South Africa: When Is A Working Place At A Mine, Healthy And Safe, As Far As Reasonably Practicable?

Last Updated: 10 February 2015
Article by Pieter Colyn and Celeste Coles

Most Read Contributor in South Africa, September 2018

Employers of mines are responsible to ensure that working places of employees are healthy and safe, as far as reasonably practicable. The question that arises, is what criterion governs the question whether a working place is considered healthy and safe or not?

Pieter Colyn and Celeste Coles, both directors in the Mine and Occupational Health and Safety Department of ENSafrica, often deal with a misconceived assumption that merely because an accident occurred in a working place (for whatever reason), which resulted in an injury to, or death of a person, then such a working place is automatically classified as being unsafe and hazardous to health. An employer is then placed in a situation where it is accepted that it failed to comply with its obligations. Such an assumption is incorrect in the large majority of cases dealt with by Pieter and Celeste.

To draw a conclusion whether a working place is healthy and safe (or not), objective criteria must be applied. In South African Law, health and safety on mines is governed by both the Mine Health and Safety Act, 1996 ("the MHSA") and the regulations binding in terms thereof, as well as the common law (Roman Dutch law, as amended by statutory laws and interpreted by our courts). In this regard, Celeste Coles points out that an employer's obligations are not only derived from common law and the MHSA, but may also arise from contracts which may exist (for example, between an independent contractor company and the employer) and guidelines and instructions issued by the Mine Health and Safety Inspectorate (the relevant regulator) of the Department of Mineral Resources.

The MHSA and regulations which are binding in terms thereof, contain various provisions dealing with an employer's obligation to provide a working place, which is healthy and safe, as far as reasonably practicable (see for example sections 2, 5, 7, 10 of the MHSA). The standard of care, which the MHSA requires of the employer is, in most instances, one of reasonable practicability. This phrase is defined in the MHSA. The measures taken by an employer at a working place must take into account the particular hazard or risk concerned. Pieter Colyn points out that the standard of care is a dynamic one and must take cognisance of developments in the relevant industry. The test of practicability is an objective one which must be evaluated in the context of the particular work.

In order for an employer to demonstrate a system which is healthy and safe, as far as reasonably practicable and which ensures a healthy and safe working environment, a holistic approach must be adopted. In other words, an employer may elect to use a number of measures to ensure healthy and safe working places, as far as reasonably practicable. Various examples of measures are cited by Pieter Colyn and Celeste Coles, which may be included in a health and safety system. An employer may rely on, amongst others, formal and informal training of employees; an organisational structure of experienced and competent persons; equipment, which is safe and does not endanger the health of persons; systems of work which are safe and which do not expose persons to unhealthy conditions; health and safety standards and procedures; supervision and proper discipline; maintenance procedures; and risk management.

In other words, one must objectively consider whether a working place is safe, as far as reasonably practicable and not hazardous to health, by referencing and analysing the abovementioned measures. If one health or safety measure on which an employer relied was not effective, it does not mean that the working place was unsafe or hazardous to health.

The statutory measures of health and safety (as set out in the MHSA and regulations binding in terms thereof) must be interpreted in light of the common law duty of care. In general, the duty of care means that the employer, acting personally or through its agents, must take reasonable care for the safety of its employees. Our courts have used the standard of the reasonable person as the criterion to determine the reasonableness of conduct. Our courts have held that the reasonable person is "the man (person) of ordinary knowledge and experience".

"Reasonableness" is ultimately the measure which determines whether an employer's conduct complies with the MHSA, the regulations binding in terms thereof and/or the common law.

Non-compliance by an employer with its obligations to ensure a healthy and safe working environment, as far as reasonably practicable, as set out in the MHSA and regulations binding in terms thereof, is a criminal transgression and employers may be criminally charged in this regard. If such failure led to a person being fatally injured, then the employer may also be charged with culpable homicide. In addition to the aforementioned conduct constituting criminal transgressions, an administrative fine may also be imposed on the employer in terms of the MHSA. The Minister of the Department of Mineral Resources published a draft Mine Health and Safety Bill during November 2013. One of the proposed amendments relates to the maximum fine that may be imposed should an employer be found guilty of contravening the provisions of the MHSA and regulations binding in terms thereof. It is proposed that a fine may be imposed "...not exceeding 10% of the company's annual turnover for the period during which the company has failed to comply with the relevant provisions..." This provision (if enacted) will place a heavy financial burden on mines.

It therefore remains exceptionally important for an employer to continually assess and analyse its systems and measures, including employees' compliance with their duties and obligations by means of an appropriate risk assessment and management process to provide a healthy and safe working environment, as far as reasonably practicable.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions