One safety slip-up could close a mine – expert

If the proposed amendments to the Mine Health and Safety Act are adopted unchanged, mines will close and investors will stay away from the South African mining industry, says Willem le Roux, executive consultant of the Mine and Occupational Health and Safety Department at law firm ENSafrica.

The bill was published for comment in 2022 and then referred to Nedlac for consideration.

Minister of Mineral and Petroleum Resources Gwede Mantashe gave notice in the Government Gazette earlier this month that he will introduce the amended bill in parliament in the near future.

It is largely unchanged from the 2022 version, says Le Roux, the foremost expert on mine and occupational health and safety law in South Africa.

According to the notice, its aim is, among others, “to amend and review the enforcement provisions, simplify the fine system and strengthen offences and penalties to ensure that they serve as [a] deterrent for non-compliance”.

This despite a sharp decline in fatalities in the last decade.

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The bill proposes several penalties linked to specific offences, some of which could currently attract a maximum fine of R3 million and five years imprisonment.

If adopted, this will increase to 10% of the employer’s turnover in the preceding year or the value of its exports, whichever is the greatest, or imprisonment.

That means one incident could have serious financial implications for a mine and even result in its closure, says Le Roux.

He says linking the offence to turnover is derived from the Competition Act, where the objective is to penalise a party for engaging in restrictive practices and profiting from such practices. There is, however, no such rationale regarding criminal contraventions of the Mine Health and Safety Bill, he says.

“The increased penalties will send a clear message to both local and foreign investors not to invest in mining.”

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Safety whether ‘an employee or not’

The bill further provides that the employer will be guilty of an offence if it failed to take all reasonable steps to prevent an act or omission that results in a person’s death, serious injury or serious illness, or any health-threatening occurrence, whether the affected person is an employee or not.

Le Roux says in terms of the bill, the fact that the employer issued instructions prohibiting the conduct that led to the injury, illness or death is not in itself sufficient proof that all reasonable steps were taken to prevent the act or omission.

The employer will be held liable for the conduct of work-related actions and omissions of its employees.

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Burden of proof

It will be presumed guilty, unless it can prove on a balance of probabilities that the employee acted without permission, it was not work-related and that it took all reasonable steps to prevent it.

Le Roux says this flies in the face of the constitutional provision that every person has the right to a fair trial, which includes the right to be presumed innocent until proven guilty.

“The burden of proof which is usually on the prosecution to prove the elements of an offence in a criminal case, is now placed on the employer.”

This creates an enormous risk to employers and leaders in the mining industry, he says.

“Talented people will not be prepared to expose themselves to such risks and will avoid the mining industry where we really need them!”

Le Roux is also concerned about the training obligations of the employer. As the act currently stands, this is qualified with the phrase “as far as reasonably practicable”.

For example, the employer must, as far as reasonably practicable, “ensure that every employee becomes familiar with work-related hazards and risks and the measures that must be taken to eliminate, control and minimise those hazards and risks”.

To determine what is “reasonably practicable” several factors must be considered – including the severity of the hazard, what is readily known about it and ways to avoid it, and the costs and benefits associated with that.

By omitting the phrase “as far as reasonably practicable”, the bill now places an absolute responsibility on the employer to ensure that all its employees are adequately trained, says Le Roux.

He says this borders on the impossible.

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He believes this offends the principle in criminal and civil law that a person may not be required to comply with an impossibility.

“In many workplaces it may be impossible for an employer to train all employees at all times as required.”

Le Roux also points out that currently the law requires that the chief executive officer of the employer must take “reasonable steps” to ensure that the functions of the employer as referred to in the act are properly performed.

The bill now deletes the reference to “reasonable steps” and imposes an obligation on the chief executive officer to at all times “ensure” that the functions of the employer are properly performed.

In many instances this will be impossible, says Le Roux.

The Minerals Council SA is still studying the bill and says it will only be able to comment at a later stage.

This article was republished from Moneyweb. Read the original here.