South Africa’s Minister of Mineral and Petroleum Resources, Gwede Mantashe, has indicated that he intends to introduce the Mine Health and Safety Amendment Bill, 2024 in the National Assembly in the near future. Understanding that there is always room for interpretation in new laws, stakeholders in South Africa’s Mining and Natural Resources Sector have raised some concerns about what these changes mean and how they will affect the sector.
“What is not being debated is that health and safety is a core requirement,” noted Warren Beech, CEO of Beech Veltman Incorporated. “All stakeholders acknowledge that health and safety is a priority, and stakeholders remain committed to achieving Zero Harm. The amendments are significant, though, and have far-reaching consequences for mining companies, the chief executive officer, and other senior appointees.”
Some of the most challenging amendments relate to Section 10 of the Act which encompasses health and safety training. Whereas the current provision is that an employer is to provide health and safety training as far as reasonably practicable, under the amendment, 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,” Beech pointed out, “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.”
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. The definition of “formal training” 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”.
Beech says 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”.
“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,” commented Beech.
Beech also pointed out that amendments to sections 49, 50 and 54 have significantly enhanced the powers of inspectors. “The Chief Inspector of Mines may now issue 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,” he said. The amendments to these three sections specifically give an inspector the right to prohibit the functioning of the site, and to block, bar, barricade or cordon off the site as the inspector “may consider necessary”.
He also noted that amendments to section 57 severely limit the ability to challenge a decision made by the inspector or the Principal Inspector of Mines, in the Labour Court, and this cannot be done until 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 to secure certainty, which can have significant impacts on operations,” Beech explained.
Amendments to Section 86A on criminal liability may also be cause for concern. “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 certain criteria,” noted Beech. “This is going to have far-reaching consequences, including in relation to incidents or accidents.”
For further details of the amendments and their implications, click here.