HEALTH AND SAFETY ALERT 1/2025: RAILWAY HEALTH AND SAFETY

by Jan 13, 2025Health and Safety, Mining, News

Introduction

Rail networks and rail operations are currently governed by the National Railway Safety Regulator Act, No. 16 of 2002 (NRSRA).

On 2 December 2024 the President assented to the Railway Safety Act, No. 30 of 2024 (RSA), and the RSA was published in the Government Gazette on 10 December 2024.

When the RSA comes into force and effect, it will repeal and replace the NRSRA.

Is the RSA in force and effect?

While the RSA has been assented to (on 2 December 2024) it is not yet in force and effect and will only come into force and effect on a date to be published by the President in the Government Gazette.

The NRSRA continues to apply until such time as the RSA comes into force and effect.

Application of the RSA

The RSA applies to (a) railway or railway operations with a track gauge equal to or wider than 600mm, (b) any railway or railway operations declared by the Minister to be a railway or railway operation for the purposes of the RSA.

The RSA does not apply to a railway or railway operation in a mine which is underground and to which the Mineral and Petroleum Resources Development Act, No. 28 of 2002 (MPRDA) or the Mine Health and Safety Act, No. 29 of 1996 (MHSA) applies.

Section 2 of the RSA also makes provision for exemption from the application of the RSA.

What will happen to existing permits when the RSA comes into force and effect?

Like with any changes to legislation, the RSA contains transitional provisions.

All permits (Safety Permits) issued in terms of the NRSRA remain valid for the period indicated in the relevant permit as if the permit had been issued in terms of the RSA (but does not exempt the holder of a permit from paying any fees due in terms of or under the RSA) (Section 69(7)).

Key changes when the RSA coming into force and effect

  • Chapter 3 – Railway Safety Permits
    • Chapter 3 of the RSA addresses applications for a Safety Permit, the criteria that the RSR must consider, the conditions under which a Safety Permit can be issued, and related aspects;
    • The permit holder must annually pay the fee applicable to the relevant Safety Permit as determined by the Minister in accordance with Section 66(1) of the RSA irrespective of the period of validity of that Safety Permit (Section 30(2));
    • A permit holder must, in the prescribed manner (prescribed by Regulation) apply to the RSR for the renewal of a Safety Permit at least three months prior to expiry of the existing Safety Permit (Section 30(8));
    • A Safety Permit issued in terms of the RSA is not transferrable (Section 30(9));
    • The RSR must, after considering an application for a new Safety Permit or renewal of an existing Safety Permit notify the applicant and, in that notification, specify the period of validity (which may not be less than three years or more than five years), the types of railway operations authorised under the Safety Permit, and the conditions subject to which the Safety Permit is issued (or renewed) (Section 30(5));
    • Any person who undertakes a railway or railway operations without a valid Safety Permit is guilty of an offence (Section 30(10));
    • The RSR may in “justifiable circumstances” impose special conditions in addition to and not inconsistent with prescribed standard conditions relating to any relevant matter including in relation to safety management system reports, speed, traction, safety risk assessments and other technical or other matters necessary to ensure the safety and protection of persons with disabilities, other persons, property and the environment or to ensure compliance with the safety management system (Section 31(2));
    • The RSR may in “justifiable circumstances” amend any condition imposed in a specific Safety Permit, but the RSR must, prior to amending the conditions of a Safety Permit, in writing, inform the Safety Permit holder of the intention to do so, invite the Safety Permit holder and “any relevant stakeholder” to make submissions on the proposed amendment within a reasonable time, and consider such submissions as may have been received (Section 32(1));
    • If a Safety Permit holder is aggrieved by the amendment, the Safety Permit holder may lodge an appeal in accordance with Chapter 8 of the RSA (Section 32(4));
    • A Safety Permit holder is not prevented from applying for amendment to the conditions of the relevant Safety Permit (Section 32(5));
    • A Safety Permit holder may surrender the Safety Permit (Section 33(1));
    • The RSR may revoke or suspend a Safety Permit if the Safety Permit holder fails to comply with the conditions set out in the RSA after the RSR has issued a notice to the Safety Permit holder to comply with a condition of the relevant Safety Permit within a reasonable period and the Safety Permit holder fails to comply with such notice within the stipulated period (Section 33(2));
    • The RSR must, prior to revoking or suspending a Safety Permit in writing inform the Safety Permit holder of its intention to do so and of the reasons for considering a suspension or revocation and, in writing, invite the Safety Permit holder and any “relevant stakeholder” to make submissions on the proposed revocation or suspension, and consider such submissions as may have been received (Section 33(3));
    • The RSR must, when suspending or revoking a Safety Permit inform the Safety Permit holder thereof in writing, specifying the reasons (Section 33(4));
    • A Safety Permit holder who is aggrieved by the suspension or revocation of a Safety Permit may, in the prescribed form (by Regulation) lodge an appeal in accordance with Chapter 8 of the RSA (Section 33(5));
    • Except on good cause shown, a Safety Permit is suspended by operation of law if the Safety Permit holder fails to timeously pay any fee or levy in respect of that specific Safety Permit, but on receipt of payment such suspension is withdrawn (Section 33(6));
    • The holder of a Safety Permit which has been suspended may not conduct any railway or railway operation or a component of a railway or railway operation or any action in relation to a railway or railway operation until the suspension has been withdrawn (Section 33(8)).
  • Chapter 4 – Railway Safety Critical Grades, Standards and Safety Management System
    • Chapter 4 introduces requirements around railway safety critical grades, and the registration of the institutions that can train and issue licences for safety critical grade positions.
    • The term “safety critical grade” is defined in Section 1 to mean “a work position responsible for the authorisation and control of the movement of rolling stock prescribed by the Minister in terms of Section 68”. Section 68 of the RSA provides that the Minister, by notice in the Government Gazette, may make Regulations to provide for the licencing of persons employed in safety critical grade positions, including provisions on railway safety standards to be met for obtaining a safety critical grade licence, the posts or job descriptions of persons who must be licenced, the registration or training institutions, the criteria to be taken into account by the RSR when considering an application for the registration of a training institution and information to be supplied in respect of the safety critical grade position database contemplated in Section 34(1)(c) of the RSA.
    • Section 34(1) of the RSA confirms that the RSR is required to oversee the management and execution of the prescribed framework for safety critical grade positions including evaluation and establishment of criteria and establishing and maintaining a database of licenced persons. It also confirms that the RSR must specify the type and period of validity of the safety critical grade licence and the frequency of refresher courses or additional training to be undergone by holders of a safety critical grade licence.
    • Section 36(1) of the RSA provides that the Minister may, by notice in the Government Gazette, prescribe railway safety standards applicable to any railway or railway operation specifying (a) the content of the railway safety standards, (b) the category of Safety Permit holders or category of persons to which the railway safety standards apply, (c) the circumstances under which such Safety Permit holders or persons may apply for deviation or exemption from the railway safety standards, and (d) the sanctions in respect of non-compliance including the suspension or revocation of any Safety Permit.
    • Section 37(1) of the RSA provides that the Board (of the RSR) must determine (a) the form and content of the safety management system that is required for the different categories of Safety Permits, (b) the form, content and manner of submission of the safety management system report, and (c) the circumstances under which the RSR may require a Safety Permit holder to revise or amend a safety management system or safety management system report.
  • Chapter 5 – Railway Safety Information and Monitoring System
    • The RSR must establish and maintain a national information and monitoring system regarding safe railway operations and the system must include (a) a register of Safety Permit holders, (b) a register of railway occurrences, (c) information on actions, arrangements, processes and procedures implemented by every Safety Permit holder within its area of operations, (d) information regarding the management of penalties, (e) information regarding the management of audits and inspections, (f) detailed information regarding compliance and enforcement, (g) a register recording the RSR’s monitoring operations and the results thereof, (h) a railway safety-related infrastructure asset register, and (i) any other matter demonstrably necessary to promote safety (Section 39(1) and (2)).
    • The RSR may, in writing, require a Safety Permit holder to provide the RSR, within a specified time or on a regular basis, with relevant data, information, documents, samples, or material in respect of the matters contemplated in Section in Section 39(2) as may be reasonably specified by the RSR and the RSR may monitor the use, application, execution, or operation of the data, information, documents, samples, or materials submitted for purposes of ensuring compliance with the RSA and safety standards (Section 39(3)).
    • The RSR may, in addition to the function of information capturing, develop a system to provide for additional functions and uses contemplated in the RSA, or for furthering the efficient performance of the RSR’s functions (Section 39(4)).
    • The RSR must protect all information submitted to the RSR (Section 40).
  • Chapter 6 – Enforcement
    • The RSA has introduced enhanced enforcement provisions.
    • Section 41(1) of the RSA provides that the Chief Executive Officer (of the Board of the RSR) may appoint a person who meets the requirements determined by the Board in respect of suitability, qualifications and training, as a Railway Safety Inspector (Inspector) to exercise the powers and perform the duties contemplated in Section 42.
    • The RSR must provide the Inspector with a certificate of appointment signed by the CEO (Section 41(2)).
    • Any person who wilfully hinders the Inspector in the exercise of his/her powers or in the performance of his/her duties in terms of the RSA is guilty of an offence (Section 41(4)).
    • Section 42(1) of the RSA provides that an Inspector may subject to Sections 43, 44 and 45 of the RSA conduct an inspection at any place or premises in order to determine whether the provisions of the RSA had been complied through (a) a routine compliance inspection in accordance with Section 43 of the RSA, or (b) an enforcement inspection in accordance with Section 44 of the RSA.
    • In terms of Section 42(2) of the RSA, the RSR may agree, in a protocol to be concluded with any operator, for an Inspector to conduct inspections in accordance with Section 43 of the RSA and to facilitate the expeditious and orderly execution of an inspection.
    • Section 43 makes provision for routine compliance inspections and includes the following:
      • An Inspector may at any reasonable time and without prior notice enter and inspect any premises owned, used or operated by a Safety Permit holder, other than a private residence (Section 43(1));
      • Upon entering any premises the Inspector may, after having identified himself/herself to the person in control of such premises (a) require any person at the premises to identify, point out or demonstrate any object or combination of objects or system, related to the Safety Permit or standard applicable to such premises, produce any book, record, or other document relevant to the inspection in the possession of or under the control of that Safety Permit holder, its employees or agent, and furnish such information in respect of that Safety Permit at such premises and in such a manner as the Inspector may determine, (b) hand over a written notice to that person wherein the Inspector prohibits the removal or destruction of any object, system, digital data, book, record or other document relevant to the inspection in the possession of or under the control of that Safety Permit holder, employee or agent, (c) photograph or otherwise record the attributes of any object of system or examine or make extracts from any copies of any such data, book, record or other document relevant to the inspection, and (d) seize and retain any such data, book, record or other document in the premises to which any charge of non-compliance or contravention of the RSA or a standard may relate, but the person from whose possession any object, system, data, book, record or other document was taken, must at his/her request and at his/her expense, be allowed to photograph or otherwise record the attributes of any object or system, make copies thereof or extracts therefrom under the supervision of the Inspector concerned (Section 43(2));
      • Any person who wilfully removes or destroys any object, system, digital data, book, record or other document in respect of which the Inspector has issued a prohibition is guilty of an offence (Section 43(3));
      • An inspection contemplated in Section 43(1) may be conducted by an Inspector without a warrant (Section 43(4)).
      • Section 44 makes provision for enforcement inspections and includes the following:
        • An Inspector may, with a warrant, enter and inspect any premises if he/she suspects that an offence contemplated in the RSA is being or has been committed (Section 44(1));
        • An Inspector must, before commencing with an inspection contemplated in Section 44(1), (a) if the owner or person in control of the premises to be searched is present, provide identification to that person, and explain to that person the authority by which the warrant is being executed and hand an exact copy of the warrant and of this Section (Section 44) to that person or the person named in the warrant, or (b) if no person is present, affix an exact copy of the warrant at the entrance to the premises in a prominent and visible place (Section 44(2));
        • The Inspector may (a) enter and search any premises, (b) search any person on those premises if there are reasonable grounds for believing that the person has personal possession of an object, a system, data, book, document or record that has a bearing on the inspection, (c) examine any object, system, data, book, document or record that is on or in those premises that has a bearing on the inspection, (d) request any person to unlock or otherwise provide unhindered access to any safe, storage facility or other receptacle, or to point out any other person on the premises that could do so, (e) request information about any object, system, data, book, document or record, (f) photograph or otherwise record the attributes of any object or system, or take extracts from, or make copies of any book, document or record that is on the premises and that has a bearing on the inspection, (g) use any computer system on the premises that has a bearing on the inspection, or require assistance from any person on the premises to use that computer system to search any data contained in that system or reproduce any record from that data, (h) seize any output from that computer for examination and copying, and (i) attach, and if necessary, remove from the premises for examination and safe keeping anything that has a bearing on the inspection (provided that the person from whose possession any object, system, data, book, record or any other statement was taken must, at his/her request and at his/her expense, be allowed to record or make copies thereof or extracts therefrom under the supervision of the Inspector concerned) (Section 44(3));
        • The warrant must be executed only during the hours of 08h00 and 17h00 of a day other than a Saturday, Sunday or Public Holiday unless the judge or magistrate that has issued the warrant authorises that it may be executed at any other time that is reasonable in the circumstances (Section 44(6));
        • An Inspector who conducts an inspection may be accompanied and assisted by one or more police officers (Section 44(8));
        • A police officer who is assisting an Inspector may use necessary force to overcome resistance by any person to the entry search or seizure including breaking a door or window of the premises or breaking any lock or other barrier which prevents the search of any safe, storage facility or other receptacle on the premises (section 44(8));
        • A person may refuse to permit the removal of an article, document or record on the ground that it contains privileged or protected information, but that person may not cause such article, document or record to be amended, altered or destroyed until the Inspector has been afforded a reasonable time to act under Section 44(13) and any person who wilfully does so is guilty of an offence (Section 44(12));
        • If the owner or person in control of an object, system, document or record refuses to give that object, system, document or record to the Inspector, the Inspector may request the registrar or sheriff to attach and remove that object, system, document or record for safe custody until a court determines whether or not the information is privileged or protected (Section 44(13)).
        • Section 46 of the RSA confirms that there is a duty to assist an Inspector. Section 46(1) provides that when an Inspector enters any property the operator, owner and manager and each employee must, subject to Sections 46(2), (3), and (4) assist the Inspector.
        • The Inspector and/or any police officers assisting the Inspector must, before questioning anybody, advise the person of the right to be assisted by a legal practitioner and the right against self-incrimination (Section 46(2) and (3)).
        • Section 47 of the RSA introduces the powers of an Inspector to deal with “unsafe conditions”, and includes the following:
          • If an Inspector has reason to believe that a condition or activity is a threat or might be a threat to safe railway operations, the Inspector may submit a written report to the affected operator, stating the reasons for believing that the condition or activity is a threat or might be a threat to safe railway operations, and allow the operator a reasonable opportunity to respond to the report (Section 47(1));
          • If the Inspector is not satisfied with the response from the operator or if the operator fails to respond the Inspector may in writing issue a directive (a) restricting or suspending that condition or activity or the railway operation itself, (b) placing a condition on the continuation of that activity, or (c) specifying what action must be taken within a specified time by that person to remove the threat (Section 47(2));
          • If there is a threat to safe railway operations that poses an immediate or imminent risk of serious danger to persons, property or the environment, the Inspector may, despite Section 47(1) and (2) of the RSA, after engaging orally with the operator or the person who ostensibly is in charge of the relevant premises or the rolling stock, issue a directive in writing (Section 47(3));
          • Any person who fails to comply with the directive is guilty of an offence unless an appeal has been lodged in terms of Section 47(5) which has not yet been finalised (Section 47(4));
          • Any person who is aggrieved by a directive may lodge an appeal in terms of Section 54 of the RSA (Section 47(5));
          • An appeal lodged does not prevent a person from obtaining urgent relied from a competent court of law (Section 47(6));
          • An Inspector may issue compliance notices and penalties in terms of Section 67 of the RSA (Section 47(7)).
          • Section 67(1) of the RSA provides that the Minister may, by notice in the Government Gazette, make Regulations to provide that the RSR may, in respect of a person who fails to comply with any provisions of the RSA, issue a compliance notice to the person failing to comply and determine a penalty in respect of non-compliance.
          • Any person aggrieved by a decision of the RSR to impose a penalty may appeal against that decision as provided for in Chapter 8 of the RSA (Section 67(5)).
          • Investigations into Occurrences
            • Chapter 7 introduces new provisions regarding railway occurrence reporting and investigations.
            • The Minister has the power to prescribe a railway accident or incident as a railway occurrence (Section 48(1));
            • An operator must, as soon as practicable, after a railway occurrence (a) secure the scene of the railway occurrence, (b) prevent the movement or removal of rolling stock or infrastructure which has a direct or indirect bearing on the railway occurrence unless such rolling stock or infrastructure must be moved in order to provide medical help to any injured person or a full and accurate record of all salient facts relating directly or indirectly to the railway occurrence has been made and any evidence or other relevant material has been secured for later inspection, analysis or investigation, and (c) record the names and contact details of all persons who may provide evidence or information that has a direct or indirect bearing on the railway occurrence (Section 48(2)).
            • A person in control of the scene of a railway occurrence which is the subject of an investigation must (a) allow the person conducting an investigation to remove any articles or objects pointed out by an investigator, (b) allow the inspection of the documents requested by that investigator including the making of copies thereof, and (c) furnish that investigator with any information which is under that person’s control (Section 48(4)).
            • Section 49(1) confirms that an operator must report a railway occurrence to the RSR in the time, manner and form prescribed by the Minister (by Regulation). An operator who intentionally or negligently fails to report a railway occurrence is guilty of an offence.
            • Two categories of railway occurrence investigations are identified, namely a “major investigation” which must be conducted by an independent investigator or a “standard investigation” to be conducted by the relevant operator.
            • In determining which investigation will apply, the severity of the occurrence must be taken into account (number of persons injured or killed, extensive rolling stock damage, etc.
            • A “major investigation” does not prevent an operator from conducting its own investigation.
            • Section 52 of the RSA sets out the requirements in relation to “standard investigation” to be conducted by the operator. The following aspects are relevant to a standard investigation:
              • The operator must furnish a railway occurrence investigation report to the RSR in the prescribed timeframe, manner and form (Section 52(2));
              • The RSR may, after considering the report, require the operator to assess and report on the impact of the implementation of the recommendations made by the operator (Section 52(3));
              • If more than one operator is involved, all the operators must conduct a separate investigation and, within sixty days from the date of the railway occurrence, separately conduct their respective investigations and furnish an investigation report to the RSR in the prescribed timeframe, manner and form (Section 52(5));
              • After consideration of the separate reports, if the RSR has reason to believe that the operators have colluded in conducting their investigations and in submitting their reports or have not submitted reports which accurately reflect the details of the railway occurrence or sufficiently addressed the issues impacting on railway safety, the RSR must request the Minister to exercise his/her discretion as contemplated in Section 52(7), namely reject an investigation report by an operator if the investigation has been inadequate or instruct an operator not to conduct any further investigations if the Minister considers the report to be adequate.
            • Offences and Penalties
              • Section 57(1) provides that a person who commits an offence in terms of Sections 30(10), 36(4), 43(3), 44(12), 47(4), or 48(3) of the RSA is liable, on conviction, to a fine or imprisonment for a period not exceeding fifteen years or to both a fine and such imprisonment.
              • Section 57(2) provides that a person who commits an offence in terms of Sections 34(3), 41(4), 49(2), 51(10), or 51(11) is liable, on conviction, to a fine or imprisonment for a period not exceeding five years or to both a fine and imprisonment.
              • Section 58 of the RSA contains a vicarious liability provision and provides that an employer or principal is liable to conviction for an offence in terms of the RSA if an employee or agent of that employer or principal commits such an offence with the express or implied permission of that employer or principal, irrespective of whether that employee or agent has been convicted in respect of that offence.
              • Section 59 confirms the liability of a director, trustee or member of a juristic person at the time of the commission by that juristic person of an offence. The director, trustee, is guilty of an offence of the offence resulted from the failure of the director, trustee or member to take appropriate steps that were reasonable under the circumstances to prevent the commission of the offence.
              • Section 60 introduces compensation and award of damages arising out of a breach of the RSA. Section 60(1) of the RSA provides that where a person is convicted of an offence in terms of the RSA and another person has suffered harm or loss as a result of the act or omission constituting the offence or damages being caused to property or to the environment, a court may, without pleadings, enquire into the harm, loss or damage and determine the extent thereof in the same proceedings and make a determination for the award of damages or loss. The court may also order the implementation of remedial measures.
            • Regulations
              • Part B of Chapter 9 empowers the Minister to issue various Regulations addressing all the elements of the RSA.

                 



                Conclusion

                The RSA will bring about fundamental changes to the way in which health and safety is regulated and enforced in relation to railways and railway operations including at surface mining operations. Many mining companies own and/or operate private sidings that interface with the operations and rail network of Transnet SOC Limited – Transnet Freight Rail, and the RSA will require careful assessment of this interface, and compliance by safety permit holders.

                Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.