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Chamber warns of possible dire consequences of amendments to health and
safety law. Mining News of 12 November 2008. 'Chamber
of Mines CE Sipho Nkosi has warned that, if “draconian proposals” in the
Mine Health and Safety Amendment Bill – which would empower mines inspectors
to close down a mining site following a fatal or serious nonfatal accident –
were implemented, there would be damaging consequences for the industry.
The Bill has been approved by the National Assembly and is
now before the National Council of Provinces. The
Amendment Bill, if it became law, would make it obligatory for an inspector
of mines to close down a mining site where a death, serious injury or
threatening illness occurred, and there was no provision in the Bill, even
when the site had been made safe, for this prohibition to be lifted, said
Nkosi. This, according to him, indicated that
closure would exist in perpetuity. Further, if
inspectors found operational sites where there was potential for mining
activity to cause death, injury or damage to health, work may be prohibited
at all such sites. “With these prohibitions set to
endure in perpetuity, there is good reason to believe that, unless the
proposals are amended, an extensive range of mining activity in South Africa
will [be] permanently prohibited,” said Nkosi at the Chamber’s annual
general meeting, held in Johannesburg last week.
Another proposed provision, he said, created a new offence for an employer,
a CEO, a manager, an agent or an employee who would have contravened, or
failed to comply with, the new Act, thereby causing death, serious injury or
illness. A fine of R3-million or a period of imprisonment not exceeding five
years, or both, would be imposed on persons found guilty of offences falling
in this category. Nkosi said that, should these
provisions be implemented, one of the consequences would be the loss of
highly skilled managerial and supervisory employees. “Many will choose to
export their skills to somewhere else in the world where they are not faced
with the threat of imprisonment and inflationary fines for events over which
they have no realistic control,” he added. He
stressed that the proposed legislation, which, many claimed, was based on
similar legislation in the UK, did not take into consideration that
companies in the UK only faced criminal charges if there was a gross breach
of care by management, and that, in several respects, it went far beyond
what should “reasonably be expected and will have major unintended
consequences in respect of its impact on the viability of the industry and
the willingness of skilled staff to work in the industry”.
Nkosi said that legal advice taken by the Chamber from
senior counsel indicated that these new provisions were unconstitutional.
While the Chamber was not opposed to legal provisions aimed
at preventing serious or repeated transgressions of safety requirements, and
the mining industry needed to accelerate its march towards zero harm, the
Chamber had difficulty with the legislation which, it believed, failed to
comply with the Constitution. “It is the function of
government to make the law and there is universal acceptance that while
statutory provisions are imperative to ensure that business is conducted in
a legitimate and responsible manner, it must also avoid a level of punitive
ferocity with the potentially unintended consequence of effectively
discouraging economic activity that delivers tangible benefits to a country
and its people,” he concluded.
New legislation to enforce health and safety rules in mines.
Busrep. 'A maximum fine of R1 million and a
maximum term in prison of five years can be imposed according to new
legislation guarding mine health and safety that was tabled in parliament
last week. In terms of the memorandum of the Mine
Health and Safety Amendment Bill, tabled by minerals and energy minister
Buyelwa Sonjica, the ordering of compliance with the Mine Health and Safety
Act would form the core business of the mine health and safety inspectorate.
The chief inspector of mines would have wide statutory powers and inspectors
would be able to enter any mine at any time, conduct inspections, question
persons and examine documents. If dissatisfied with
conditions at the mines, inspectors could order compliance, give
instructions for improvement within a specified time, conduct further
investigations and recommend prosecution when an offence has been committed.
The amendment bill seeks to amend the act to review the
enforcement provisions, tighten offences and strengthen penalties.
Last week Thabo Gazi, the deputy director-general and chief
inspector of mines with the department of minerals and energy, said the
standard of adherence with safety was worrying. He noted that President
Thabo Mbeki had ordered a safety audit of 333 mines, which was expected to
be handed in by the middle of next month. Deaths in mining accidents rose 11
percent during 2006 to 221 incidents, the minerals and energy committee
heard. Gazi told MPs that the intention of the legislation was not to punish
transgressors, but to prevent accidents. The tendency was for mining firms
to keep reasons for accidents confidential to protect themselves from
prosecution. This legislation required that confidential accident reports be
made public. Gazi reported that the average age of safety experts on mines
was moving higher. In terms of the legislation,
money received by the chief inspector of mines in payment of fines must be
paid into a fund established and controlled by the chief inspector and used
for the promotion of health and safety in the mining industry.
SA's draconian new mine Safety Bill will create ‘severe problems’ – attorney.
Mining News of 21 October 2008. 'South Africa’s draconian
new Mine Health and Safety Amendment Bill will create “severe problems” if
enacted in its present form, says Brink Cohen Le Roux partner Willem Le
Roux. Le Roux tells Mining Weekly Online that
sections relating to corporate homicide for employers and the closure of
accident sites are particularly offensive. The penalty in the event of a
transgression is a maximum fine of R3-million or five years imprisonment.
Section 86A of the amendment Bill holds employers liable
for “any transgression, irrespective of the degree of negligence”.
Le Roux says that most disconcerting is the subsection 3
proviso, which holds an employer liable for the death of an employee, even
in the event of a murder having been committed. “A
very simple example is this: An employer has in place a health and safety
management structure, which includes a grizzly having to be put on an ore
pass once the ore has been deposited. But it’s left open, and another person
deliberately pushes an employee to his death. In that case, the employer is
held liable because the proviso says that the conduct of the murderer is not
a defence for the employer,” Le Roux said. He
describes this as being “unconstitutional” because it unjustifiably
infringes the right to be presumed innocent and the right to freedom and
security of person. Liability in terms of the new proposed section also
extended to the CEO, managers, agents and other employees.
Where a death or accident has occurred, in terms of the
amendment of section 50 of Act (7A), mine inspectors are required to impose
a prohibition on the further functioning of the site, and there is no power
to reverse the closure. “An inspector can thus close
an area indefinitely and you can’t appeal against the closure because the
inspector is compelled to close the area. You can only appeal on the basis
that a person did not die or was not seriously injured or that there was not
a health threatening occurrence,” Le Roux says. That
is also “unconstitutional”, he adds, as it imposes an arbitrary deprivation
of property.
Click here for the final version of the MHS Act Amendment
Bill.
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