"Compensation for Occupational Injuries and Diseases Act"

Chapter IX: Obligations of employers

80. Employer to register with commissioner and to furnish him with particulars

1) An employer carrying on business in the Republic shall within the prescribed period and in the prescribed manner register with the commissioner, and shall furnish the commissioner with the prescribed particulars of his business, and shall within a period determined by the commissioner furnish such additional particulars as the commissioner may require.

2) The particulars referred to in subsection (1) shall be furnished separately in respect of each business carried on by the employer.

3) An employer shall within seven days of any change in the particulars so furnished notify the commissioner of such change.

4) The Director-General may exempt employers referred to in section 84(1)(a) and (b) from the provisions of this section.

5) Any person not resident in the Republic or any body corporate not registered in terms of any law governing the registration of bodies corporate in the Republic, and carrying on business in the Republic or engaged in, on or above the continental shelf in activities in connection with surveys, research, prospecting or exploitation of natural resources, and employing an employee in connection therewith, shall furnish the commissioner with the address of his or its head office and the name and address of his or its chief officer in the Republic, and that officer shall for the purposes of this Act be deemed to be the employer of the said employee.

6) Any person who fails to comply with the provisions of this section shall be guilty of an offence.

81. Employer to keep record

1) An employer shall keep a register or other record of the earnings and other prescribed particulars of all the employees, and shall at all reasonable times produce such register or record or a microfilm or other microform reproduction thereof on demand to an authorized person referred to in section 7 for inspection.

2) An employer shall retain the register, record or reproduction referred to in subsection (1) for a period of at least four years after the date of the last entry in that register or record.

3) An employer who fails to comply with a Provision of this section shall be guilty of an offence.

4) A health and safety representative elected in terms of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), or the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), and a trade union representative elected in terms of section 14 of the Labour Relations Act, 1995 (Act No. 66 of 1995). shall have the right to inspect, and where appropriate bring to the attention of the Director-General, any register, record or document which the employer must maintain, keep or complete in terms of this Act.

82. Employer to furnish returns of earnings

1) Subject to subsection (1A), an employer, excluding an employer referred to in section 84(1)(a) and (b), shall not later than the thirty-first day of March in each year furnish the commissioner with a return in the prescribed form, certified by him, her or it as correct, showing--

the amount of earnings up to the maximum contemplated in section 83(8) paid by him, her or it to his, her or its employees during the period with effect from the first day of March of the immediately preceding year up to and including the last day of February of the following year; and
such further information as may be prescribed or as the Director-General may require.

1A) An employer who commences business after the last day of February of a particular year shall within seven days after such commencement furnish the commissioner with a return in the prescribed form, certified by him, her or it as correct, showing the estimated earnings of his, her or its employees for the period with effect from the commencement of the business up to and including the last day of February of the following year.

2) If an employer carries on business at more than one place or if he carries on more than one class of business, the commissioner may require a separate return for each place or class of business from him.

3) If in a return referred to in subsection (1) the amount shown as earnings, excluding earnings exceeding the maximum contemplated in subsection 83(8), is less than the amount actually paid, the Director-General may impose upon and recover from the employer a fine not exceeding 10 per cent of the difference between the amount shown and the actual amount.

4) The Director-General may reduce any fine referred to in subsection (3).

5) If an employer fails to furnish a return or if the estimate of the earnings which an employer expects to pay during a particular period is in the opinion of the Director-General too low, the Director-General may himself estimate the earnings concerned.

6) An employer who fails to comply with the provisions of this section shall be guilty of an offence.

83. Assessment of employer

1) Subject to the provisions of this section, an employer shall be assessed or provisionally assessed by the Director-General according to a tariff of assessment calculated on the basis of such percentage of the annual earnings of his, her or its employees as the Director-General with due regard to the requirements of the compensation fund for the year of assessment may deem necessary.

2) Notwithstanding subsection (1), the Director-General may--

assess a particular employer or category of employers on such other basis as he may deem equitable;
levy a minimum assessment in respect of a particular employer or category of employers.

3) In determining the tariff of assessment the Director-General shall provide for the capitalized value of pensions.

4) For the purposes of this section earnings shall be calculated in the prescribed manner.

5) If the earnings actually paid by an employer in respect of a particular period differ from the earnings shown in respect of that period in the return concerned, the Director-General shall adjust his assessment accordingly.

6) If an employer fails to furnish the Director-General within the prescribed period with a return in terms of section 82 in respect of a particular period, the Director-General may--

assess the employer on the basis of the earnings estimated in accordance with section 82(5);
impose upon and recover from the employer a fine not exceeding 10 per cent of the amount so assessed.
where it later appears that the actual earnings were more than the earnings estimated under paragraph (a), recover the difference in the assessment form the employer, and may impose and recover a fine on such difference as contemplated in paragraph (b); and
where it later appears that the actual earnings were less than the earnings estimated under paragraph (a), make the necessary adjustment.

7) An assessment of an employer shall be paid at such time and in such manner as the Director-General may determine.

8) The Minister may, on the recommendation of the Director-General and after consultation with the Board, prescribe by notice in the Gazette a maximum amount of earnings on which an assessment of an employer shall be calculated by the Director-General.

84. Certain employers exempt from assessment

1) No assessment in favour of the compensation fund shall be payable in respect of employees--

in the employ of--
1. the national and provincial spheres of government, including Parliament and provincial legislatures;
2. a local authority which has obtained a certificate of exemption in terms of section 70(1)(a)(ii) of the Workmen's Compensation Act and has notified the Director-General in writing within 30 days after the commencement of this Act that it desires to continue with the arrangements according to the said certificate of exemption; and
3. a municipality contemplated in section 10B of the Local Government Transition Act, 1993 (Act No. 209 of 1993), to which exemption has been granted in terms of subsection (2);
whose employer has with the approval of the Director-General obtained from a mutual association a policy of insurance for the full extent of his potential liability in terms of this Act to all employees employed by him, for so long as he maintains such policy in force.

2) The Director-General may upon application exempt a local authority referred to in subsection (1)(a)(ii) or any municipality referred to in subsection (1)(a)(iii) from the obligations of an employer in terms of this Act on such conditions as he or she may think fit.

3) Notwithstanding the provisions of this section, the Director-General may on application by an employer referred to in subsection (1) permit such employer to pay assessments to the compensation fund in respect of his employees, and thereafter the provisions of this section shall cease to apply to such an employer.

85. Variation of tariff of assessment

1) If in the opinion of the Director-General the business of an employer is designed, equipped, organized or conducted in a manner which is calculated to prevent accidents and the number of accidents and the expenditure in connection therewith are or are likely to be less than those usually occurring in comparable businesses, the Director-General may assess that employer at a lower tariff of assessment than the tariff of assessment for employers in like businesses.

2) If the accident record of an employer during a particular period is in the opinion of the Director-General less favourable than those of employers in comparable businesses and the Director-General is of the opinion that such state of affairs will probably continue, the Director-General may assess such employer at a higher tariff of assessment than the tariff of assessment for employers in like businesses.

3) If the accident record of an employer during a particular period is in the opinion of the Director-General more favourable than those of employers in comparable businesses, the Director-General may give such employer a rebate on any assessment paid or payable by him.

86. Assessment to be paid by employer to commissioner

1) An assessment shall be paid by an employer to the commissioner within 30 days after the date of the notice of assessment or, with the approval of the commissioner, in such instalments and at such times and on such conditions as the commissioner may determine.

2) Interest is payable on an overdue assessment at a rate determined by the Director-General, which shall not exceed the prevailing standard rate of interest as defined in section 1 of the Exchequer Act, 1975 (Act No. 66 of 1975).

87. Failure to pay assessment or other moneys

1) If an employer fails to pay an assessment in accordance with section 86, the Director-General may impose a fine at the prescribed percentage on the outstanding amount upon him.

If an employer fails to comply with the provisions of section 80(1) and an employee in his employ meets with an accident, the Director-General may, in addition to any other penalty to which such employer may be liable, impose a fine not exceeding the full amount of the compensation payable in respect of such accident upon him.
If the Director-General is of the opinion that such failure was not willful or was due to some cause over which the employer had no control, or that payment of the full amount of the capitalized value of a pension payable as compensation to the employee would probably lead to the insolvency of that employer or, in the case where the employer is a company, to its liquidation, the Director-General may--
1. waive in whole or in part any fine imposed by him;
2. allow the employer to pay the penalty in such instalments as he may determine.

3) An employer who refuses or fails to pay any assessment, instalment or fine referred to in this section or any other money payable in terms of this Act, shall be guilty of an offence.

If an employer fails to pay any amount due to the commissioner, the commissioner may issue an order in the prescribed form for the payment thereof.
The commissioner shall send a certified copy of the order referred to in paragraph (a) to the clerk of the magistrate's court of the district in which that employer is resident or where he has his place of business, and thereupon such order shall have the effect of a civil judgment of that magistrate's court, and the commissioner shall have all the powers of a judgment creditor.

5) For the purposes of this section compensation includes the cost of medical aid as well as any amount paid or payable in terms of section 28, 54(2) or 72(2) and, in the case of a pension, the capitalized value as determined by the Director-General of the pension, irrespective of whether a lump sum in lieu of the pension or a portion thereof is at any time paid under section 52 or 60, and periodical payments or allowances, as the case may be.

88. Contributions by employers individually liable and mutual associations

1) Notwithstanding any provision to the contrary contained in this Act, the employers individually liable and the mutual associations shall pay annually to the Director-General in such manner and at such times as he may determine, such portion of the expenditure incurred by him in the administration of the provisions of this Act as he may deem equitable.

The Director-General shall as soon as possible after the end of each financial year estimate the loss suffered during that year as a result of compensation that became payable out of the compensation fund in respect of employees with regard to whom their employers failed to pay assessments.
Such loss shall be estimated on the basis of the difference between the compensation referred to in paragraph (a) as calculated by the Director-General, together with any expenditure incurred or likely to be incurred in connection therewith, and the amounts recovered from the employers concerned or likely to be recovered whether by way of compensation, fines or otherwise.
The loss for any particular financial year may be revised by the Director-General in subsequent years in the light of the amounts actually paid or recovered.
The employers individually liable and the mutual associations shall pay to the Director-General, in such manner and at such times as he may determine, such portion of the said loss as he may deem equitable.

3) The provisions of this Act with regard to the recovery of assessments shall apply mutatis mutandis to the recovery of an amount owing by an employer or mutual association in terms of this section.

4) For the purposes of this section compensation includes the cost of medical aid as well as any amount paid or payable in terms of section 28, 54(2) or 72(2) and, in the we of a pension, the capitalized value as determined by the Director-General of the pension, irrespective of whether a lump sum in lieu of the pension or a portion thereof is at any time paid under section 52 or 60, and periodical payments or allowances, as the case may be.

89. Mandators and contractors

If a person (the mandator) in the course of or for the purposes of his business enters into an agreement with any other person (the contractor) for the execution by or under the supervision of the contractor of the whole or any part of any work undertaken by the mandator, the contractor shall, in respect of his employees employed in the execution of the work concerned, register as an employer in accordance with the provisions of this Act and pay the necessary assessments.
If a contractor fails so to register or pay any assessment, the said employees of the contractor shall be deemed to be the employees of the mandator, and the mandator shall pay the assessments in respect of those employees.

2) If a mandator has paid an assessment or compensation for which he would not have been liable but for the i provisions of subsection (1), such mandator may recover that assessment or compensation from the contractor.

3) If a mandator has in terms of this section paid an assessment or compensation to the commissioner, he may set off the amount so paid by him against his debt to the contractor.

4) Notwithstanding the provisions of this section, the Director-General may recover compensation from the contractor instead of from the mandator, and if the full amount cannot be recovered from the one, the shortfall can be recovered from the other.

5) A mandator shall not be liable in terms of this section in respect of any accident which happened at a place which is not on or about the premises on which the mandator undertook to execute the work, or which is not otherwise under his control or management.