Section 10(4) of the OHS Act is one of the only three agreements contemplated in section 41 that can affect one’s legal obligations in terms of the OHS Act.
In other words, a specific legal requirement is no longer applicable. The specific legal requirement being affected by the agreement is section 10(1) and 10(3) that stipulates that no person is entitled to sell anything unless it is safe when properly used and it complies with the requirements of the Act.
That is why section 22 is subject to an agreement being entered into in terms of section 10(4), should that be the case. In fact, section 10(1) and 10(3) should also have been subject to section 10(4), as these two requirements are currently in conflict. In other words, a seller, supplier, donator, etc. who has entered into such an agreement is alleviated from the duty imposed on such person, as contemplated in section 10(1). That, however, does not apply to a person who has installed or erected plant or machinery as that does not fall within the context of articles to which section 10(4) specifically refers.
The issue of “as is” is an agreement under COMMOM LAW that the parties in question enter into, whereas, that which is stipulated in section 10(4) of the OHS Act, is an agreement or a letter of undertaking in terms of LEGISLATION that the relevant parties enter into. The main difference between these two types of agreements is that the “as is” agreement is intended to protect the seller from civil litigation, whereas the agreement, in terms of section 10(4), is there to avoid criminal prosecution.
An “as is” agreement is furthermore primarily aimed at protecting the seller from potential financial implications with the understanding that the word “sell” implies the dictionary meaning which is the exchange of money or kind. An agreement, as contemplated in section 10(4), is aimed at protecting the seller, which includes donations, leases, supplies, etc. from health and safety implications that the aforesaid might have on the recipient.
An agreement as contemplated in section 10(4), must include the following minimum requirements –
- That the recipient will ensure that the article, plant or machine will be safe when properly used, and
- That the recipient will ensure that the article, plant or machine will comply with the requirements of the OHS Act, 1993 prior to use.
An “as is” agreement will normally not include the abovementioned aspects and therefore it will not protect the seller from potential financial implications that the transaction might have. That is primarily why an “as is” agreement does not affect the stipulation of section 22 of the Act, since it is not one of the agreements contemplated to in section 41. However, should an “as is” agreement include the abovementioned aspects, which I firmly believe it should, then it would, under the OHS Act, still be deemed a letter of undertaking and not an “as is” agreement.
Author: Johan Louw
Director, Senior Consultant: Johan Louw & Associates (Pty) Ltd