On 14 October 2024, the Minister of Mineral and Petroleum Resources (Minister) issued a notice (Notice) of intention to introduce the Mine Health and Safety Amendment Bill, 2024 (Bill) in the National Assembly. The Notice indicates that the Minister intends to do so “shortly” (based on past experience, this is possibly going to be in mid-December 2024). The Notice was accompanied by the Bill and an Explanatory Summary (Summary).
The Bill proposes significant amendments to the Mine Health and Safety Act, No. 29 of 1996 (MHSA) including the following:
- The current responsibilities which are placed on an “employer” as defined in the MHSA (in summary this is the entity which holds the right to prospect or mine) are qualified with reference to “reasonably practicable”. The proposed amendment includes the deletion of the term “reasonably practicable” which is defined in Section 102 of the MHSA, and will, where the amendment applies, place an absolute responsibility on the employer.
- The MHSA, in its current form, makes provision for administrative fines to be imposed on the employer in the event that the employer contravenes the provisions of the MHSA. Typically, the Department of Mineral Resources (DMR) recommends the imposition of an administrative fine following an incident/accident and, where the administrative fine is imposed, this is typically a consolidated fine of up to R1 million. The MHSA also currently makes provision for criminal prosecution of the employer (corporate entity) and any other persons who breach the provisions of the MHSA. The proposed new Section 86A of the MHSA introduces significant penalties where an employer contravenes or fails to comply with its general duties in Section 2 of the MHSA where the contravention results in a person’s death, or serious injury, or serious illness and, if found guilty, a maximum fine can be imposed of up to 10% of the employer’s annual turnover. The proposed Section 86A also includes changes which are aligned with the provisions of the Occupational Health and Safety Act, No. 85 of 1993 (OHSA) regarding vicarious liability, and the current defences which are available to the employer, may not apply. If the amendments to Section 86A of the MHSA go through as currently worded, the employer will be required to disprove liability by proving that the act or omission (of an employee) did not occur with the permission of the employer, that it was not within the scope of authority of the employee and that the employer had taken reasonable steps to prevent the act or omission. As with the provisions of the OHSA, an employer cannot avoid liability simply by indicating that it issued instructions forbidding the act or omission;
- While administrative fines are typically currently imposed in an amount of up to R1 million, the proposed amendments include that a fine not exceeding 10% of the employer’s annual turnover in the preceding financial year can be imposed;
- The proposed amendments to Section 10 of the MHSA which addresses training, include the deletion of the term “reasonably practicable” and will place an absolute duty on the employer to provide training;
- The proposed amendments to Section 54 of the MHSA substitute the reference to the Chief Inspector with a reference to the Principal Inspector of Mines. This is a positive change which reflects the current reality of the roles and functions of Principal Inspectors.
Unfortunately, the Summary does not provide any significant guidance, and stakeholders in the mining industry will be required to carefully consider the proposed amendments introduced by the Bill.
The proposed amendments in the Bill, together with the proposed amendments to Chapter 2 of the Regulations (appointments) will require stakeholders in the mining industry to dedicate significant resources (people and money) to ensuring compliance and efficient implementation. While most mining companies dedicate resources to complying with the MHSA because this is the “right thing to do” in support of the commitment to “zero harm”, the potential consequences that will be introduced, should the Bill be passed in its current form, are simply too great to ignore. You may view the Bill here.
If you require any assistance with the Bill, please contact Warren Beech (warren@bv-inc.co.za) or Eben van Zyl (eben@bv-inc.co.za).
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.