The Mine Health and Safety Act of 1996 (MHSA) does not have a provision which deals specifically with the Act’s scope of application, according to law firm ENSafrica mine and occupational health and safety joint head Willem le Roux
Speaking at a mine health and safety seminar held in Johannesburg, Gauteng, earlier this month, he highlighted that the Act’s scope of application must be determined by referring to the provisions of the MHSA and the Occupational Health and Safety Act No 8 of 1993 (OHASA).
“Any law must be interpreted against the background and in the context of similar laws and, therefore, cognisance must be taken of the wording of Section 103 (b) of the OHASA, against the background of the MHSA, and Section 103 of the MHSA,” he noted.
Section 103 of the MHSA prescribes indirectly the scope of its application. It also states that the OHASA does not apply to any matter in respect of any provision where the MHSA applies.
Le Roux noted that Section 103 referred to the application of the OHASA and Section 103 did not include the regulations that were binding under the OHASA. It was, therefore, clear that these regulations, could not apply to any matter that was not prescribed by the MHSA and its binding regulations, he added.
“The question can, however, be asked whether Section 103 does not imply that the OHASA is applicable in matters which are not provided for in the MHSA. In other words, it can be argued that the OHASA applies to a particular matter, if the MHSA and the regulations which are binding thereunder, do apply,” he stated.
He added that the MHSA applied to employers and employees and, as a result, the obligations of the employer towards employees were more extensive and onerous.
Health and safety matters dealt with in the OHASA were provided for under the MHSA in a more comprehensive manner, Le Roux added.
“It appears that the only issues that are not provided for in the MHSA, but are in the OHASA, are the provisions of Section 37, which create vicarious liability on the part of the employer and user for the conduct of an employee,” he cited.
Le Roux noted that the OHASA dealt primarily with health and safety matters and that the MHSA dealt with regulatory matters concerning prospecting, mining and certain health and safety matters.