Mining fatalities in South Africa had decreased to 128 in 2010 and CEOs should be applauded for their efforts. On the contrary, the Department of Mineral Resources (DMR) is gearing up prosecution mechanisms, writes Werksmans director Wessel Badenhorst.
DMR spokesperson, Zingaphi Jakuja, said the Mine Health and Safety Act (MHSA), 29 of 1996, would be reviewed to strengthen enforcement provisions, the administration of issuing fines will be simplified, penalties will be reinforced, and prosecutions will result.
To CEOs and mine managers, the only consolation is improved performance. In the words of Sir Winston Churchill: “we will not be judged by the criticisms of our opponents, but by the consequences of our actions”.
Mining safety buck stops here
Much is to be said for a mindset of ultimate responsibility. It filters down the tiers of management and instils a culture of responsibility at every level.
Harry Truman, 33rd president of the USA from 1945 to 1953, was a plain speaking man from the midwestern state of Missouri and took office in the post war era after Franklin Roosevelt died.
Truman’s desk in the Oval Office was adorned with a wooden sign that read “The buck stops here”. He would not seek to pass blame on anyone else, but accepted personal responsibility for the way the USA was run.
Mining CEOs and mine managers should likewise take ownership of their legal and moral health and safety obligations.
CEO champions employer’s duties
The MHSA decrees that CEOs must take reasonable steps to ensure that the functions of the mine owner, named ‘employer’ in legislation, are properly performed. Broadly, the duties of employers are to ensure that the mine is commissioned, operated and maintained, and decommissioned in such a way that employees can perform their work without endangering anyone.
In discharging these obligations, CEOs are entitled to entrust any employer function contemplated in the MHSA to another person under his or her control. In turn, further appointments are required at operational levels to ensure responsibility for health and safety.
A de facto CEO no longer has to discharge, by virtue of his office, duties of an employer. CEO functions may be performed by a member of the board of directors designated for that purpose. Employers have flexibility in the appointment of a CEO under the MHSA, pre-supposing that the incumbent fully appreciate the heavy burden. The CEO is the primary champion of the employer’s health and safety duties.
Reasonable standard of care set higher
The CEO is not required to be super-human or to take any steps that are not reasonably required, considering the character of any legal 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.
Reasonableness depends on circumstances. Factors that play a role in determining reasonableness, and thus culpability in mining, include at least the availability of technology, simplicity or complexity of establishing health and safety systems, and relative cost of technology and systems.
CEO conduct must also meet the common law test: would a reasonable person in the position of a 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; ability to foresee harm, and whether reasonable steps should have been taken to avoid such harm. Liability does not arise if one of these components is missing.
Consequences of reasonability
Contravention of the MHSA that causes serious injury, harm or death, 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, for three reasons.
• Instructions alone would be insufficient proof that reasonable steps were taken to prevent an act or omission. The MHSA expects more than instructions – 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 error. 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 applies particularly in cases of falls of ground, where it is implied that significant incidents should be reported to the CEO.
• Whether an act or omission that caused injury, harm or death, was within someone else’s scope of authority, is irrelevant. This defence is also excluded under the MHSA.
Systems against harm
Mining CEOs need to be able to confidently say that significant falls of ground at their mines are reported to them, and to explain decisions taken, or not taken, to implement remedial steps to prevent similar falls of ground or major incidents.
Similar questions can and will be asked about any hazardous practice. However falls of ground should be highlighted as they remain the largest category of mine accidents. CEO ignorance of these incidents will no longer be an available defence against prosecution.
CEOs should review reporting systems to ensure that appropriate information comes to their attention, and review actions taken to prevent unsafe practice and implement continuous improvement of health and safety practice.
Ownership of responsibilities
Adopting a “buck stops here” attitude would create a culture of ownership of health and safety obligations in an organisation. Ownership of obligations at every level in the organisation, would change behaviour and deliver positive results.
The ever present threat of prosecution is merely a stick with which some health and safety provisions are enforced. The risk of prosecution is limited when CEOs take ownership of their responsibilities and act proactively to ensure that their systems remain effective and current.
• Wessel Badenhorst (BCom UJ, LLB, UNISA) is a director in Werksmans’ Commercial department. He has in depth expertise in mining law, with specialist knowledge of mining health, safety, environmental and employment legislation, as well as mining litigation. He had practiced as an advocate at the Johannesburg Bar.