Section 16(2) appointments: who is legally responsible

"Who is the 16(2)?" is one of the first questions an inspector or auditor asks. Behind it sits a short section of the OHS Act that decides who carries the legal responsibility for health and safety in a business. This guide explains what section 16 says, what assigning duties under 16(2) does, and what it does not do.

What section 16(1) says

Section 16(1) of the OHS Act reads: "Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged."^[1]

The employer’s duties are the ones in the rest of the Act: providing a safe working environment (section 8), protecting people who are not employees (section 9), informing employees about hazards (section 13), reporting incidents (section 24) and so on. Section 16(1) makes one person, the chief executive officer, answerable for making sure those duties are met.

Who counts as the chief executive officer

The Act defines the chief executive officer, for a company or an enterprise run by the State, as "the person who is responsible for the overall management and control of the business".^[1] It is about who actually runs the business, not about a job title. In a small business that is often the owner or managing director.

What section 16(2) allows

Running health and safety across several sites is not something one person can do alone. Section 16(2) lets the CEO hand down duties:

"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."^[1]

Three things stand out in that wording:

• the duty can be assigned to a person under the CEO’s control, such as a director, a general manager or an operations manager
• that person acts subject to the CEO’s control and directions
• the assignment happens without derogating from the CEO’s own responsibility or liability

What a 16(2) assignment does not do

The words "without derogating from his responsibility or liability" are the important part. Assigning duties under section 16(2) does not move the legal responsibility away from the CEO. The CEO remains responsible for making sure the duties are properly carried out, and so must keep an eye on whether the person they assigned is doing the job.

Section 16(3) adds that section 16(1) does not relieve the employer itself of any responsibility or liability under the Act, subject to section 37.^[1]

Does it have to be in writing?

Section 16(2) itself does not say the assignment must be in writing.^[1] In practice, a signed letter is the clearest way to show who was assigned which duties, for which sites or sections, and from when. It also helps the appointee understand exactly what is expected of them. Keep a copy, and update it when people or responsibilities change.

A good letter usually names the appointee, the duties assigned, the sites or parts of the business covered, the date, and is signed by both the CEO and the appointee.

Why it matters

Failing to comply with section 16(1) or 16(2) is an offence under section 38(1) of the Act, with a fine of up to R50 000, imprisonment of up to one year, or both.^[1] More practically, an unclear chain of responsibility is usually where things fall through the cracks: everyone assumes someone else is checking.

Keeping appointments on record

ProComply’s appointments register keeps each appointment by role and site, including Section 16(2) appointees, with the signed letter attached and a review date. ProComply reminds you before a review is due, and shows which appointments are current, due for review or overdue.