Proposed sweeping amendments to the Mine Health and Safety Act (MHSA) by the Department of Mineral Resources (DMR) could result in hefty fines for local mining companies and might lead to the individual criminal prosecution of their senior management teams.

While the number of fatalities for the year to September 2012 dropped by 11% to 76, from 85 the previous year, the DMR does not consider the current fine limitation an adequate deterrent to potential negligence on the part of mining companies and has, as a result, proposed that the maximum administrative fine be increased from the current R1-million to 10% of the yearly turnover of the employer’s preceding financial year.

Law firm Eversheds head of mining Warren Beech asserts that, while this increase is not only excessive, it is made more severe by the fact that the administrative fine is imposed on the employer – the entity that holds the prospecting or mining right.

Such an employer may hold several rights to prospect or mine and, as the proposed amendment does not confine the administrative fine to the turnover of the particular mine at which the alleged breach occurred, it could be applied to the total turnover of all the mines operated by the employer.

In addition, the administrative fine will be levied on turnover alone and does not take into account the profitability of the relevant mine or the groups of mines.

“Over and above this, the DMR proposes to effect the controversial provisions relating to vicarious liability which, if accepted as they currently stand, would make it virtually impossible for the employer, which, in most instances, is a corporate entity, to escape crimi- nal prosecution following an incident or accident, regardless of the steps the employer has taken to safeguard health and safety at its mines,” Beech warns.

He believes that, while several of the proposed amendments will result in certainty and alignment within mining legislation, any amendment aimed at sanctioning mining companies, directors or individuals is unlikely to improve health and safety statistics.

Improvements in the levels of industry compliance with health and safety legislation should be based on an acknowledgement that there are multiple role-players that should all be facing sanctions equally. Increasing the punitive measures in isolation will not, by itself, contribute to an improvement in health and safety.

Should the amendments be passed, the MHSA would place the onus on the CEO and senior management team – particularly the mine manager and site engineer – to ensure the absolute safety of mineworkers, despite employees often disregarding safety training and codes of practice and, in some cases, deliberately bypassing the safety devices in place.

“It is time to revisit the complete decriminalisation of health and safety laws in such a way that people are encouraged to be open about how incidents and accidents occur, without fear of sanction, so that the true causes of incidents and accidents can be identified and the appropriate remedial steps implemented,” suggests Beech.

He advances that amendments to facilitate transparency are required and should include indemnification against sanction should there be full disclosure regarding fatalities or incidents.

While there are currently provisions to this effect, Beech adds that they are inadequate.

To ensure compliance with the MHSA, he recommends that companies employ multidisciplinary teams to conduct full audits on their current systems and ensure that the appropriate statutory appointments of competent persons are made and that these officials are well versed in the intricacies of the amended codes.

The amendments, if passed, are expected to come into effect early this year.