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Mine Safety

Mining disasters have been the topic of Hollywood films, novels, even pop songs, and, unfortunately, of not infrequent news reports. Of course, they are not glamorous, and touch communities in a wretched way. They can also be economically tragic.

If the fact that South Africa bears only one entry1 in Wikipedia for ‘notable mine disasters’2 is anything to go by, our nation is not doing that badly – particularly given the dominance of mining in our socio-economic fabric.

But one disaster is one too many. The Mine Health and Safety Act 1996 aims to provide mechanisms, controls, measures and institutions to protect the health and safety of miners. The Act is administered by the Minister of Mineral Resources.

The Act has a compendious provision to the effect that any person (including a mine owner,3 and a person undertaking works in relation to a mine) who contravenes or fails to comply with any provision of the Act, or regulation made under the Act, or any order, instruction, notice, permission, condition, authorisation, prohibition, and just about anything else put in place by the Minister, the Chief Inspector of Mines, and other authorised persons, commits an offence.4

So, technically, failure to comply with any provision in the following summation (which is not exhaustive of all the obligations, prohibitions and provisions in the Act5) constitutes an offence.

A. Employer obligations

  1. The employer6 of every mine that is being worked must ensure7 that the mine is designed, constructed and equipped:8
    • to provide conditions for safe operation and a healthy working environment;
    • with a communication system necessary to achieve those conditions; and
    • with electrical, mechanical and other equipment necessary to achieve those conditions.
  2. The employer must also:
    • ensure that the mine is commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering the health and safety of themselves or of any other person;9
    • identify the relevant hazards and assess the related risks to which persons who are not employees may be exposed;10 and
    • ensure that persons who are not employees, but who may be directly affected by the activities at the mine, are not exposed to any hazards to their health and safety.11

  3. The employer of a mine that is not being worked, but in respect of which a closure certificate12 has not been issued, must take reasonable steps to prevent injuries, ill-health, loss of life or damage of any kind from occurring at or because of the mine.13

  4. The employer of every mine that is being worked must:
    • appoint one or more managers with the qualifications (as may be prescribed) to be responsible for the day-to-day management and operation of the mine, and, if more than one manager is appointed, ensure that the managers’ functions do not overlap;14
    • supply the managers with the means to perform their functions;15 and
    • take reasonable steps to ensure that the managers perform their functions.16
  5. Every employer must:
    • supply all necessary health and safety equipment and health and safety facilities to each employee;17 and
    • maintain that equipment and those facilities in a serviceable and hygienic condition.18
  6. Every employer must 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.19 Any person who:
    • designs, manufactures, repairs, imports or supplies any article for use at a mine must ensure:
      • that the article is safe and without risk to health and safety when used properly;20 and
      • that it complies with all the requirements in terms of the Act;21
    • erects or installs any article for use at a mine must ensure that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health and safety when used properly.22

  7. Any person who designs or constructs a building or structure for use at a mine (including a temporary structure) must ensure that the design or construction is safe and without risk to health and safety when used properly.23

  8. Every person who manufactures, imports or supplies any hazardous substance for use at a mine must:
    • ensure that the substance is safe and without risk to health and safety when used, handled, processed, stored or transported at a mine;24
    • provide adequate information about:
      • the use of the substance;25
      • the risks to health and safety associated with the substance;26
      • any restriction or control on the use, transport and storage of the substance, including but not limited to exposure limits;27
      • the safety precautions to ensure that the substance is without risk to health or safety;28
      • the procedure to be followed in the case of an accident involving excessive exposure to the substance, or any other emergency involving the substance;29 and
      • the disposal of used containers in which the substance has been stored and any waste involving the substance.30

  9. Any person who obtains or attempts to obtain a prescribed certificate of competency by means of fraud, dishonesty, false pretences or the presentation or submission of a false or forged document commits an offence.31

  10. Unless specifically authorised by the employer, no person:
    • other than an inspector (acting within his powers) may remove personal protective equipment from a mine, or cause that equipment to be removed;32
    • other than an inspector (acting within his powers) may remove anything that is provided in the interest of health or safety, or cause that equipment to be removed;33 or
    • may alter, damage, misuse, render ineffective or interfere with anything that is provided in the interest of health or safety, or cause that equipment to be altered, damaged, misused, rendered ineffective or interfered with.34

B. Employer obligations – documentation

  1. Every employer must prepare a document that:
    • describes the organisation of work;35
    • establishes a policy concerning the protection of employees’ health and safety at work;36
    • establishes a policy concerning the protection of persons who are not employees but who may be directly affected by the activities at the mine;37 and
    • outlines the arrangements for carrying out and reviewing policies.38
  2. The employer must:
    • prominently and conspicuously display a copy of the document for employees to read;39 and
    • give each health and safety representative a copy of the document.40

  3. An employer may prepare and implement a Code of Practice on any matter affecting the health or safety of employees (and other persons who may be directly affected by activities at the mine),41 but must prepare and implement such Code of Practice if required by the Chief Inspector of Mines.42

  4. The employer must deliver a copy of every Code of Practice to the Chief Inspector of Mines.43

  5. The employer must compile an annual report on health and safety at the mine, which includes the statistics required in terms of the Act.44

  6. The employer must also ensure that the mine’s occupational medical practitioner compiles the annual medical report.45

  7. Each employer must keep a record of all formal training provided in respect of each employee.46

  8. All mines must submit a workplace skills plan and the annual training reports to the Mining Qualifications Authority.47

  9. Every employer must:
    • identify the hazards to health or safety to which employees may be exposed while they are at work;48
    • assess the risks to health or safety to which employees may be exposed while they are at work;49
    • record the significant hazards identified and risks assessed;50 and
    • make those records available for inspection by employees.51
  10. The employer must:
    • retain the records until the mine closes;52 and
    • when the mine closes, deliver those records to the medical inspector.53

  11. The employer at every mine must keep a service record, in the prescribed form, of employees at the mine who perform work in respect of which medical surveillance is conducted.54

  12. An employee may request, and the employer must then provide, a copy of the record or of any part of it that relates to that employee.55

  13. An exemption may be granted by the Minister in respect of all or any provisions of the Act.56 The employer must, prominently and conspicuously, display any exemption for the employees to read.57

C. Employer obligations – employee training

  1. Every employer must take reasonable steps to ensure that all employees who are required to use personal protective equipment are instructed in the proper use, the limitations and the appropriate maintenance of that equipment.58

  2. Every employer must ensure that every employee complies with the requirements of the Act.59

  3. Every employer must consider an employee’s training and capabilities in respect of health and safety before assigning a task to that employee.60

  4. Every employer must:
    • provide employees with any information, instruction, training or supervision that is necessary to enable them to perform their work safely and without risk to health;61 and
    • ensure that every employee becomes familiar with work-related hazards and risks and the measures that must be taken to eliminate, control and minimise those hazards and risks.62

  5. Every employer must ensure that every employee is properly trained to deal with every risk to the employee’s health or safety that is associated with any work that the employee has to perform.63

  6. All employees must be properly trained:
    • in the procedures to be followed to perform that employee’s work;64 and
    • in relevant emergency procedures.65
  7. No person may cause or permit an employee under the age of 18 years to work underground at a mine;66 save that an employee over the age of 16 years may work underground as part of vocational education or training.67

D. Accidents

  1. Every employer must, within 10 days, commence an investigation into every:68
    • accident that must be reported in terms of the Act;69
    • serious illness;70 and
    • health-threatening occurrence.71
  2. In regard to such investigation:
    • the health and safety committee must be consulted;72 and
    • it must be conducted in cooperation with the health and safety representative responsible for the particular working place.73
  3. On completion of each investigation, the employer must prepare a report that:
    • identifies the causes and the underlying causes of the accident, serious illness or health-threatening occurrence;74
    • identifies any unsafe conditions, acts or procedures that contributed in any manner to the accident, serious illness or health-threatening occurrence;75
    • makes recommendations to prevent a similar accident, serious illness or health-threatening occurrence,76

    and the employer must deliver a copy within 30 days to the Principal Inspector of Mines and the health and safety committee (or the health and safety representative).77

  4. The employer must notify the Principal Inspector of Mines of any accident or occurrence at a mine that results in the serious injury, illness or death of any person.78

  5. In the event of an incident in which a person died, or was injured to such an extent that he is likely to die, or suffered the loss of a limb or part of a limb, no person may disturb the site or remove any article or substance involved in the incident (except if it is necessary to prevent any further incident; remove the injured or dead; or rescue any person from danger).79

  6. Any person who, by a negligent act or by a negligent omission, causes serious injury or serious illness to a person at a mine, commits an offence.80

  7. Any person, other than an employer or employee, who, by a negligent act or by a negligent omission, endangers the health or safety of a person at a mine, commits an offence.81

E. Medical surveillance and examinations

  1. Each employer must keep a record of all occupational hygiene measures in a manner that can be linked to each employee’s record of medical surveillance.82

  2. Every employer who establishes or maintains a system of medical surveillance must:
    • engage the part-time or full-time services of an occupational medical practitioner;83
    • supply the practitioner with the means to perform his functions;84 and
    • keep a record of medical surveillance for each employee exposed to a health hazard.85
  3. An occupational medical practitioner must take every measure that is reasonably practicable to:
    • promote the health and safety of employees at the mine; and86
    • assist employees in matters related to occupational medicine.87

  4. If any employee is declared unfit to perform work as a result of an occupational disease, the employer must conduct the stipulated investigation.88

  5. Every occupational medical practitioner at a mine must compile an annual report covering employees at that mine, giving an analysis of the employees’ health based on the employees’ records of medical surveillance, without disclosing the names of the employees.89

  6. The annual report must be given to the employer, who must deliver one copy of the report to each of:
    • the health and safety committees, or if there is no health and safety committee, the health and safety representatives;90 and
    • the medical inspector.91

  7. If an employee was subject to, or was required to be subject to, medical surveillance in terms of this Act and such employee’s employment at a mine is terminated for any reason, the employer must arrange an exit medical examination of the employee.92

  8. The occupational medical practitioner conducting the exit medical examination must:
    • produce an exit certificate with respect to that employee, indicating the results of all medical surveillance and the presence or absence of any occupational disease;93 and
    • enter a copy of the exit certificate into the employee’s record of medical surveillance.94

  9. The employee must attend the examination.95

  10. The occupational medical practitioner conducting an examination must provide the employee with a copy of the exit certificate prepared as a result of that examination.96

F. Employee Obligations

  1. Every employee at a mine, while at that mine, must:
    • take reasonable care to protect their own health and safety;97
    • take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee;98
    • use and take proper care of protective clothing, and other health and safety facilities and equipment provided for the protection, health or safety of that employee and other employees;99
    • report promptly to their immediate supervisor any situation which the employee believes presents a risk to the health or safety of that employee or any other person, and with which the employee cannot properly deal;100
    • cooperate with any person to permit compliance with the duties and responsibilities placed on that person in terms of the Act;101 and
    • comply with prescribed health and safety measures.102

G. Health and safety committees and representatives

  1. Every mine with 20 or more employees must have a health and safety representative for each shift at each designated working place at the mine.103

  2. Every mine with 100 or more employees must have one or more health and safety committees.104

  3. The employer must pay every full-time health and safety representative appropriate remuneration at least equal to the remuneration the representative earned immediately before being appointed as a full-time health and safety representative.105

  4. The employer must provide reasonable time and facilities for employees to meet monthly with their health and safety representatives in order to consider:
    • health and safety in their working places;106 and
    • reports by the representatives on the performance of their functions.107
  5. The employer must provide health and safety representatives with:
    • the facilities and assistance reasonably necessary to perform their functions;108
    • training that is reasonably required to enable them to perform their functions;109 and
    • time off from work, without loss of remuneration, to attend any training course that is agreed or prescribed.110
  6. Every employer must notify the health and safety representatives concerned and, if there is a health and safety committee, the employee co-chairperson of that Committee:
    • in good time, of inspections, investigations or inquiries of which an inspector has notified the employer; and111
    • as soon as practicable, of any accident, serious illness or health-threatening occurrence, or other dangerous event.112

H. Trade unions

  1. The employer of any mine where there must be a health and safety representative must meet, within the prescribed period, with the representative trade union of the mine in order to enter into negotiations to conclude a collective agreement concerning:
    • the designation of working places;113
    • the number of full-time health and safety representatives;114
    • the election or appointment of health and safety representatives;115
    • the terms of office of health and safety representatives and the circumstances and the manner in which they may be removed from office;116
    • the manner in which vacancies are to be filled;117
    • the manner in which health and safety representatives must perform their functions in terms of the Act;118
    • the procedures for the effective exercise of the right to withdraw from serious danger;119
    • the facilities and assistance that must be provided to a health and safety representative;120
    • the training of health and safety representatives;121 and
    • a procedure that provides for the conciliation and arbitration of disputes.122

  2. Before concluding a collective agreement with the representative trade union, the employer must consult on the matters referred to in that subsection with all other registered trade unions with members at that mine.123

  3. If there is no representative trade union at the mine, the employer must, within the prescribed period:
    • consult with the registered trade unions (with members at the mine) on the stipulated matters;124 and
    • endeavour to reach agreement on the number of full-time health and safety representatives at the mine.125
  4. If there is no registered trade union with members at the mine, the employer must, within the prescribed period:
    • consult with the employees or any elected representative of the employees;126 and
    • endeavour to reach agreement on the number of full-time health and safety representatives at the mine.127

  5. If a collective agreement is concluded, the employer must designate working places at the mine in accordance with that agreement.128

  6. If no collective agreement is concluded, the employer must designate working places at the mine so that:
    • every working place at the mine is designated;129
    • no health and safety representative is responsible for more than 100 employees;130 and
    • no health and safety representative is responsible for more than 50 employees if the designated working place includes separate working places.131

I. Inspectors

  1. Whenever an employer, inspector or a person who conducts an inquiry is required to supply information, or reports, to a health and safety representative or to the health and safety committee, that employer, inspector or person must not disclose any information that is private personal information relating to an employee, unless the employee consents in writing to the disclosure of that information.132

  2. An inspector may instruct any employer, employee or any other person to appear before the inspector to be questioned on any matter to which the Act relates.133

  3. It is an offence to interfere with or hinder an inspector.134

  4. When an inspector enters any mine, the employer and each employee performing any work there must provide any facility that the inspector reasonably requires.135

  5. Persons questioned by an inspector must answer each question to the best of their ability.136

  6. Any person who holds (or should hold) a permit, licence, permission, certificate, authorisation or any other document issued in accordance with the Act (or the Mineral and Petroleum Resources Development Act) must produce it at the request of the Chief Inspector of Mines or any inspector.137

  7. It is an offence to obtain a required certificate of competency by fraudulent means.138

  8. 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 at the mine, the inspector may give any instruction necessary to protect the health or safety of persons at the mine, including but not limited to an instruction that:
    • operations at the mine or a part of the mine be halted;139
    • the performance of any act or practice at the mine or a part of the mine be suspended or halted, and may place conditions on the performance of that act or practice;140
    • the employer must take the steps set out in the instruction, within the specified period, to rectify the occurrence, practice or condition;141 and
    • all affected persons, other than those who are required to assist in taking steps referred to in paragraph (c), be moved to safety.142
  9. The employer of a mine must promptly supply a copy of any instruction of an inspector to:
    • the health and safety representative representing the employees affected by the instruction;143 and
    • the Health and Safety Committee responsible for those employees.144
  10. The employer must also promptly publicise the instruction by:
    • prominently and conspicuously displaying copies of the instruction to the employees whose interests may be affected;145 and
    • causing its contents to be communicated orally to those employees.146

  11. It is an offence to fail to attend an inquiry if required to do so, or to refuse to answer questions, or to give false evidence.147

  12. Any person who hinders, opposes, obstructs or unduly influences any person who is performing a function in terms of the Act commits an offence.148

  13. It is an offence, having been instructed or summoned to attend an inquiry:
    • to fail to appear at the time and place specified;149 or
    • not to remain in attendance until excused by the person presiding at the inquiry;150
    • to refuse to be sworn or to make an affirmation;151 or
    • to fail to answer any question fully and to the best of that person’s ability;152 or
    • to give evidence, knowing or believing it to be false.153

J. General

  1. No person may make any deduction from an employee’s wages, or permit an employee to make any payment to any person, in respect of anything which the employer is obliged to provide or to do in terms of the Act in the interest of the health and safety of an employee.154

  2. No person may discriminate against any employee for:
    • exercising a right in terms of the Act or in terms of a collective agreement contemplated in the Act;155
    • doing anything that the employee is entitled to do in terms of the Act or in terms of a collective agreement contemplated in the Act;156
    • refusing to do anything that the employee is entitled to refuse to do in terms of the Act or in terms of a collective agreement contemplated in the Act;157
    • refusing to do anything that the employee is prohibited from doing in terms of the Act or in terms of a collective agreement contemplated in this Act;158 and
    • standing for election, or performing any function, as a Health and Safety Representative or a member of a Health and Safety Committee.159
  3. Any person who discloses any information that they acquired in the performance of a function in terms of the Act and that relates to the financial and business affairs of an employer or any other person who employs employees, commits an offence.160

  1. Coalbrook, 1960. In 1960, at the Coalbrook Mine near Sasolburg, Free State, a large section of the Clydesdale Colliery caved in and trapped mineworkers 180 metres underground. 437 deaths were recorded, and it remains South Africa’s worst mining disaster. See www.wikipedia.org/wiki/mining_accidents and www.sahistory.org.za/coalbrook. ↩

  2. There have been several mine disasters in the Republic but which did not make the list. ↩

  3. Which is defined to mean the holder of a prospecting permit, or mining authorisation, or the person for whom any borehole or excavation is made (for the purpose of searching for or mining minerals), or the last person who worked the mine in question. ↩

  4. See Section 91(1) of the Act. ↩

  5. It also does not include esoteric or other similarly inappropriately referenced provisions. ↩

  6. In other words an ‘owner’ – see reference 4. ↩

  7. Note, that many of the obligations in the Act talk of ensuring this or that ‘as far as reasonably practicable’. Whilst this vagueness may well have a bearing on whether an offence can result, at all, from non-compliance, it will be prudent to approach the task in question seriously and diligently. ↩

  8. Section 2(1)(a)(i) and (ii). ↩

  9. Section 2(1)(b). ↩

  10. Section 5(2)(a). ↩

  11. Section 5(2)(b). ↩

  12. In terms of the Minerals and Petroleum Resources and Development Act. ↩

  13. Section 2(2). ↩

  14. Section 3(1)(a). ↩

  15. Section 3(1)(b). ↩

  16. Section 3(1)(c). ↩

  17. Section 6(1)(a). ↩

  18. Section 6(1)(b). ↩

  19. Section 6(2). ↩

  20. Section 21(1)(a)(i). ↩

  21. Section 21(1)(a)(ii). ↩

  22. Section 21(1)(b). ↩

  23. Section 21(3). ↩

  24. Section 21(4)(a). ↩

  25. Section 21(4)(b)(i). ↩

  26. Section 21(4)(b)(ii). ↩

  27. Section 21(4)(b)(iii). ↩

  28. Section 21(4)(b)(iv). ↩

  29. Section 21(4)(b)(v). ↩

  30. Section 21(4)(b)(vi). ↩

  31. Section 89. ↩

  32. Section 84(a). ↩

  33. Section 84(b). ↩

  34. Section 84(c). ↩

  35. Section 8(1)(a). ↩

  36. Section 8(1)(b). ↩

  37. Section 8(1)(c). ↩

  38. Section 8(1)(d). ↩

  39. Section 8(3)(a). ↩

  40. Section 8(3)(b). ↩

  41. Section 9(1). ↩

  42. Section 9(2). ↩

  43. Section 9(5). ↩

  44. Section 2(1)(c). ↩

  45. Section 16(1). ↩

  46. Section 10(4). ↩

  47. Section 10(5). ↩

  48. Section 11(1)(a). ↩

  49. Section 11(1)(b). ↩

  50. Section 11(1)(c). ↩

  51. Section 11(1)(d). ↩

  52. Section 13(8)(a). ↩

  53. Section 13(8)(b). ↩

  54. Section 14(1). ↩

  55. Section 19(1). ↩

  56. Section 79. ↩

  57. Section 79(4). ↩

  58. Section 6(3). ↩

  59. Section 7(1)(a). ↩

  60. Section 7(1)(d). ↩

  61. Section 10(1)(a). ↩

  62. Section 10(1)(b). ↩

  63. Section 10(2)(a)(i). ↩

  64. Section 10(2)(c). ↩

  65. Section 10(2)(d). ↩

  66. Section 85(1). ↩

  67. Section 85(3). ↩

  68. Section 11(5)(aA). ↩

  69. Section 11(5)(a)(i). ↩

  70. Section 11(5)(a)(ii). ↩

  71. Section 11(5)(a)(iii). ↩

  72. Section 11(5)(b). ↩

  73. Section 11(5)(c). ↩

  74. Section 11(5)(d)(i). ↩

  75. Section 11(5)(d)(ii). ↩

  76. Section 11(5)(d)(iii). ↩

  77. Section 11(5)(e). ↩

  78. Section 11(5B). ↩

  79. Section 11(8). ↩

  80. Section 86(1). ↩

  81. Section 86(2). ↩

  82. Section 12(3). ↩

  83. Section 13(3)(a)(i). ↩

  84. Section 13(3)(b). ↩

  85. Section 13(3)(c). ↩

  86. Section 13(5)(a). ↩

  87. Section 13(5)(b). ↩

  88. Section 13(6). ↩

  89. Section 16(1). ↩

  90. Section 16(2)(b). ↩

  91. Section 16(2)(c). ↩

  92. Section 17(1). ↩

  93. Section 17(4)(a). ↩

  94. Section 17(4)(b). ↩

  95. Section 17(3). ↩

  96. Section 19(2). ↩

  97. Section 22(a). ↩

  98. Section 22(b). ↩

  99. Section 22(c). ↩

  100. Section 22(d). ↩

  101. Section 22(e). ↩

  102. Section 22(f). ↩

  103. Section 25(1). ↩

  104. Section 25(2). ↩

  105. Section 31(1). ↩

  106. Section 31(2)(a). ↩

  107. Section 31(2)(b). ↩

  108. Section 31(3)(a). ↩

  109. Section 31(3)(b). ↩

  110. Section 31(3)(c). ↩

  111. Section 32(a). ↩

  112. Section 32(b). ↩

  113. Section 26(1)(a). ↩

  114. Section 26(1)(b). ↩

  115. Section 26(1)(c). ↩

  116. Section 26(1)(d). ↩

  117. Section 26(1)(e). ↩

  118. Section 26(1)(f). ↩

  119. Section 26(1)(g). ↩

  120. Section 26(1)(i). ↩

  121. Section 26(1)(j). ↩

  122. Section 26(1)(k). ↩

  123. Section 26(2). ↩

  124. Section 26(6)(a). ↩

  125. Section 26(6)(b). ↩

  126. Section 26(7)(a). ↩

  127. Section 26(7)(b). ↩

  128. Section 27(1). ↩

  129. Section 27(2)(a). ↩

  130. Section 27(2)(b). ↩

  131. Section 27(2)(c). ↩

  132. Section 38(1)(a). ↩

  133. Section 50(3). ↩

  134. Section 88. ↩

  135. Section 52(1). ↩

  136. Section 52(2). ↩

  137. Section 53. ↩

  138. Section 89. ↩

  139. Section 54(1)(a). ↩

  140. Section 54(1)(b). ↩

  141. Section 54(1)(c). ↩

  142. Section 54(1)(d). ↩

  143. Section 56(a)(i). ↩

  144. Section 56(a)(ii). ↩

  145. Section 56(b)(i). ↩

  146. Section 56(b)(ii). ↩

  147. Section 90. ↩

  148. Section 88. ↩

  149. Section 90(a)(i). ↩

  150. Section 90(a)(ii). ↩

  151. Section 90(b)(ii). ↩

  152. Section 90(c)(i). ↩

  153. Section 90(c)(ii). ↩

  154. Section 24. ↩

  155. Section 83(1)(a). ↩

  156. Section 83(1)(b). ↩

  157. Section 83(1)(c). ↩

  158. Section 83(1)(d). ↩

  159. Section 83(1)(e). ↩

  160. Section 87(1). ↩

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