Africa – including country specific legislation in South Africa

Deidré Penfold,Chemical and Allied Industries’ Association (CAIA), South Africa

Abstract: SADC (Southern African Development Community), through its Technical Regulations Liaison Committee (SADCTRLC) has established the need to put in place a regionally acceptable mechanism for the classification and labelling of chemicals in the region. The Committee has identified the UN GHS framework as a suitable basis on which to base regional regulation of trade in chemicals in SADC.

To implement the GHS regionally, the SADTRLC has worked with SADCSTAN to develop a harmonised regional GHS standard upon which the regional GHS technical regulations will be based.

South African Chemical Control Legislation

Certain chemicals can pose a variety of hazards depending on their nature that include their physical form and persistence, how and where they are used and the quantities that are dealt with. The risks that persons and the environment face during the handling of chemicals similarly depend on these factors. However, the risks associated with handling chemicals goes beyond these considerations into the arenas of exposure: routes, quantities and periods.

Due to these risks, CAIA believes that separate mandates are required to be implemented by separate authorities so that the necessary attention can be placed throughout the “exposure value chain”; where both the environment and people’s health are considered as value propositions when assessing the need for chemicals management.

The South African Constitution is one of the most progressive in the world and provides individual constitutional mandates to three spheres of Government: National, Provincial and Local (or district/municipal level). Section 24 of the same Constitution declares that everyone has the right to:

  • an environment which is not harmful to their health or well-being
  • have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that:
    • prevent pollution and ecological degradation
    • promote conservation
    • secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.

Section 24 therefore places a duty on all spheres of government to take reasonable steps, including to make laws, prevent pollution, promote conservation and ensure sustainable development.

A number of Acts and subordinate legislation, including those listed below, therefore govern separate mandates with respect to chemicals management. It must be remembered that the implications of the separate mandates is that these Acts and subordinate legislation at the National Level can be superseded by those at the Provincial Level and even at the local level through the implementation of by-laws.

So, with more than 20 Acts alone required to cover these respective mandates, the number of subordinate pieces of legislation that are required can be imagined to be substantial – even more reason to maintain the separate mandates to facilitate focused attention to the risks that may be posed to persons and the environment.

However, challenges are being experienced in terms of skills development, capacity and resources across the public and private sectors of South Africa and these challenges not only affect the day-to-day business of South African companies but also affect the public sector to a large extent in terms of compliance monitoring and enforcement, implementation of existing legislation, the development of new legislation and both intra- and inter-departmental coordination.

CAIA therefore believes that the newly proposed Chemicals Management Bill that seeks to fill broad gaps that are perceived to exist in chemicals management in South Africa is not appropriately justified given the circumstances. Efforts should rather be placed on the effective and efficient implementation of existing legislation, compliance monitoring and enforcement and coordination. New legislation will not only result in further legislation attempting to be implemented by an already strained authority and authorities but will also place unjustified regulatory burdens on an already stressed economy. Another important element that the Department of Environmental Affairs should focus on is local research rather than mostly relying on extrapolations from existing studies around the world. Although this is supported from an overall background perspective, the resources currently available to South Africa demand that perceived concerns are justified and substantiated by appropriate research prior to the development of a priority action plan to address these perceived challenges.

It is noted that CAIA is a partner of the United Nations Strategic Approach to International Chemicals Management initiative.

The Responsible Care® Initiative

The global chemical industry prides itself in its self-regulatory initiatives and the capacity that has been built within the chemical industry value chain over the past decades. This commitment to self-regulation is embodied in the Responsible Care® initiative that is in its 31st year of implementation. Implemented in around 60 countries, Responsible Care® is a set of guidelines and principles – governed by self-assessments and independent verification – to ensure the safe use and management of chemicals throughout the value chain. The ultimate goal of the initiative is to continuously improve safety, health and environmental performance and reporting to stakeholders. Self-regulatory initiatives such as these should be incentivised so that the challenges being experience at the authority-level can be somewhat overcome.

South African GHS Legislation:

In South Africa, the requirements of the GHS have been incorporated into a national standard SANS 10234:2008 - Globally Harmonized System of classification and labelling of chemicals (GHS).

The primary legislation on occupational health and safety makes provision for the classification and labelling of chemicals, which is regulated in terms of the Hazardous Chemical Substances. SANS 10234 has not yet been incorporated in these regulations.

The Hazardous Chemical Substance Regulations require that manufacturers, importers, sellers or suppliers of hazardous chemical substances for use at work provide the persons receiving such substances, free of charge, with a material safety data sheet (MSDS). The format of the MSDS must comply with that of Annexure 8 specified by Regulation 9A(1) of the Hazardous Chemical Substance Regulations (16 point format).

These Regulations also incorporate ISO 11014: Safety data sheet for chemical products — Content and order of sections, as the basis for the information in the safety data sheets (see Regulation 9A in the Hazardous Chemical Substance Regulations). This international standard has recently been updated on the basis of the requirements of the GHS and defines sections, content, and general format of the safety data sheet (SDS) for chemical products. ISO 11014 was adopted and published as a national South African standard in 2010 (SANS 11014:2010).
More specifically, GHS is referenced in the following South African legislation:

  • Hazardous Chemical Substances Regulations of the Occupational Health and Safety (OHS) Act No. 55 of 1993, is being revised to incorporate SANS 10234, but already makes reference to SANS 11014, which is based on ISO 11014.
  • National Environmental Management Act No. 10 of 1998 – Environmental Impact Assessment (EIA) regulations: Refers to listed activities for which EIA’s are required on the basis of being classified as Dangerous Goods (SANS 10234).
    • ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS, 2010. GNR 543 in Government Gazette 33306, dated 18 June 2010. Commencement date: 2 August 2010 [GNR 664, Gazette No. 33411] (GNR 543 repealed and replaced by GNR 982 (except for Chapter 5 & 7), Chapter 5 repealed by GNR 994 and Chapter 7 repealed by GNR 993.
    • ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS LISTING NOTICE 1 OF 2010. GNR 544 in Government Gazette 33306, dated 18 June 2010. Commencement date: 2 August 2010 – with the exception of Activities No. 19 and 20 in Appendix 1 [GNR 661, Gazette No. 33411] (GNR 544 repealed and replaced by GNR 983 in Government Gazette 38282 dated 4 December 2014. Commencement date: 8 December 2014.
    • ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS LISTING NOTICE 2 OF 2010. GNR 545 in Government Gazette 33306, dated 18 June 2010. Commencement date: 2 August 2010 – with the exception of Activities No. 20 to 23 in Appendix 1 [GNR 662, Gazette No. 33411] (GNR 545 repealed and replaced by GNR 984 in Government Gazette 38282 dated 4 December 2014. Commencement date: 8 December 2014.
    • ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS LISTING NOTICE 3 OF 2010. GNR 546 in Government Gazette 33306, dated 18 June 2010. Commencement date: 2 August 2010 [GNR 663, Gazette No. 33411] (GNR 546 repealed and replaced by GNR 985 in Government Gazette 38282 dated 4 December 2014. Commencement date: 8 December 2014.
  • Waste Management Act No. 59 of 2008 – Waste Classification and Management Regulations: Refers to the classification of Hazardous Chemical waste and the creation of an SDS in accordance to SANS 10234.
    • WASTE CLASSIFICATION AND MANAGEMENT REGULATIONS. GNR 634 in Government Gazette 36784, dated 23 August 2013. Commencement date: 23 August 2013.
  • Hazardous Substances Act No. 15 of 1973 – being amended to also incorporate SANS 10234 (Draft Hazardous Substances Amendment Bill).

GHS implementation in South Africa, SADC Countries and other African Countries

  • Angola
  • Botswana
  • Congo (DR)
  • Lesotho
  • Malawi
  • Mauritius
  • Mozambique
  • Namibia
  • Seychelles*
  • South Africa
  • Swaziland
  • Tanzania
  • Zambia
  • Zimbabwe

*Note that Seychelles is still in the process of ratifying the SADC Treaty.

The purpose of SADC is to create a regional community, which would provide peace and security, cooperation in fields of shared interests, and ultimately an integrated economy. It provides a forum where regional planning is done with the goal of encouraging self-sustaining development in Southern Africa, which is based on collective self-reliance and inter-dependence of Member States. It is built on the principle of achieving sustainable utilisation of natural resources and effective protection of the environment.

Each member state has been allocated a sector to coordinate, which involves proposing sector policies, strategies and priorities, and processing projects for inclusion in the sectoral program, monitoring progress and reporting to the Council of Ministers

  • The SADC GHS Policy was developed under the SADC Technical Regulations Liaisons Committee (SADCTRLC) to put regionally acceptable mechanisms in place for the classification and labelling of chemicals in the region.
  • To implement the GHS regionally, the SADCTRLC worked with SADC Cooperation in Standardization (SADCSTAN) to develop a harmonized regional GHS standard based on the South African SANS 10234.
  • The SADC GHS Technical Standard needs to be referenced in all relevant member states’ regulatory instruments.

SADC Countries that agreed to implement the SADC GHS Policy by 2020, but with no implementation plans, include:

  • Angola
  • Lesotho
  • Malawi
  • Mauritius
  • Mozambique
  • Namibia
  • Seychelles
  • Swaziland
  • Swaziland
  • Tanzania
  • Zimbabwe

The following SADC countries agreed with SADC’s intention to implement GHS by 2020 at the latest, as communicated to UN SCE GHS in 2013:

  • Botswana SADC had given its member states a deadline to have completed and set their regulatory laws by 2020. Botswana however, has mandated itself to have completed and started the implementation of the regulatory law by August 2017, three years before the agreed deadline.
  • The DRC (Congo) agreed with SADC’s intention to implement GHS by 2020 at the latest, as communicated to UN SCE GHS in 2013. A GHS Planning and Inception Workshop was held in January 2014, but the development of a National GHS implementation strategy is still on-going.
  • Madagascar agreed with SADC’s intention to implement GHS by 2020 at the latest, as communicated to UN SCE GHS in 2013. Madagascar held its National Strategic Approach to International Chemicals Management (SAICM) Planning and Inception Workshop from 22 to 23 May 2012 with the participation of UNITAR, which will include supporting GHS capacity building.
  • Mauritius was the first country to publish an act, the Dangerous Chemicals Control Act, for the implementation of GHS in 2004, but it is still based on the original GHS version of 2003. Although Mauritius agreed with SADC´s intention to implement GHS by 2020, no deadlines for the implementation of the requirements for substances or mixtures defined.
  • Zambia agreed with SADC’s intention to implement GHS by 2020. A Zambian Standard for GHS (GHS STANDARD: ZS 708 – Globally Harmonized System of Classification and Labelling of Chemicals) was developed, which is based on UN GHS Rev 1. Preparations are under way to update this Standard in accordance with GHS Rev 3.

Other African countries, with the exception of Nigeria, have not yet implemented the GHS and are still busy with capacity building or action plan developments. Nigeria has being working since April 2006 on the development of a harmonized Hazardous Chemicals Management Bill. The draft Act was subject to a sectoral review process for multi-stakeholder input during the first quarter of 2007. Even though this process lead to the development of a strategic plan for national GHS implementation in 2008, no further current information is available.

Conclusion

By nature legislative processes are slow and bureaucratic. It would be very difficult to set a common implementation schedule for the GHS in SADC for all countries. It is more likely that SADC countries will domesticate the SADC GHS at differing paces depending on their technical and financial capacity to regulate.

However, in order to achieve uniformity, the year 2020 is targeted for the Region to achieve full implementation. Full uptake of the new regulations will depend on the speed at which stakeholders understand and are able to use the new regulations. Therefore, educating employees, consumers, emergency responders on the updated chemical and product classifications and related pictograms, signal words, hazard statements and precautionary measures will present a significant training challenge.

Finally, when considering the above and progress made to date it can be concluded that South Africa is leading the implementation of GHS in Africa, where other SADC countries have committed to the implementation of GHS by 2020. The implementation of GHS , or its intention to do so by other African countries, is yet to be determined.

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