On 14 October 2024, the Minister of Mineral Resources and Energy (Minister) published a notice in the Government Gazette (Notice) that the Minister intends to introduce the Mine Health and Safety Amendment Bill, 2024 (Bill) in the National Assembly shortly. The Notice was accompanied by an explanatory summary of the Bill (Explanatory Summary).
Understandably, stakeholders in South Africa’s Mining and Natural Resources Sector immediately started the debate around what the changes mean (there is always room for interpretation), and how the changes will affect South Africa’s Mining and Natural Resources Sector. What is not being debated is that health and safety is a core requirement. All stakeholders acknowledge that health and safety is a priority, and stakeholders remain committed to achieving Zero Harm.
The amendments are significant and have far-reaching consequences for mining companies (referred to as the “employer”), the chief executive officer, and other senior appointees.
While the debate is ongoing, we want to share our thoughts on some of the amendments that will require immediate consideration by mining companies and other stakeholders.
Rather than sharing our thoughts under various themes (mainly because this has been done by us and various other commentators), we have focused on highlighting the significant changes (and their consequences where appropriate) as they appear in the Bill. We have also prepared a schedule which sets out the current provision and the amendments in tabular format which can be provided on request.
SECTION 2A – CHIEF EXECUTIVE OFFICER
Current Provision
A chief executive officer is required to take reasonable steps to ensure that the functions of the employer as contemplated in the Mine Health and Safety Act, No. 29 of 1996 (MHSA) are properly performed.
There is no requirement to appoint the chief executive officer i.e. the chief executive officer is required to carry out his/her duties by virtue of their position as chief executive officer (the term “chief executive officer” is defined in Section 102 of the MHSA to mean the person who is responsible for the overall management and control of the business of an employer).
Amendment
A chief executive officer must be appointed by the employer.
The chief executive officer is required to ensure that the functions of the employer, as contemplated in the MHSA, are properly performed.
The reference to “reasonable steps” is deleted and the responsibility to ensure that the functions of the employer are properly performed is no longer qualified.
This amendment is aligned with the amendments to the liability of the employer.
Where the employer is a company, the chief executive officer must be a member of the Board of that company (the employer).
SECTION 6 – EMPLOYER TO ENSURE ADEQUATE SUPPLY OF HEALTH AND SAFETY EQUIPMENT
Current Provision
The employer is required to supply all necessary health and safety equipment and health and safety facilities and maintain them in a serviceable and hygienic condition.
The employer is required to ensure that sufficient quantities of all necessary personal protective equipment are available so that every employee who is required to use that equipment is able to do so.
Amendment
Every employer must ensure that suitable and sufficient quantities of all necessary personal protective equipment are available to enable every employee who is required to use that equipment to be able to use such equipment effectively for personal protection.
All personal protective equipment must be suitable in terms of size and fit, type of workplace hazards, purpose, nature of the work to be undertaken, and gender.
SECTION 7 – EMPLOYER TO STAFF MINE WITH DUE REGARD TO HEALTH AND SAFETY
Current Provision
Section 7(1) supplements the provisions of Section 2 of the MHSA regarding the scope of responsibilities for health and safety that must be complied with by the employer.
Section 7(2) provides that an employer may appoint any person with qualifications as may be prescribed to perform any function of the employer in terms of the MHSA.
Section 7(4) provides that a manager may appoint any person with qualifications as may be prescribed to perform any functions of the manager in terms of the MHSA.
Amendment
Where an appointment, as contemplated in Sections 7(2) and 7(4) is not made, the employer is required to ensure that the functions of the person who should have been appointed are performed (new Section 7(6)).
This seems to suggest that the appointments in terms of Section 7(2) and/or Section 7(4) are no longer discretionary. Practically, this should have little impact because of the current appointment structures at most mining operations which includes appointments in terms of both Section 7(2) and Section 7(4).
Because appointments in terms of Section 7(2) and/or Section 7(4) are not compulsory, it is very difficult to think of a situation where the new Section 7(6) will apply in practice, but the MHSI may take a different approach in the engagements with the mines.
SECTION 8 – HEALTH AND SAFETY POLICY
Current Provision
Section 8 requires an employer to establish a Health and Safety Policy.
Amendment
Section 8(3) is amended by the insertion of a requirement that employers must ensure that
employees are trained on the content of the Health and Safety Policy (an absolute obligation).
SECTION 9 – CODES OF PRACTICE
Current Provision
Section 9 makes provision for compulsory and discretionary codes of practice.
Where a compulsory code of practice must be implemented, the compulsory code of practice must be drafted in accordance with guidelines issued by the Chief Inspector.
Amendment
The primary amendment requires the employer to consult with Health and Safety Representatives, if there is no Health and Safety Committee at the mine.
The amendment to Section 9(4) refers to “any code of practice” i.e. the obligation to consult applies in respect of discretionary and mandatory codes of practice.
A new section 9(8) is inserted which requires every employer to comply with the requirements of a code of practice prepared in terms of sub-sections (2) and (3). This confirms the requirement that an employer must comply with the provisions of every mandatory code of practice.
SECTION 10 – HEALTH AND SAFETY TRAINING
Current Provision
Section 10 requires an employer to provide health and safety training, as far as reasonably practicable.
Amendment
The qualification “reasonably practicable” has been deleted, and an absolute duty is placed on an employer to provide health and safety training as contemplated in Section 10 of the MHSA.
The wording has also changed, and the employer must ensure that every employee is adequately trained having regard to the work to be performed and the hazards and risks associated with that work.
Unfortunately, the term “adequately” is not defined, and this is likely to result in extensive debates on what constitutes “adequate” training within the context of the work to be performed and the hazards and risks associated with the work. This again emphasises the importance of conducting proper hazard identification and risk assessments in compliance with Section 11 of the MHSA which will objectively guide the classification of what is adequate in the circumstances.
The new Section 10(4) requires the employer to keep and make readily available a record of all formal training in respect of every employee (this must be available to an inspector).
The definition of “formal training” has been inserted in Section 102 of the MHSA and means “any relevant training contemplated on Section 10(2), which must be properly structured, documented and assessed, and is aimed at achieving adequate levels of safety and health”.
There are likely to be a number of practical challenges with this definition including what constitutes “properly structured”, and what is meant by “adequate levels of safety and health”. The amendment also requires assessment of the training which means that formal training cannot simply be presented with confirmation being by way of an attendance register.
A new Section 10(6) is inserted which requires the employer to consult with the Health and Safety Committee or if there is no Health and Safety Committee, the Health and Safety Representatives in respect of the training provided in terms of Section 10 of the MHSA. Practically this will require the Health and Safety Committee/Health and Safety Representatives to be consulted on all training provided at the mine (whether formal or informal) in compliance with Section 10. In addition, the amendments do not distinguish training modules which have been accredited by external agencies such as the Mining Qualifications Authority.
It is likely that the amendments to Section 10 will be extremely challenging, and subject to further debate, and possibly, even interpretation by the Labour Court.
SECTION 11 – HAZARD IDENTIFICATION ND RISK ASSESSMENTS
Current Provision
Section 11 addresses two broad aspects, namely conducting risk assessments (commonly referred to as hazard identification and risk assessments) and investigations after incidents/accidents/ health occurrences, and the preparation of reports for submission to the Mine Health and Safety Inspectorate.
Amendment
The amendments to Section 11(2) require consultation with the Health and Safety Committee or, if there is no Health and Safety Committee at the mine, the Health and Safety Representatives at the mine, in relation to the measures to be implemented to avoid or mitigate the hazards. Section 11(2) requires such consultation in relation to all measures necessary to address the identified hazards and the assessed risks.
SECTION 12 – EMPLOYER TO CONDUCT OCCUPATIONAL HYGIENE MEASUREMENTS
Current Provision
Section 12 requires the employer to engage the part-time or full-time services of a person qualified in occupational hygiene techniques to measure levels of exposure to hazards at the mine.
Amendment
The heading is changed to “employer to provide mine environmental engineering and occupational hygiene management systems”.
In addition, the amendments require the employer to appoint the person qualified in mine environmental control and occupational hygiene, and an additional person or persons if required to do so after assessing the risks, and the Chief Inspector of Mines issues a written instruction to that effect.
A new Section 12(1C) is inserted, which requires the employer to supply a person appointed in terms of Section 12(1) with the means to perform their functions.
The amendments focus on the management system, rather than just measurement.
SECTION 13 – SYSTEM OF MEDICAL SURVEILLANCE
Current Provision
An employer must establish a system of medical surveillance and engage the part-time or full-time services of an occupational medical practitioner.
Amendment
The amendment requires the appointment of the Occupational Medical Practitioner (and not just “engagement”).
The amendments also require the appointment of other occupational health practitioners holding a valid registration with the Health Professions Council of South Africa or the South African Nursing Council, as necessary.
SECTION 19 – EMPLOYEE’S RIGHT TO INFORMATION
Current Provision
Section 19 provides that an employee may request, and the employer must then provide, a copy of the employee’s medical records.
Amendment
A new Section 19A is inserted which requires the employer, within seven days of any decision that an employee is unfit to perform any category of work, to notify the employee, in writing, that he/she has been found unfit to perform work and that the employee has the right to lodge an appeal with the Medical Inspector within a period of thirty days after receiving notice of the decision.
As a result, in addition to the obligations placed on employers in terms of the Labour Relations Act, No. 66 of 1995 (LRA), where an employee has been found unfit (medical incapacity), the employee must be notified of their parallel rights to appeal against the decision of the employer, to the Medical Inspector.
SECTION 49 – FUNCTIONS OF THE CHIEF INSPECTOR OF MINES
Current Provision
Section 49 vests the Chief Inspector with various duties and functions regarding health and safety.
Amendment
A new Section 49(7) is inserted which provides that the Chief Inspector of Mines may issue instructions or directives on any matter affecting the health and safety of employees at the mines or any persons who are not employees, but who may be directly affected by the activities at the mines.
This amendment aligns with a practice of the Chief Inspector and/or Principal Inspectors to issue “blanket instructions” to employers, including, more recently, aspects associated with communities situated in proximity to the mines ( to address complaints such as noise, dust, blast vibrations, etc.).
The Chief Inspector of Mines may now issue such instructions or directives without reference to any particular set of circumstances at a particular mine (which it will apply to) and without consulting an employer or employers concerned in a region, or nationally.
The amendment is extremely wide i.e. the Chief Inspector of Mines may issue an instruction or directive on any matter affecting the health and safety of employees.
This means that the lines may continue to be blurred between, for example, aspects which are regulated by the LRA, or other legislation, and health and safety at mines i.e. anything can now be encapsulated in health and safety concerns and the instructions/directives issued by the Chief Inspector of Mines.
The powers of the Chief Inspector of Mines in terms of Section 49(7) (amended) are in addition to the powers of Inspectors to issue instructions/directives in terms of Section 54 of the MHSA and/or Section 55 of the MHSA.
The powers of Inspectors have also been enhanced by the inclusion of Section 50(7A)which vests Inspectors with the power to “preserve” an incident or accident site by, amongst others, preventing access. Historically, after an incident/accident, an instruction/directive is issued in terms of Section 54 of the MHSA to stop operations, pending compliance with an Inspector’s instructions (which typically includes the so-called “upliftment presentation” that must be made to Senior Inspectors/the Principal Inspector).
In combination, the provisions of Section 49(7), Section 54, Section 55 and Section 50(7A) significantly enhance the powers and functions of Inspectors, in relation to health and safety generally, and specifically where incidents/accidents have occurred.
SECTION 50 – POWERS OF AN INSPECTOR
Current Provision
Section 50 of the MHSA sets out various powers and functions of an Inspector which are wide-ranging and include the right to enter a mine at any time without warrant or notice, question any person on any matter to which the MHSA relates, require persons who have control over or custody of any document, to make the document available to an Inspector, require explanations from persons in custody of documents, examination of documents, and inspection of articles, substances, machinery, work performed or any condition, and the right to seize any document, article, substance or machinery.
Section 50(3) also gives an Inspector the right to instruct an employer, employee or any other person who performs an activity regulated by the MHSA or any former employer or employee or person who formally performed an activity regulated by the MHSA, to appear before the Inspector to be questioned on any matter to which the MHSA relates.
Amendment
The amendments insert a new Section 50(7A) which provides that an Inspector may, in order to collect or secure evidence for purposes of an investigation in terms of Section 60 or an inquiry in terms of Section 65 of the MHSA (a) impose a prohibition on the functioning of any site at a mine where a person has died, a serious injury or serious illness to a person has occurred or a health-threatening occurrence has occurred, and (b) block, bar, barricade or cordon off the site in such a manner as the Inspector may consider necessary.
The powers of an Inspector have therefore been significantly enhanced, and specifically give an Inspector the right to prohibit the functioning of the site, and blocking, barring, barricading or cordoning off the site as the Inspector “may consider necessary”.
Historically, the same effect was achieved by issuing an instruction in terms of section 54(1)(a) of the MHSA (the so-called “stop notices”).
It was unnecessary for a new Section 50(7A) to be introduced because the powers and functions in terms of Section 54 of the MHSA applied to the scenarios contemplated in Section 50(7A) but these are now separate powers and functions i.e. in terms of Section 54 and Section 50(7A), and there are likely to be disputes around the interpretation of whether the measures in Section 50(7A) are necessary (the test is whether the Inspector considers it necessary). While the principles of administrative law/decision-making will apply, it is unfortunate that the same qualifier in Section 54 of the MHSA was not included in Section 50(7A). Section 54(1) of the MHSA contains an embedded standard for the decision i.e. the Inspector must have reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health and safety of that person (there must be objective grounds for such a decision).
Section 50 is amended further by the insertion of Section 50(7B) which provides that an Inspector may impose the prohibition as contemplated in Section 50(7A) orally or in writing. More importantly, sub-paragraph (b) provides that the Inspector may revoke the prohibition if the Inspector has reason to believe that (a) the necessary evidence has been collected or secured, and (b) the investigation or inquiry will not be jeopardised by the further functioning of the site.
While the test for the Inspector’s decision is “reason to believe”, it will, practically, be up to the employer to demonstrate to the Inspector that all necessary evidence has been collected and/or the investigation or inquiry will not be jeopardised by the further functioning of the site.
Again, there are likely to be disputes regarding whether or not the requirements have been met for the prohibition to be lifted.
A new sub-section 7C is also inserted which provides that if the prohibition is issued orally, the Inspector must confirm it in writing and give it to a person contemplated in Section 54(2) (employer/person designated by the employer/ senior employee in their absence) within twenty-four hours of issuing of the prohibition.
SECTION 54 – INSPECTOR’S POWER TO DEAL WITH DANGEROUS CONDITIONS
Current Provision
Section 54(1) of the MHSA gives an Inspector wide-ranging powers to issue instructions if an Inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person. Section 54(1)(a) provides for the so-called “stop notices” that are issued frequently by Inspectors from the Mine Health and Safety Inspectorate (MHSI).
Section 54(1)(b) also provides an Inspector with a right to stop the performance of any act or practice at the mine or that a part of the mine be suspended or halted and may place conditions on the performance of that act or practice.
Section 54 instructions are regularly issued requiring the stoppage of operations, often pending various steps including an audit to determine the state of compliance, and, ultimately, the making of an upliftment presentation to the MHSI. Section 54 instructions/directives have been the subject of various orders of the Labour Court, most often as a result of the way in which a particular provision has been interpreted and applied.
Amendment
Sections 54(5) and (6) have been amended.
Section 54(5) provides that any instruction issued under Sub-Section 1(a) must either be confirmed, varied or set aside by the Principal Inspector of Mines as soon as practicable.
It is a positive move that the actual roles and responsibilities of the Principal Inspector have been clarified. It is however still of concern that there is no defined timeline by when the Principal Inspector must confirm, vary or set aside the instruction. The reference to “as soon as practicable” means that there may be a lengthy period of uncertainty (until the Principal Inspector makes a decision), during which the instruction has to be complied with (despite this uncertainty) by the employer.
Section 54(6) provides that any instruction issued under Sub-Section 1(a) is effective from the time fixed by the Inspector and remains in force until set aside by the Principal Inspector of Mines or until the Inspector’s instructions have been complied with.
The practical situation arises that the instruction issued in terms of Section 54(1)(a) is effective from the time determined by the Inspector (usually immediately), but the Principal Inspector of Mines may not yet have confirmed, varied, or set aside the instruction, and is only required to do so “as soon as practicable”.
In practice, Section 54 instructions are only uplifted after a presentation has been made to the Principal Inspector/Senior Inspectors. Often, the Section 54 instructions are not uplifted at the first presentation, and multiple presentations are required. There are, unfortunately, no guidelines on what is required for an upliftment by way of presentation, and it often comes down to interpretation by the MHSI team that is considering the upliftment (which may be a different team/Inspector to the Inspector that issued the instruction in the first place).
While these amendments appear, on the face of it, not to be significant, the consequences are however significant because of the uncertainty between the issuing of the instruction and the confirmation / setting aside / variation by the Principal Inspector, and the lack of guidelines on what is required to achieve upliftment of the instruction.
SECTION 57 – RIGHT TO APPEAL AN INSPECTOR’S DECISION
Current Provision
Section 57(1) provides that any person adversely affected by the decision of an Inspector, except a decision contemplated in Section 55B of the MHSA, may appeal against that decision to the Chief Inspector of Mines. The Chief Inspector of Mines must, as soon as practicable, confirm, set aside or vary the decision or substitute any other decision for the decision of the Inspector (note that the amendment to Section 54(5) only vests the Principal Inspector with the power to confirm, vary or set aside the instruction and not to substitute any other decision for the decision of the Inspector).
Amendment
Section 57(1) is substituted and provides that any person adversely affected by a decision of an Inspector or a decision of the Principal Inspector of Mines (which takes into account the powers and functions of the Principal Inspector that have been inserted by Section 49 and Section 54(5)), except a decision contemplated in Section 55B, may appeal that decision to the Chief Inspector of Mines.
The new Section 57(4) is inserted which provides that subject to Section 7(2)(c) of the Promotion of Administrative Justice Act, No. 3 of 2000, a person may not apply to the Labour Court for the review of an administrative decision in terms of the MHSA, except a decision contemplated in Section 55B, until that person has exhausted the appeal process contemplated in Section 57.
This severely limits the ability to challenge a decision, in the Labour Court, and this cannot be done, until the internal appeal processes have been exhausted. With the lack of defined time periods for decision-making, and as a natural consequence of the time that it takes to conclude an appeal, this may have a significant impact on the ability of stakeholders, and in particular, an employer to secure certainty, which can have significant impacts on operations, including in circumstances where the original decision may not have been taken in alignment with the provisions of the MHSA and the requirements around fair administrative decision-making.
SECTION 86A – CRIMINAL LIABILITY
Current Provision
Section 86 makes provision for the commission of an offence where a person by a negligent act or omission causes serious injury or serious illness or endangers the health or safety of a person at a mine.
Amendment
The amended Section 86A(1) provides that an employer commits an offence if the employer contravenes or fails to comply with a duty in terms of Chapter 2 which results in a person’s death, a serious injury or serious illness to a person or health-threatening occurrence.
Chapter 2 of the MHSA sets out the wide range of responsibilities that are placed on an employer, from Section 2 all the way through to Section 24 of the MHSA.
If a person is fatally injured, or a serious injury occurs or a serious illness is contracted or there is a health-threatening occurrence, the employer commits an offence if there is a failure to comply with any of the duties and responsibilities set out in Chapter 2.
Section 86A(2) provides that an employer commits an offence in terms of Section 86A(1) even if the act or omission fell within the scope of the authority of the employment of the chief executive officer, manager, agent or employee concerned if the employer (a) conspired with the chief executive officer, manager, agent or employee concerned in the act or omission or did not take all reasonable steps to prevent the act or omission, and thereby causing the death, injury, illness or occurrence, as the case may be.
The new Section 86A(3) provides that for the purposes of Section 86A(2), the fact that the employer issued instructions prohibiting the act or omission is not in itself sufficient proof that all reasonable steps were taken to prevent the act or omission.
Further, if an employee does or omits to do any act which would be an offence in terms of the MHSA for the employer of such employee, unless it is proved that (a) in doing or omitting to do that act, the employee was acting without the connivance or permission of the employer, (b) it was not under any condition or any circumstance within the scope of the authority of the employee to do or omit to do an act, whether lawful or unlawful, of the character of the act or omission charged, and (c) all reasonable steps were taken by the employer to prevent any act or omission of the kind in question, the employer is presumed to have done or omitted to do that act (of the employee) and shall be liable to be convicted and sentenced in respect thereof, and the fact that the employer issued instructions forbidding any act or omission of the kind in question shall not, in itself, be accepted as sufficient proof that the employer took all reasonable steps to prevent the act or omission.
These requirements have been transposed from the Occupational Health and Safety Act, No. 85 of 1993 (OHSA). These provisions of the OHSA have been severely criticised over the years because it contains a presumption of guilt (with an onus on the employer to disprove the presumption).
In summary, the acts or omissions of employees are attributed to the employer, and the employer is guilty of an offence committed by an employee unless the employer proves the criteria set out above.
This is going to have far-reaching consequences, including in relation to incidents or accidents. For example, if an operator of a trackless mobile machine does not make use of an approved travelling route, and strikes an employee, the failure to comply with the requirements around travelling routes, and the striking of an employee would be an offence (a breach of the mandatory code of practice and the responsibilities which are placed on employees in terms of Section 22 of the MHSA), which will be attributed to the employer, and the employer can be held liable unless the employer proves that (a) in acting as he/she did, the employee was acting without the connivance or permission of the employer, (b) it was not under any condition or in any circumstances within the scope of authority of the employee to do or omit to do the act whether lawful or unlawful of the character of the act or omission charged, and (c) all reasonable steps were taken by the employer to prevent any act or omission of the kind in question (bearing in mind that an instruction prohibiting the operator of a trackless mobile machine from deviating from the designated travelling route is not sufficient proof, on its own).
SECTION 92 – PENALTIES THAT MAY BE IMPOSED FOR CONTRAVENTION OF THE MHSA
Current Provision
Section 92 sets out the penalties that may be imposed (which can include a fine and/or imprisonment) for breaching the provisions of the MHSA and, in relation to the “owner” (employer), if an employer is convicted of an offence in terms of Section 86 (negligent act or omission) or Section 86A, the employer may be sentenced to withdrawal or suspension of the permit (presumably a reference to any rights granted in terms of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 – MPRDA) or a fine of R3 million or a period of imprisonment not exceeding five years or to both such fine or imprisonment (Section 92(6)). Section 92(7) provides that in the event of a conviction, the court, in addition to imposing a sentence, can order the person convicted to repair any damage caused, to the satisfaction of the Chief Inspector of Mines and comply with a provision of the MHSA within a specified period of time.
Amendment
Section 92(6A) is inserted and provides that an employer who is convicted of an offence in terms of section 86 or Section 86A may be sentenced to a fine not exceeding 10% of the employer’s annual turnover whichever amount is greater (i.e. the greater of the amounts referred to above or in Section 86A).
There is also the insertion of Section 92(8) which provides that notwithstanding the penalties in the MHSA, 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 annual turnover in the preceding financial year as reflected in the last available financial statements, in the Republic, and the employer’s exports from the Republic, whichever is greater, or to imprisonment determined by a competent court, taking into consideration factors including but not limited to the interests of justice, nature and extent of the offence, repeat offense or previous non-compliance.
The inclusion of a fine not exceeding 10% of the employer’s annual turnover is, in itself, a significant consequence. The addition of Section 92(8) however takes it even further, and if an employer is convicted of an offence in terms of any Section, the employer may be sentenced to a fine not exceeding 1o% of the employer’s annual turnover in the Republic or the employer’s exports, whichever is the greater.
The Explanatory Summary indicates that these amendments are aimed at deterring employers from not complying with the provisions of the MHSA or put differently, compelling compliance for fear of the consequences.
The amendments to Section 92, together with the various amendments referred to above, significantly changes the compliance landscape, and the exposure of the employer, the chief executive officer, and other senior persons.
Table 1 of Schedule 8 has also been amended to increase the penalties as follows:
Table 2, which sets out the maximum administrative fine that can be imposed has not been amended.
SECTION 98 – REGULATIONS
Current Provision
Section 98 provides that the Minister may, after consulting the Mine Health and Safety Council, by notice promulgate Regulations regarding the various items set out in Section 98.
Amendment
A new category/sub-section is inserted as Section 98(zQ) and the Minister may promulgate Regulations regarding the form and manner of reporting to the Medical Inspector on dismissals contemplated in Section 20(2A) i.e. dismissals based on unfitness for work.
Once again, the lines between the requirements under the LRA and the MHSA may be blurred through interpretation and application by stakeholders.
SECTION 102 – DEFINITIONS
Current Provision
Section 102 contains the definitions that are applicable to the provisions of the MHSA.
Amendment
Various amendments have been made and new definitions have been inserted, including the following:
- The term “employee” is amended to mean “any person who is employed by the employer or owner of a reconnaissance permission, prospecting right, mining right or mining permit, and who is entitled to receive remuneration, and includes any employee working at or in a mine, including any person working for an independent contractor”. It is unclear why it was necessary to amend the definition, which currently provides that an employee is any person who is employed or working at a mine;
- The term “employer” is amended to mean (a) the holder of any prospecting right, retention permit, mining right, mining permit, exploration right or production right issued under the MPRDA, (b) if a right or permit does not exist, the person by whom or for whom the activities are undertaken, but excluding an independent contractor, and (c) if neither paragraphs (a) or (b) is applicable, the last person who worked the mine, or where such person no longer exists, that person’s successor in title;
- The term “mining area” which is amended to mean (a) the area comprising the subject of any prospecting right, retention permit, mining right, mining permit, exploration right or production right issued or granted under the MPRDA, (b) any land adjacent or non-adjacent to an area referred to in paragraph (a) on which mining related operations or operations incidental to mining are being undertaken by, on behalf of, or under the authorisation of, the owner, but excluding operations where the mineral is used in a manufacturing or beneficiation process, (c) any area connected to an area referred to in paragraphs (a) or (b) by means of any road, railway line, power line, pipeline, cableway or conveyor belt, which area is under the control of the holder of any right, and which such holder is entitled to use in connection with the operations performed or to be performed under such right, (d) the land on which such road, railway line, powerline, pipeline, cableway or conveyor belt is located, and (e) the buildings, structures, machinery, residue deposits, residue stockpiles or objects situated on or in such area or land contemplated in paragraphs (a) and (b).
This definition has been inserted, presumably, in an attempt to put an end to the debates around what constitutes a “mine” for the purposes of the MHSA. The amendment is so widely worded that it can lead to unintended consequences. For example, a holder of a mining right may run various businesses and simply because they are related or incidental to the mining operations (for example, the production of pumps that are used in the workings), that facility may be regarded as part of the “mine”. The provision that operations, where the mineral is used in a manufacturing or beneficiation process, are excluded will not apply to the pump manufacturing facility. The exclusion i.e. that a facility where the mineral is used in a manufacturing or beneficiation process, is welcomed, but, by extending the definition, additional areas will now form part of the “mine” no matter how tenuous the link to the mining operations.
CONCLUSION
The Notice published by the Minister indicated that the Bill will be introduced to Parliament “shortly”. It is unfortunately unclear as to when this will be done.
The Bill also makes provision for the Bill to be introduced/become effective in phases.
Because of the uncertainty surrounding when the Bill is likely to come into force and effect, mining companies should put together a multi-disciplinary team to analyse the amendments in the Bill, and determine how these amendments will affect the particular mines so that appropriate measures can be implemented to support compliance, once the Bill comes into force and effect.
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.