South Africa: Annual LexisNexis/ENSafrica Mine Health And Safety Seminar – Various Topical Issues Were Discussed

Last Updated: 10 June 2015
Article by Edward Nathan Sonnenbergs

Most Read Contributor in South Africa, September 2018

On Wednesday, 06 May 2015, pre-eminent specialist attorneys from ENSafrica conducted their annual seminar at Emperors Palace in Johannesburg (in conjunction with LexisNexis) to discuss legal principles and developments in mine health and safety law. The attorneys and speakers at the seminar were Willem Le Roux and Pieter Colyn (directors and joint heads of the Mine and Occupational Health and Safety Department at ENSafrica) and Celeste Coles and Warren Hendricks, both directors in the aforementioned department. A number of topics were discussed, with the speakers and delegates interacting and considering certain industry practices

One of the first topics of discussion was the proposed amendments to the Mine Health and Safety Act, No. 29 of 1996 ("the MHSA"). Willem Le Roux pointed out that the legislative processes started some time ago. In November 2013, the previous Minister of Mineral Resources gave notice of her intention to introduce a draft Mine Health and Safety Bill, 2013 in Parliament. Interested persons were afforded 60 days to submit written representations on the proposed Bill. In November 2014, Minister Ngoako Ramatlhodi, the current Minister of Mineral Resources caused the draft Billto be referred to the National Economic Development and Labour Council ("Nedlac") for consideration. Prior to the referral of the draft Bill to Nedlac, the Department of Mineral Resources ("the DMR") caused certain proposed amendments to be made to the bill which are being debated at Nedlac.

Willem le Roux said that the most important proposed amendment relates to the obligation of an employer to provide training to employees. He explained that at present the employer is required in terms of section 10 of the MHSA to provide, as far as reasonably practicable, training to employees to ensure that they may perform their work safely. The present obligation accords with the Safety and Health in Mines Convention, 1995 of the International Labour Organisation, which has been ratified by Government. It is now proposed to delete the criterion of "reasonable practicability" in section 10. This will mean that the training obligation on the part of the obligation will become absolute, which is extremely onerous and also in breach of the International Convention. Willem also highlighted a number of the proposed amendments to the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 which will be very onerous for employers if implemented.

Pieter Colyn discussed the legal principles governing the obligation of an employer to prepare a report in terms of section 11(5) of the MHSA in respect of a reportable accident, serious illness or health threatening occurrence. Pieter also discussed the legal position extensively and debated whether the benefit that may be derived from such a report (in terms of which, amongst others, an employer is required to identify the cause(s) of an accident and implement remedial measures flowing therefrom) is undermined by the fact that by recording such aspects, an employer may be incriminating itself or individual employees. Practical examples and suggestions were also highlighted regarding the completion of the requisite reports, which may prevent an employer from incriminating itself.

A comprehensive presentation was also made in respect of the safety criterion prescribed in terms of the MHSA, and the steps to be taken to facilitate compliance with the obligation to ensure a working place is safe as far as "reasonably practicable". Pieter also discussed the elements that must be proven in respect of the criminal transgression of culpable homicide with particular focus on the concept of the "reasonable person".

Celeste Coles discussed aspects regarding legal appointments and debated, amongst others, practical considerations regarding appointment structures at a mine, with particular reference to mandatory and discretionary appointments. The importance of written appointments was emphasised and the importance of such documents as part of a management tool was highlighted. Warren Hendricks discussed the requirements of section 11(8) of the MHSA and regulation 10.1 of the Mine Health and Safety Regulations and summarised the duties and responsibilities of an employer regarding an accident scene and the obligation not to disturb the same. Warren pointed out that the obligation is qualified in that the employer may disturb the scene of an accident in order to prevent a further accident, to remove the injured or dead or to rescue persons.

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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