It clear that the non-compulsory – yet encouraged - section 37(2) Written Agreement with mandataries remains a vexing concern. This concern has been compounded by the introduction of more rigid compulsory requirements when dealing with construction mandataries. Some even feel that the section 37(2) Written Agreement has become redundant as far as construction work is concerned. 

The term mandatary (originally mandatory) has its origins in the old Machinery and Occupational Safety (MOS) Act of 1983 as amended. It was never defined in that piece of legislation and that in itself created a host of interpretational guess work. With the promulgation of the OHS Act in 1994, a mandatary was defined as including an agent, a contractor or a subcontractor for work, but without derogating from their status as employers or users in their own right. In an identical provision to the current section 37 of the OHS Act, the MOS Act also potentially punished employers or users of plant and machinery for the wrongdoings of their employees and mandataries. In what is called a presumption-in-law, a legal mechanism essentially invented to make life easier for the prosecution in criminal matters, the Legislator decided that it is wise to presume employers to have committed the wrongdoings of their employees and mandataries. As with all presumptions-in-law, they create a reversal of onus of proof, away from the State or prosecution and onto the accused. The accused must then rebut the presumption-in-law on a balance of probabilities. This, as opposed to the State’s obligation of normally proving a criminal matter beyond a reasonable doubt. Although section 37 of the OHS Act applies equally to employees as well as mandataries, I’m confining myself to mandataries since section 37(2) specifically, and for obvious reasons, excludes employees. To include employees in that subsection would entail potentially concluding individual OHS contracts with every employee, regulating their OHS relationship with the employer, which is, in any case superfluous since employers and employees and persons in general, have their OHS relationships (duties) spelt out in the OHS Act. On the otherhand the OHS Act is vague as to the OHS relationship between various individual employers and users. (Clarity only really exists as regards construction work). 

The Employer has to prove three things in order to rebut (counter) the presumption-in-law as contained in section 37 of the OHS Act. Failure to rebut any of the three ‘hurdles’ will ‘activate’ the presumption-in-law and the employer will, in all likelihood, be held criminally liable for the wrongful acts or omissions of the mandatary. Firstly the employer must prove that permission was not given to the mandatary to act or fail to act in a manner which has obviously resulted in the flouting of the law. Connivance with the mandatary to circumvent any provision of the OHS Act is mentioned in the same breathe as being an element that would create criminal liability for the employer. (Section 37(1)(a). Secondly, the employer must prove that the mandatary was acting outside the scope of his or her authority and that the questionable conduct of the mandatary was not a condition laid down by the employer. (Section 37(1)(b). The last and most problematic hurdle for an employer to scale in order to avoid criminal liability for the wrongdoings of the mandatary is show it took reasonable steps to prevent the questionable / unlawful conduct of the mandatary. To confuse matters even further, the legislator felt it wise to add that explicit instructions, designed to prevent any questionable / unlawful behaviour by a mandatary, would not automatically be regarded as being sufficient reasonable steps taken by the employer. (Section 37(1)(c).  I label this last ‘hurdle’ or ‘leg’ as problematic because the term ‘reasonable steps’ is very broad and open to interpretation. I also expect the Legislator realised the vagueness /broadness of this leg, particularly as regards mandataries and, after a long agonising wait, finally came to our rescue and told us in section 37(2) of the OHS Act – albeit in rather vague and embarrassing terms – what would be regarded as reasonable OHS behaviour by an employer vis-à-vis a mandatary. The Legislator tells us that a Written Agreement, concluded between the employer and mandatary, containing arrangements and procedures between the employer and the mandatary to ensure the mandatary’s compliance with the provisions of the OHS Act, would be considered as reasonable steps. The legislator does not say it in so many words but, in my opinion, that is what it entails.  (Section 37(2) reads….’the provisions of subsection (1) (the presumption-in-law mentioned above pertaining to employees) shall, mutatis mutandis, apply 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’). And that it is the birthplace of the section 37(2) Written Agreement. The Written Agreement is essentially an OHS contract which is encouraged by the Legislator to promote good OHS practice between employers and employers (mandataries). It is not an indemnity against prosecution of the employer and is also no guarantee that the employer will not be prosecuted, despite having such a Written Agreement in place, should a mandatary commit an offence. If, for example, an incident occurs involving a contactor and the evidence points to apathy (tacit permission) on the part of the employer being a factor contributing to the incident, it may well ‘activate’ the first leg of the presumption-in-law as per section 37(1)(a) and the employer could stand in the dock holding the hand of the contractor! It is also not a one-sided Written Undertaking by the mandatary to comply with the provisions of the OHS Act since a mutual ‘arrangement’ between the employer and mandatary is implied. (There is reference to a Written Undertaking in section 10(4) of the OHS Act.

So what should a classic section 37(2) Written Agreement contain? Anything really as long as the other party is able to perform and its not against the good morals of society (contra bonos mores). Naturally, compliance with the provisions of the OHS Act must be a requirement. Add compliance with your own in-house standards or procedures and /or any other OHS provisions that will not render a contract void. You can even insist on compliance with certain international standards that may not have been incorporated into the OHS Act as (SANS) standards. Once the other party (mandatary) signs, the Written Agreement is a lawful enforceable OHS contract and breach will have the same consequences as breach of any other lawful contract. The added bonus, from a criminal (OHS) law perspective, is that it will be regarded as ‘reasonable steps’ taken by the employer and a strong deterrent to vicarious criminal liability. No such provision exists in the MHS Act where all contractors are regarded as employees of the mine and are appointed into the mine management structure.

And then there are the Construction Regulations. They compel employers (clients) as well as principal contractors (employers) to conclude legally binding OHS arrangements with their mandataries when undertaking construction work. Clients are compelled to furnish their principal contactors or contractors with health and safety specifications and principal contractors likewise vis-à-vis their contractors. They are compelled to make various written appointments, to audit the construction work in order to ensure compliance with the health and safety specifications. The health and safety specifications must be discussed, incorporated in health and safety plans which contractors compile and which finally end up in a Health and Safety File which must be kept by the client (employer). These specifications and plans are not guidelines which the Legislator encourages. They are legally binding documents and, once acceded to by other parties, are contractually binding. So is there still place for the section 37(2) Written Agreement as regards construction work or has it become superfluous? I think not. There is no prejudice in concluding a section 37(2) Written Agreements with construction mandataries since there is no conflict between it and the more rigid requirements of the construction regulations. It can be used as an umbrella contract to embrace all the requirements of the construction regulations. Health and Safety Specifications can form part of the Written Agreement via cross reference. Obligatory periodic OHS auditing can be regulated in the Written Agreement as well. In fact the Written Agreement can be the legal instrument which introduces all of the requirements of the construction regulations. By utilising the section 37(2) Written Agreement employers can formalise their legal obligations contractually in order to create criminal legal relief if required and civil law restitution if breach occurs.

The Construction Regulations are specifically designed to force inter-action between the various role players in construction work. The effect of this is to create a ‘Domino Criminal Liability Effect’ where the sins of one party can be visited upon all other role-players similar, but more readily achieved, than the presumption-in-law as created by section 37(2) of the OHS Act.  An classic example could be a scenario where a serious incident occurs involving a contractor and the evidence brings to light that the client or principal contractor had failed to carry out any OHS audits or failed to obtain WRITTEN risk assessments and, where applicable, WRITTEN Fall Protection Plans from the contractor. In my view that could create a strong enough link or nexus to hold the client or principal contractor criminally liable individually or jointly with the contractor particularly if it is argued that had those written documents been obtained, studies and flaws rectified, the accident could have been avoided.