Section 37(2) agreement: what the mandatary agreement does, and what it cannot do

01

What section 37 of the OHS Act says

Section 37 of the Occupational Health and Safety Act 85 of 1993 (the OHS Act, as published by the Department of Employment and Labour) is headed "Acts or omissions by employees or mandataries". It deals with a simple problem: when someone working for a business breaks the Act, who answers for it?

Section 37(1) answers for employees. When an employee does or fails to do something that would be an offence under the Act if the employer or user did it, the employer or user is presumed to have done it and can be convicted, unless it proves all three of these: that the employee acted without its connivance or permission; that the act was not within the scope of the employee's authority; and that it took all reasonable steps to prevent an act or omission of that kind. The subsection adds that the fact that the employer issued instructions forbidding the act "shall not, in itself, be accepted as sufficient proof" that it took all reasonable steps.

Section 37(2) extends that presumption to contractors. It says subsection (1) applies with the necessary changes "in the case of a mandatary of any employer or user, except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatary with the provisions of this Act." That exception is the whole of the 37.2 agreement: a written agreement on arrangements and procedures for compliance.

Section 1 defines a mandatary as including "an agent, a contractor or a subcontractor for work, but without derogating from his status in his own right as an employer or a user". The word is mandatary, from mandate, not mandatory, although many templates spell it the second way. The last words of the definition matter: a contract cleaning or security company is still an employer in its own right, with all of an employer's duties to its own staff, whether or not an agreement is signed.

The rest of section 37 keeps everyone in the frame. Under section 37(3) an employee or mandatary who does or omits an act that would be an offence for the employer or user can be convicted as if it were the employer or user, and section 37(5) says that conviction can be in addition to the employer's or user's.

02

Who needs a 37.2 agreement

The Act does not require anyone to sign a section 37(2) agreement. What it does is make the client presumptively liable for a contractor's contraventions unless one exists. That is why clients ask for one before a contractor starts, and why it usually sits in the tender or appointment pack beside the service level agreement.

In an ordinary building, the mandataries are the companies that send their own people to work on the client's premises:

• Contract cleaning and hygiene services: the daily cleaning team, the ablution and sanitary bin service, window cleaning, carpet and floor care.
• Security: guarding, control room, patrols and armed response on site, alongside the security company's own registration with PSIRA.
• Maintenance: lifts, HVAC, generators, fire equipment servicing, electrical, plumbing and building maintenance contractors.
• Other services on site: pest control, garden services, waste removal, catering and anyone else who works on the premises under a contract for work.
• Subcontractors: when a provider subcontracts part of the work, the same logic applies one step down, so the provider needs its own agreement with its subcontractor.

The client side is "any employer or user". For an office tenant, it is the tenant's company; for a multi-tenant building, often the owner or the managing agent acting for it; for a sectional title scheme or an estate, the body corporate or HOA that appoints the contractors.

Construction work carries its own written paperwork on top of this. The Construction Regulations, 2014 require a client to appoint every principal contractor in writing (regulation 5(1)(k)) and a principal contractor to appoint each contractor in writing (regulation 7(1)(c)(v)), and to keep in the health and safety file a list of the contractors on site, "the agreements between the parties and the type of work being done" (regulation 7(1)(f)). A refurbishment or fit-out in an occupied building therefore needs more than the cleaning contractor's 37.2 agreement.

03

What goes in a section 37(2) agreement

The Act prescribes no form and no contents. The test is the one in the section: does the document set out the arrangements and procedures between the parties to ensure the mandatary complies with the Act? A one-page statement that "the contractor shall comply with the OHS Act" says nothing about arrangements or procedures. A useful agreement for a cleaning or security contract covers:

1. The parties, the premises and the work: which buildings, which areas, what services, and when the agreement starts and ends. It should match the service level agreement.
2. The contractor's own appointments: who its chief executive officer has assigned duties to under section 16(2) (the 16.2 appointee), who supervises on site, and who the client's contact is.
3. Competence and good standing: that staff are trained for the work (for security officers, registered with PSIRA), and the documents the client will see before work starts, such as a Compensation Fund letter of good standing.
4. Risk assessment and safe working procedures: the contractor's hazard identification and risk assessment for this site, method statements for the risky tasks (working at height, chemicals, night work, lone working), and how they will be kept current.
5. Equipment, chemicals and PPE: who supplies and maintains the machines, ladders and chemicals, where safety data sheets are kept, and the PPE the contractor issues.
6. Site rules and induction: the client's emergency and evacuation procedure, permit-to-work arrangements, restricted areas, and the induction every new person gets before starting.
7. Incidents: that the contractor, as employer, reports incidents involving its own people as the Act requires, and tells the client promptly; who investigates; and how findings are shared.
8. Consultation: how the contractor's health and safety representatives and the client's health and safety committee will work together where they overlap.
9. Inspection and audit: how often the client will inspect or audit the contractor's work and paperwork, what the contractor must keep on site in its safety file, and what happens when something is found wrong.
10. Subcontracting and change: whether the contractor may subcontract, on what terms, and how changes in scope, staff or risk are notified.

04

What a 37.2 agreement does not do

The agreement is widely described as transferring health and safety responsibility from the client to the contractor. Read the words of the Act and it does something narrower. It removes the presumption in section 37(1) that the client did what its mandatary did. It does not remove any duty the Act places on the client itself.

• Section 8 still requires the client, as an employer, to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees. Section 8(2)(g) includes "taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used".
• Section 9(1) still requires every employer to conduct its undertaking so that, as far as is reasonably practicable, persons other than its own employees who may be directly affected by its activities are not exposed to hazards. A contractor's cleaners and security officers are exactly those persons.
• Section 16 still makes the client's chief executive officer answerable for seeing that the employer's duties are properly discharged.
• The contractor remains an employer in its own right, and under section 37(3) and (5) its people can be convicted in addition to anyone else.

So a client that lets a contractor use an unguarded machine, a broken ladder from the client's store or a blocked escape route can still be charged for its own failure, agreement or no agreement. The penalties are in section 38 of the Act: for most offences, a fine not exceeding R50 000 or imprisonment for up to one year, or both; and where an employer's act or omission injures someone in circumstances that would have been culpable homicide had the person died, a fine not exceeding R100 000 or imprisonment for up to two years, or both.

The agreement is not a shield that works on its own either. It is only as strong as the evidence that the arrangements and procedures it describes were followed: the inductions held, the risk assessments reviewed, the inspections done, the faults reported and put right.

05

Keeping the agreement working after it is signed

Treat the agreement as the start of a routine, not the end of the paperwork. On most cleaning and security contracts the routine looks like this:

• Before the start date: the contractor's safety file, appointments, risk assessment and good standing are checked by the client, and the site induction is booked.
• Every shift: the contractor's supervisor sees that the scheduled work and checks are done safely, with the right equipment, and reports hazards found on the premises to the client's contact.
• Every month: a short joint inspection or audit against the agreement, with actions written down, owners named and dates set. Clients on construction projects will recognise the 30-day audit rhythm the Construction Regulations, 2014 set for construction sites; on a services contract the interval is whatever the parties agree.
• When something changes: a new area, a new service, a new chemical, a new supervisor or a subcontractor means the risk assessment and the agreement are looked at again.
• After an incident or near miss: the investigation asks whether the agreed procedures were followed and whether they were the right ones, and the agreement is amended if they were not.

In March 2025 the Department of Employment and Labour published draft Construction Regulations 2025 for public comment, intended to replace the 2014 regulations, as its statement inviting comment on the draft Construction Regulations 2025 explains. Check which regulations are in force before quoting regulation numbers in an agreement, and review standard templates when the law moves.

06

Where the record fails, and what SiteClara does about it

The weak point of most 37.2 agreements is not the wording. It is the gap between the procedures written into them and any record that those procedures were followed on an ordinary Tuesday. The agreement says the contractor's supervisor checks the ablutions, the chemical store and the escape routes each shift, and that hazards are reported to the client. The evidence is a sheet on the back of the storeroom door, initialled in one pen for the whole week, and a fault mentioned to whoever was at reception. After an incident, the question an inspector or a court will ask is what reasonable steps were actually taken, and that sheet does not answer it.

SiteClara records the routine checks at the location. A printed QR poster, with an optional NFC tag behind it, sits at each place a check is scheduled, such as an ablution block, a stairwell, a plant room door or a guard post. The contractor's staff scan or tap with their own phone, with no app to install, see the checks due there, and mark each one done or say what stopped them. The time and the named person are recorded as it happens, with a photo when one is asked for, and a reported fault goes onto a list of open jobs until someone closes it.

A supervisor sees what is due, done and missed, records the reason when a check was missed, and each day reviews and approves a short report that goes to the client's nominated contacts the next morning. For a client and a contractor bound by a section 37(2) agreement, that gives both sides a shared day-by-day record of the agreed checks, made at the time, instead of a reconstruction at the monthly meeting.

07

Questions people ask

What is the purpose of section 37 of the OHS Act?

Section 37 of the Occupational Health and Safety Act 85 of 1993 decides when an employer or user answers for an offence committed by its employees or mandataries. Under section 37(1) the employer is presumed to have done what its employee did unless it proves the employee acted without its connivance or permission and outside the scope of their authority, and that it took all reasonable steps to prevent it; section 37(2) applies the same presumption to a mandatary, such as a contractor, unless the parties have agreed in writing to the arrangements and procedures that will ensure the mandatary complies with the Act.

What does a 16.2 appointment mean?

Section 16(1) of the Occupational Health and Safety Act 85 of 1993 makes every chief executive officer ensure, as far as is reasonably practicable, that the employer's duties under the Act are properly discharged. Section 16(2) lets the chief executive officer assign any of those duties to a person under their control, who acts subject to the chief executive officer's control and directions, without the chief executive officer shedding their own responsibility or liability. A useful 37.2 agreement names the contractor's 16.2 appointee.

Does an employer need a written health and safety policy?

Only when directed to prepare one. Section 7 of the Occupational Health and Safety Act 85 of 1993 lets the chief inspector direct an employer in writing, or a category of employers by notice in the Gazette, to prepare a written policy on the health and safety of its employees at work, including a description of its organisation and the arrangements for carrying out and reviewing the policy; a copy signed by the chief executive officer must then be prominently displayed where employees normally report for service.

Is it a mandatary agreement or a mandatory agreement?

Mandatary. Section 1 of the Occupational Health and Safety Act 85 of 1993 defines a mandatary as including an agent, a contractor or a subcontractor for work, without derogating from its status in its own right as an employer or a user; "mandatory agreement" is a common misspelling of the same 37.2 agreement.

08

Where to read the official text, and a list to take away

The Department of Employment and Labour publishes the Occupational Health and Safety Act 85 of 1993: read section 1 for the definition of mandatary, sections 8, 9 and 16 for the duties that stay with every employer, section 37 in full and section 38 for the penalties. For construction work, read the Construction Regulations, 2014, and read the Department's statement inviting comment on the draft Construction Regulations 2025 before checking their progress. The OHS Act guide covers the rest of the Act.

Before you sign or accept a 37.2 agreement, check that:

• it names the parties, the premises, the services and the dates, and matches the service contract;
• it sets out arrangements and procedures, not just a promise to comply with the Act;
• the contractor's 16.2 appointee, site supervisor and the client's contact are named;
• the contractor's risk assessment for this site is attached or referred to, and dated;
• induction, incident reporting, inspection and audit are described with a frequency;
• subcontracting is dealt with, and subcontractors sign their own agreement;
• both sides sign with authority and both keep a copy;
• there is a day-to-day record showing the agreed checks were done, not only a signed document.