https://www.miningweekly.com

Lawyer decries proposed amendments to mine health, safety law

4th July 2014

By: Chantelle Kotze

  

Font size: - +

Law firm ENSafrica mine and occupational health and safety joint head Willem le Roux highlighted several proposed amendments to the Mine Health and Safety Act (MHSA) No 29 of 1996 that he believes are onerous to employers at the firm’s yearly Mine Health and Safety Seminar, held in Johannesburg last month.

The most onerous of these are the proposed amendments to sections 47 and 92 of the MHSA, besides several other proposed amendments to sections of the Act.

In terms of Government Notice 1103 of 2013, published in Government Gazette No 37027 of November 15, 2013, the then Mineral Resources Minister Susan Shabangu gave notice of her intention to introduce a draft Mine Health and Safety Bill in Parliament. To date, the Bill has not been introduced in Parliament and it is not clear when this will take place.

Le Roux is of the opinion that the Mine Health and Safety Bill will only be dealt with by government once the Mineral and Petroleum Resource Development Act Amendment Bill is finalised.

In the meantime, he says we must give attention to the amendments to prepare for their coming into operation.

In terms of the amendments of 2008, which were signed into law in 2009, the Mine Health and Safety Inspectorate was established as a juristic person. The intention of this amendment was to ensure that the Mine Health and Safety Inspectorate operates independently from the Department of Mineral Resources (DMR) and in that capacity, attracts persons with appropriate skills to the inspectorate.

However, Section 17 of the draft Bill now pro- poses to scrap the amendment of 2008 and instead make the Mine Health and Safety Inspectorate part of the DMR.

Le Roux says this is “unfortunate” because the proposal to scrap Section 17 indicates a conflict of interest as the same body that will issue the licence and control and manage compliance with the conditions attached to the mining right will continue to be the same body that issues, for example, closure orders of the mine.

Potential Abuses

“This can lead to potential abuses,” he says, adding that, while the 2008 amendment was fortunate for the industry, it has now been decided to scrap the proposal.


Meanwhile, Le Roux points out that the penalties for a criminal transgression of provisions of the MHSA are contained in Column 1 of Table 1 of Schedule 8. In terms thereof, certain maximum fines are prescribed for particular provisions. The maximum fine is one of R1-million.

It is now proposed to amend Section 92 by adding Section 92(5)(a), which provides that, “any person, other than an employer who is a company, convicted of an offence in terms of any section mentioned in Column 1 of Table 1 of Schedule 8 may be sentenced to a fine or imprisonment for a period not exceeding the period mentioned in Column 2 of the Table opposite the number of that section”

.

Le Roux says the notice containing the draft proposals, however, does not include a proposal to amend Schedule 8, which means that the penalties that may be imposed on natural persons, therefore, remain unchanged.

Penalty Provisions

However, it is further proposed that a new subsection – (5)(b) – be inserted to amend the penalty provisions applicable to companies. The proposed provides that, “any employer who is a company convicted of an offence in terms of any section of this Act may be sentenced to a fine not exceeding 10% of the company’s annual turnover for the period during which the company has failed to comply with the relevant provisions, or to imprisonment not exceeding 10 years”.

Le Roux says a company is an artificial body and cannot be imprisoned. He, therefore proposes that the words “imprisonment not exceeding 10 years” be deleted.

Further, as far as a fine is concerned, the proposed subsection, which states that the penalty of a fine “not exceeding 10% of a company’s yearly turnover for the period during which the company has failed to comply with the relevant provisions”, is too onerous.

Le Roux illustrates that if a company delivers a report, in terms of Section 11(5), 30 days after the required time, a maximum fine amounting to 10% of the company’s turnover for that period may be imposed, which will in most instances be excessive.

He is of the opinion that this be left in the hands of a court to exercise a wide discretion and take into account all relevant matters.

“Although a court still has discretion as far as the amount of the fine is concerned, the message is sent to the court that all contraventions of the MHSA are equally serious, and punishable by such excessive fines, which is not correct,” says Le Roux.

The above measures will undoubtedly have vast adverse and unintended consequences, he stresses.

Clear Message

Apart from the destructive financial impact on mines, it will send a clear message to both local and foreign investors, not to invest in mining.

Another unintended consequence of such an overly punitive approach, says Le Roux, “will be that certain employers may merely concentrate on complying with the letter of the law, rather than implementing leading practice”.

Further, by placing greater focus on avoiding legal liabilities, he says, “less emphasis will be placed on establishing the real and underlying causes of incidents, thereby reducing the possibility of preventing similar incidents in future”.

Le Roux is therefore of the opinion that the proposed amendments be relooked before being signed into law as they are too onerous and leave room for vast unintended consequences, resulting in the mining industry being negatively impacted.

Edited by Martin Zhuwakinyu
Creamer Media Senior Deputy Editor

Comments

The content you are trying to access is only available to subscribers.

If you are already a subscriber, you can Login Here.

If you are not a subscriber, you can subscribe now, by selecting one of the below options.

For more information or assistance, please contact us at subscriptions@creamermedia.co.za.

Option 1 (equivalent of R125 a month):

Receive a weekly copy of Creamer Media's Engineering News & Mining Weekly magazine
(print copy for those in South Africa and e-magazine for those outside of South Africa)
Receive daily email newsletters
Access to full search results
Access archive of magazine back copies
Access to Projects in Progress
Access to ONE Research Report of your choice in PDF format

Option 2 (equivalent of R375 a month):

All benefits from Option 1
PLUS
Access to Creamer Media's Research Channel Africa for ALL Research Reports, in PDF format, on various industrial and mining sectors including Electricity; Water; Energy Transition; Hydrogen; Roads, Rail and Ports; Coal; Gold; Platinum; Battery Metals; etc.

Already a subscriber?

Forgotten your password?

MAGAZINE & ONLINE

SUBSCRIBE

RESEARCH CHANNEL AFRICA

SUBSCRIBE

CORPORATE PACKAGES

CLICK FOR A QUOTATION