Law firm ENS on November 13 presented a webinar unpacking amendments to the Mine Health and Safety Act (MHSA), which will soon be presented for approval in the National Assembly.

The webinar was hosted by ENS mine and occupational health and safety head Pieter Colyn, with key issues discussed by executive consultant Willem le Roux.  

Le Roux says the Mine and Safety Amendment Bill contains various proposed amendments that will have a serious negative  impact on mining operations in the country and could stifle the much-needed investment in the sector if not modified.

The Bill introduces provisions on statutory homicide and liability for serious injuries, illnesses and health-threatening occurrences.

Le Roux explains that such matters are already sufficiently catered for in current law. However, it is clear that the State intends to impose more onerous requirements on the employer as far as health and safety is concerned.

In terms of the Bill, the employer will be held liable for the death of a person, serious injury or serious illness to a person or for a health-threatening occurrence.

Liability will ensue if the employer did not take “all reasonable steps” to prevent the act or omission causing the death, injury, illness or occurrence. The employer, which is in most instances a mining company, will be held vicariously liable for the conduct of various persons, including the CEO, a manager, agent or employee.

Le Roux points out in terms of current law, the prosecution must prove beyond a reasonable doubt the elements of an offence. However, In terms of the proposed amendments to the Bill, the onus of proof will now be placed on the employer to prove that the act or omission which caused the death, injury, illness or occurrence was not within the scope of authority of the deceased or the other persons concerned and that the employer had taken “all reasonable steps” to prevent the act or omission.

The Constitution provides that an accused has the right to a fair trial, which includes the right to be presumed innocent, says Le Roux. This constitutional right will be infringed by the proposed amendment. In such a case, the right may only be limited if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Le Roux says the Bill is not written in plain legal language and contains in a number of instances unintelligible and nonsensical language. He adds that legal provisions which are not clear and intelligible do not comply with the rule of law.

He continues that the current law provides that the negligent causing of serious illness or serious injury to a person is an offence and that the owner of the mine may be sentenced to a fine of R3-million or a period of imprisonment not exceeding 5 years (in the case of the owner being a natural person), or to both such fine or imprisonment.

The current penalties for other statutory contraventions, which are also very harsh, are contained in a schedule. In terms of the amendments, the maximum penalties for those transgressions are also now substantially increased .

Despite that, the Bill provides that any employer convicted of an offence in terms of any section of the MHSA, may be sentenced to a fine not exceeding 10% of the employer’s yearly turnover and the employer’s exports from South Africa, whichever is the greater or to imprisonment (in the case of a natural person).

ENS assumes the turnover of the employer would be the total amount of money the employer receives as a result of the sale of goods or services during the year before expenses and operating costs have been deducted, which is distinguished from profit.

“Any employer can be crippled if the maximum fine is imposed,” Le Roux says, particularly since a disproportionate amount of liability can now be imposed on the employer.

Le Roux advises that in terms of the current Act, the employer must “as far as reasonably practicable” provide employees with information, instruction, training or supervision necessary to enable them to perform their work safely and without risk.

The State now makes this obligation absolute by providing that the employer must “ensure” compliance with such obligations. This, according to Le Roux, may in many workplaces be impossible, bearing in mind the number of employees, the extent of the workplace and numerous other factors.

Meanwhile, ENS says the Mining Qualification Authority, which has important functions, including to advise the Minister on the improvement of health and safety standards, is dissolved without advising the successor of the authority. 

The law firm also foresees there will be more emphasis and extensive regulation of environmental engineering and occupational hygiene management over and above what is required at the moment.