By: Willem Le Roux, Executive Consultant; Pieter Colyn, Director and Head of Department and Celeste Coles, Director

ENSafrica's Mine and Occupational Health and Safety (MOHS) Department

On Thursday, 24 October 2019, the MOHS Department of ENSafrica hosted its annual Mine Health and Safety seminar. The seminar was well attended by representatives from various prominent role players in the industry. The attendees used the opportunity to facilitate interactive and informative discussions with the speakers from the MOHS Department, and to engage with participants at the seminar on queries and/or concerns relating to various topics which affect the mining industry.

Presentations were conducted by Willem Le Roux, the Executive Consultant in the MOHS Department, as well as by Pieter Colyn, a Director and the Head of the MOHS Department, and Celeste Coles, Warren Hendricks and Tyla Foster, all Directors in the MOHS Department.

The speakers are experts in dealing with this specialist field of law and their combined years of experience resulted in a diverse range of topics being discussed in depth.

Willem opened the seminar by discussing draft proposed regulations to be promulgated in respect of legal appointments and responsibilities, prepared by the Mine Health and Safety Council. A number of material concerns were detailed by Willem including, amongst others, the risk ranking utilised in the draft regulations, which does not take into account the size of a particular operation with regards to the number of persons employed at such operation; prerequisites restricting appointments of mine managers (in an acting capacity as well) and new statutory obligations of rock engineers; as well as that the proposed regulations require that safety officers are responsible for compiling reports in terms of section 11(5) of the Mine Health and Safety Act 29 of 1996 ("the MHSA"). Willem pointed out that section 11 (5) requires the employer to conduct the investigation and compile the report into the reportable accident, serious illness or health‑threatening occurrence. The draft regulation does not take cognizance of the provisions of section 11 (5). Furthermore, there may be instances where the safety officer lacks the necessary expertise to perform the investigation and compile the report. The presentation, together with the questions posed to Willem, emphasised that it is imperative that role players contribute in an active manner to the ongoing discussions with the Department of Mineral Resources and Energy (DMRE) regarding the proposed amendments.

Pieter addressed the responsibilities of an employer to conduct an investigation and prepare a report in terms of section 11(5) of the MHSA. In particular, it was referenced that the instruction, lately given by inspectors from the DMRE, that independent legal expert persons conduct such an investigation on behalf of the employer, exceeds the powers of inspectors from the DMRE. In his second presentation, Pieter reiterated the importance of conducting proper and comprehensive handover processes, as well as the conduct of suitable and applicable start-up risk assessments. Notably, the presentation provided some practical recommendations, to ensure that a handover process is performed in a manner that is functional and achieves the desired objective.

Celeste discussed recommendations that may follow inquiry proceedings conducted in terms of section 65 of the MHSA. Reference was made to the recent trend noted in reports compiled in terms of section 72(1)(b) of the MHSA (being the report required to be completed pursuant to the completion of inquiry proceedings, setting out the presiding officer’s "findings, recommendations and remedial steps") for recommendations that administrative fines be imposed on an employer. The inclusion of such a recommendation does not accord with the system provided for in the MHSA regarding the imposition of administrative fines (sections 55A and 55B of the MHSA) and practical options were discussed regarding proposed strategies to deal with such a recommendation in a report. Remedies available to employers to address unfavourable and ill-placed conclusions are to either appeal or review the decision. In her second presentation, Celeste highlighted that an employer is responsible to ensure the health and safety of persons working at its mine and therefore, the conclusion of a health and safety agreement with independent contractors, is recommended to delineate the obligation of such independent contractor regarding the obligations of an employer, which includes the insertion of appropriate indemnities.

Warren discussed the Guidance Notice on Medico-Legal Investigations of Mine Deaths as well as the topical discussion regarding Sunday Labour Permission and work on public holidays. The essence of the aforementioned discussion was that the requirement that Sunday Labour Permission must be obtained for persons to work at a mine is antiquated and may in fact be unconstitutional based on persons’ freedom of association and the right to religious freedom.

Tyla discussed the recent conduct of inspectors from the DMRE to exclude witnesses from participating in accident inquiry proceedings – the view was expressed that this stance affects the witness' right to participate in the proceedings and should not be adopted in future matters. Tyla also delineated legal appointment letters and practical considerations regarding the content thereof.