Section 16. Chief executive officer charged with certain duties Part 1.

Dear Folks

I thought it was perhaps time to rehash the rather tired topic of the so-called written appointments in terms of section 16(2) of the OHS Act. Although there has been no change to the wording of section 16(2), DoL has started enforcing, via audits, their own interpretation. Although I disagree with DoL’s interpretation and have motivated my stance many times – including on my website, suffice to say that employers / CEOs who deviate from their rigid interpretation can readily kowtow to DoL’s interpretation and achieve the same result.

Section 16. Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(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.

(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or any liability under this Act.

(4) or the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.

DoL maintains that only the ‘Direct Reports’ of the CEO can be assigned duties in terms of section 16(2) of the OHS Act. These appointments are to be regarded as Statutory Appointments. A statutorily appointed section 16(2) person can then make so-called Non-Statutory appointments further down the line and even a Non-Statutory appointee can make these Non-Statutory appointments.

They argue that the principle of delegare delegatus non potest rule applies meaning that the person to whom duties have been delegated cannot delegate those very same duties further. This advice was presumably obtained from DoL’s legal advisors who were tasked with interpreting the untested section 16(2) of the OHS Act. Decades ago when I studied law –Interpretation of Statutes – I was taught that one way to interpret a statute is to look at the wording of the draft of an Act. In this case the initial wording of the Draft OHS Act. Interestingly enough the draft read as follows:

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may delegate any duty, including the power of further delegation, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

So it is quite obvious that the legislator originally encouraged or endorsed a scenario where a CEO statutorily ‘delegates’ duties down to his/her first reports who in turn can make statutory delegations / appointments down the line. The idea was to have devolution of authority. The legal advisors of the (then) Department of Manpower then advised against usage of the word ‘delegate’ because of its rigid legal baggage – obviously with reference to the very same principle of delegare delegatus non potest which DoL relies on today. So the legislator opted for the word ‘assign’ which has no rigid legal baggage. In fact not one dictionary that I consulted defined ‘assign’ as ‘delegate’. “Assign’ means to:

1. to allocate or give;

2. to appoint;

3. to designate.



source: http://klasslooch.com.www77.jnb2.host-h.net/Newsletters/The-CEO-Team/