Occupational Health And Safety Act, 1993 – Noise Exposure Regulations, 2024 – Exemption From The Provisions Of Regulation 8(3)

On Friday, 20 March 2026, Notice 7292 was published in Government Gazette No. 54405, in terms of which the Chief Inspector of Occupational Health and Safety, under section 40(3)(b) of the Occupational Health and Safety Act, 1993 ("OHASA"), granted an exemption from the requirements of regulation 8(3) of the Noise Exposure Regulations, 2024 ("NER").

Commencement vs Enforcement: A Critical Distinction

The NER were published in terms of Government Notice 5953 in Government Gazette No. 52226 on Thursday, 06 March 2025, with the Minister of Employment's ("the Minister") signature dated Monday, 03 February 2025, but without an express commencement clause or any transitional arrangements in the text of the regulations themselves. By operation of section 13(1) of the Interpretation Act, 1957 ("IA"), a law (including regulations) "commences" on the day it is first published in the Government Gazette as a law unless another date is fixed, which means the NER "commenced" on 06 March 2025.

Crucially, the pre‑existing Noise‑Induced Hearing Loss Regulations, 2003 ("NIHL") were not repealed immediately; instead, regulation 18 of the NER defers their repeal to "18 months after the date of promulgation of the Noise Exposure Regulations", i.e. to Sunday, 06 September 2026. This creates an 18‑month overlap between the date the NER came into legal existence and the date on which the NIHL cease to apply.

Section 13 of the IA is a commencement provision: it determines when legislation enters into force as law, rather than whether the obligations it imposes are immediately enforceable in practice against regulated parties. In Devenish on Interpretation: Statutory Interpretation – Volume 1 (2024), at page 471, the author observes that the courts have applied section 13 of the IA strictly, and that this strict application has at times produced outcomes that run contrary to the spirit — if not the letter — of the rule of law and the principle of legality. A purposive, Constitution-conforming approach, one that guards against absurd or unworkable results, is to be preferred.

The overlap between the two sets of regulations brings into focus the distinction between "commencement" and "enforcement". The NER contain various provisions which conflict with the NIHL. The intention of the Minister could not have been that such provisions must be enforced concurrently. A court may therefore find that although the NER "commenced" with their promulgation, there was no intention to enforce such regulations prior to the repeal of the NIHL. This would be premised on the fact that the NER were promulgated whilst the NIHL, which contain various conflicting provisions, are still in operation.

We highlight certain of the substantial differences between the NIHL and NER below.

Differences between the NIHL and the NER

The NER represent a substantially expanded and modernised regulatory framework as opposed to the NIHL. The most significant differences are as follows:

• The NER introduce several entirely new concepts not present in the NIHL. Most notably, they establish a noise action level of 82 dBA (continuous) and 135 dBC (impulse noise), which operate as a lower threshold triggering protective measures where there is concomitant exposure to ototoxic chemical agents and/or whole-body vibration. The NIHL operated solely on the basis of the 85 dBA noise-rating limit, with no consideration of synergistic hazards.
• The NER impose new duties on designers, manufacturers, importers, and suppliers of plant or machinery to minimise noise risk and provide noise emission data — an obligation absent from the NIHL.
• A further innovation is the establishment of a Noise Technical Committee to advise on codes, standards, and training requirements, as well as the incorporation of a detailed Code of Practice for Audiometry directly into the regulatory framework, replacing the more basic audiometric provisions of the NIHL.
• Regulation 4 of the NER (Information, Instruction and Training) is a considerably more detailed and onerous provision than regulation 4 of the NIHL (Information and Training). Consultation and notification duties are broadened; the prescribed training content is materially enlarged; and timing and frequency of training have been increased.
• The medical surveillance regime has been comprehensively restructured. The NIHL required baseline, periodic, and exit audiograms, with periodic testing annually for the first three years and then extendable every two years. The NER distinguish between medical screening (overseen by an occupational medicine practitioner, requiring written informed consent) and medical surveillance, and introduce categories of entry, initial, and periodic audiometric testing, with more granular frequency requirements depending on exposure levels.
• The concept of a "vulnerable employee" — one at heightened risk from noise exposure — is also new, entitling such employees to tailored screening and surveillance.
• Finally, the penalties for non-compliance have been increased: the maximum imprisonment term has risen from six months under the NIHL to twelve months under the NER, and record-keeping obligations now require records to be retained for 40 years, with provisions for continued access if the employer ceases activities.

Given the differences set out above, it is apparent that certain conduct by an employer in compliance with the relevant provisions of the NIHL would constitute an offence under the NER. In our view, the more sensible interpretation is that the overlap exists to prevent a regulatory gap while the transition takes place, rather than to enforce two parallel compliance obligations simultaneously.

Summary of the Exemption

The exemption permits employers to use Type 2 personal noise exposure meters when determining noise zones for mobile plant and machinery that do not operate from a fixed location.

Seven conditions were listed in the Notice, subject to which the above exemption will be granted. These conditions include the following:

• Single-seat mobile plant or machinery only. The exemption is restricted to mobile plant or machinery with a single operator seat. This means multi-seat vehicles or equipment carrying more than one occupant fall outside the exemption. Employers must verify the seating configuration of each machine before relying on this Notice.
• Instrument accuracy and impulsive-noise capability. The personal noise exposure meter must meet Type 2 accuracy requirements as set out in SANS 61672-1 and IEC 61252, and must, as a minimum, be capable of automatically adjusting for impulsive noise. Type 2 is the "field grade" accuracy class recognised by these international and national standards. The term "impulse-noise" has been defined in regulation 1 of the NER as "...sound characterised by brief excursions of sound pressure that exceeds the background noise".
• Default instrument configuration. The instrument must be set up, by default, to return a result for LAIeq.Ts (treated as equivalent to LReq.Ts), using:
  • Measurement type: "Leq" (Equivalent Continuous Sound Pressure Level);
  • Frequency weighting: "A"; and
  • Time weighting: "I" (Impulse).

The measure "LReq.Ts" is defined later in the Notice as "the equivalent continuous rating level, determined for a time interval of the duration of the work shift".

• Minimum three operational cycles. The measurement time interval must cover at least three complete operational cycles. An "operational cycle", although not defined in the NER, is commonly understood as one full sequence of, amongst others, a machine's typical work pattern.
• Wearing instructions. The personal sound exposure meter must be worn in accordance with the manufacturer's instructions.
• Microphone placement. The microphone must be positioned approximately 10 cm from the ear that receives the higher rating level. By targeting the "louder" ear, the measurement captures the worst-case exposure, giving a conservative (and therefore more protective) result.
• Conversion to 8-hour equivalent. The LReq.Ts measured by the instrument must be converted to LReq,8h (which is the 8-hour Noise Rating Level) using the formula provided in the Notice (being LReq,8h = LReq.Ts + 10 log (Ts / 8)). This normalises any shift length to a standard 8-hour day so that exposures can be compared against the "Noise-Rating Limit" set out in the NER regardless of whether the operator works a 6-, 10- or 12-hour shift.

Validity and Withdrawal

The Notice states that the exemption is valid for three years from the date of signature, being Monday, 02 February 2026, or until withdrawn by the Chief Inspector, whichever occurs first. Whether the withdrawal can take place prior to or after the expiry of the three-year period is not entirely clear. If the withdrawal takes place prior to the expiry of the three-year period, then the withdrawal has occurred first. However, if the withdrawal takes place after the expiry of the three-year period, then the event that occurs first is the expiry of the three-year period. It would therefore seem that the intention of the Chief Inspector was that the exemption is valid for a period of 3 years from the date of signature, unless it is withdrawn prior thereto.

Conclusion

The Notice adds to the existing uncertainty surrounding the force and effect of the NER and does not resolve the transitional questions raised above. The Minister should withdraw the Notice. In its place, the Minister should publish two separate notices. The first notice should set out clear transitional arrangements in respect of the NER and the NIHL. The second notice should re-issue the exemption notice, with the terms of withdrawal clearly stated.

To view Notice 7292 that was published in Government Gazette No. 54405, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.