The Construction Regulations 2014 may be seen as one of the most important recent amendments to the legislative framework insofar as health and safety in the non-mining sector is concerned.

While it is not necessarily, in principle, a major departure from the previous Construction Regulations, there are enough changes to give food for thought.

As with any new legislation, the specific interpretation can be problematic. One such topic in the Regulations is the role of an appointed contractor. Does the contractor, on appointing a subcontractor, become a principal contractor as defined in the Regulations?

This could be summarised in the following statement:

(3) Where a contractor appoints another contractor to perform construction work, the duties determined in sub regulation (1)(b) and (c) that apply to the principal contractor must apply to the contractor as if he or she were the principal contractor. (this includes making your own appointments as if you are the principal contractor.)

The above statement is a specific interpretation of Regulation 7(3) of the Construction Regulations 2014, first Gazetted on 7 February 2014. Section 7(3) is used to argue that where a contractor appoints another contractor such contractor de facto becomes a principal contractor and as having such status assumes all the responsibilities ascribed to a principal contractor. This would then include making those appointments called for in terms of Regulation 8 which specifically calls for the appointments to be made by the principal contractor.

We submit that this construction of the duties contained in the Regulations is incorrect and is a construction not borne out by an interpretation thereof.

Since the issue of whether a contractor automatically becomes a principal contractor simply by appointing another contractor, as in the statement above is a simple matter of interpretation, we will briefly discuss the law of interpretation in South Africa.

The issue of the interpretation of law has a long history in the South African context. Historically, the Roman Dutch common law approach to interpretation as held by the classical writers including Voet has been a common sense approach, i.e. giving words their common meaning unless this leads to absurd results. During the development of the law of interpretation over the past 120 years, the doctrine of the intent of the legislature was to some extent followed, but recent case law has thoroughly discredited this approach. This common sense approach developed into the literal approach. Since the sovereignty of the Constitution in the early 1990’s, the literal approach has developed into the purposive approach. This means that the literal approach by and large is still followed, i.e. the simple meaning of words, but within the context of the whole. This holds that single regulations are to be interpreted with reference to the whole of the set of regulations. (See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC))

In applying the purposive approach to interpretation, The Regulations are to be studied as a whole. The duties functions and roles of the principal contractor are dealt with in the following Regulations:

Regulation 3(5)(b)(ii)
5(1)(g) and (h)
5(1)(j) to (m)
5(1)(o) to (s)
7(1)(a) to (g)
7(2)(a) and (b)
7(2)(d) and (e)
Annexure 1 Clause 3
Clause 11
Clause 14
Annexure 2 Clause 1
Clause 2
Clause 5
Clause 6
Clause 12

Regulation 7(3) holds:

When a contractor appoints another contractor to perform construction work, the duties determined in subregulation 1(b) to (g) that apply to the principal contractor apply to the contractor as if he or she were the principal contractor.

It must be noticed that out of all the Regulations listed in the table above only 6 have been assigned to the contractor. If the law of interpretation is taken into account, individual Regulations have to be interpreted against the whole of the Regulations. Regulation 1 defines a principal contractor as:

“…means an employer appointed by the client to perform construction work”  This should be read with Regulation 5(1)(k) which places a duty on the Client (or its appointed agent) to appoint every principal contractor in writing. It is thus clear that the principal contractor remains the principal contractor, irrespective of the fact that it has appointed further contractors and that the contractor, on appointing further contractors, assumes some of the functions of the principal contractor in terms of its own appointed contractors, but not all, as these have not been specifically assigned to the contractor in any regulation.

It thus holds that the duties assigned to the appointed principal contractor, being the principal contractor appointed in writing by the client, to appoint a construction manager and assistant construction manager(s) in terms of Regulation 8 remains with the principal contractor and is not automatically assigned to a contractor.

The law of interpretation dictates that the literal meaning of words should be followed unless it would lead to absurdities. (See Natal Joint Municipal Fund vs. Endumeni Municipality 2012 (4) SA 593 (SCA))

Should the argument that a contractor appointing another becomes a principal contractor be taken to its logical conclusion, it would lead to absurdities as the erstwhile principal contractor would of necessity become a client. Amongst other implications, the following would have to be complied with:

  1. An agent would have to be appointed by two sets of “client”
  2. The previous principal contractor would have to apply for a construction permit in addition to the one applied for by the original client.

The applications for permits and the construction notifications would have to be amended every time a contractor appoints a subcontractor, as the Annexures demand the principal contractor to be identified prior to construction work commencing. It should be clear from the above that the question as to who is a principal contractor or not is a factual one as a legal appointment from the Client would show this.

Jaco Swartz