Hazardous Substances Act 15 of 1973

The Hazardous Substances Act 15 of 1973 (the "Act") regulates the control of certain electronic products and other substances which may cause injury, ill health or death in human beings as a result of their inherent toxic, corrosive, irritant, strongly sensitising or flammable nature. These substances and products are currently categorised into 4 different groups for purposes of regulation in terms of the Act.

On 23 September and 21 October 2016, the Minister of Health published notices in the Government Gazette ("GG") of his intention to declare new Group I and Group II categories of hazardous substances. Interested persons were invited to comment on the proposed changes within three months from the date of publication of the relevant notices. Once promulgated in final form, the previous Group I hazardous substances notice of 25 March 1997 and the Group II hazardous substances notice of 12 August 1994 will be repealed.

The substances which currently fall under Group I and II and the proposed changes to the Group I and II categories are summarised in the table below.

Implications and consequences:
The declaration of new Group I and II categories of hazardous substances will impact a range of people who will be subject to comply with the regulation of these substances in terms of the Act, including:

people who sell Group I substances, as these people will be required to obtain a licence and adhere to regulations governing labelling, record keeping and the disposal of empty containers (Note: "Sell" is defined in the Act to include sale, exchange, dispose of to any person in any manner, or manufacture or import for use in the Republic);

employers, mandators and principals, as the Act provides for vicarious liability for acts or omissions of an employee which constitute an offence in terms of the Act; and

people who are involved in the selling of mercury and mercury compounds from primary mercury mining and for use in artisanal and small scale mining, which may be prohibited.

To be noted
People who are in possession of a substance immediately before the date on which it is declared to be a Group I hazardous substance may sell that substance:

• at any time during a period of 180 days from the date on which the substance is declared to be a Group I substance; and
• if an application for a licence to authorise the sale of the substance has been made before the expiry of the 180 day period, until the application has been finally refused in terms of the Act.

Inspections
Inspectors appointed in terms of the Act have wide investigative powers, which include:

• entering any premises where the inspector suspects a grouped hazardous substance is being kept, used, manufactured, packed, labelled, conveyed, administered, dumped or sold, or where any operation or activity connected with these substances is taking place;
• removing samples of Group I and II substances or appliances which are suspected of being used in connection with such substance, from such premises;
• demand any information about the substances found on the premises and make copies of any book, statement or other document which is suspected to refer to such substance; and seize or place an embargo for an indefinite period on any grouped hazardous substance, appliance, vehicle or other object which is on reasonable grounds suspected of being concerned in the contravention of the Act.

Notable offences and penalties

• failure to obtain a licence to sell Group I hazardous substances is an offence which may, upon conviction, result in a fine and or period of imprisonment not exceeding two years.
• failure to comply with the conditions of the licence may also result in suspension or withdrawal of the licence.

Obstructing or hindering an inspector in the performance of his functions or exercise of his powers is an offence which is punishable, upon conviction, by a fine and or period of imprisonment not exceeding one year. A court may declare any grouped hazardous substance in respect of which an offence has been committed to be forfeited to the state, with costs being recovered by the convicted person.

Source: SAIOSH