Mining companies should familiarise themselves with the application of the Mine Health and Safety Act (MHSA) to operations, as well as the powers of inspectors from the Mine Health and Safety Inspectorate of the Department of Mineral and Petroleum Resources (DMPR) regarding the conduct of investigations and/or inquiries at mines.

Law firm ENS mine and occupational health and safety experts Willem le Roux and Celeste Coles earlier this month presented a webinar to the firm’s clients and partners, analysing and discussing important jurisdictional questions regarding the application of the MHSA. The webinar was hosted by Pieter Colyn, the head of department in the Mine and Occupational Health and Safety (MOHS) department and executive at ENS.

The aim of the webinar was to discuss recent developments following important judgments, as well as considerations regarding the conduct of investigations and/or inquiries following a person passing away at a mine owing to a natural cause or criminal conduct.

Le Roux discussed instances where the MHSA would apply to an operation or where the Occupational Health and Safety Act (OHASA) would apply.

The MHSA applies to mines, mining areas and any works as defined in the MHSA, and the OHASA applies to all workplaces except workplaces specifically excluded, which includes mines, mining areas and works which are governed in terms of the MHSA.

It was noted that there were two categories of operations that could be defined as a “mine”, namely any borehole or excavation, in any tailings or in the earth, made for the purpose of winning a mineral and; secondly, any other place where a mineral deposit was being exploited, including the mining area and all buildings, structures, machinery, mine dumps, access roads or objects that were used or intended to be used in connection with the searching, winning, exploiting or processing of a mineral or for health and safety purposes.

The MHSA covered any activity in an area that related to the winning or exploitation of a mineral and/or any buildings or related infrastructure that were used in connection with the searching, winning, exploiting or processing of a mineral. The product being exploited must be a mineral or a mineral deposit, said Le Roux.

In the recent case of UASA and Another vs Anglo American Platinum, Rustenburg Platinum Mines (RPM) and others (Case No. JA116/2024 and JA117/2024), the court held that although ore which was extracted from the earth during mining operations constituted a “mineral”, the concentrate which was generated by means of subsequent processing operations at a concentrator plant, no longer “occurs naturally on or in the earth” and for that reason, it does not constitute a “mineral deposit”.

This meant that a concentrator plant, albeit that it is operating in a mining right area, will not be a “mine” for the purposes of the MHSA and the provisions of the OHASA will apply thereat by operation of law, Le Roux said.

He confirmed that, even if activities were being undertaken in a mining area using products of mining, that did not mean that this was a “mine”. For example, using clay that had been extracted from a mine to manufacture bricks, would not be an activity that is regulated by the MHSA and it did not constitute a “mine” or “mining”, he said.

During the webinar, Le Roux and Coles referenced the guideline for the compilation of a mandatory code of practice for road and rail safety management in the South African mining industry, which was recently issued by the Chief Inspector of Mines. They noted that the content thereof was very wide and attempted to extend the responsibility of an employer beyond the geographical confines of a mine and/or mining activities, by imposing obligations on the employer in respect of road and rail transportation that was not used for mining-related transportation activities.

Coles pointed out that Section 9(2) of the MHSA required an employer to prepare and implement a code of practice on any matter affecting the health or safety of employees and other persons who “may be directly affected by activities at the mine”. If the scope of Section 9(2) of the MHSA was exceeded by a requirement of the guideline, such requirement would be unenforceable and need not be included in the mine’s code of practice.

The Supreme Court of Appeal in the matter of TC Smelters (Pty) Ltd and Samancor Chrome Ltd vs The Minister, Department of Mineral Resources and Energy and others, recently ruled that the Labour Court had exclusive jurisdiction to deal with any dispute involving the MHSA and its interpretation, and the High Court did not have jurisdiction in this regard, Le Roux confirmed. This included the question whether the MHSA applied or not to an operation.

The court confirmed that the misinterpretation of the jurisdiction of the Labour Court by the High Court in this matter was premised on the misreading of Section 82(1) of the MHSA and “improperly rendered jurisdiction contingent upon relief sought by an applicant rather than upon the nature of the dispute itself”.

Coles, also an executive in the MOHS department of ENS, confirmed that the firm was recently assisting clients with more matters where persons had died due to natural causes or were killed or injured as a result of criminal conduct at a mine and the question that arose time and again was the extent of the jurisdiction of inspectors of the DMPR to conduct an investigation or inquiry into such matters.

Inspectors of the DMPR were creatures of statute and only had the powers conferred on them by provisions of the MHSA and regulations binding in terms thereof, explained Coles. “If the MHSA and its regulations do not confer authority on an inspector, then the inspector does not have the power to exercise such a function, even if she or he contends thus,” she said.

When determining the jurisdictional scope of inspectors of the DMPR, and the responsibility of employers regarding the reporting and investigation of events, the provisions of the MHSA and regulations binding in terms thereof must be interpreted in context.

A number of provisions, read in conjunction with definitions of words, were discussed and highlighted. Any incident or accident at a mine must be interrogated on the particular facts applicable thereto and there was no blanket application that applied in all circumstances, said Coles.

She explained that it was clear from the context of the MHSA and definitions provided of terms, that investigations and/or inquiries by inspectors of the DMPR must relate to mining work-related activities. Deliberate actions by persons (which do not arise out of work-related activities) and which caused injury, death or damage to property of the employer or other persons, were not an accident or incident for the purposes of the MHSA and regulations binding in terms thereof.

Similarly, a natural death, not attributable to work-related activities, is not an accident or incident for the purposes of the MHSA and regulations.

Inspectors of the DMPR may undertake a fact-finding exercise to determine if the death of a person was caused by natural causes or criminal conduct. If there is prima facie evidence that the death was not owing to work-related activities and was owing to natural or criminal causes, then the DMPR did not have any jurisdiction to conduct an investigation or inquiry into the matter and such a death or injury should not be included in the statistics of the particular mining operation, clarified Coles.

She reiterated that an employer must remain vigilant to the particular facts of an event. The practical example provided was that of a person, with an existing heart condition, passing away underground; however, it was noted that the working conditions in which that person was working at the time of death were unfavourable in that the temperatures recorded in the area exceeded prescribed legal limits.

In such an example, the Chief Inspector of Mines may direct an inspector to conduct an inquiry regarding “…any actual or suspected contravention of, or failure to comply with, any provision of this Act” under Section 65(2)(c) of the MHSA.

Employers are entitled to request clarity in respect of the scope of such inquiry and to be advised of what section or regulation is suspected as having been contravened and to require that the inquiry is limited to that scope.

An inquest must be undertaken by the State, assisted by an investigating officer from the South African Police Service, in connection with the death of a person who has died due to causes other than natural causes, unless criminal proceedings are instituted in connection with the death (Inquests Act, 58 of 1959). This is separate to the investigations or inquiries by inspectors from the DMPR, which is limited to work-related activities; however, an inquest may be held jointly (see Section 74(1) of the MHSA and Section 23 of the Inquests Act).

Le Roux and Coles reiterated that questions of application and jurisdiction of the MHSA may be complicated and must be assessed independently on the particular facts applicable to an event.