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Hazardous Substances

An unfortunate conflict exists in the development of science and technologies in our modern world. Nuclear energy is a good example – it’s got a good side and it’s got a bad side. Closer to home, chemicals which benefit in one way can be extremely dangerous in other ways. The same goes for electronic circuitry which, in use, can produce harmful radiation; when it breaks down, circuitry can even combust.

The Hazardous Substances Act 19731 stipulates prohibitions and controls on the manufacture, importation, disposal, and use of substances which may cause injury, ill-health or death because they are toxic, corrosive, flammable, and so on. It also provides for similar controls in respect of certain electronic products.

The Act is administered by the Minister of National Health.

There are different kinds of substances and products declared to be hazardous and therefore subject to the provisions of the Act.

Group I: these are certain specified chemicals, a number of which are well known poisons – arsenic and strychnine, for example – and some of which have even been found on household shelves in the past – leaded paint, and carbon tetrachloride being two familiar examples.

Group II: this group covers all substances and goods specified in the SABS Code of Practice 0228, and includes various flammable liquids and solids, gases and corrosive substances whose transportation requires particular packaging and containerisation.

Group III: these are electronic products generating various forms of rays, beams, microwaves, radiation, etc.

Group IV: this is radioactive material which is not in the nuclear fuel cycle and is outside of a nuclear installation. It is intended to be used for medical, scientific, agricultural, commercial or industrial purposes, and radioactive waste from such material is included.

A. Inspectors

The Director General can appoint inspectors, whose job it is to ensure compliance with the many provisions concerning manufacture,2 packing, marking, labelling, storage, transportation, use, application and disposal of hazardous substances. These inspectors have wide3 ranging powers of search, examination, seizure and interrogation.

  1. It is an offence for any person to:
    • obstruct or hinder an inspector in the performance of his functions or duties, or the exercise of his powers;4
    • refuse or fail to give an explanation or information to an inspector relating to a matter within his knowledge;5
    • give an explanation or information which is false or misleading;6
    • remove, obliterate, alter, damage, break or open a mark, seal or fastening placed by an inspector on any substance, or its package – or on or over any door or opening giving access to it;7
    • falsely represent himself to be an inspector;8
    • retake any sample or other substance seized under the Act;9
    • hinder or obstruct the obtaining or seizure of any such sample or other substance;10
    • make use of, or apply to, any hazardous substance, any warranty, certificate, report, invoice or other document which is false;11
    • make use of any report or certificate, furnished by an inspector or an analyst, for purposes of business or trade.12
  2. An inspector may also place an embargo on any hazardous13 substance. This means a prohibition on the export thereof, or its14 sale, dumping, lease, use, operation, application or installation on any premises. It is an offence to deal in any way with a substance placed under such an embargo, except with the permission of an inspector.15

  3. Inspectors can also seize any hazardous substance, appliance, vehicle or other object which is implicated in the commission of any offence in terms of the Act. Any person who:16
    • damages or destroys something, with a view to obstructing its seizure or custody by an inspector;17 or
    • removes it from the inspector’s custody or control (without his written permission),18

    is guilty of an offence.

B. Licences

  1. It is an offence to sell any Group I substance without a licence, and otherwise than subject to conditions imposed by the Director-General.19

  2. It is an offence to sell, let, use or apply any Group III substance unless a licence is in force in respect thereof, and otherwise than subject to conditions imposed by the Director-General.20

  3. It is an offence to install, or keep installed any Group III substance on any premises unless a licence is in force in respect of the premises, and otherwise than subject to such conditions as may be prescribed.21

  4. No person may be in possession of any Group IV substance, or produce, acquire, transport, import or export, or use such a substance except in terms of written authority from the Director-General and then in accordance with such conditions as he may impose. It is an offence to do otherwise.22

C. Warranties

  1. It is an offence to give a warranty in respect of a hazardous substance23 which is false or misleading in any respects.24

D. Confidential information

  1. It is an offence to disclose the contents of any certificate or report on the analysis or examination of any sample without the authority of the Director-General, except if required by law to do so.25

  2. It is an offence to disclose any information, about the business or affairs of any person, which was acquired during the exercise of powers or functions in terms of the Act.26

E. Regulations

The Minister can make regulations for a wide range of purposes under the Act, and indeed he has done so. These regulations may criminalise contraventions of any of their provisions.27

F. Employer’s liability

  1. An act or omission of an employee, mandator or agent which constitutes an offence under the Act shall be deemed (also) to be the act or omission of his employer, mandator or principal, unless he proves:
    • that he did not permit or connive at such act or omission;
    • that he took all reasonable measures to prevent an act or omission of the nature in question; and
    • that the act or omission in question did not under any conditions or in any circumstances fall within the course of the employment or the performance of the mandate or the scope of the authority of the employee, mandator or agent concerned.28
  2. If an employee, mandator, or agent does anything or fails to do anything which would have been an offence in terms of the Act if the employer, mandator or agent concerned had done it or had failed to do it, such employee, mandator or agent shall (also) be guilty of such offence.29
  1. As amended; the latest amendment was effected by Act 46 of 1999. 

  2. Section 8. 

  3. Section 9. 

  4. Section 18(A. 

  5. Section 18(b). 

  6. Section 18(b). 

  7. Section 18(c). 

  8. Section 18(d). 

  9. Section 18(e). 

  10. Section 18(e). 

  11. Section 18(f). 

  12. Section 18(g). 

  13. Section 9A(1). 

  14. Section 9A(2). 

  15. Section 9A(4) read with section 9A(5). 

  16. Section 9B(1). 

  17. Section 9B(6)(a). 

  18. Section 9B(6)(b). 

  19. Section 3(1)(a) read with section 3(3). 

  20. Section 3(1)(b) read with section 3(3). 

  21. Section 3(1)(c) read with Ssction 3(3). 

  22. Section 3A(1) read with section 3A(2) and section 3A(6). 

  23. For example, that it is not a substance in respect of which any prohibition applies. 

  24. Section 15(2). 

  25. Section 17(1)(a) read with section 17(2). 

  26. Section .17(1)(b) read with section 17(2). 

  27. Section 29(8). 

  28. Section 16(1). 

  29. Section 16(4).