The Minister of Mineral and Petroleum Resources has introduced the Mine Health and Safety Amendment Bill (the Bill) in the National Assembly. The intention, as set out in the Bill is to, among other things, streamline administrative processes and strengthen managerial responsibility and accountability.
While more detailed summaries and commentary will follow in the coming days, some initial observations from the Bill include:
Some key changes in definitions: The definition of a mining area has been included. This is important as this is key in determining whether the Mine Health and Safety Act (MHSA) applies to an operational area, as this is often broader than the definition of a mine. Importantly, it refers to the area for which an applicable right has been granted, land adjacent or non-adjacent to that area on which mining related operations or operations incidental to mining are undertaken on behalf of or under the authorisation of the owner but exclude operations where the mineral is used in manufacturing or beneficiation. Mining area also includes areas connected to the above by means of road, railway, powerline, pipeline, cableway or conveyor belt which are under the control of the holder of the relevant authorisation and which are used by the holder of the authorisation in connection with the mining operations.
Duties of the Chief Executive Officer: The Bill proposes the removal of the words "take reasonable steps" in the context of the Chief Executive Officer ensuring that the functions of the Employer contemplated in the MHSA are properly performed. The ability of the board of directors of an Employer to designate a member of the board to fulfil the functions of the Chief Executive Officer appears to be removed and replaced with the requirements that the Chief Executive Officer be a member of the board of directors. The intention here seems to be that the actual Chief Executive Officer of the Employer discharges the functions set out in section 2A of the MHSA and it will no longer be possible for another member of the board to be designed to discharge these functions.
Appointment of persons in terms of section 7(2) and 7(4) of the MHSA: Appointments in terms of section 7(2) and 7(4) of the MHSA are currently discretionary and allow for the appointment of competent persons by either the Employer or the Manager to assist them with the discharge of their functions. The Bill introduces a new subsection 7(6) which, curiously, seems to imply that these appointments are mandatory; stating that if these appointments are not made, the Employer must ensure that the duties of the person who should have been appointed are performed.
Consultation on the preparation, implementation or revision of any code of practice: Consultation is currently required with the appointed health and safety committee. The Bill requires that where no health and safety committee has been established at a mine, that these consultations must be held with the health and safety representatives. The Bill goes further to expressly confirm that Employers must comply with the code of practice prepared in terms of section 9 of the MHSA. This extends the potential liability under the MHSA where Employers have failed to comply with their own codes of practice.
Higher duty of care in respect of training: The Bill seeks to remove the requirement that the Employer provide and ensure training "as far as reasonably practicable", stating rather that every Employer "must" provide employees with the required training, information, instruction etc. Further, the amended wording requires that "every employer must ensure that every employee is adequately trained [rather than properly trained], with regard to the work to be performed and the hazards and risk associated with that work…" - training records must be kept and be readily available. The health and safety committee, or the health and safety representatives must be consulted in respect of the training to be provided.
Mine environmental engineering and occupational hygiene systems: An appointment of a person with qualifications in environmental control and occupational hygiene will be required.
Obligations in respect of findings of unfitness for work: The Employer must notify an employee of any decision that the employee is unfit to perform any category of work within seven days and inform the employee of their right to lodge an appeal with the Medical Inspector within 30 days. Within 10 days of the decision, the Employer must submit a report to the Medical Inspector, through the Occupational Medical Inspector, setting out the reasons for the decision. On receipt of the appeal, the Medical Inspector must acknowledge receipt and notify the Employer in writing, within seven days.
Further powers of inspectors to collect evidence for an investigation or inquiry: The Bill provides that inspectors may impose a prohibition on any site where a person has died, where a serious illness or injury has occurred or where a health threatening occurrence has occurred and block, bar, barricade or cordon off the site in such a manner as the inspector may consider necessary. This prohibition may be imposed orally (and confirmed in writing within 24 hours) or in writing and can be revoked once the inspector has reason to believe that the necessary evidence has been collected and the investigation or inquiry will not be jeopardised by the further functioning of the site.
Upliftment of instructions issued in terms of section 54: The Bill amends the requirement that the instructions be confirmed, varied or set aside by the Chief Inspector of Mines, to that of the Principal Inspector. It also retains that the section 54 instruction remains in place until the inspector instructions have been complied with.
Confirmation of internal review processes: The Bill retained the position that decisions of inspectors and the Principal Inspector of Mines, other than the imposition of administrative fines, may be appealed to the Chief Inspector of Mines. Reviews to the Labour Court in terms of the Promotion of Administrative Justice Act can only be brought once the internal appeal process has been exhausted.
Employment of persons under 18 years of age: The Bill seeks to extend the prohibition on the employment of person under the age of 18 to all mines. This was previously only prohibited in respect of underground work at a mine. However, persons over 16 years of age, but under 18 years of age, may participate for a limited period in an internship at a mine as part of vocational education or training, provided that additional safety measures are applied to ensure that the environment at a mine is appropriate and safe.
Amendments to criminal liability under the MHSA: An offence is committed by an Employer if any contravention to comply with chapter 2 of the MHSA results in the death of a person, serious injury or illness or a health-threatening occurrence. It is of no consequence who committed the act or omission, if the Employer conspired with that person concerned in the act or omission or if the Employer did not take all reasonable steps to prevent the act or omission and thereby caused the death, injury, illness or occurrence. Importantly, the fact that the Employer issued instructions prohibiting the act or omission is not in itself sufficient proof that all reasonable steps were taken to prevent the act or omission. A presumption that the Employer committed the act or omission is also included, unless the Employer can prove that (i) in doing an act an employee was acting without the connivance or permission of the Employer (ii) it was not under any condition or in any circumstance within the scope of authority of the employee, and (iii) all reasonable steps were taken by the Employer to prevent the act in question.
Increase in penalties that can be applied: If an Employer is criminally convicted, a fine of an amount not exceeding 10% of the annual turnover may be imposed. This is in addition to the ability of the Court to withdraw or suspend the applicable mining right. The fine can be calculated at 10% of the employer's annual turnover in the preceding financial year as reflected in the last available financial statement in the Republic of South Africa and the Employers exports from South Africa, whichever is greater. Factors to be considered include the interest in justice, nature and extent of the offence, repeat offence or previous non-compliance. Other fines that can be imposed, depending on the section of the MHSA for which an Employer is convicted and as set out in schedule 8 to the MHSA have also been increased, such as some fines increasing from ZAR 1 000 000 to ZAR 4 000 000 and the fine for hindering the administration of the MHSA increasing to an amount of ZAR 8 000 000 in the case of a corporation that is the offender.
The Webber Wentzel health and safety team will share further insights into the impact of these changes and the practical implementation of these changes at mines over the coming weeks. Please feel free to reach out to our team if you would like to discuss these in more detail and obtain advice specifically for your operation.
