Employer?s Duty to Provide a Safe Working Environment

• Author: Itumeleng Clarence Tshoose
• Position: Senior Lecturer: Mercantile Law University of South Africa, South Africa
• Pages: 165-175

JICLT

Journal of International Commercial Law and Technology

Vol. 6, Issue 3 (2011)

165

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

tshooci@unisa.ac.za

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

1

, Compensation for Occupational Injuries a nd

Diseases Act

2

, Mines Health and Safety Act

3

, and the Occupational Diseases in Mines and Works Act

4

. 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.

1

Occupational Health and Safety Act 85 of 1993 (hereinafter referred to as OHSA).

2

Compensation for Occupational Injuries and Diseases Act 130 of 1993(hereinafter referred to as COIDA).

3

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;