In brief
On Friday 28 August 2026 the Department of Employment and Labour ran a multidisciplinary high impact blitz inspection on a construction site at Sunninghill in the City of Johannesburg. Twelve employers were operating on that site, one principal contractor and eleven subcontractors. At the time the inspectors arrived, not one of the eleven subcontractors was there. The principal contractor was, and he was found compliant in respect of his own operations. [1][2]
He was still the one who had to answer.
The Department issued 12 contravention notices and 4 prohibition notices on that site, along with 7 UIF compliance orders, 6 COIDA compliance orders and 9 orders under the Basic Conditions of Employment Act and the National Minimum Wage Act. It recorded 0 percent compliance with the Unemployment Insurance Act among the employers assessed. [1] Every one of the four prohibition notices, the notices that stop work, concerned physical conditions on site rather than paperwork.
This article is about who carries that, and why the answer is written into a section of the Occupational Health and Safety Act that most employers have never had to think about.
What a prohibition notice actually is
Most compliance conversations are about documents. A prohibition notice is not. It is the instrument an inspector uses when the danger is immediate: work stops, on that activity, until the condition is fixed. It is the sharpest thing in the inspectorate's hand short of prosecution, and it costs money the moment it is served, because the site stands still.
The four served at Sunninghill were: [1]
- scaffolding erected on unstable soil, without adequate bracing or access ladders
- inadequate edge protection for employees working at heights
- unsafe support of beams and slabs on loose, uncompacted ground
- unsafe deep excavations without adequate access
Read them again and notice what they have in common. Not one of them is a filing failure. Each is a physical arrangement on a site, put there by somebody, on a day, in a way that could kill a person. They are the kind of finding that exists whether or not anyone has a folder.
The further contraventions recorded on the day were broader: workers without valid medical certificates of fitness, failure to appoint competent construction management and health and safety personnel, inadequate fall protection measures, failure to conduct required risk assessments, and failures relating to ergonomic risk assessments and worker training. [1]
The section that decided it
The Deputy Minister of Employment and Labour, Mr Jomo Sibiya, led the operation with the Executive Mayor of Johannesburg, Cllr Dada Morero, the Inspector General, and officials from the South African Police Service, the Department of Home Affairs and the City of Johannesburg. [1][2] The Department's account of his statement to the principal contractor on the day was direct. The responsibility to ensure subcontractors comply sits with the principal contractor, and because the subcontractors were not on site, he was the one who had to answer on their behalf. [1]
That is not rhetoric. It is section 37 of the Occupational Health and Safety Act. [4]
Section 37(1) makes an employer liable for the acts and omissions of another person doing work on its behalf, as if it had done them itself. Section 37(2) provides the only relief: a written agreement, entered into with that mandatary, setting out the arrangements and procedures between them to ensure compliance. Without that agreement in place, the acts of the mandatary are attributed to the employer. [4]
This is a single sentence in an Act that runs to dozens of sections, and it is the difference between being a party to somebody else's contravention and not. A principal contractor who is immaculate on his own operations and has no section 37(2) agreements with his subcontractors is exposed to the full set of their failures. A principal contractor with those agreements in place has a defence in law that begins on the day he signed them, not on the day the inspector arrives.
Why the answer is not to find a template
There is a temptation, on reading the above, to go and find a section 37(2) agreement, sign it once with every subcontractor and consider the matter closed. That is a misreading of what the section asks for.
The agreement has to set out the arrangements and procedures between the parties to ensure compliance. An agreement that says the subcontractor will comply with the Act, and nothing further, arranges nothing and provides for no procedure. It is a sentence, not a system. What the section contemplates is that the parties have actually decided who appoints whom, who does the risk assessments, who checks the scaffolding, who holds the medical certificates of fitness, who trains, and how the principal contractor satisfies himself, on a repeating basis, that any of it happened. [4]
Note the sequence at Sunninghill. The subcontractors were not there. If the arrangement between the parties exists only as a signature in a file, absence is not a problem, because nobody was ever going to look. If the arrangement is a live procedure with dates on it, absence is visible long before an inspector makes it visible.
The wider point about construction
Two things in the published findings deserve to be separated from the drama of the day.
The first is that the OHS failures at Sunninghill sit almost entirely inside the Construction Regulations 2014 rather than the general body of OHS law. Scaffolding, fall protection and edge protection, formwork and support work, excavations, the appointment of a competent construction manager and construction health and safety officer, and the medical certificate of fitness are all construction specific duties. An employer whose compliance record is built on the OHS Act, the General Machinery Regulations, the General Administrative Regulations and the General Safety Regulations has a good record and still has none of these. Construction is a distinct regime sitting on top of the general one. [5]
The second is the appearance of ergonomics. The findings list failures relating to ergonomic risk assessments and worker training. The Ergonomics Regulations have been in force since 2019 and remain, in our experience, one of the most commonly missed obligations among employers who otherwise take health and safety seriously. It is now being written up on site. [6]
What the rest of the enforcement says
The OHS findings drew the prohibition notices, but they were not the largest share of the orders issued. The instruments recorded on the day, all from the Department's own statement, were: [1]
- Contravention notices under the OHS Act: 12
- Prohibition notices under the OHS Act: 4
- UIF compliance orders: 7
- COIDA compliance orders: 6
- BCEA and National Minimum Wage Act compliance orders: 9
The UIF orders concerned failures to register and declare employees, with the Department recording 0 percent compliance among the employers assessed. The COIDA orders concerned failure to register with the Fund, failure to keep required records, failure to submit returns of earnings and failure to pay assessments due. The BCEA and National Minimum Wage orders concerned written particulars of employment, employment records, information relating to remuneration, payment of the National Minimum Wage and payment of overtime. [1]
None of that is exotic. It is the ordinary administrative spine of employing people, and it was absent.
The operation also had an immigration dimension. The Department's statement recorded 66 foreign nationals on site reported as undocumented, three with fraudulent passports, one director arrested, and the construction permit temporarily suspended. [1] Independent reporting of the same operation, and the Deputy Minister's own posts from the day, put the number detained higher, at least 80. [2][3] We report both, and use the Department's statement for the on site findings because it is the Department's own record of the inspection.
GRC Shop view
The thing worth taking from Sunninghill is not that a construction site was found wanting. Construction sites are found wanting every week, and the Department's own compliance statistics have said so for years. What is worth taking is the mechanism by which a compliant employer ended up carrying somebody else's contraventions, because that mechanism is not confined to construction and it is not confined to Johannesburg.
Every employer who uses contractors, mandataries, labour providers or specialist subcontractors is standing where that principal contractor stood. Cleaning services, maintenance, installation, transport, catering, security. The exposure is created by section 37(1) and closed only by section 37(2), and it is closed in advance or not at all. There is no version of this where the agreement is produced after the inspection.
We would add a caution about how this reads. The Department does not publish the names of inspected employers, and section 36 of the Act prohibits disclosure of information obtained in carrying out functions under it. Nobody outside that site knows who was on it, and nobody should pretend otherwise. [4] What is public is the pattern: the Department is inspecting construction jointly with the police, Home Affairs and metro authorities, it is reaching past the subcontractor to the principal, and it is doing so on the strength of a section that has been on the statute book since 1993.
The employers who will find this uncomfortable are not the negligent ones. They are the diligent ones who assumed that running their own operation properly was the whole of the duty. It is not, and it has not been for thirty three years.
If you want your contractor and mandatary agreements held as a live, dated record rather than a signature in a file: https://www.grcshop.co.za/get-a-quote
Abbreviations
- BCEA: Basic Conditions of Employment Act
- COIDA: Compensation for Occupational Injuries and Diseases Act
- DEL: Department of Employment and Labour
- NMWA: National Minimum Wage Act
- OHS: Occupational Health and Safety
- SAPS: South African Police Service
- UIA: Unemployment Insurance Act
- UIF: Unemployment Insurance Fund
References
The sources below are external links to third-party websites. We link only to publicly accessible pages and check periodically that the links still work.
[1] Department of Employment and Labour, "Multidisciplinary High Impact Blitz Inspections, construction sector, City of Johannesburg (Sunninghill)", media statement and Facebook announcement, 28 Aug 2026. https://www.labour.gov.za/Media-Desk/Media-Statements
[2] Briefly News, "80 undocumented migrants detained at Sunninghill construction site in Joburg blitz", 29 Aug 2026. https://briefly.co.za/people/251453-80-undocumented-migrants-detained-sunninghill-construction-site-joburg-blitz/
[3] Deputy Minister Jomo Sibiya, posts of 28 Aug 2026. https://x.com/DmJomo
[4] Republic of South Africa, Occupational Health and Safety Act 85 of 1993, sections 36, 37(1) and 37(2). https://www.gov.za/documents/occupational-health-and-safety-act
[5] Republic of South Africa, Construction Regulations 2014, published under the Occupational Health and Safety Act 85 of 1993. https://www.labour.gov.za/DocumentCenter/Regulations%20and%20Notices/Regulations/Occupational%20Health%20and%20Safety
[6] Republic of South Africa, Ergonomics Regulations 2019, published under the Occupational Health and Safety Act 85 of 1993. https://www.labour.gov.za/DocumentCenter/Regulations%20and%20Notices/Regulations/Occupational%20Health%20and%20Safety