The OHS Act Isn’t HR’s Job. It’s the Director’s.
Most SME owners file workplace safety under “operations.” The Occupational Health and Safety Act files it under your name, personally — and 2025’s regulatory overhaul just made the gap between the two more expensive.
Somewhere in most SMEs there’s a health and safety file — a folder with a policy nobody’s read since it was printed, a fire extinguisher service certificate, maybe a risk assessment from three years ago. It sits with the office manager or an outsourced safety officer, filed alongside the fire drill schedule. That arrangement feels reasonable right up until an inspector, or worse, an incident, reveals that the Occupational Health and Safety Act never actually let the director hand that duty away.
The Duty You Can Delegate — and the One You Can’t
Section 16 draws a hard line between “assign the task” and “own the outcome.”
You can hand the safety checklist to a manager. You cannot hand them your accountability for it — the law keeps that with whoever runs the company, no matter who’s holding the clipboard.
The Occupational Health and Safety Act, 85 of 1993 places general duties on every employer through Section 8: providing and maintaining a working environment that is safe and without risk to health, so far as is reasonably practicable. But it’s Section 16 that most director briefings skip past — and it’s the section that actually determines who answers for a failure.
Section 16 puts the chief executive officer in charge of health and safety compliance across the organisation. A CEO may delegate specific duties to a competent person under their control, but the Act is explicit that delegation moves the task, not the accountability. If the delegated person fails, the buck does not stop with them by default — it sits with the CEO, who remains responsible for ensuring the delegation actually worked. In a small or owner-managed business, “CEO” is usually just the person whose name is on the door.
This is the detail that trips up first-time directors and founder-run SMEs the most. Appointing a safety officer, outsourcing to a compliance consultancy, or having a construction manager sign off site safety under the Construction Regulations are all sound practical steps — but none of them are a liability shield on their own. They’re evidence that reasonable steps were taken. The distinction matters enormously the day something goes wrong.
Where OHS Liability Meets Companies Act Liability
Two separate statutes, one converging problem for the person in the boardroom chair.
Failing at workplace safety isn’t just an OHS Act problem anymore. It’s increasingly treated as a governance failure too — and governance failures follow the director home.
Section 76 of the Companies Act, 71 of 2008 requires directors to exercise their powers with the degree of care, skill and diligence reasonably expected of someone in their position — a codification of the common-law fiduciary duty of care. Section 77 attaches personal liability to a director who breaches that standard and causes loss to the company or a third party. Neither section mentions workplace safety by name. Both apply to it in practice: a board that lets serious, foreseeable OHS risk go unmanaged is exposed to exactly the same “did you take reasonably diligent steps to become informed” test that governs a bad financial decision.
The Companies and Intellectual Property Commission underlined this directly in Guideline 1 of 2025 on directors’ duties, liability and compliance — noting that director and officer (D&O) insurance does not absolve a director from liability arising out of non-compliance with fiduciary duties under Sections 75 to 77. A safety failure that also reads as a governance failure is precisely the kind of exposure that policy carve-out is built for.
In practice this means an OHS Act prosecution and a Companies Act delinquency or damages claim can run on parallel tracks from the same underlying incident — one criminal, one civil, both personal to the individual, not just the company.
What an Offence Actually Looks Like
The burden of proof runs the opposite direction most people expect.
If a worker gets hurt and it goes to a hearing, the law doesn’t start by asking what the worker did wrong. It starts by asking what the employer did to stop it happening.
Section 37 governs liability for the acts of employees and mandataries (contractors). If an employee or contractor commits an offence under the Act, the employer can be held liable for it too — unless the employer proves the act wasn’t authorised or tolerated, that reasonable steps were taken to prevent it, and that the conduct fell outside the scope of what was sanctioned. That’s a three-part test the employer has to satisfy, not one the prosecution has to break down. A written Section 37(2) agreement with a contractor helps build that evidence trail, but the Act is explicit that it is not an indemnity against prosecution — if the employer contributed to the incident, both parties can be convicted.
Section 38 sets the penalties. Where an employer’s act or omission injures a person at a workplace in circumstances that would have amounted to culpable homicide had the injury caused death, the Act provides for a fine not exceeding R100,000, imprisonment not exceeding two years, or both. Lower-tier contraventions of the Act’s general provisions carry separate, lesser penalty structures. Section 24 additionally requires certain incidents — serious injuries, fatalities, dangerous occurrences — to be reported to the Department of Employment and Labour, with the Chief Inspector empowered under Section 32 to open a formal inquiry into any workplace incident that resulted, or could have resulted, in injury, illness or death.
Why This Isn’t Theoretical
On 6 May 2024, a five-storey apartment block under construction in George, Western Cape, collapsed, killing 34 workers and injuring dozens more — South Africa’s deadliest construction disaster in recent history. The Department of Employment and Labour’s investigation, conducted under Sections 31 and 32 of the OHS Act, was completed and handed to the National Prosecuting Authority in November 2025. As of the collapse’s two-year anniversary in May 2026, no individual had yet been prosecuted, prompting public pressure from the Minister of Public Works and Infrastructure and parliamentary committees for the NPA to act.
The case illustrates two things at once: how directly OHS Act mechanisms — incident reporting, Chief Inspector inquiries, NPA referral — apply when the worst happens, and how the accountability gap between “investigation complete” and “someone is actually held liable” can stretch for years. Waiting for a prosecution to clarify the standard is not a compliance strategy.
Flag for Eli/editorial: the NPA’s prosecutorial decision on George was still pending at last verification. Confirm status before publication in case a charging decision has since been announced.
The Ground Is Shifting Under the Act
2025 brought new regulations. A broader Amendment Bill is still on its way.
The rulebook you complied with two years ago is already partly out of date, and a bigger rewrite is coming — this is not the year to treat your safety file as “done.”
On 6 March 2025, the Minister of Employment and Labour promulgated the Physical Agents Regulations, 2024 and the Noise Exposure Regulations, 2024, alongside an amendment to the General Safety Regulations. The Physical Agents Regulations replace the Environmental Regulations for Workplaces, 1987, addressing modern exposures such as vibration and radiation that the old regulations never contemplated; the Noise Exposure Regulations replace the 2003 Noise-Induced Hearing Loss Regulations and introduce a new audiometry code of practice. Both old regulation sets remain in force during an 18-month transition period, meaning employers need to be tracking two overlapping compliance regimes until the older rules are formally repealed around September 2026. Draft Construction Regulations have also been through public comment and are expected to tighten site-level accountability further once finalised.
A broader Occupational Health and Safety Amendment Bill has also been reported as nearing finalisation, with proposals that would move employers away from relying on a written policy alone and toward a documented, integrated health and safety management system. This Bill has not been passed into law. Treat anything built around it as a signal of direction, not a current obligation — but a signal worth planning around given how far along the drafting appears to be.
What “Reasonably Practicable” Actually Requires
The phrase that decides most cases, translated into an actual checklist.
“Reasonably practicable” isn’t a vibe — enforcement and courts look for a specific, documented set of things done and kept up to date.
The Act’s general duty standard is deliberately broad, but what regulators and courts actually check for is consistent across sources and enforcement guidance:
A Written, Reviewed Policy
Not a filed document — one reviewed at least annually, displayed at the workplace, and reflecting current operations, not the business as it looked when the policy was first drafted.
Documented Risk Assessments
Hazards identified, risks evaluated, and control measures recorded — updated when the work, equipment, or premises change, not left as a one-time exercise.
Formal Appointments of Competent Persons
Section 16(2) delegations, construction managers, and machinery-safety appointees need to be in writing, naming a specific, qualified individual — not implied by job title.
Ongoing Training and Supervision
Induction plus refreshers on hazard awareness, emergency procedure, and PPE use — with attendance records, since “we told them once” rarely survives scrutiny.
Section 37(2) Agreements With Contractors
A written arrangement setting out which party carries which OHS compliance obligations on a shared site — not a liability shield, but part of the “reasonable steps” evidence trail.
Incident Reporting Discipline
Section 24 reporting to the Department of Employment and Labour for serious injuries, deaths, and dangerous occurrences, on time, every time — failure to report is itself a separate offence.
The Bottom Line
Workplace safety has always been framed to South African SME owners as an operational cost — insurance, PPE, a file to keep tidy for the next inspection. That framing was never quite accurate, and it’s getting less accurate by the year. Section 16 has always kept the accountability with whoever runs the company. What’s changed is the environment around it: a wave of new 2024-2025 regulations layering onto the existing Act, a Companies Act enforcement culture willing to treat safety failure as a fiduciary breach rather than a separate silo, and a national conversation — sharpened by George — about how long “under investigation” can substitute for actual accountability.
None of this requires a director to become a safety engineer. It requires treating the health and safety file the way a prudent board treats any material risk: documented, current, genuinely delegated with real oversight attached, and reviewed before the regulator or a courtroom reviews it first.