted by the State, as "the person who is responsible for the overall management and control of the business". In a company that is usually the managing director or chief executive, but the job title does not decide it: the test is who in fact carries overall management and control.

Three points follow from the wording. Section 16(2) says may: the Act does not force a CEO to appoint anyone, but a CEO with more than one site cannot personally ensure every duty is discharged everywhere, so in practice they assign. The assignment does not move the liability: the CEO keeps their section 16(1) responsibility, and the employer keeps its own. And the appointee acts "subject to the control and directions" of the CEO, so the appointment is a line of management, not a hand-off to someone outside it.

"Reasonably practicable" is defined in section 1 of the Act. It means practicable having regard to the severity and scope of the hazard or risk, the state of knowledge reasonably available about it and about ways of removing or mitigating it, the availability and suitability of those means, and the cost of removing or mitigating the risk in relation to the benefits. Both the CEO and the appointee are judged against that standard.

Contravening or failing to comply with section 16(1) or 16(2) is an offence under section 38(1)(a) of the Act. The phrase "16.2 appointment" does not appear in the Act; it is the trade's shorthand for an assignment made under that subsection, and the Act prescribes no form for it.

02

What a 16.2 appointee can be given

Section 16(2) lets the CEO assign "any duty contemplated in" section 16(1), which means any of the employer's duties under the Act and its regulations. The heart of those is section 8. Section 8(1) requires every employer to "provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees", and section 8(2) lists what that includes in particular. For a building, an estate or a contract site, the duties most often assigned are these:

• Safe systems of work, plant and machinery (section 8(2)(a)): lifts, generators, pumps, access equipment and the way work around them is done.
• Eliminating or mitigating hazards before resorting to personal protective equipment (section 8(2)(b)).
• Establishing the hazards and the precautions for the work, the substances and the plant (section 8(2)(d)): the hazard identification and risk assessment, and providing the means to apply the precautions.
• Information, instructions, training and supervision (section 8(2)(e)).
• Not letting work start until the precautions are in place (section 8(2)(f)).
• Enforcing the measures needed in the interest of health and safety (section 8(2)(h)).
• General supervision by a trained person with authority (section 8(2)(i)): work and plant must be under the general supervision of someone who understands the hazards and has the authority to ensure the precautions are implemented.
• Section 9: conducting the undertaking so that people who are not employees, such as visitors, tenants, learners and the public, are not exposed to hazards, as far as is reasonably practicable.

Around those sit the administrative duties that land on whoever runs a site: designating health and safety representatives where there are more than 20 employees at a workplace (section 17(1)), establishing a health and safety committee where two or more representatives have been designated (section 19(1)), reporting the incidents listed in section 24 to an inspector, and keeping the records the regulations require.

Whatever the scope, from a whole campus to one plant room, it should match the appointee's real authority: a manager who cannot stop a job, spend money on a repair or instruct a contractor cannot discharge a duty that depends on doing those things.

03

Who can be a 16.2 appointee

The Act's only condition is that the person is "under his control", meaning under the CEO's control. That rules out someone who works for another company. A cleaning or security contractor's site manager is under the control of the contractor's own CEO, not the client's, so a client cannot make the contractor's manager its 16.2 appointee. The contractor is a mandatary, which the Act defines to include "an agent, a contractor or a subcontractor for work", and the tool for that relationship is a written agreement under section 37(2), covered in the guide to the 37.2 agreement. The contractor's own CEO makes their own 16.2 appointments for their own people on the site.

The Act sets no qualification for the appointee. Section 8(2)(i), though, expects the work to be under the general supervision of a person trained to understand the hazards and with the authority to see the precautions implemented, and an appointment given to someone who has neither will not help the CEO show that the duties were properly discharged. In practice organisations choose:

• a general manager or operations director for a region or division, who then leads the people below them;
• a facilities manager or site manager for a building, campus or estate;
• a branch or store manager for a single premises;
• a contract manager at a cleaning or security company, for the sites that contract covers, appointed by that company's CEO.

Some organisations cascade: the CEO appoints a divisional head under section 16(2), who then assigns specific tasks in writing to site managers and supervisors acting under their direction. That works as long as every link is under the CEO's control and each person knows exactly what they hold; a chain nobody can draw on paper usually means a duty nobody holds.

The appointment is to a person, not a post. When the facilities manager resigns, moves or goes on long leave, the appointment goes with them, and until a new one is signed the duties sit with the CEO alone.

04

What a good 16.2 appointment letter covers

Because the Act prescribes no form, the letter is the only place the assignment is defined, and it is the first thing an inspector, a client or an investigator will read after an incident. A useful letter sets out:

1. The legal basis: an assignment under section 16(2) of the Occupational Health and Safety Act 85 of 1993, by the named chief executive officer.
2. The appointee: full name, position and employer.
3. The scope: the sites, buildings, divisions or activities covered, named precisely enough that nobody can argue about a boundary.
4. The duties assigned: by section of the Act and the regulations that apply, or all of the employer's duties within the scope, with any exclusions written in.
5. The authority and resources the appointee has to discharge them: to stop work, to spend within a budget, to instruct contractors, to appoint people below them in writing.
6. The reporting line: how and how often the appointee reports to the CEO, and what they must escalate at once.
7. The period: a start date, and either an end date or a statement that it runs until withdrawn in writing.
8. Acceptance: the appointee's signature and date, confirming they understand and accept what has been assigned.

Keep the signed original, with a copy in the site's safety file, and review the letter whenever the scope, the person or the organisation changes, and at least once a year. A drawer of letters naming people who have left, or buildings the company no longer manages, tells an inspector more than the organisation would like.

05

What shows the duties are being discharged

Section 37(1) of the Act explains why the paperwork after the letter matters. When an employee does or omits something that would be an offence for the employer, the employer is presumed to have done it, unless the employer proves, among other things, that it took all reasonable steps to prevent it. The same section adds that the fact that the employer "issued instructions forbidding any act or omission of the kind in question shall not, in itself, be accepted as sufficient proof" that it took all reasonable steps. An appointment letter and a policy are instructions. The reasonable steps are the inspections, the training, the supervision and the follow-up, and they are proved by records made at the time.

Section 37(3) goes further: an employee who does or omits something that would be an offence for the employer can be convicted as if they were the employer, and under section 37(5) in addition to the employer. A 16.2 appointee who neglects what they were given is personally exposed.

The regulations set some of the records outright. Under regulation 9 of the General Administrative Regulations, 2003, an employer or user must keep, in the form of Annexure 1 and for at least three years, a record of every incident reportable under section 24 of the Act and of any other incident that needed medical treatment other than first aid. Each of those incidents must be investigated within 7 days of the incident, by the employer, a person the employer appoints, a health and safety representative or a member of the health and safety committee, and finalised as soon as is reasonably practicable. The findings are entered in Annexure 1 as soon as the investigation is complete, and the health and safety committee examines the record at its next meeting. Regulation 4 requires every employer with five or more employees to have a copy of the Act and the relevant regulations readily available at the workplace. The incident reporting and investigation guide covers that process in full.

Beyond the statutory records, the evidence that an appointee is discharging their duties usually looks like this:

• a current hazard identification and risk assessment for the site, reviewed when the work or the building changes;
• workplace inspections done on a set round, with what was found and what was done about it;
• defects and hazards logged, assigned, and shown as closed, not just raised;
• training and induction records for the people doing the work, contractors' people included where the 37.2 agreement requires it;
• the appointee's regular report to the CEO, and the CEO's response.

The test for each record is the same one an investigator applies: was it made at the time, by the person who did the thing, and does it show what was found as well as that someone was there?

06

Where the record fails, and what SiteClara does about it

The weak point is rarely the letter, which is signed, filed and neat. It is the evidence underneath. The weekly inspection sheet is ticked in one pen for the whole month. The generator room check says "OK" every Monday, including the Monday after the flood. A hazard reported to a passing supervisor never reaches anyone who can fix it. After an incident the appointee can show they were appointed, but not what they did.

SiteClara records routine checks at the place they happen. A printed QR poster, with an optional NFC tag behind it, sits at each location with a scheduled check: a plant room, a fire escape, an ablution block, a car park gate. Staff scan or tap it on their own phone, with no app to install, see the checks due there, and mark each one done or explain what stopped them. The named person and the time are recorded as it happens, with a photo when one is asked for, and a problem reported at the location goes onto the team's list of jobs until someone closes it.

The supervisor sees what is due, done and missed at each site, gives the reason a check was missed, and reviews and approves a daily report for the managers who need it. For a 16.2 appointee, that is a working record of the rounds and the open jobs across their buildings, kept as the work is done rather than assembled later.

07

Questions people ask

What is the difference between a 16.1 and a 16.2 appointment?

The 16.1 person is the chief executive officer, whom section 16(1) of the Occupational Health and Safety Act 85 of 1993 makes responsible for ensuring, as far as is reasonably practicable, that the employer's duties under the Act are properly discharged; nobody appoints them, because the duty comes with the role. A 16.2 appointee is a person under the CEO's control to whom the CEO assigns some or all of those duties under section 16(2), and who acts subject to the CEO's control and directions, while the CEO keeps their own responsibility and liability.

Is a 16.2 appointment a legal requirement?

Not in terms: section 16(2) of the Occupational Health and Safety Act 85 of 1993 says a chief executive officer "may" assign duties. But section 16(1) makes the CEO answerable for all the employer's duties being properly discharged, so in any organisation with several sites or departments an assignment in writing is the practical way to meet that duty and show who holds what.

Can a contractor be appointed as a 16.2 appointee?

Not by the client. Under section 16(2) of the Occupational Health and Safety Act 85 of 1993 the appointee must be a person "under his control", meaning under the control of the CEO making the appointment, and a contractor's staff are under the contractor's control. The Act treats the contractor as a mandatary: under section 37(2) the client is presumed answerable for the contractor's offences unless the two have agreed in writing the arrangements and procedures to ensure the contractor complies with the Act, and the contractor's own CEO appoints their own people.

Can a 16.2 appointee be held personally liable?

Yes. Section 37(3) of the Occupational Health and Safety Act 85 of 1993 provides that an employee who does or omits to do an act that would be an offence for the employer can be convicted and sentenced as if they were the employer, and section 37(5) allows that in addition to the employer. The CEO's own responsibility under section 16(1) stays in place alongside it.

08

Where to read the law, and a list to take away

The South African Government publishes the Occupational Health and Safety Act 85 of 1993, including section 16, the general duties in sections 8 and 9, the rules on employees and mandataries in section 37 and the offences in section 38. The Department of Employment and Labour publishes the General Administrative Regulations, 2003, with the Annexure 1 incident record. Read the Act and the regulations that apply to your work yourself; for a question about your own liability, take legal advice.

Before you sign or accept a 16.2 appointment, check that:

• it names the CEO making it and cites section 16(2) of the OHS Act;
• the appointee is under that CEO's control, not a contractor's employee;
• the sites, buildings or activities it covers are named precisely;
• the duties assigned are listed, with any exclusions written in;
• the appointee has signed to accept it, and a copy is in the safety file;
• contractors on the site are covered by their own 37.2 agreement and their own appointments;
• inspections, defects and incidents are recorded at the time, in a way that shows who did what and when;
• the appointment is reviewed when the person, the scope or the organisation changes, and at least yearly.