Clause 22 and the client who thinks it has bought its way out of the Act
A private developer (the client) appoints a main contractor for a 14-month, R210 million retail refurbishment. Clause 22 of the contract says the contractor 'assumes all duties of the client under the Occupational Health and Safety Act and indemnifies the client against any liability'. No health and safety specification was prepared, and the client appointed no competent person for construction work. The contractor's site manager, who is not registered with SACPCMP, is acting as construction manager; a CHSO was appointed verbally two weeks after site establishment. After a pallet of bricks fell from a suspended platform onto a pedestrian walkway, the client's project manager tells the CHSO to 'handle it internally' and not to copy the client on any findings or reports.
1. Assess the legal effect of Clause 22 and set out who actually carries which duties on this project.
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Start with the statute, not the contract. Section 37 of the OHSA permits an employer to conclude a written agreement with a mandatary, but that agreement only shifts the employer's duties under the Act. It does not dissolve duties that the Act and the Construction Regulations 2014 place on the client in its own right, and it binds nobody outside the contract - not an inspector, not a court. Section 16(2) is the same idea in different words: a written delegation does not relieve the delegator of the duty.
What the client still owns:
- preparing the health and safety specification for the work;
- appointing a competent person for construction work before work starts;
- satisfying itself that the contractor is competent and adequately resourced;
- notifying the construction work to the Department of Employment and Labour where the Regulations require it;
- in practice, stopping work it knows to be unsafe.
What Clause 22 actually buys: a contractual claim for money after the damage is done. It is a civil indemnity, not a statutory shield. The missing specification and the missing competent-person appointment are already contraventions, and the CHSO should record that in writing rather than accept the project manager's framing that the developer is 'not an employer on site'.
2. The instruction not to copy the client on findings: how should the CHSO respond, and what does the near-miss require in its own right?
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Respond in writing, not verbally. The CHSO does not report to a project manager's convenience; the appointment under the Construction Regulations carries statutory duties and a SACPCMP registration behind it. Practical sequence:
- Record the instruction, with date, time and who gave it.
- Report the near-miss and the walkway exposure in writing to the contractor's 16(2) appointee, and copy the client's representative - the client has duties on this project and cannot be kept blind by a subcontractor's preference.
- Make the walkway safe (barrier, exclusion under the suspended platform, stop the hoisting operation until the platform and its gates are checked).
- If the withholding instruction is repeated, escalate in writing and consider referring the matter to the Department of Employment and Labour inspector.
Is the near-miss reportable? A falling object with no injury does not meet the s24 list of incidents (death, unconsciousness, loss of limb, likely permanent defect, likely absence of 14 days or more). It does not go to the chief inspector. It is a hazard-identification failure that the s8 general duties and the Regulations' risk-assessment duty require you to investigate, record and close out - with a corrective action, an owner and a date.
Silence is the one option that is professionally indefensible.
3. The site manager's lack of SACPCMP registration comes up at the client's audit. How do you handle it?
Read the worked answer
Separate the three appointments before answering, because the audit question will be badly framed:
- Construction manager - must be competent for the role. Registration is not the only measure of competence; experience, qualifications and the ability to control the site are. But a person who is not registered and has no demonstrable construction management record should not be holding the appointment on a R210 million, 14-month project.
- Construction supervisor - a different appointment, made by the contractor, with its own competence requirement.
- CHSO - the Regulations require registration with SACPCMP; a verbal appointment two weeks after establishment is not an appointment at all and should be regularised in writing with the registration category stated.
The honest audit answer is a finding: the appointments exist on paper for one role and not at all for another. Do not let the audit be answered with 'he's been doing this for 20 years' - put the competence evidence in the file, or replace the appointment. The CHSO's credibility at the next audit depends on having recorded this the first time it was noticed.