Penalties for OHS non compliance in South Africa

Most of the time, OHS enforcement starts with an inspector on site, not a court case. But the OHS Act does set out criminal offences with fines and prison terms, and it helps to know what they are. This guide sets out the penalties in the Act and the Construction Regulations, using the wording of the law itself.

The general penalty: up to R50 000 or a year in prison

Section 38(1) of the OHS Act lists the main offences. They include:^[1]

• failing to comply with listed duties in the Act, including the employer’s general duties (section 8), duties to non employees (section 9), the duty to inform (section 13), employees’ duties (section 14), the CEO’s duties (section 16(1) and (2)), health and safety representatives (section 17) and committees (section 19), and incident reporting (section 24)
• failing to comply with a prohibition or other notice from an inspector
• wilfully giving false information in a record, statement or other document under the Act
• hindering or obstructing an inspector, or refusing to answer an inspector’s questions
• tampering with or misusing safety equipment, or failing to use safety equipment that was provided
• wilfully or recklessly doing anything at a workplace that threatens the health or safety of any person

On conviction, the penalty is a fine of up to R50 000, imprisonment of up to one year, or both.^[1]

When someone is injured: up to R100 000 or two years

Section 38(2) covers employers (and users of machinery) whose act or omission causes someone to be injured. If the employer would have been guilty of culpable homicide had the person died, the employer is guilty of an offence, whether or not the injury could actually have led to death. The penalty is a fine of up to R100 000, imprisonment of up to two years, or both.^[1]

Court orders to comply

A fine is not always the end of it. Under section 38(3), when a person is convicted of failing to comply with the Act or a notice under it, the court may also order them to comply within a period the court sets.^[1]

Construction Regulations offences

The Construction Regulations, 2014 have their own offence clause. Regulation 33 makes it an offence to contravene or fail to comply with regulations 3 to 30. The penalty is a fine or imprisonment of up to 12 months and, for a continuing offence, an additional fine of up to R200 or an additional day of imprisonment for each day it continues, with the additional imprisonment capped at 90 days.^[2]

Those regulations cover, among other things, construction work permits, notifications, the client’s and principal contractor’s duties, appointments, risk assessments, fall protection, excavations and scaffolding. The construction industry page summarises the main requirements, with links to the official text.

Before it gets to court: what inspectors can do

An inspector does not need a conviction to stop dangerous work. Under section 29(1), an inspector may enter a workplace without previous notice, question people and require records to be produced.^[1] Under section 30(1), if an inspector believes an employer’s activity threatens anyone’s health or safety, they may prohibit it in writing.^[1] Failing to comply with that prohibition is itself an offence under section 38(1)(b).

A prohibition is issued by the inspector in writing, without any court process, so it can stop the work in question long before any case is heard.

Who can be held responsible

The Act does not only reach the company:

• the chief executive officer must ensure the employer’s duties are properly carried out, and keeps that responsibility even after assigning duties to others (section 16)
• the employer can be presumed responsible for what its employees, and its contractors without a written agreement, do or fail to do (section 37(1) and (2))
• an employee or contractor who does or omits to do something that would be an offence for the employer can be convicted as if they were the employer (section 37(3))^[1]

COID penalties

Failing to report a workplace accident to the Compensation Commissioner within seven days carries its own consequences under the COID Act. The COID Amendment Act 10 of 2022 replaces those penalty provisions (sections 39(6) and 39(8)).^[3] Our COID reporting guide explains the reporting duty; check the current penalty position with the Compensation Fund.

Staying on the right side of it

The offences above mostly come back to duties that are routine: knowing the hazards, supervising, inspecting, appointing the right people and reporting incidents. ProComply records that routine as it happens. Checklists lock on submission with the person, place and time, appointments stay current with reminders, and reports pull the record together when an inspector asks.