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) |
| 3(6) | |
| 5(1)(g) and (h) | |
| 5(1)(j) to (m) | |
| 5(1)(o) to (s) | |
| 5(4) | |
| 7(1)(a) to (g) | |
| 7(2)(a) and (b) | |
| 7(2)(d) and (e) | |
| 7(3) | |
| 7(4) | |
| 7(7) | |
| 8(1) | |
| 8(2) | |
| 9(4) | |
| 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:
- An agent would have to be appointed by two sets of “client”
- 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
jacos@legalcs.co.za
Please contact me.
Thank you for the valuable information.
Hi Jaco
In the eyes of the Construction Regulation 2014, does a client still maintain legal obligations, or are these then passed on to the agent or principal contractor?
The regulation is not clear on the role of the agent
Regards
Victor
Hi Victor,
Prior to the first Construction Regulations (2003), the Employer (Client) would have to prove that it had acted as far as is reasonably practicable in terms of construction work. After the promulgation of the Construction Regulations, the duty became to comply with the duties of a Client as contained in the Regulations. This theme continued with the promulgation of the 2014 Regulations.
In general, the Client is always potentially liable. Regulation 5 contains various responsibilities of a Client that is ongoing, even after the appointment of Principal Contractor(s). These include ensuring co-ordination between contractors, stopping work not in accordance with the health and safety specification etc.
Where an Agent is appointed (either voluntarily or a mandatory appointment in terms of Regulation 5(5)), the Agent takes responsibility for ensuring compliance with the duties of the Client. There are however some key considerations proving that the Client does not contract out of liability completely by appointing an Agent. The first is the statement in Regulation 5(5) that the appointment of an Agent is done “without derogating from his or her health and safety responsibilities or liabilities”. The second is the duties of the Client are assigned to the Agent “as far as is reasonably practicable”.
In short the activities of the Agent, i.e. compliance with the listed duties of the Client, must be managed and enforced by the Client. Some examples of where the Client may be liable includes:
1. Appointing a client who is not competent (i.e. not SACPCMP registered). Note that this will hold even where the appointment of an Agent is voluntary.
2. Appointing an Agent, but not allocating sufficient resources. This will happen where the Agent is contracted, but only spends limited time on site. This paper exercise will not cover the Client.
3. Overruling an Agents advice or not causing it to be implemented.
4. Not providing the Agent with authority to perform its functions.
The above are just a couple of examples, trust it helps!
Jaco
Dear Jaco,
Thank you for what has been the best advice I have read thus far on the construction regs.
I am wondering though- is there a distinction between a client agent and a health and safety agent in the regs? I see there being only 1 agent function. But, with the professional registrations under the Project and Construction Management Professions Act 2013, this appears to have broadened.
Regards,
Miriam
Hi Miriam,
I think you already have the answer…
This is another area where the Regulations caused some (unnecessary) confusion in the industry. The Client’s Agent has been around for a very long time and the usage of it precedes the Regulations. It ties in with the common law principle of using an agent, through some form of power of attorney, to transact on behalf of a principal.
The reference to “Agent”in the Regulations is however very specific, and is, as per Regulation 1, a reference to a “competent” person, where that competence is the competence prescribed in GNR 85 of 14 February 2014 (in other words a registered PrCHSA).
The construction industry can continue using a Client’s Agent, as long as this is not confused with a Construction Health and safety Agent!
Jaco
Hi good day. can you help me clarify this please ‘how to interpret legislation and how this can be used to interpret the the construction regulations 2014’
Good morning Quinton. Not sure where the question comes from but it strongly reminds me of an exam!
As with any other piece of legislation in South Africa, the Construction Regulations, made under the OH Act, is subject to the law of interpretation (and not the whims of the person who interprets it to suit their own agenda!)
This question seems to point to how the law of interpretation would be applied to the Con Regs…
Good afternoon
I would like clarity on who needs to apply for construction work to the Provincial Director? is it the contractor appointed in writing by the client or the sub-Contractor appointed in writing by the Principal contractor
Hi,
In terms of answering your question, as always when dealing with the law (or Regulations), we need to start with the actual wording used.
Primarily all legal rules are obligations (someone must perform, or not perform, as the case ,may be). In other words, the legal rule must be clear as to WHO must do WHAT.
Construction Regulations, 2014 states under Regulation 3(1):
“A client who intends to have construction work carried out,must at least 30 days before that work is to be carried out apply to the provincial director in writing for a construction work permit to perform construction work if the intended construction work will…..(Note that a permit is not a requirement for ALL construction work, but that is a separate topic)
So the short answer is the Client must apply. However note that where a Permit is required in terms of the Regulations Regulation 5(5) places a duty on the Client to appoint a Competent Health and Safety Agent. The Agent now becomes responsible for complying, or ensuring compliance with, the duties of the Client.
THUS, the Agent (as an Agent of the Client) is responsible for ensuring the Permit is in place, where the Regulations classify the Construction Work to be work for which a Permit is required.
Hope this answers your question!
Jaco Swartz
Hi
This is very valuable info, as I am being pushed into becoming the Principal Contractor, but am actually a sub contractor.
Hi Paul,
Glad to be of assistance!