South Africa. Although amendments to the Mine Health and Safety Act have been described as unnecessarily draconian by some commentators, law firm Routledge Modise director Maryann Middleton is adamant they will have a significant positive impact on the South African mining industry.
“In the past, penalties placed on mining companies were not very onerous. Historically, penalties in terms of Section 92 of the Act stated that the maximum penalty for an offending company was three years’ imprisonment and a fine, the sum of which was deter mined by a court,” she says, adding that, with the new punitive approach contained in the Amendment Act, companies will be forced to concern themselves more with the implementation of stricter Health and Safety procedures.
Middleton explains that a new guideline has been established that clearly outlines the penalties that offending companies face, with the maximum penalty being a fine of R1-million, five years’ imprisonment, or both. However, any negligent act or omission which results in a death, serious injury or illness carries a penalty of R3-million or five years’ imprisonment, or both, plus the possibility of the withdrawal of the mining rights.
One of the most controversial amendments is Section 26, which increases the scope of criminal liability in so far as any employer, CEO, manager, or agent of the company can be held personally liable for the nonimplementation of predetermined Health and Safety standards.
“This is a hotly contested amendment because it really puts the risk squarely on the heads of CEOs, who will have to find a Health and Safety representative who will be willing to accept the risks associated with drawing up a sustainable programme. These employees, in essence, become the most important employees in respect of risk assessment on the mines and will want a remuneration package that reflects this,” says Middleton.
All the amendments, apart from Section 26 and Section 16, have already come into effect. Section 26 will possibly come into effect when the Department of Mining is satisfied that there has been significant buy-in from industry.
“The department requires that all mining companies submit to it a comprehensive list of the key role-players in the company who will be responsible for implementing Health and Safety procedures. Once this information has been handed over, the department will have all the information required to enforce the provisions of Section 26 when it comes into effect,” says Middleton.
At the heart of implementing these amend ments is the Mine Health and Safety Inspectorate that has been given extended powers, which, Middleton believes, will go a long way to ensuring adherance to the amendments.
“Since the inspectorate has become an independent juristic person, it has reinvented itself in a way that has very few grey areas. The permanent committees previously established under the Act have been replaced with committees set up when necessary or on an ad hoc basis, which eliminates the possibility of graft. The inspectorate is also accountable for its own funding and is only partially dependent on government subsidies,” says Middleton.
The inspectorate has also been given increased powers. Section 16 of the amended Act allows the inspectorate to shut down a site where there has been a death or serious injury.
The Chief Inspector also has the power to withdraw a mining licence from an offending company, should the offence be serious enough.