Employer?s Duty to Provide a Safe Working Environment

AuthorItumeleng Clarence Tshoose
PositionSenior Lecturer: Mercantile Law University of South Africa, South Africa
Journal of International Commercial Law and Technology
Vol. 6, Issue 3 (2011)
Employer’s Duty to Provide a Safe Working Environment:
A South African Perspective*
Itumeleng Clarence Tshoose
Senior Lecturer: Mercantile Law
University of South Africa, South Africa
Abstract. At co mmon law, emplo yers have a duty to take reasonable care for the safety of
their emplo yees in all the circumsta nces of employment. The duty to provide a safe work place
relates to the employer’s responsibilities imposed by the common law to ensure that the work
place is reasonably safe, while the employer’s duty to provide a safe work system relates to the
responsibility to ensure that the actual mode of conducting work is safe. The South African
legislation provides for various rights and duties for both employers and employees. In substance,
these Acts restate the commo n law position in ob liging employers to take all reasonable and
practicable measures to ensure a safe and healthy work environment. Over and above the general
duty, specific measures to be taken by the employers are set out in the regulations to the Acts. The
aim of this paper is to analyse the p rovisions of section 8 of Occupational Health and Safety Act
85 of 1993 and section 2 (1) of the Mine Health and Safet y Act 29 of 1996. They specify the list
of duties imposed on employers, in particular the provision which provides that some of these
duties are absolute, which means that an employer has to comply with them at all times. Secondly
the paper examines the nature and the extent of obligation imposed on the employer towards the
health and safety of their employees while t hey are carrying out their duties. This current position
will be analysed in order to determine whether it is satisfactory.
1 Introduction
The health and safety of e mployees on the workplace is a very crucial issue which cannot be left to self
regulation by parties involved. This is j ustified on the basis that employees are a vulnerable group in the
employment relationship; hence, they are more likely to contract to their disadvantage. It was therefore
imperative for government to intervene statutorily.
There are few overarching leg islations in South Africa r egulating employees’ safety and compensation in the
workplace. These are the Occupational Health and Safety Act
, Compensation for Occupational Injuries a nd
Diseases Act
, Mines Health and Safety Act
, and the Occupational Diseases in Mines and Works Act
. The
*This article was first published in Kierkegaard Sylvia (2010) Private Law: Rights Duties and Conflicts. International Association of
IT Lawyers (IAITL).pp. 1066-1076.
Occupational Health and Safety Act 85 of 1993 (hereinafter referred to as OHSA).
Compensation for Occupational Injuries and Diseases Act 130 of 1993(hereinafter referred to as COIDA).
Mine Health and Safety Act 29 of 1996 (hereinafter referred to as MHSA). The MHSA applies to mines and works, whilst the
OHSA applies to other industries but does not apply to employers and workplaces to which the MHSA and certain matters covered
by the Merchant Shipping Act apply. The protection of the health and safety of employees and other persons in the mining industry
is a priority as mines are accident-prone environments. This is regulated by MHSA. In terms of section 2 (1) of the Act the owner of
every mine that is being worked must:
(a) ensure, as far as reasonably practicable, that the mine is designed, constructed and equipped;
(b) to provide conditions for safe operation and a healthy working environment. He must further maintain it in such a way that
employees perform their work without endangering the health and safety, of themselves or of any other person this is in terms of
section 2(b).Employees also have a corresponding duty to provide and maintain safety while on mines this is outlined in section 22
of the Act as to:
(a) take reasonable care to protect their own health and safety;

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