Mine closures must be lawful

Mine closures must be lawful - specialist attorney. Mining News of 19 November 2007. By Willem le Roux. 'The Mine Health and Safety Council set a target in 2003 to reduce mine fatalities and to achieve safety performance levels in 2013 which are equivalent to current international benchmarks for underground metalliferous mines. Specialist attorney firm in mining health and safety Brink Cohen le Roux (BCLR) director Willem le Roux says that the mining industry’s safety performance has improved materially since 1996. The fatality rate measured for each million hours worked has been reduced from 0,41 in 1996 to 0,25 in 2004. In 2005 and 2006, the fatality frequency rate was 0,2 fatalities for each million hours worked. It would seem that the industry may not achieve any material improvement in the reduction of the fatality rate in 2007. Le Roux says that the health and safety standards which apply to the mining industry in South Africa are generally of a high standard. Accident prevention does, however, remain a complicated matter in that accidents are caused very often by a large number of factors, some of which may not be proved at an accident investigation and inquiry. Although it should be the objective of all employers to achieve a zero fatality rate, one must bear in mind that many legitimate economic activities involve some risk of harm. Le Roux points out that a changing environment is associated with increased risk, such as the activities in mining, fisheries, forestry, transport, building and construction. Le Roux comments that the Department of Minerals and Energy (DME) has resorted to extreme measures in its attempts to reduce accidents. The mining industry has experienced a very large number of mine closures brought about by instructions of the DME to close mining operations subsequent to an accident. “A mining inspector who has reason to believe that any occurrence, practice or condition endangers or may endanger the health or safety of any person at a mine, may issue an instruction to protect the health or safety of persons at the mine, including an instruction that operations at the mine or part of the mine be halted,” Le Roux says. However, he emphasises that before an inspector may issue such an order, he must be convinced that the area to which the order applies is unsafe. “In other words, an inspector may not close a whole mine, if he has reason to believe that only a particular workplace is unsafe,” says Le Roux. He comments that it is not sufficient in terms of current South African legislation that the official should honestly think that there is reasonable cause to believe that the situation is dangerous. He or she must have reasonable cause, based on objective facts, before such an order can be issued. “Unfortunately, the inspectorate has, in most recent mine closures, closed entire mining operations, without applying these principles,” Le Roux says. He points out that such closure orders are unlawful for two reasons. Firstly, from an evidentiary point of view, an inspector cannot draw the inference that the whole mining operation is unsafe, if one workplace where the accident occurred is deemed unsafe. Secondly, the issue of such a closure order must comply with principles of administrative justice as enshrined in the Promotion of Administrative Justice Act, 2000. For that reason the administrative action taken by the mining inspector must be justifiable, must not contravene the law and must not be used for a purpose which is different from the purpose for which it was intended by the Legislature. “Accident statistics show that human behaviour is one of the primary causes of accidents,” Le Roux states. He says that is why the Mine Health and Safety Act has identified the creation of a culture of health and safety as one of its objectives. This objective is supported by a number of statutory provisions which require employee participation, the instruction and training of employees, risk management, the disclosure of information to employees and the employees’ right to leave a workplace which poses a serious danger to health and safety. Unfortunately this objective is not always achieved. “The problem in mining has been exacerbated by the shortage of skills, which is not only experienced on the mines, but also in the department,” Le Roux remarks. Safety and the reduction of fatalities must, however, remain a priority and for that reason all stakeholders must participate to make the work environment a safer place. Le Roux, however, emphasises that it is important that action taken by the inspector should be legitimate and lawful, otherwise one undermines the efficacy of legislation. He points out that the Constitution stipulates that adherence to the law is one of the fundamental values of the country'.

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.

Be safe or go to jail. The Times of 25 November 2008. ' New laws hold mining bosses criminally liable if guilty of unsafe mining. A NEW law that can make mining bosses criminally liable for any of their workers’ deaths has been cheered by unions, but slammed by industry executives. The new mine safety laws are contained in the Mine Health and Safety Amendment Act, which was approved by Parliament last week but must still be signed into law by President Kgalema Motlanthe in the next seven days. The Act makes for stricter penalties and stipulates that investigations into mine accidents must be held within 10 days and that a report be completed within 30 days. Speaking at the Chamber of Mines’ 118th annual meeting earlier this month, chamber president Sipho Nkosi described the legislation as an “imposition of a liability of a most oppressive nature”. The new laws make provision for heavier penalties for mining companies, increasing fines from R200 000 to R1-million. “An extremely damaging consequence of these Draconian proposals — should they be implemented — is that the South African mining industry will lose the services of a considerable number of highly skilled managerial and supervisory employees,” said Nkosi. He pointed out that the reality is that mining often takes place in a hostile and dangerous environment. “This is particularly true in our country, which has the world’s deepest underground operations.” “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,” Nkosi said. According to Frans Baleni, general secretary of the National Union of Mineworkers (NUM), a chief executive can be charged with industrial culpable homicide if he or she or the mine manager is found guilty of causing an unsafe working environment. NUM spokesman Lesiba Seshoka said: “We are excited that we can now see a chief executive of a mine going to rot in jail for unsafe mining. “We will definitely see an end to a monopoly over lives, because in the past it used to seem as if workers didn’t have the right to live. “Now all those who force workers to work under dangerous conditions will have to face the music.” Jaco Kleynhans, a spokesman for trade union Solidarity, said it was important that all parties monitored the enforcement of the new laws. “We welcome the new laws because it is what unions have been asking for,” Kleynhans said. “This country needs more mining regulations because mining companies had a lot of time in the past to improve safety levels in mines.” A mine executive, who asked not to be named, said: “These new laws are unrealistic in many ways. “For instance, if an inspector closes a mine after rendering it unsafe, we are still battling to see how this would later be retracted. Such an action will obviously hamper the overall mine administration. “Another problem is that this will make it very difficult for mining companies to retrain the senior skilled workforce because of the fear of incrimination, regardless of one’s efforts towards safe mining.” According to the department of minerals and energy, there have been 156 fatalities in South African mines since the beginning of the year.

SA passes new mine safety bill. Business Day of 22 November 2008. 'PARLIAMENT on Friday passed new mine safety laws which enforce stricter penalties and hold mine CEOs criminally liable for deaths in some of the world’s deepest mines. The mining industry, represented by the Chamber of Mines (CoM), has criticised as “too punitive” laws which make provision for heavier penalties to be levied against companies, increasing fines to R1m from R200 000. The CoM has also questioned the insertion of a criminal liability clause, allowing chief executives and managers to be prosecuted should they be found guilty of causing serious injury or deaths. “The (law) is premised on the principle that the responsibility for health and safety lies with the employers (owners of mines),” read a memorandum attached to the final bill. SA, the world’s number one platinum producer and top gold exporter, has a dire underground safety record and saw 221 mine deaths last year, up from 200 in 2006. The high mine death toll has prompted government to temporarily shut down mining operations after fatal accidents, further reducing output in an industry already suffering from the effects of an ongoing power crisis. Mine unions, which during public hearings discussing the bill argued for higher penalties, have recently stopped work at mines whenever a death occurred. The new laws, which must still be signed by President Kgalema Motlanthe before becoming effective, also made provision for mine accident investigations to be held within 10 days and a report completed within 30 days. Mine safety inspectors are empowered to enter any mine at any time, question persons and examine documents, and can shut down mines if there is non-compliance with safety instructions.

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.