South Africa: The Buck Stops Here: Are Mining CEOs Doing Enough To Protect Themselves From Prosecution?

Last Updated: 18 March 2011
Article by Wessel Badenhorst

Mining fatalities reduced from 168 in 2009 to 128 in 2010

The 2010 calendar year produced the lowest number of fatalities in the mining industry in recent years. At 128, the number was 24% down from the 168 fatalities the year before. Although the credit for this significant improvement must surely go to the collective effort of all stakeholders, one has yet to hear CEOs being publicly applauded for their efforts.

On the contrary, the Department of Mineral Resources (DMR) is gearing up its prosecution machinery. In a recent news article, DMR spokesperson, Zingaphi Jakuja said that not only will the Mine Health and Safety Act, No. 29 of 1996 (the MHSA) be reviewed to strengthen enforcement provisions, but the administrative system of issuing fines will be simplified, penalties will be reinforced and prosecutions will result.

To the CEOs and mine managers, the only consolation which can be offered is the immortal words of Sir Winston Churchill:"we will not be judged by the criticisms of our opponents, but by the consequences of our actions".

These words cannot be more valid today than when applied in the health and safety arena.

The buck stops here

Harry Truman was the thirty-third president of the United States of America (USA) and held office between 1945 and 1953. He was a plain-speaking man from the mid-western state of Missouri and took office in the post war era after Franklin Roosevelt died.

President Truman's desk in the Oval Office was adorned with a wooden sign that read "The Buck Stops Here". By this he meant to communicate that he would not seek to pass blame to anyone else, but accepted personal responsibility for the way the USA was run under his leadership. Much is to be said for the mindset of ultimate responsibility. It no doubt filters down the tiers of management and instils a culture of responsibility at every level.

Drawing similarities between the office of the president of the USA and that of a mining CEO or mine manager is perhaps not too much of a stretch and it conveniently underscores the importance of taking ownership of health and safety obligations.

The champion of the Employer's duties

The MHSA decrees that every CEO must take reasonable steps to ensure that the functions of the mine owner (referred to in the MHSA as the "Employer") are properly performed. Speaking broadly, the duties of the Employer are to ensure that the mine is commissioned, operated and maintained and then de-commissioned in such a way that employees can perform their work without endangering anyone.

In discharging these obligations, the CEO is entitled to entrust any function contemplated in the MHSA to another person who is under his or her control. He or she is entitled to appoint a representative and to entrust him or her with the functions of the Employer. In turn, further appointments are required at operational levels to ensure responsibility for health and safety.

The de facto CEO no longer has to discharge, simply by virtue of his office, the duties of the Employer. The functions of the CEO may be performed by a member of the board of directors so designated for that purpose. This allows the Employer more flexibility in the appointment of the CEO under the MHSA, but pre-supposes that whoever is designated to hold this position, does so with the full appreciation of the heavy burden entrusted to him or her. In his or her position at the pinnacle of the organization, the CEO is the primary champion of the Employer's health and safety duties.

The standard of care

The CEO must take reasonable steps to ensure that the Employer's functions are performed properly. This does not require the CEO to be super-human or to take any steps which are not reasonably required considering the character of the operation.

South African law has for time immemorial accepted the concept of the reasonable person when gauging conduct where a duty of care is required. The MHSA echoes this sentiment, but sets a higher standard of care.

The question of reasonableness will depend on the circumstances of each instance. Factors that will play a role in determining reasonableness and thus culpability within the mining environment include, at the very least, the availability of technology; the simplicity or complexity of the establishment of health and safety systems; and the relative costs thereof.

The CEO's conduct must also meet the common law test: would a reasonable person in the position of the CEO have foreseen harm and have acted to avoid such harm? The CEO who falls short of the reasonable person test is considered negligent and could be prosecuted for culpable homicide in the case of a fatality.

The reasonable person test encompasses two components, both of which must be present. The first is the ability to foresee harm and the second is whether reasonable steps should have been taken to avoid such harm. Liability does not arise if one of these components is missing.

The consequences of failing the reasonable person test

Any contravention of the MHSA which causes serious injury, harm or death to a person is a criminal offence. To establish the criminal liability of the CEO, the MHSA sets a higher standard of care than that of the ordinary reasonable person test because:

Instructions alone will be insufficient proof that all reasonable steps were taken to prevent an act or omission. The MHSA expects more than this - safety systems, preventative measures and over-inspection are required at the very least.

The CEO is not permitted to rely on the defence of ignorance or mistake. It does not avail the CEO to say "I did not know". The CEO is required to have systems in place where unsafe acts are reported to him or her so that proper action can be taken to prevent injury, harm or death. This is particularly so in cases of falls of ground where it is suggested that all significant incidents should be reported to the CEO as and when they occur.

The fact that the act or omission which caused the injury, harm or death was within someone else's scope of authority is irrelevant as this defence is also excluded under the MHSA.

Do your systems protect you from prosecution?

Mining CEOs need to be able to confidently say that all significant falls of ground which occur at their mines are reported to them. If so, they also need to be ready to explain the decisions taken, or not taken, to implement remedial steps to prevent such falls of ground in future.

Similar questions can and will be asked about other unsafe practices. However falls of ground should be highlighted as they remain the largest category of mine accidents and the CEO's ignorance of these incidents will no longer be an available defence against prosecution.

There is never a better time than the present to review reporting systems to ensure that appropriate information comes to the attention of the CEO so that action can be taken to eradicate unsafe practices and to implement continuous improvements to health and safety systems.

Taking ownership of responsibilities is the first step in avoiding prosecution

Adopting "the buck stops here" attitude will most certainly create a culture of ownership of health and safety obligations within the organisation. It is only when true ownership of these obligations is established at every level within the organisation that behaviours change and positive results ensue.

Although the threat of prosecution always looms, this is merely the stick with which health and safety is enforced by the MHSA. The risk of prosecution is truly limited when CEOs take ownership of their responsibilities and act proactively to ensure that their systems remain effective and current.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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