Section 37(2) Agreement South Africa: Contractor Safety and OHSA Compliance Guide
- Feb 27
- 11 min read
Updated: Jul 12
Quick Answer: Section 37(2) Agreement South Africa
A Section 37(2) agreement is a written agreement between an employer or user and a mandatary, such as an agent, contractor or subcontractor, setting out the arrangements and procedures that will be followed to ensure compliance with the Occupational Health and Safety Act.
It is not:
automatic legal immunity;
permission to transfer every safety duty to a contractor;
proof that the contractor is competent;
a substitute for risk assessments, induction or supervision;
a guarantee that nobody will be prosecuted; or
a document that makes a workplace fully compliant by itself.
Section 37(2) is valuable only when the written agreement reflects a real contractor-management system that is implemented, monitored and supported by evidence.
Cape Town employers can strengthen the knowledge of supervisors and safety personnel through Swift Skills Academy’s OHSA Compliance Course Cape Town, while still implementing the site-specific legal controls required by their workplace.
Important: This guide provides general educational information and is not a substitute for legal advice on a specific incident, contract or prosecution.
Why the Original “Legal Shield” Idea Is Dangerous
A common contractor-management mistake is to treat the Section 37(2) agreement as an indemnity form.
Management signs the document, places it in the safety file and assumes that responsibility has been transferred to the contractor.
That is not what the legislation says.
Section 37(2) Agreement South Africa creates circumstances in which an employer or user may be presumed responsible for an employee’s act or omission unless the employer proves specific matters, including that all reasonable steps were taken to prevent the conduct. Section 37(2) applies that framework to a mandatary, except where the parties have agreed in writing on the arrangements and procedures intended to ensure the mandatary’s compliance with the Act. (Government of South Africa)
The agreement therefore matters—but its purpose is to define and coordinate compliance arrangements.
It does not erase the employer’s own statutory duties.
What Is a “Mandatary” Under the OHS Act?
The OHS Act defines a mandatary as including:
an agent;
a contractor; or
a subcontractor engaged for work.
A mandatary remains an employer or user in its own right. In other words, a contractor does not lose its own legal responsibilities merely because it is working for another company. (Government of South Africa)
An ordinary employee should not simply be described as a mandatary. Employees are addressed separately in Section 37(1), while Section 37(2) deals with mandataries.
This distinction is important when preparing agreements, appointments and contractor files.
What Section 37(2) Actually Does
The provision allows the parties to record, in writing, how occupational health and safety compliance will be managed between them.
A credible agreement should answer questions such as:
Who is responsible for identifying the hazards associated with the contracted work?
Which party will provide site-specific safety information?
Who must approve the contractor’s risk assessments and procedures?
Which training and competency records must be produced?
Who controls permits, isolation, access and emergency communication?
How will non-compliance be reported and corrected?
Who may stop unsafe work?
How will subcontractors be controlled?
How will implementation be inspected and recorded?
Section 37(2) should therefore be treated as a working contractor-control agreement, not a ceremonial signature page.
What Section 37(2) Does Not Do
It Does Not Remove the Employer’s General Duties
Section 8 requires employers, as far as reasonably practicable, to provide and maintain a working environment that is safe and without risk to employees.
The duties include identifying hazards, establishing precautions, providing necessary information and training, enforcing safety measures and ensuring appropriate supervision. Section 9 separately addresses risks to people other than the employer’s own employees. (Government of South Africa)
A company cannot ignore a visible contractor hazard and then rely on the agreement after an incident.
It Does Not Automatically Prove Reasonable Steps
Section 37(1) specifically states that issuing instructions prohibiting unsafe conduct is not, by itself, sufficient proof that the employer took all reasonable steps.
The same practical lesson applies to contractor control: documents must be supported by implementation. (Government of South Africa)
A signed agreement without verification, induction, monitoring or enforcement may demonstrate paperwork—but not necessarily an effective safety system.
It Does Not Guarantee That Only the Contractor Will Be Prosecuted
Section 37 provides that an employee or mandatary may be convicted for an offence as though that person were the employer or user. It also allows a relevant employee or mandatary to be convicted in addition to the employer or user. (Government of South Africa)
Liability depends on the facts, the duties breached, the evidence and the applicable legislation.
There is no credible basis for promising that one course or agreement will prevent prosecution.
Section 16 and Executive Responsibility
Section 16(1) requires the chief executive officer, as far as reasonably practicable, to ensure that the employer’s duties under the Act are properly discharged.
A chief executive officer may assign duties to people under their control, but the Act expressly states that doing so does not remove the CEO’s responsibility or liability under Section 16(1). (Government of South Africa)
This does not mean that every contractor incident automatically results in the CEO being imprisoned.
It means senior management must ensure that a functioning safety-management system exists. That system may include:
competent appointments;
clear authority;
contractor selection criteria;
risk management;
resources;
training;
monitoring;
reporting;
corrective action; and
management review.
The stronger executive question is not:
“Did somebody sign the Section 37(2) form?”
It is:
“Can we prove that the agreed arrangements were implemented and enforced?”
Can OHSA Contraventions Lead to Fines or Imprisonment?
Yes. The OHS Act contains criminal offences and penalties.
The published text of Section 38 provides, for specified contraventions, for a fine of up to R50,000, imprisonment of up to one year, or both. Section 38(2) provides for a fine of up to R100,000, imprisonment of up to two years, or both, where the requirements of that subsection are met. The precise charge and potential consequences depend on the facts and applicable legal provisions. (Government of South Africa)
This is why the article should not promise that Section 37(2) “stops jail time.”
The agreement may form part of the evidence surrounding contractor management. It is not an automatic defence against every charge.
The Section 37(2) Contractor-Control Framework
A strong contractor system should be built in stages.
Stage 1: Define the Work
Record:
the exact scope of work;
work location;
start and completion dates;
machinery, tools and substances involved;
high-risk activities;
interfaces with employees and other contractors; and
applicable permits or shutdown arrangements.
A vague agreement cannot control a poorly defined scope.
Stage 2: Assess the Contractor Before Appointment
Before allowing work to begin, verify relevant information such as:
company identity and legal details;
Compensation Fund standing where applicable;
experience and references;
responsible-person appointments;
employee competence and training;
medical fitness where legally or operationally required;
equipment inspection and certification records;
risk assessments;
safe-work procedures;
emergency arrangements; and
subcontractor controls.
Swift Skills Academy’s Contractor Due Diligence Pack South Africa provides a structured starting point for this process.
Stage 3: Agree on Responsibilities in Writing
The Section 37(2) agreement should be specific to the work and premises.
It should address:
Control area | Matters to document |
Legal compliance | Applicable Act, regulations, standards and client rules |
Hazard information | What the employer and contractor must disclose |
Risk assessment | Preparation, review, approval and change management |
Competence | Required qualifications, training and experience |
Induction | Site rules, emergency systems and restricted areas |
Work control | Permits, isolation, lockout, access and authorisation |
Supervision | Named supervisors and reporting lines |
Equipment | Inspection, maintenance and operator authorisation |
PPE | Selection, issue, condition and correct use |
Incidents | Immediate reporting, preservation and investigation |
Subcontractors | Approval and equivalent safety requirements |
Monitoring | Inspections, audits and corrective-action tracking |
Enforcement | Stop-work authority and removal for serious breaches |
Records | Documents to be retained and made available |
Review | When the agreement must be updated |
A generic template may provide a starting structure, but it should be adapted to the real risks and contractual relationship.
Stage 4: Conduct Site-Specific Induction
Contractor employees need information about the workplace they are entering.
An effective induction may cover:
site hazards;
traffic routes;
restricted areas;
emergency alarms;
evacuation;
assembly points;
first-aid arrangements;
fire procedures;
permits;
incident reporting;
prohibited conduct;
environmental controls; and
the contractor’s authority to stop unsafe work.
General training does not replace site-specific induction.
Stage 5: Monitor the Work
The employer should not assume that approval on day one proves ongoing compliance.
Monitoring may include:
pre-start inspections;
toolbox talks;
permit checks;
supervisor observations;
equipment verification;
review of changing conditions;
corrective-action reports;
contractor meetings; and
periodic audits.
The evidence should show both the problem identified and what was done to correct it.
Stage 6: Close Out the Contract
At completion, retain relevant records such as:
signed agreements;
approved risk assessments;
permits;
induction registers;
competency evidence;
inspection reports;
incidents and investigations;
corrective actions;
close-out reports; and
lessons for future appointments.
Additional Duties for Construction Work
Where the contracted activity qualifies as construction work, the Construction Regulations 2014 create additional duties for clients, principal contractors, contractors and other role players.
These duties include project-specific health and safety planning, contractor appointment and control, documentation, competence and monitoring requirements.
A Section 37(2) agreement cannot be used to replace the duties imposed by the Construction Regulations. (Department of Labour)
Employers managing roofing, scaffolding, structural work, solar installation or other construction activities should also review:
the contractor’s task-specific appointments, plans and competence.
How OHSA Training Supports Contractor Management
Training cannot sign the agreement, appoint the contractor or enforce site rules on the employer’s behalf.
It can, however, help relevant employees understand:
statutory rights and responsibilities;
employer and employee duties;
hazard identification;
workplace inspections;
unsafe-condition reporting;
corrective action;
documentation; and
the limits of their authority.
SAQA Unit Standard 13223 is titled Apply safety, health and environmental protection procedures. It is an NQF Level 3 unit standard carrying six credits and was designed primarily for manufacturing and engineering contexts. Its outcomes include statutory responsibilities, inspections, unsafe conditions, corrective action and reporting. (regqs.saqa.org.za)
Important SAQA 13223 Status Note
SAQA records the unit standard as having passed its registration end date. The current SAQA record displays:
registration end date: 30 June 2023;
last enrolment date: 30 June 2029; and
last achievement date: 30 June 2032. (regqs.saqa.org.za)
Before enrolling learners, employers should request written confirmation of:
the provider’s current approval scope;
the enrolment route;
assessment arrangements;
credit recording;
certificate or statement to be issued; and
whether the programme suits the employee’s actual role.
Review Swift Skills Academy’s OHSA Compliance Course Cape Town for current course and enquiry information.
Training Does Not Prove Complete OHSA Compliance
Completing SAQA 13223 or another safety programme does not prove that an employer has satisfied every duty under Sections 8, 9, 16 or 37.
Training is one part of a wider compliance system.
The employer may still need:
workplace risk assessments;
legal appointments;
safe-work procedures;
task-specific competence;
contractor controls;
machinery inspections;
occupational hygiene controls;
incident reporting;
emergency procedures;
health and safety representatives;
medical surveillance where prescribed; and
evidence that controls are enforced.
For a broader legal overview, read the OHS Act Compliance South Africa guide.
Common Section 37(2) Myths
Myth | Accurate position |
“The contractor signed, so we have no liability.” | The employer’s own duties remain, and the agreement must be implemented. |
“Section 37(2) transfers every duty to the contractor.” | It records arrangements and procedures; it does not erase direct statutory duties. |
“A training certificate proves the contractor is competent.” | Competence must match the task, equipment, hazards and required role. |
“The agreement guarantees legal immunity.” | No agreement or training provider can guarantee immunity from investigation or prosecution. |
“A safety file proves the site is safe.” | The file is evidence; actual conditions and implementation remain decisive. |
“The agreement is only required after an incident.” | Contractor arrangements should be established before the relevant work starts. |
“One generic form can be used for every contractor.” | The agreement should reflect the scope, risks and interfaces of the actual work. |
“Training activates an insurance claim defence.” | Insurance depends on the specific policy, facts, disclosure and applicable law. Obtain professional advice. |
Section 37(2) Evidence Checklist
Before contractor work begins, confirm that the file contains the documents relevant to the task:
signed and dated Section 37(2) agreement;
detailed scope of work;
contractor appointment and responsible persons;
risk assessments and safe-work procedures;
training and competency records;
medical-fitness evidence where required;
equipment and inspection registers;
operator authorisations;
site-induction records;
permits and isolation procedures;
PPE requirements;
emergency and rescue arrangements;
incident-reporting procedure;
subcontractor approvals;
inspection and audit schedule;
corrective-action register; and
close-out documentation.
Use Swift Skills Academy’s safety training matrix guide to map role-specific training without assuming that every contractor needs the same course.
Build a Contractor System, Not a Paper Defence
The strongest Section 37(2) arrangement is not the document with the most legal wording.
It is the arrangement that accurately reflects what happens on site.
A defensible contractor-management system can show:
why the contractor was selected;
what hazards were identified;
how responsibilities were divided;
which workers were verified;
what site information was communicated;
who supervised the work;
how compliance was checked;
what happened when a breach was found; and
whether unsafe work was stopped.
That is stronger than claiming that one signature or certificate “protects the CEO.”
How Swift Skills Academy Can Help
Swift Skills Academy provides workplace safety training for employers, supervisors, safety personnel and contractor-facing teams in Cape Town.
Relevant pathways include:
The correct training pathway should be selected according to the worker’s role, workplace hazards, client requirements and required assessment outcome.
You May Also Want to Read Further
Recommended Reading | Why It Helps | Link |
OHSA Compliance Course Cape Town | Main course and employer-enquiry pathway | |
Contractor Due Diligence Pack South Africa | Provides a structured pre-appointment contractor verification framework | |
OHS Act Compliance South Africa | Explains wider employer and employee duties under the Act | |
Safety Training Cape Town | Helps employers compare role-specific workplace safety courses | |
Safety Training Matrix | Helps map contractor, supervisor and employee training requirements | |
Basic Health and Safety Training | Builds a foundational understanding of workplace hazards and duties | |
Working at Heights Training | Supports contractor readiness for fall-risk work | |
Confined Spaces Training | Supports planning for entry, hazards and emergency procedures | |
Fire Fighting Course Cape Town | Develops foundational workplace fire-response competence |
Final Takeaway
A Section 37(2) agreement does not transfer risk by magic.
It records how two parties intend to manage compliance.
Its real value depends on:
contractor selection, hazard information, clear responsibilities, verified competence, site induction, supervision, inspections, enforcement and reliable evidence.
A signature without implementation is paperwork.
A properly managed contractor system is prevention.
Review Swift Skills Academy’s OHSA Compliance Course Cape Town and request current written guidance for individual, group or workplace training.
Swift Skills Academy
6 Monaco Road, Killarney Gardens, Cape Town
Tel: 021 828 0772WhatsApp: +27 60 998 7412
Frequently Asked Questions
Does a Section 37(2) agreement remove an employer’s liability?
No. It records arrangements and procedures intended to ensure the mandatary’s compliance. The employer’s direct duties under the Act and applicable regulations remain.
Does Section 37(2) require a contractor to be competent?
Section 37(2) itself focuses on a written agreement covering compliance arrangements and procedures. Competence verification arises from the wider obligation to take reasonably practicable safety measures and from task-specific regulations and workplace requirements.
Is an employee a mandatary?
Not ordinarily. The Act defines a mandatary as including an agent, contractor or subcontractor for work. Employees are dealt with separately in Section 37(1). (Government of South Africa)
Can a CEO delegate occupational health and safety duties?
The CEO may assign duties to a person under their control, but Section 16 states that this does not remove the CEO’s underlying responsibility or liability. (Government of South Africa)
Does OHSA training guarantee compliance?
No. Training can build competence and support compliance evidence, but the employer must still implement workplace-specific risk controls, supervision, equipment, procedures and monitoring.
Does SAQA 13223 cover Section 37(2)?
The unit standard covers statutory rights, responsibilities and liability, workplace inspections, unsafe-condition identification, corrective action and reporting. The employer must still provide site-specific Section 37(2) procedures and contractor-management instruction.
When should the Section 37(2) agreement be signed?
The compliance arrangements should be established before the relevant contractor begins work, then reviewed when the scope, hazards, personnel or legal requirements change.
Sources
Source | Type | Why It Matters for Readers |
Swift course and conversion page | Provides the training and enquiry pathway for employers, supervisors and employees who need stronger knowledge of workplace SHE procedures and responsibilities. | |
Internal contractor-management guide | Helps employers move beyond a signature-only agreement by checking competence, risk documentation, equipment and site readiness. | |
Primary South African legislation | Confirms the duties in Sections 8, 9 and 16, the operation of Section 37 and the offences and penalties contained in Section 38. | |
Official South African regulations | Shows that construction clients, principal contractors and contractors have additional project-specific duties beyond a Section 37(2) agreement. | |
South African qualification authority | Confirms the unit-standard title, level, credits, learning outcomes and current registration, enrolment and achievement dates. |
