PRESIDENT'S OFFICE
No. 967.
14 June 1996
NO. 29 OF 1996: MINE HEALTH AND SAFETY ACT, 1996.
It is hereby notified that the President has assented to the following Act which
is hereby published for general information:-
ACT
To provide for protection of the health and safety of employees and other
persons at mines and, for that purpose -
to promote a culture of health and safety;
to provide for the enforcement of health and safety measures;
to provide for appropriate systems of employee, employer and State
participation in health and safety matters;
to establish representative tripartite institutions to review legislation,
promote health and enhance properly targeted research;
to provide for effective monitoring systems and inspections, investigations
and inquiries to improve health and safety;
to promote training and human resources development;
to regulate employers' and employees' duties to identify hazards and
eliminate, control and minimise the risk to health and safety;
to entrench the right to refuse to work in dangerous conditions; and
to give effect to the public international law obligations of the Republic
relating to mining health and safety;
and to provide for matters connected therewith.
(English text signed by the President.)
(Assented to 30 May 1996.)
BE IT ENACTED by the Parliament of the Republic of South Africa as follows:-
ARRANGEMENT OF ACT
CHAPTER 1
OBJECTS OF ACT
1. Objects of Act
CHAPTER 2
HEALTH AND SAFETY AT MINES
2. Owner to ensure safety
3. Owner must appoint manager
4. Owner may entrust functions to another person
5. Manager to maintain healthy and safe mine environment
6. Manager to ensure adequate supply of health and safety equipment
7. Manager to staff mine with due regard to health and safety
8. Manager must establish health and safety policy
9. Codes of practice
10. Manager to provide health and safety training
11. Manager to assess and respond to risk
12. Manager to conduct occupational hygiene measurements
13. Manager to establish system of medical surveillance
14. Record of hazardous work
15. Record of medical surveillance
16. Annual medical reports
17. Exit certificates
18. Costs of examination
19. Employees' right to information
20. Employee may dispute finding of unfitness to perform work
21. Manufacturer's and supplier's duty for health and safety
22. Employees' duties for health and safety
23. Employees' right to leave dangerous working place
24. Employees not to pay for safety measures
CHAPTER 3
HEALTH AND SAFETY REPRESENTATIVES AND COMMITTEES
25. Health and safety representatives and committees
26. Negotiation and consultation before appointment of representatives
27. Designation of working places
28. Qualifications of representatives
29. Election and appointment of representatives
30. Rights and powers of representatives
31. Duty to compensate and assist representatives
32. Duty to inform representatives
33. Negotiation and consultation on establishment of committees
34. Establishment of health and safety committees
35. Committee procedures
36. Rights and powers of health and safety committee
37. Duty to support committee
38. Disclosure of information
39. Disputes concerning disclosure of information
40. Disputes concerning this Chapter
CHAPTER 4
TRIPARTITE INSTITUTIONS
41. Establishment of tripartite institutions
42. Mine Health and Safety Council
43. Council's duties
44. Duties of permanent committees
45. Mining Qualifications Authority
46. Mining Qualifications Authority's functions
CHAPTER 5
INSPECTORATE OF MINE HEALTH AND SAFETY
47. Inspectorate established
48. Chief Inspector
49. Chief Inspector's functions
50. Inspectors' powers
51. Inspector may be accompanied
52. Duty to assist inspector and answer questions
53. Duty to produce documents required by inspector
54. Inspectors' power to deal with dangerous conditions
55. Inspectors' power to order compliance
56. Instructions to be posted at mine
57. Right to appeal inspectors' decisions
58. Right to appeal Chief Inspector's decision
59. Appeal does not suspend decision
60. Initiating investigations
61. Chief Inspector may designate assistant in investigation
62. Duty to answer questions in investigation
63. Enhancing effectiveness of investigation
64. Reports on investigations
65. Initiating inquiries
66. Investigation may be converted into inquiry
67. Chief Inspector may designate assistant in inquiry
68. Inquiry to be public
69. Right to participate in inquiry
70. Powers of person presiding at inquiry
71. Duty of persons summoned or instructed
72. Inquiry records and reports
73. Chief Inspector may order further inquiry
74. Inquiry and inquest may be conducted jointly
CHAPTER 6
MINISTER'S POWERS
75. Minister may prohibit or restrict work
76. Minister may declare health hazards
77. Application of Minister's notice
78. Exemption from Minister's notice
79. Exemption from all or part of this Act
80. Minister may apply other laws to mine
81. Minister to table annual report
CHAPTER 7
LEGAL PROCEEDINGS AND OFFENCES
82. Jurisdiction of Labour Court
83. No discrimination against employees who exercise rights
84. Safety equipment not to be interfered with
85. Juvenile employment underground prohibited
86. Negligent act or omission
87. Breach of confidence
88. Hindering administration of this Act
89. Falsifying documents
90. Failure to attend when summoned
91. Failure to comply with this Act
92. Penalties
93. Magistrate's Court has jurisdiction to impose penalties
94. Serving of documents
95. Proof of facts
CHAPTER 8
GENERAL PROVISIONS
96. Delegation and exercise of power
97. Minister's power to add and change schedules
98. Regulations
99. Amendment of laws
100. Transitional arrangements
101. Interpretation
102. Definitions
103. Occupational Health and Safety Act, 1993, not applicable
104. Civil liability of State
105. Act binds State
106. Short title and commencement
SCHEDULE 1
Guidelines for determining the number of full-time health and safety
representatives
SCHEDULE 2
Nomination and appointment of members to the tripartite institutions
SCHEDULE 3
Amendment of Laws
SCHEDULE 4
Transitional provisions
PLEASE NOTE!
WORDS OR PHRASES ARE DEFINED IN SECTION 102 OF THIS ACT.
CHAPTER 1
OBJECTS OF ACT
Objects of Act
1. The objects of this Act are
(a) to protect the health and safety of persons at mines;
(b) to require employers and employees to identify hazards and eliminate,
control and minimise the risks relating to health and safety at mines;
(c) to give effect to the public international law obligations of the
Republic that concern health and safety at mines;
(d) to provide for employee participation in matters of health and safety
through health and safety representatives and the health and safety
committees at mines;
(e) to provide for effective monitoring of health and safety conditions at
mines;
(f) to provide for enforcement of health and safety measures at mines;
(g) to provide for investigations and inquiries to improve health and safety
at mines; and
(h) to promote -
(i) a culture of health and safety in the mining industry;
(ii) training in health and safety in the mining industry; and
(iii) co-operation and consultation on health and safety between the
State, employers, employees and their representatives.
CHAPTER 2
HEALTH AND SAFETY AT MINES
Owner to ensure safety
2. (1) The owner of every mine that is being worked must
(a) ensure, as far as reasonably practicable, that the mine is designed,
constructed and equipped
(i) to provide conditions for safe operation and a healthy working
environment; and
(ii) with a communication system and with electrical, mechanical and
other equipment as necessary to achieve those conditions;
(b) ensure, as far as reasonably practicable, 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;
(c) compile an annual report on health and safety at the mine including the
statistics on health and safety that must be kept in terms of this Act
and the annual medical report referred to in section 16; and
(d) if the owner is a body corporate, and the mine employs more than 50
employees, publish and distribute the report referred to in paragraph
(c), in an appropriate form, to the mine's shareholders.
(2) The owner of a mine that is not being worked, but in respect of which a
closure certificate in terms of the Minerals Act has not been issued, must
take reasonable steps to continuously prevent injuries, ill-health, loss of
life or damage of any kind from occurring at or because of the mine.
Owner must appoint manager
3. (1) The owner of every mine that is being worked must
(a) appoint one or more managers with the qualifications as may be
prescribed, and if more than one manager is appointed, ensure that the
managers' functions do not overlap;
(b) supply the managers with the means to perform their functions; and
(c) take reasonable steps to ensure that the managers perform their
functions.
(2) The appointment of a manager does not relieve the owner of any duty imposed
on owners by this Act or any other law.
(3) If no manager is appointed in terms of subsection (1), the owner must
perform the functions of a manager in terms of this Act.
Owner may entrust functions to another person
4. (1) An owner may appoint any person to perform any function entrusted to the
owner by this Act.
(2) An owner who appoints a person under subsection (1) must notify the Chief
Inspector of that appointment within seven days, and must include in that
notice-
4(2)-The Chief Inspector is appointed in
terms of s. 48; and the Chief Inspector's
functions are set out in s. 49, beginning
on the same page.
(a) the name of the person appointed;
(b) the nature of the person's functions; and
(c) the names of the manager or managers over whom that person has control.
(3) An owner who appoints a person under subsection (1) must -
(a) supply each person appointed with the means to perform their functions;
and
(b) take reasonable steps to ensure that they perform their functions.
(4) The appointment of a person under subsection (1) does not relieve the owner
of any duty imposed on owners by this Act or any other law.
Manager to maintain healthy and safe mine environment
5. (1) To the extent that it is reasonably practicable, every manager must
provide and maintain a working environment that is safe and without risk
to the health of employees.
(2) To the extent that it is reasonably practicable, every manager must -
(a) identify the relevant hazards and assess the related risks to which
persons who are not employees may be exposed; and
(b) 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.
5-Negligent failure resulting in
endangerment to a person at a mine is an
offence. See s. 86.
Manager to ensure adequate supply of health and safety equipment
6. (1) Every manager must -
(a) supply all necessary health and safety facilities and equipment to each
employee; and
(b) to the extent that is reasonably practicable, maintain those facilities
and that equipment in a serviceable and hygienic condition.
(2) Every manager 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.
(3) Every manager must take reasonable measures 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.
6-Employees have a duty to use and take
care of personal protective equipment and
other health and safety facilities. See
s. 22.
6-Interference with health and safety
facilities is an offence. See s. 84.
6-Employees must not be made to pay for
health and safety facilities. See s. 24.
Manager to staff mine with due regard to health and safety
7. (1) To the extent that it is reasonably practicable, every manager must -
7(1)-Employees have a duty to comply with
health and safety measures. See s. 22.
(a) ensure that every employee complies with the requirements of this Act;
(b) institute the measures necessary to secure, maintain and enhance health
and safety;
(c) appoint persons and provide them with the means to comply with the
requirements of this Act and with any instruction given by an inspector;
(d) consider an employee's training and capabilities in respect of health
and safety before assigning a task to that employee; and
(e) ensure that work is performed under the general supervision of a person
trained to understand the hazards associated with the work and who has
the authority to ensure that the precautionary measures laid down by the
manager are implemented.
(2) A manager may appoint any person with qualifications as may be prescribed to
perform any aspect of the functions assigned to managers by this Act.
(3) The appointment of a person under subsection (2) does not relieve the
manager of any duty imposed on managers by this Act.
Manager must establish health and safety policy
8. (1) Every manager must prepare a document that
(a) describes the organisation of work;
(b) establishes a policy concerning the protection of employees' health and
safety at work;
(c) establishes a policy concerning the protection of persons who are not
employees but who are directly affected by mining activities; and
(d) outlines the arrangements for carrying out and reviewing policies.
(2) The manager must consult with the health and safety committee on the
preparation or revision of the document and policies referred to in
subsection (1).
8(2)-The requirements for establishing a
health and safety committee are set out
in Chapter 3.
(3) The manager must -
(a) prominently and conspicuously display a copy of the document referred to
in subsection (1) for employees to read; and
(b) give each health and safety representative a copy of the document.
Codes of practice
9. (1) Any manager 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.
(2) A manager must 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 if the Chief Inspector requires
it.
(3) A code of practice required by the Chief Inspector must comply with
guidelines issued by the Chief Inspector
(4) The manager must consult with the health and safety committee on the
preparation, implementation or revision of any code of practice.
(5) The manager must deliver a copy of every code of practice prepared in terms
of subsection (2) to the Chief Inspector
(6) The Chief Inspector must review a code of practice of a mine if requested to
do so by a registered trade union with members at the mine, or a health and
safety committee or a health and safety representative at the mine.
(7) At any time, an inspector may instruct a manager to review any code of
practice within a specified period if that code of practice -
(a) does not comply with a guideline of the Chief Inspector; or
(b) is inadequate to protect the health or safety of employees.
Manager to provide health and safety training
10. (1) As far as reasonably practicable, every manager must -
10(1)-Employees must not be made to pay
for health and safety training. See s.
24.
(a) 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; and
(b) 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.
(2) As far as reasonably practicable, every manager must ensure that every
employee is properly trained -
(a) to deal with every risk to the employee's health or safety that -
(i) is associated with any work that the employee has to perform; and
(ii) has been recorded in terms of section 11;
(b) in the measures necessary to eliminate, control and minimise those risks
to health or safety;
(c) in the procedures to be followed to perform that employee's work; and
(d) in relevant emergency procedures.
(3) In respect of every employee, the provisions of subsection (2) must be
complied with -
(a) before that employee first starts work;
(b) at intervals determined by the manager after consulting the health and
safety committee;
(c) before significant changes are introduced to procedures, mining and
ventilation layouts, mining methods, plant or equipment and material;
and
(d) before significant changes are made to the nature of that employee's
occupation or work.
Manager to assess and respond to risk
11. (1) Every manager must -
(a) identify the hazards to health or safety to which employees may be
exposed while they are at work;
(b) assess the risks to health or safety to which employees may be exposed
while they are at work;
(c) record the significant hazards identified and risks assessed; and
(d) make those records available for inspection by employees.
(2) Every manager, after consulting the health and safety committee at the mine,
must determine all measures, including changing the organisation of work and
the design of safe systems of work, necessary to
(a) eliminate any recorded risk;
(b) control the risk at source;
(c) minimise the risk; and
(d) in so far as the risk remains
(i) provide for personal protective equipment; and
(ii) institute a programme to monitor the risk to which employees may be
exposed.
(3) Every manager must, as far as reasonably practicable, implement the measures
determined necessary in terms of subsection (2) in the order in which the
measures are listed in the paragraphs of that subsection.
(4) Every manager must -
(a) periodically review the hazards identified and risks assessed, including
the results of occupational hygiene measurements and medical
surveillance, to determine whether further elimination, control and
minimisation of risk is possible; and
(b) consult with the health and safety committee on the review.
(5) Every manager must
(a) conduct an investigation into every
(i) accident that must be reported in terms of this Act;
(ii) serious illness; and
(iii) health-threatening occurrence;
(b) consult the health and safety committee on investigations in terms of
this section;
(c) conduct an investigation in co-operation with the health and safety
representative responsible for the working place in which the
investigation takes place;
(d) on completion of each investigation, prepare a report that -
(i) whenever possible, identifies the causes and the underlying causes
of the accident, serious illness or health-threatening occurrence;
(ii) identifies any unsafe conditions, acts, or procedures that
contributed in any manner to the accident, serious illness or
health-threatening occurrence; and
(iii) makes recommendations to prevent a similar accident, serious
illness or health-threatening occurrence; and
(e) deliver a copy of the report referred to in paragraph (d) to the health
and safety committee. If there is no health and safety committee the
manager must deliver a copy of the report to the health and safety
representative responsible for the working place.
(6) An investigation referred to in subsection (5) may be held jointly with an
investigation conducted by an inspector in terms of section 60.
11(6)-Section 60, empowers an inspector
to investigate health and safety hazards
if instructed by the Chief Inspector or
requested by a trade union, a health and
safety representative or a health and
safety committee.
(7) If there is no health and safety committee at a mine, the consultations
required in this section must be held with
(a) the health and safety representatives; or
(b) if there is no health and safety representative at the mine, with the
employees.
Manager to conduct occupational hygiene measurements
12. (1) The manager must 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 -
(a) if required to do so by regulation or a notice in the Gazette; or
(b) if, after assessing risks in terms of section 11(1), it is necessary to
do so.
(2) Every system of occupational hygiene measurements must -
(a) be appropriate, considering the hazards to which the employees are or
may be exposed; and
(b) be designed so that it provides information that the manager can use in
determining measures to eliminate, control and minimise the health risks
and hazards to which employees are or may be exposed.
(3) The manager must keep a record of all occupational hygiene measurements in
terms of subsection (1) in a manner that can be linked as far as practicable
to each employee's record of medical surveillance.
Manager to establish system of medical surveillance
13. (1) The manager must establish and maintain a system of medical
surveillance of employees exposed to health hazards -
(a) if required to do so by regulation or a notice in the Gazette; or
(b) if, after assessing risks in terms of section 11(1), it Is necessary to
do so.
(2) Every system of medical surveillance must
(a) be appropriate, considering the health hazards to which the employees
are or may be exposed;
(b) be designed so that it provides information that the manager can use in
determining measures to
(i) eliminate, control and minimise the health risk and hazards to which
employees are or may be exposed; or
(ii) prevent, detect and treat occupational diseases, and
(c) consist of an initial medical examination and other medical examinations
at appropriate intervals.
(3) Every manager who establishes or maintains a system of medical surveillance
must -
(a) engage the part-time or full-time services of
(i) an occupational medical practitioner; and
(ii) in so far as it is necessary, other practitioners holding a
qualification in occupational medicine recognised by the Interim
National Medical and Dental Council of South Africa or the South
African Interim Nursing Council;
(b) supply the practitioners with the means to perform their functions; and
(c) keep a record of medical surveillance for each employee exposed to a
health hazard.
(4) A manager may engage the services of a medical practitioner to perform the
functions of an occupational medical practitioner in terms of this Act until
the services of an occupational medical practitioner can be obtained.
(5) An occupational medical practitioner must take every measure that is
reasonably practicable to -
(a) promote the health and safety of employees at the mine; and
(b) assist employees in matters related to occupational medicine.
(6) If any employee is declared unfit to perform work as a result of an
occupational disease, the manager must conduct an investigation In terms of
section 11(5).
13(6)-Employees have the right to
challenge a decision that they are unfit
to perform work. See s. 20.
(7) If an employee is temporarily unfit to perform work as a result of any
occupational disease, but there is a reasonable expectation that the
employee's health will improve so that the employee can return to work, the
occupational medical practitioner must record that fact and notify both the
employer and employee of it.
(8) The manager must -
(a) retain the records referred to in sections 12(3), 13(3)(c) and 14(1)
until the mine closes; and
(b) when the mine closes, deliver those records to the Medical Inspector
Record of hazardous work
14. (1) The manager 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 in terms of section 13.
(2) The manager must deliver to the Medical Inspector a copy of the relevant
part of the record kept in terms of subsection (1) -
(a) when an employee whose name appears in that record ceases to be employed
at that mine; or
(b) when required to do so by the Chief Inspector.
Record of medical surveillance
15. (1) An employee's record of medical surveillance kept in terms of section
13(3)(c) must be kept confidential and may be made available only -
(a) in accordance with the ethics of medical practice;
(b) if required by law or court order; or
(c) if the employee has consented, in writing, to the release of that
information.
15(1)-Improper disclosure of confidential
information is an offence. See s. 87.
15(1)-Breach of confidence may result in
an administrative sanction. See s. 39.
(2) Any person required to maintain an employee's record of medical surveillance
must -
(a) store it safely; and
(b) not destroy it or dispose of it, or allow it to be destroyed or disposed
of, for 40 years from the last date of the medical surveillance of that
employee.
Annual medical reports
16. (1) 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.
(2) The annual report compiled in terms of subsection (1) must be given to the
manager, who must deliver one copy of the report to each of
(a) the owner;
(b) the health and safety committees, or if there is no health and safety
committee, the health and safety representatives; and
(c) the Medical Inspector.
Exit certificates
17. (1) If an employee's employment at a mine is terminated for any reason, the
manager must arrange an exit medical examination of the employee.
(2) The examination referred to in subsection (1) must be held before, or as
soon as possible after, termination of employment.
(3) The employee must attend the examination.
(4) The occupational medical practitioner conducting the examination must -
(a) 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; and
(b) enter a copy of the exit certificate into the employee's record of
medical surveillance.
Costs of examination
18. The owner must pay the costs of all clinical examinations and medical tests
performed in terms of this Act unless this Act expressly provides otherwise.
Employees' right to information
19. (1) An employee may request, and the manager must then provide, a copy of
the record or of any part of it that -
(a) is being kept in terms of sections 12(3) and 13(3)(c); and
(b) relates to that employee.
19(1)(a)-Section 12(3), instructs the
manager to keep a record of all
occupational hygiene measurements so that
they can be linked to each employee's
record of medical surveillance.
19(1)(a)-Section 13(3)(c), instructs
every manager to keep a record of medical
surveillance for each employee exposed to
a health hazard.
(2) The occupational medical practitioner conducting an examination in terms of
section 17 must provide the employee with a copy of the exit certificate
prepared as a result of that examination.
Employee may dispute finding of unfitness to perform work
20. (1) An employee may appeal to the Medical Inspector against -
(a) a decision that the employee is unfit to perform any particular category
of work; or
(b) any finding of an occupational medical practitioner contained in an exit
certificate prepared in terms of section 17.
(2) An appeal under subsection (1) must
(a) be lodged with the Medical Inspector within 30 days of the relevant
decision or finding; and
(b) state the grounds of the appeal.
(3) When the Medical Inspector receives an appeal under subsection (1), the
Medical Inspector must choose a medical practitioner who is not employed by
the employer of the employee, and arrange for that employee to be
re-examined by that medical practitioner, at the cost of the Chief
Inspector.
(4) The medical practitioner referred to in subsection (3) must report to the
Medical Inspector, who must then consider the appeal and -
(a) confirm, set aside or vary the decision or finding of the occupational
medical practitioner; or
(b) substitute any other decision or finding for that decision or finding.
(5) Nothing in this section precludes an employee from
(a) obtaining and paying for a medical opinion from any other medical
practitioner; or
(b) pursuing any other legal remedy.
(6) For the purposes of this section, "employee" includes any applicant for
employment who has previously been employed at a mine.
Manufacturer's and supplier's duty for health and safety
21. (1) Any person who -
(a) designs, manufactures, repairs, imports or supplies any article for use
at a mine must ensure, as far as reasonably practicable -
(i) that the article is safe and without risk to health and safety when
used properly; and
(ii) that it complies with all the requirements in terms of this Act;
(b) erects or installs any article for use at a mine must ensure, as far as
reasonably practicable, 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; or
(c) designs, manufactures, erects or installs any article for use at a mine
must ensure, as far as reasonably practicable, that ergonomic principles
are considered and implemented during design, manufacture, erection or
installation.
21-Negligent failure resulting in
endangerment to a person at a mine is an
offence. See s. 86.
(2) Any person who bears a duty in terms of subsection (1) is relieved of that
duty to the extent that is reasonable in the circumstances, if -
(a) that person designs, manufactures, repairs, imports or supplies an
article for or to another person; and
(b) that other person provides a written undertaking to take specified steps
sufficient to ensure, as far as reasonably practicable, that the article
will be safe and without risk to health and safety when used properly
and that it complies with all prescribed requirements.
(3) Any person who designs or constructs a building or structure, including a
temporary structure, for use at a mine must ensure, as far as reasonably
practicable, that the design or construction is safe and without risk to
health and safety when used properly.
(4) Every person who manufactures, imports or supplies any hazardous substance
for use at a mine must -
(a) ensure, as far as reasonably practicable, that the substance is safe and
without risk to health and safety when used, handled, processed, stored
or transported at a mine in accordance with the information provided in
terms of paragraph (b);
(b) provide adequate information about
(i) the use of the substance;
(ii) the risks to health and safety associated with the substance;
(iii) any restriction or control on the use, transport and storage of
the substance, including but not limited to exposure limits;
(iv) the safety precautions to ensure that the substance is without risk
to health or safety;
(v) the procedure to be followed in the case of an accident involving
excessive exposure to the substance, or any other emergency
involving the substance; and
(vi) the disposal of used containers which the substance has been stored
and any waste involving the substance; and
(c) ensure that the information provided in terms of paragraph (b) complies
with the provisions of the Hazardous Substances Act, 1973 (Act No. 15
of 1973).
21(4)(c)-The Hazardous Substances Act
provides for the control of substances
which may cause ill health due to their
toxic or flammable nature.
Employees' duties for health and safety
22. Every employee at a mine, while at that mine, must -
22-It is an offence to fail to comply
with a duty under this Act. See s. 91.
(a) take reasonable care to protect their own health and safety;
(b) take reasonable care to protect the health and safety of other persons
who may be affected by any act or omission of that employee;
(c) 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;
22(c)-Employers have a duty to provide
personal protective equipment for
employees. See s.6.
22-It is an offence to discriminate
against an employee who has asserted any
right granted by this Act. See s. 83.
(d) 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;
(e) co-operate with any person to permit compliance with the duties and
responsibilities placed on that person in terms of this Act; and
(f) comply with prescribed health and safety measures.
Employees' right to leave dangerous working place
23. (1) The employee has the right to leave any working place whenever -
23-It is an offence to discriminate
against an employee who has asserted any
right granted by this Act. See s. 83.
23(1)-A health and safety representative
has the right to direct an employee to
leave a dangerous working place. See s.
30(1)(b).
(a) circumstances arise at that working place which, with reasonable
justification, appear to that employee to pose a serious danger to the
health or safety of that employee; or
(b) the health and safety representative responsible for that working place
directs that employee to leave that working place.
(2) Every manager, after consulting the health and safety committee at the mine,
must determine effective procedures for the general exercise of the rights
granted by subsection (1), and those procedures must provide for -
(a) notification of supervisors and health and safety representatives of
dangers which have been perceived and responded to in terms of
subsection (1);
(b) participation by representatives of management and representatives of
the employees in endeavouring to resolve any issue that may arise from
the exercise of the right referred to in subsection (1);
(c) participation, where necessary, by an inspector or technical adviser to
assist in resolving any issue that may arise from the exercise of the
right referred to in subsection (1);
(d) where appropriate, the assignment to suitable alternate work of any
employee who left, or refuses to work in, a working place contemplated
in subsection (1); and
(e) notification to any employee who has to perform work or is requested to
perform work in a working place contemplated in subsection (1) of the
fact that another employee has refused to work there and of the reason
for that refusal.
(3) If there is no health and safety committee at a mine, the consultation
required in subsection (2) must be held with -
(a) the health and safety representatives; or
(b) if there is no health and safety representative at the mine, with the
employees.
Employees not to pay for safety measures
24. No person may make any deduction from an employees wages, or permit an
employee to make any payment to any person, in respect of anything which the
manager is obliged to provide or to do in terms of this Act in the interest
of the health and safety of an employee.
CHAPTER 3
HEALTH AND SAFETY REPRESENTATIVES AND COMMITTEES
Health and safety representatives and committees
25. (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.
25(1)-The process for designating working
places is set out in s. 27.
(2) Every mine with 100 or more employees must have one or more health and
safety committees.
(3) A health and safety representative or a member of a health and safety
committee does not incur any civil liability only because of doing or
failing to do something which a health and safety representative or a member
of a health and safety committee may do or is required to do in terms of
this Act.
25(3)-It is an offence to fail to do
anything required by this Act. See s.
91.
Negotiations and consultations before appointment of representatives
26. (1) The owner of any mine where there must be a health and safety
representative in terms of section 25 must meet, within the prescribed
period, with the representative trade union of the mine to enter into
negotiations to conclude a collective agreement concerning -
(a) the designation of working places;
(b) the number of full-time health and safety representatives;
(c) the election or appointment of health and safety representatives;
(d) the terms of office of health and safety representatives and the
circumstances and the manner in which they may be removed from office;
(e) the manner in which vacancies are to be filled;
(f) the manner in which health and safety representatives must perform their
functions in terms of this Act;
(g) the procedures for the effective exercise of the right to withdraw from
serious danger in terms of section 23;
(h) circumstances and the manner in which meetings referred to in sections
30(1)(i) and 31(2) must be held;
26(1)(h)-Section 30(1)(i), allows a
health and safety representative to
attend any meeting of a health and safety
committee when appropriate. Section
31(2), requires a manager to provide
reasonable time and facilities for
employees to meet monthly with their
health and safety representative.
(i) the facilities and assistance that must be provided to a health and
safety representative in terms of section 31(3);
26(1)(i)-Section 31(3), requires a
manager to provide health and safety
representatives with the facilities,
assistance and training necessary to
enable them to function effectively.
(j) the training of health and safety representatives;
(k) a procedure that provides for the conciliation and arbitration of
disputes arising from the application or the interpretation of the
collective agreement or any provisions of this Chapter;
(l) any prescribed matter; and
(m) any other matter which the parties believe will promote health and
safety at the mine or mines concerned.
(2) Before concluding a collective agreement referred to in subsection (1) with
the representative trade union, the manager must consult on the matters
referred to in that subsection with all other registered trade unions with
members at that mine.
(3) A collective agreement referred to in subsection (1) may include two or more
owners as parties to the agreement.
(4) To the extent that an agreement concluded in terms of subsection (1) deals
with any matter regulated by this Chapter, the provisions of this Chapter do
not apply.
(5) The provisions applicable to collective agreements in terms of the Labour
Relations Act, read with the changes required by the context, apply to
agreements concluded in terms of subsection (1).
26(5)-See Part B of Chapter 3 of the
Labour Relations Act.
(6) If there is no representative trade union at the mine, the manager must
within the prescribed period -
(a) consult with the registered trade unions with members at the mine on the
matters referred to in subsection (1); and
(b) endeavour to reach agreement on the number of full-time health and
safety representatives at the mine.
(7) If there is no registered trade union with members at the mine, the manager
must, within the prescribed period
(a) consult with the employees or any elected representative of the
employees on the matters referred to in subsection (1); and
(b) endeavour to reach agreement on the number of full-time health and
safety representatives at the mine.
(8) A dispute exists if either-
(a) no collective agreement in terms of subsection (1) is concluded on the
number of full-time health and safety representatives at a mine; or
(b) no agreement is reached in terms of either subsection (6)(b) or (7)(b).
(9) When a dispute exists in terms of subsection (8), any party to the dispute
may refer it to the Commission.
(10) When a dispute is referred to the Commission under subsection (9), the
Commission must attempt to resolve it through conciliation.
(11) If a dispute remains unresolved, any party to the dispute may request that
be resolved through arbitration, in which case the Commission, taking into
account the guidelines in Schedule 1, must determine the number of full-time
health and safety representatives.
(12) Nothing in this section precludes the manager from consulting with any
employee who is not a member of a registered trade union or any
representative of those employees concerning the matters referred to in
subsection (1).
Designation of working places
27. (1) If a collective agreement is concluded after the negotiations and
consultations referred to in section 26, the manager must designate working
places at the mine in accordance with that agreement.
(2) If no collective agreement is concluded after the negotiations and
consultations referred to in section 26, the manager must designate working
places at the mine so that-
(a) every working place at the mine is designated;
(b) no health and safety representative is responsible for more than 100
employees; and
(c) no health and safety representative is responsible for more than 50
employees if the designated working place includes separate working
places.
Qualifications of representatives
28. (1) To qualify to serve as a health and safety representative referred to
in section 25(1), an employee must -
28(1)-Section 25(1), stipulates that
every mine with 20 or more employees must
have a health and safety representative
for each shift at each designated working
place.
(a) be employed in a full-time capacity in the designated working place; and
(b) be acquainted with conditions and activities at the designated working
place.
(2) To qualify to serve as a full-time health and safety representative an
employee must -
(a) be employed in full-time capacity at the mine;
(b) comply with any other qualifications which may be
(i) agreed by a health and safety committee; or
(ii) prescribed.
Election and appointment of representatives
29. (1) At a mine referred to in section 25(1), the employees in a designated
working place may elect from among themselves health and safety
representatives.
(2) The employees at the mine may elect from among themselves any full-time
health and safety representatives that may be agreed or determined in terms
of section 26.
29(2)-Section 26, deals with the election
or appointment of health and safety
representatives.
(3) The elections referred to in subsections (1) and (2) must be conducted in
the prescribed manner.
(4) The employees elected as representatives in terms of this section must be
appointed by the manager in the prescribed manner.
Rights and powers of representatives
30. (1) A health and safety representative may -
(a) represent employees on all aspects of health and safety;
(b) direct any employee to leave any working place whenever circumstances
arise at that working place which, with reasonable justification,
appears to the health and safety representative to pose a serious danger
to the health and safety of that employee;
(c) assist any employee who has left a working place in terms of section 23;
30(1)(c)-Section 23, empowers an employee
to leave any dangerous working place and
requires every manager to follow certain
procedures in this regard.
(d) identify potential hazards and risks to health or safety;
(e) make representations or recommendations to the manager or to a health
and safety committee on any matter affecting the health or safety of
employees;
(f) inspect any relevant document which must be kept in terms of this Act;
(g) request relevant information and reports from an inspector;
(h) with the approval of the manager, be assisted by or consult an adviser
or technical expert who may be either another employee or any other
person;
(i) attend any meeting of a health and safety committee -
(i) of which that representative is a member; or
(ii) which will consider a representation or recommendation made by that
representative;
(j) request -
(i) an inspector to conduct an investigation in terms of section 60; or
30(1)(j)(i)-Section 60, requires an
inspector to investigate serious health
and safety contraventions.
(ii) the Chief Inspector to conduct an inquiry in terms of section 65;
(k) participate in consultations on health and safety with -
(i) the manager or person acting on behalf of the manager; or
(ii) an inspector;
(l) participate in any health and safety inspection by
(i) the manager or person acting on behalf of a manager; or
(ii) an inspector;
30(1)(l)(ii)-Inspections are carried out
by inspectors acting under section
50(2)(e).
(m) inspect working places with regard to the health and safety of employees
at intervals agreed with the manager;
(n) participate in any internal health or safety audit;
(o) investigate complaints by any employee relating to health and safety at
work;
(p) examine the causes of accidents and other dangerous occurrences in
collaboration with the manager or person acting on behalf of the
manager;
(q) visit the site of an accident or dangerous occurrence at any reasonable
time;
(r) attend a post-accident inspection;
(s) co-operate with the manager in the conducting of investigations in terms
of section 11(5);
30(1)(s)-Section 11(5), requires every
manager working in co-operation with a
health and safety representative to
investigate health threatening
situations. Section 11(6) provides that
this investigation may be conducted
jointly with an inspector.
(t) participate in an inquiry held in terms of section 65; and
(u) perform the functions
(i) agreed by the health and safety committee; or
(ii) prescribed.
(2) The rights and powers referred to in subsection (1) apply to health and
safety representatives referred to in sect' 25(1) only in respect of the
working places for which they are responsible.
(3) If a health and safety representative requests information or reports under
subsection (1)(g), the inspector must supply the representative with the
information or reports in their possession.
30(3)-Section 25(1), stipulates that
every mine with 20 or more employees must
have a health and safety representative
for each shift at each designated working
place.
(4) A manager may not unreasonably withhold the approval required in terms of
subsection (1)(h).
(5) A health and safety representative intending to exercise the right to
working places under subsection must
(a) give the manager reasonable notice of the inspection; and
(b) permit the manager to participate in the inspection.
(6) Health and safety representatives are entitled to perform their functions
and to receive training during ordinary working hours.
(7) Any time reasonably spent by a health and safety representative for a
purpose referred to in subsection (6) must be considered for all purposes to
be time spent carrying out the employment duties of that representative.
Duty to compensate and assist representatives
31. (1) The manager 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.
(2) The manager must provide reasonable time and facilities for employees to
meet monthly with their health and safety representatives in order to
consider
(a) health and safety their working places; and
(b) reports by the representatives on the performance of their functions.
(3) The manager must provide health and safety representatives with
(a) the facilities and assistance reasonably necessary to perform their
functions;
(b) training that is reasonably required to enable them to perform their
functions; and
(c) time off from work, without loss of remuneration, to attend any training
course that is agreed or prescribed.
(4) Unless otherwise agreed, the assistance referred to in subsection (3)(a)
does not include any costs associated with advisers or independent experts
contemplated in either section 30(1)(h) or section 36(1)(g).
(5) On the completion of a term of office as a full-time health and safety
representative, the health and safety representative is entitled to -
(a) employment in the same position held immediately before being appointed
as a full-time health and safety representative; or
(b) employment in a position that is at least as favourable as the position
held immediately before being appointed a full-time health and safety
representative.
Duty to inform representatives
32. Every manager must notify the health and safety representatives concerned
and, if there is a health and safety committee, the employee co-chairperson
of that committee -
(a) in good time, of inspections, investigations or inquiries of which an
inspector has notified the manager; and
(b) as soon as practicable, of any accident, serious illness or
health-threatening occurrence, or other dangerous event.
Negotiation and consultation on establishment of committees
33. (1) The owner of any mine in respect of which a health and safety committee
must be established in terms of section 25(2), must meet, within the
prescribed period, with the representative trade union at the mine to enter
into negotiations to conclude a collective agreement concerning -
33(1)-Section 25(2), provides that every
mine with 100 or more employees must have
one or more health and safety committees.
(a) the number of health and safety committees to be established at the mine
and the working places for which they will be responsible;
(b) the number of management and employee representatives on the committees;
(c) the election and appointment of members of health and safety committees;
(d) the terms of office of members of the health and safety committee and
the circumstances and the manner in which the members may be removed
from office;
(e) the manner in which vacancies are to be filled;
(f) the circumstances and the manner in which meetings may be held;
(g) the facilities and assistance which must be provided to health and
safety committees in terms of section 37(a); and
(h) a procedure that provides for the conciliation and arbitration of
disputes arising from the application or interpretation of the
collective agreement in terms of any provision of this Chapter.
(2) Before concluding a collective agreement referred to in subsection (1) with
the representative trade union, the manager must consult on the matters
referred to in that subsection with all other registered trade unions with
members at that mine.
(3) A collective agreement referred to in subsection (1) may include two or more
owners as parties to the agreement.
(4) To the extent that an agreement concluded in terms of subsection (1) deals
with any matter regulated by this Chapter, the provisions of this Chapter do
not apply.
(5) The provisions applicable to collective agreements in terms of the Labour
Relations Act, read with the changes required by the context, apply to
agreements concluded in terms of subsection (1).
Section 33(5)-See Part B of Chapter 3 of
the Labour Relations Act.
(6) If there is no representative trade union at the mine, the manager must
consult, within the prescribed period, with the registered trade unions with
members at the mine on the matters referred to in subsection (1).
(7) If there is no registered trade union with members at the mine, the manager
must, within the prescribed period, consult with the employees or any
elected representatives of the employees on the matters referred to in
subsection (1).
(8) The negotiations and consultations referred to in this section may be held
at the same time as those referred to in section 26.
Establishment of health and safety committees
34. (1) If a collective agreement is concluded in terms of section 33(1),
health and safety committees must be established in terms of that agreement.
(2) If no collective agreement is concluded in terms of section 33(1), the
manager must establish health and safety committees after the consultation
referred to in section 33(6) or (7) and in accordance with this section and
the regulations.
(3) A health and safety committee must consist of -
(a) at least four employee representatives; and
(b) a number of management representatives equal to or less than the number
of employee representatives.
(4) The health and safety representatives must appoint the employee
representatives on the health and safety committee. The employee
representatives must be -
(a) broadly representative of the working places at the mine; and
(b) employees at that mine.
(5) No more than two of the employee representatives may be appointed from
full-time employees who are not health and safety representatives, unless
all of the health and safety representatives have been appointed to the
committee and there are still employee committee positions to be filled.
(6) The manager must appoint the management representatives on the health and
safety committee. The persons appointed must include persons who have
authority to develop and implement health and safety policies at the mine.
Committee procedures
35. (1) The employee and management representatives on a health and safety
committee must each elect a chairperson from their number. Unless otherwise
agreed by the committee, the two chairpersons must alternate as the
presiding chairperson of the committee.
(2) Unless otherwise agreed by a health and safety committee, the committee must
meet at least once a month.
(3) A health and safety committee may determine its own rules and procedures.
(4) Persons other than employee or management representatives may be invited to
attend meetings of the health and safety committee and to participate in its
proceedings.
Rights and powers of health and safety committee
36. (1) A health and safety committee may -
(a) represent employees on all aspects of health and safety;
(b) participate in consultations on any health and safety matter listed in
the Schedule referred to in section 97(2);
36(1)(b)-Section 97(2) empowers the
Minister after consulting the Council to
publish a notice in the Gazette that adds
a further Schedule containing matters in
respect of which health and safety
committees may consult.
(c) request the Chief Inspector to review any code of practice;
36(1)(c)-The rules governing codes of
practice are set out in s. 9.
(d) request relevant information from any person who is required, in terms
of this Act, to provide that information to the committee;
(e) agree on additional qualifications or functions of health and safety
representatives;
(f) request -
(i) an inspector to conduct an investigation in terms of section 60; or
36(1)(f)(i)-Section 60, requires an
inspector to investigate serious health
and safety contraventions.
(ii) the Chief Inspector to conduct an inquiry in terms of section 65;
36(1)(f)(ii)-Section 65, requires the
Chief Inspector to direct an inspector to
conduct an inquiry into the death of any
person and into any health and safety
contraventions.
(g) with the approval of the manager, be assisted by or consult an adviser
or a technical expert who may be either another employee or any other
person;
(h) take reasonable time to prepare for each meeting of the committee; and
(i) take reasonable time to report on meetings of the committee to the
health and safety representatives at the mine.
(2) No manager may unreasonably withhold the approval required in terms of
subsection (1)(g).
(3) Members of health and safety committees are entitled to perform their
functions and to receive training during ordinary working hours.
(4) Any time reasonably spent by a member of a health and safety committee for a
purpose referred to in subsection (3) must be considered for all purposes to
be time spent carrying out the employment duties of that member.
Duty to support committee
37. The manager must -
(a) provide the health and safety committee with the facilities and
assistance reasonably necessary to perform its functions;
(b) supply the health and safety committee with the annual report referred
to in section 2(1)(c) and any information necessary to perform its
functions.
37(b)-Section 2(1)(c), requires the owner
to compile an annual report on health and
safety at the mine.
Disclosure of information
38. (1) Whenever a manager, inspector or a person who conducts an inquiry in
information or reports to a health and safety representative or to the
health and safety committee, that manager, inspector or person -
(a) 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; and
(b) is not required to supply any information
(i) that is legally privileged;
(ii) that the manager, inspector or person could not disclose without
contravening a prohibition imposed upon the owner or an employer by
any law or court order; or
(iii) that is confidential and, if disclosed, may cause substantial harm
to an employee or the owner or an employer.
(2) No employee may unreasonably withhold the consent required in terms of
subsection (1)(a).
38-Section 65, requires the Chief
Inspector to direct an inspector to
conduct an inquiry into the death of any
person and into any health and safety
contraventions.
38-Improper disclosure of confidential
information is an offence. See s. 87.
Disputes concerning disclosure of information
39. (1) If there is a dispute about what information is required to be
disclosed in terms of the provisions of this Chapter, any party to the
dispute may refer the dispute in writing to the Commission.
(2) The party who refers a dispute to the Commission must satisfy it that a copy
of the referral has been served on all the other parties to the dispute.
(3) The Commission must attempt to resolve the dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may request that
the dispute be resolved through arbitration.
(5) A commissioner appointed to arbitrate a dispute must first decide whether or
not the information is required to be supplied in terms of the provisions of
this Chapter.
(6) If the commissioner decides that the information is required and if it is
information contemplated in section 38(a) or (b)(iii), the commissioner must
balance the harm that disclosure is likely to cause to an employee or owner
or employer other than the owner, against the harm that the failure to
disclose the information is likely to cause to the ability of health and
safety representatives or members of the health and safety committee to
perform their functions effectively.
(7) If the commissioner decides that the balance of harm favours the disclosure
of the information, the commissioner may order the disclosure of the
information on terms designed to limit the harm likely to be caused to the
employee or the owner or the employer.
(8) When making an order under subsection (7), the commissioner must take into
account any previous breach of confidentiality in respect of information
disclosed in terms of the provisions of this Chapter, and may refuse to
order the disclosure of the information or any other confidential
information which might otherwise be disclosed for a period specified in the
arbitration award.
(9) In any dispute about an alleged breach of confidentiality, the commissioner
may order that the right to disclosure of information in terms of the
provisions of this Chapter be withdrawn for a period specified in the
arbitration award.
Disputes concerning this Chapter
40. (1) Any party to a dispute about the interpretation or application of any
provision of this Chapter, other than a dispute contemplated in section
26(8) or 39, may refer the dispute in writing to the Commission.
40(1)-Section 26(8), provides that a
dispute exists if no collective agreement
is concluded or reached on the number of
full-time health and safety
representatives.
(2) The party who refers a dispute to the Commission must satisfy it that a copy
of the referral has been served on all the other parties to the dispute.
(3) The Commission must attempt to resolve the dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may request that
the dispute be resolved through arbitration as soon as possible.
(5) The provisions relating to arbitration in the Labour Relations Act, read
with changes required by the context, apply to an arbitration referred to in
sections 26(11) and 39 and subsection (4).
40(5)-See sections 133-146 of the Labour
Relations Act.
CHAPTER 4
TRIPARTITE INSTITUTIONS
Establishment of tripartite institutions
41. (1) A Mine Health and Safety Council is hereby established to advise the
Minister on health and safety at mines.
(2) The following permanent committees of the Council are hereby established -
(a) the Mining Regulation Advisory Committee;
(b) the Mining Occupational Health Advisory Committee; and
(c) the Safety in Mines Research Advisory Committee.
(3) A Mining Qualifications Authority is hereby established to advise the
Minister on -
(a) the creation of a framework for qualifications and learning achievements
in the mining industry to improve health and safety standards through
proper training and education;
(b) standards and competency setting, assessment, examinations, quality
assurance and accreditation in the mining industry; and
(c) linking the qualifications framework for the mining industry to the
National Qualifications Framework referred to in the South African
Qualifications Authority Act, 1995 (Act No. 58 of 1995).
41(3)(c)-The South African Qualifications
Authority Act provides for a National
Qualifications Framework which aims to
enhance the quality of education and
training.
Mine Health and Safety Council
42. (1) The Council consists of -
(a) five members representing owners in the mining industry;
(b) five members representing employees in the mining industry;
(c) four members representing departments of the State;
and
(d) the Chief Inspector, who must chair the Council.
(2) The Minister must appoint the members of the Council and the permanent
committees of the Council in accordance with the regulations.
(3) The Council, and the permanent committees of the Council, must govern
themselves in accordance with the constitution contemplated in section
97(3).
42(3)-Section 97(3), empowers the
Minister, after consulting the Council
and by notice in the Gazette, to add a
Schedule containing the constitution of
the Council and its permanent committees.
(4) The Council may delegate any of its powers or assign any of its duties by or
under this Act to any of its committees.
(5) A delegation or an assignment under subsection (4) -
(a) must be in writing;
(b) may be subject to such conditions and restrictions as the Council may
determine; and
(c) does not prevent the exercise of that power or the performance of that
duty by the Council.
(6) Members of the Council, or of a committee of the Council, are each entitled
to have their views reflected in any report of the Council or committee, as
the case may be.
(7) Each year, the Minister, with the agreement of the Minister of Finance, must
provide sufficient funds for the administration of the Council, and
committees of the Council, from public funds.
Council's duties
43. The Council must -
(a) advise the Minister on health and safety at mines including, but not
limited to, any regulations on mine rehabilitation in so far as they
concern health and safety;
(b) co-ordinate the activities of its committees, receive reports from the
committees and liaise with the Mining Qualifications Authority on
matters relating to health and safety;
(c) liaise with any other statutory bodies concerned with matters relating
to health and safety;
(d) promote a culture of health and safety in the mining industry;
(e) arrange and co-ordinate a tripartite summit to review the state of
health and safety at mines at least once every two years; and
(f) perform every duty imposed upon the Council in terms of this Act.
Duties of permanent committees
44. (1) The Mining Regulation Advisory Committee must advise the Council on -
(a) proposed changes to legislation to improve health or safety at mines;
(b) proposals for changes to legislation made by any other committee of the
Council;
(c) guidelines for codes of practice; and
(d) standards approved by the South African Bureau of Standards.
(2) The Mining Occupational Health Advisory Committee must advise the Council
on-
(a) policy relating to health;
(b) standards, systems and procedures for assessing, avoiding, eliminating,
controlling and minimising health risks;
(c) regulations on any aspect of health;
(d) health research; and
(e) collecting, processing and distributing health data in the mining
industry.
(3) The Safety in Mines Research Advisory Committee must advise the Council on -
(a) criteria for determining the funding of health and safety research;
(b) the need for research into health or safety at mines;
(c) research projects, including priorities of projects, cost, assessment,
ratification and execution;
(d) communication and publication of research results; and
(e) the management of the cost of the overall programme.
(4) Each year the Safety in Mines Research Advisory Committee must prepare an
overall programme for relevant health and safety research for the Council to
consider. The programme must include -
(a) a review of health and safety performance in the different mining
sectors;
(b) an evaluation of the research proposals made by the Council or a
committee of the Council;
(c) the focus of health and safety research and priorities for the different
sectors of mining; and
(d) an estimate of the cost of the programme.
(5) The Council must deliver a copy of the programme referred to in subsection
(4) to the Minister of Finance for consideration.
Mining Qualifications Authority
45. (1) The Mining Qualifications Authority consists of -
(a) five members representing owners in the mining industry;
(b) five members representing employees in the mining industry;
(c) four members representing departments of State; and
(d) the Chief Inspector, who must chair the meetings.
(2) The Minister must appoint the members of the Mining Qualifications Authority
in accordance with the constitution contemplated in section 97(4).
(3) The Mining Qualifications Authority must govern itself in accordance with
the constitution contemplated in section 97(4).
45(3)-Section 97(4), empowers the
Minister, after consulting the Council
and by notice in the Gazette, to add a
Schedule containing the constitution of
the Mining Qualifications Authority.
Mining Qualifications Authority's functions
46. (1) The Mining Qualifications Authority must -
(a) seek registration in terms of the South African Qualifications Act, 1995
(Act No. 58 of 1995), as a body responsible for establishing education
and training standards or qualifications as contemplated in section
5(1)(a)(ii)(aa) of that Act;
46(1)(a)-Section 5(1)(a)(ii)(aa) of the
South African Qualifications Authority
Act provides for the registration of
bodies responsible for establishing
educational training standards.
(b) seek accreditation in terms of the South African Qualifications Act,
1995 (Act No. 58 of 1995), as a body responsible for monitoring and
auditing achievements as contemplated in section 5(1)(a)(ii)(bb) of that
Act;
46(1)(b)-Section 5(1)(a)(ii)(bb) provides
for the accreditation of bodies
responsible for monitoring achievements
in terms of standards or qualifications.
(c) propose education and training standards and qualifications to bodies
registered with that Authority and responsible for establishing
education and training standards;
(d) set educational and training standards or qualifications in the mining
industry; and
(e) monitor and audit achievement in terms of those standards and
qualifications.
(2) The Mining Qualifications Authority may
(a) appoint permanent and ad hoc committees, and subcommittees, for any
period and on any conditions;
(b) administer and control its financial affairs; and
(c) do anything necessary to achieve its objectives.
(3) The Mining Qualifications Authority may delegate any of its powers or assign
any of its duties by or under this Act to any of its committees.
(4) A delegation or an assignment under subsection (3) -
(a) must be in writing;
(b) may be subject to such conditions and restrictions as the Authority may
determine; and
(c) does not prevent the exercise of that power or the performance of that
duty by the Authority.
(5) In performing its functions, the Mining Qualifications Authority must comply
with the policies and criteria formulated by the South African
Qualifications Authority in terms of section 5(1)(a)(ii) of the South
African Qualifications Authority Act, 1995 (Act No. 58 of 1995).
CHAPTER 5
INSPECTORATE OF MINE HEALTH AND SAFETY
Inspectorate established
47. (1) A Mine Health and Safety Inspectorate is hereby established.
(2) The Minister, by notice in the Gazette, may establish regions of the country
for the purpose of administering this Act through regional offices of the
Mine Health and Safety Inspectorate.
Chief Inspector
48. (1) The Minister must appoint an officer, with suitable mining
qualifications and appropriate experience in health and safety at mines, to
be Chief Inspector
(2) Subject to the control and direction of the Minister, the Chief Inspector
must perform the functions entrusted to the Chief Inspector by this Act.
(3) The Chief Inspector may perform any of the functions of an inspector
Chief Inspector's functions
49. (1) Without limiting any statutory duty of any other person in terms of
this Act, the Chief Inspector must -
(a) ensure that the provisions of this Act are complied with and enforced
and that every duty imposed upon the Chief Inspector, the Medical
Inspector or inspectors in terms of any other law is performed;
(b) appoint an officer with the prescribed qualifications and experience as
the Medical Inspector;
(c) appoint officers with the prescribed qualifications and experience as
inspectors;
(d) administer the Mine Health and Safety Inspectorate;
(e) determine and implement policies to promote the health and safety of
persons at mines and any person affected by mining activities;
(f) consult with the Council before issuing guidelines on the form, content
and distribution of codes of practice referred to in section 9;
49(1)(f)-Section 9, requires any manager
to prepare a code of practice.
(g) collect, process and distribute information relating to health and
safety;
(h) advise the Minister on health or safety matters at mines;
(i) each year, after consulting the Council and with the approval of the
Minister, publish and distribute a plan of action for the activities of
the Mine Health and Safety Inspectorate;
(j) complete a report on health and safety at mines and the activities of
the Mine Health and Safety Inspectorate for each year and submit the
report to the Minister within three months of the end of the year
concerned; and
(k) perform any duties relating to health or safety at mines that the
Minister directs or prescribes.
(2) The Chief Inspector must furnish a prescribed certificate to the Medical
Inspector and to each inspector
(3) Despite the provisions of the Minerals Act, the Chief Inspector -
(a) has the power to monitor and control those environmental aspects at
mines that affect, or may affect, the health or safety of employees or
other persons; and
(b) must consult with the officer appointed in terms of section 4 of the
Minerals Act concerning the exercise of those powers.
49(3)(b)-Section 4 of the Minerals Act
deals with the appointment and functions
of Directors: Mineral Development under
the Department of Mineral and Energy
Affairs.
(4) To further the objectives of this Act the Chief Inspector may -
(a) enter into agreements with other persons; and
(b) authorise a competent independent person to perform any or all the
functions of an inspector.
(5) The Chief Inspector must furnish a prescribed certificate to each person
authorised under subsection (4)(b).
Inspectors' powers
50. (1) An inspector may for the purposes of monitoring or enforcing compliance
with this Act -
(a) enter any mine at any time without warrant or notice;
(b) enter any other place after obtaining the necessary warrant in terms of
subsection (7); and
(c) bring into and use at any mine, or at any place referred to in paragraph
(b), vehicles, equipment and material as necessary to perform any
function in terms of this Act.
(2) While the inspector is at any mine or place referred to in subsection (1),
the inspector may, for the purposes of monitoring or enforcing compliance
with this Act -
50(2)-It is an offence to interfere with
or hinder an inspector. See s. 88.
(a) question any person on any matter to which this Act relates;
(b) require any person who has control over, or custody of, any document,
including but not limited to, a plan, book or record to produce that
document to the inspector immediately or at any other time and place
that the inspector requires;
(c) require from any person referred to in paragraph (b) an explanation of
any entry or non-entry in any document over which that person has
custody or control;
(d) examine any document produced in terms of paragraph (b), and make a copy
of it or take an extract from it;
(e) inspect -
(i) any article, substance or machinery;
(ii) any work performed; or
(iii) any condition;
(f) inspect arrangements made by the manager for medical surveillance of
employees;
(g) seize any document, article, substance or machinery or any part or
sample of it; and
(h) perform any other prescribed function.
(3) An inspector may instruct any owner, manager, employee or any other person
who performs an activity regulated by this Act or any former owner, manager
or employee or person who formerly performed an activity regulated by this
Act, to appear before the inspector to be questioned on any matter to which
this Act relates.
50(3)-It is an offence to fail to comply
with an inspector's instruction. See s.
91.
(4) Before an inspector may seize any document under subsection (2)(g), the
owner or manager of the mine may copy it.
(5) An inspector may remove any article, substance or machinery or any part or
sample of it from any mine or place referred to in subsection (1) for
examination or analysis.
(6) When an inspector seizes or removes any item under this section, the
inspector must issue a receipt for that item to the owner or manager of the
mine or place involved.
(7) A magistrate may issue a warrant contemplated in subsection (1)(b) only on
written application by an inspector setting out under oath or affirmation
the need to enter a place other than a mine to monitor or enforce compliance
with this Act.
(8) For the purpose of this section, "mine" does not include any home, or
residential quarters, situated at the mine.
Inspector may be accompanied
51. When performing any function under this Act, an inspector may be
accompanied by an interpreter or any other person reasonably required to
assist the inspector.
Duty to assist inspector and answer questions
52. (1) When an inspector enters any mine or place referred to in section 50
(1), the owner or manager and each employee performing any work there must
provide any facility that the inspector reasonably requires.
52(1)-It is an offence to fail to comply
with an inspector's instruction. See s.
91.
(2) Persons questioned by an inspector under section 50(2)(a) or (c) or (3) must
answer each question to the best of their ability, but no person is required
to answer any question if the answer may be self-incriminating.
Duty to produce documents required by inspector
53. Any person who holds or should hold a permit, licence, permission,
certificate, authorisation or any other document issued in accordance with
this Act or the Minerals Act, must produce it at the request of the Chief
Inspector or any inspector.
53-It is an offence to obtain a required
certificate of competency by fraudulent
means. See s. 89.
Inspector's power to deal with dangerous conditions
54. (1) If an inspector believes 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 -
54(1)-It is an offence to fail to comply
with an inspector's instruction. See s.
91.
(a) operations at the mine or a part of the mine be halted;
(b) 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;
(c) the manager must take the steps set out in the instruction, within the
specified period, to rectify the occurrence, practice or condition; or
(d) all affected persons, other than those who are required to assist in
taking steps referred to in paragraph (c), be moved to safety.
(2) An instruction under subsection (1) must be given to the manager or a person
designated by the manager or, in their absence, the most senior employee
available at the mine to whom the instruction can be issued.
(3) An inspector may issue an instruction under subsection (1) either orally or
in writing. If it is issued orally, the inspector must confirm it in
writing and give it to the person concerned at the earliest opportunity.
(4) If an instruction issued under subsection (1) is not issued to the manager,
the inspector must give a copy of the instruction to the manager at the
earliest opportunity.
(5) Any instruction issued under subsection (1)(a) must either be confirmed,
varied or set aside by the Chief Inspector as soon as practicable.
(6) Any instruction issued under subsection (1)(a) is effective from the time
fixed by the inspector and remains in force until set aside by the Chief
Inspector or until the inspector's instructions have been complied with.
(7) Before giving any instruction under subsection (1)(a) the inspector must
allow the manager or the manager's representative and the representatives of
employees a reasonable opportunity to make representations.
(8) For the purposes of subsection (7), the representatives of the employees are
-
(a) representatives designated in accordance with a collective agreement
concluded in terms of section 26;
(b) if paragraph (a) does not apply, full-time health and safety
representatives responsible for the mine or part of the mine which will
be affected by the instruction;
(c) if paragraphs (a) and (b) do not apply, the health and safety
representatives responsible for the working places which will be
affected by the instruction; or
(d) if paragraphs (a), (b) and (c) do not apply, the employees who will be
affected by the instruction or an employee or employees nominated or
elected by them.
(9) If an inspector has reason to believe that the delay caused by allowing
representations could endanger the health or safety of any person, the
inspector is not required to allow representations before issuing an
instruction under subsection (1)(a).
(10) Before giving any instruction under subsection (1)(b) to (d), the inspector
must allow such opportunity to make representations as may be prescribed.
Inspectors' power to order compliance
55. (1) If an inspector believes that an owner or manager has failed to comply
with the provisions of this Act, the inspector may instruct that owner or
manager in writing to take any steps that the inspector -
(a) considers necessary to comply with the provision; and
(b) specifies in the instruction.
55(1) - It is an offence to fail to
comply with an inspector's instructions.
See s. 91.
(2) When issuing an instruction under subsection (1), an inspector must specify
the period within which the specified steps must be taken. A period
specified in an instruction may be extended by an inspector at any time by
giving notice in writing to the person concerned.
Instructions to be posted at mine
56. The manager of a mine must -
(a) promptly supply a copy of any instruction of an inspector to -
(i) the health and safety representative representing the employees
affected by the instruction; and
(ii) the health and safety committee responsible for those employees;
and
(b) promptly publicise the instruction by -
(i) prominently and conspicuously displaying copies of the instruction
to the employees whose interests may be affected; and
(ii) causing its contents to be communicated orally to those employees.
Right to appeal inspectors' decisions
57. (1) Any person who is the subject of a decision of an inspector, or at
whose instance a decision of an inspector was taken, may appeal against that
decision to the Chief Inspector.
(2) An appeal under subsection (1) must
(a) be lodged with the Chief Inspector within 30 days of the decision; and
(b) set out the grounds of appeal.
(3) After considering the grounds of the appeal and the inspector's reasons for
the decision, the Chief Inspector must as soon as practicable -
(a) confirm, set aside or vary the decision; or
(b) substitute any other decision for the decision of the inspector.
Right to appeal Chief Inspector's decision
58. (1) Any person adversely affected by a decision of the Chief Inspector,
either in terms of section 57(3) or in the exercise of any power under this
Act, may appeal against the decision to the Labour Court.
(2) An appeal under subsection (1), must be lodged with the registrar of the
Labour Court in accordance with the rules of the Labour Court, within 60
days of the date that the Chief Inspector's decision was given.
(3) The Labour Court must consider the appeal and confirm, set aside or vary the
decision.
Appeal does not suspend decision
59. (1) An appeal against a decision under either section 57 or 58 does not
suspend the decision.
(2) Despite subsection (1), the Labour Court may suspend the operation of the
decision, pending the determination of the matter, if there are reasonable
grounds for doing so.
Initiating investigations
60. (1) The Chief Inspector must instruct an inspector to investigate any
accident or occurrence at a mine that results in serious injury, serious
illness or death of any person.
(2) At any time an inspector may investigate
(a) any occurrence, practice or condition concerning health or safety of
persons at one or more mines; or
(b) any actual or suspected contravention of, or failure to comply with, any
provision of this Act.
(3) If there is cause for concern on health or safety grounds, an inspector must
investigate any matter referred to in subsection (2), if -
(a) instructed to do so by the Chief Inspector; or
(b) requested to do so by -
(i) a registered trade union with members at the mine or mines;
(ii) a health and safety representative or health and safety committee
at the mine; or
(iii) if there is no health and safety representative, an employee at
the mine.
Chief Inspector may designate assistant in investigation
61. At any time before or during an investigation, the Chief Inspector may
designate one or more persons to assist the inspector holding the
investigation.
Duty to answer questions during investigation
62. Persons questioned during an investigation must answer every question to
the best of their ability, but no person is required to answer any question
if the answer may be self-incriminating.
Enhancing effectiveness of investigation
63. (1) For the purposes of enhancing the effectiveness of an investigation in
terms of section 60 the Chief Inspector, in consultation with the
appropriate Attorney-General, may issue a certificate that no prosecution
may be instituted in respect of any offence arising from the event being
investigated. If a certificate is issued, no disciplinary action arising
from the event investigated may thereafter be taken against any person.
(2) The Chief Inspector must communicate in writing the protection afforded
under subsection (1) to all persons questioned during the investigation.
(3) Persons questioned during the investigation who are afforded protection
under this section must answer every question to the best of their ability
and may not refuse to answer any question on the grounds that the answer may
be self-incriminating.
Reports on investigations
64. (1) After completing an investigation, an inspector must prepare a written
report of the findings, recommendations and any remedial steps.
(2) The inspector -
(a) must submit a copy of the report referred to in subsection (1) to the
Chief Inspector;
(b) must supply a copy of the report to the manager and to the health and
safety representative, health and safety committee, registered trade
union or employee that requested the investigation; and
(c) may instruct the manager of the mine concerned to prominently and
conspicuously display a copy of the report or portion of it for
employees to read.
Initiating inquiries
65. (1) Unless the provisions of section 63 have been invoked, the Chief
Inspector must direct an inspector to conduct an inquiry into any accident
or occurrence at a mine that results in the death of any person.
(2) Unless the provisions of section 63 have been invoked, the Chief Inspector
may direct an inspector to conduct an inquiry into -
(a) any accident or occurrence at a mine that results in the serious injury
or serious illness of any person;
(b) any occurrence, practice or condition concerning health or safety of
persons at one or more mines; or
(c) any actual or suspected contravention of, or failure to comply with, any
provision of this Act.
(3) If there is cause for concern on health or safety grounds and if the
provisions of section 63 have not been invoked, the Chief Inspector may
direct an inspector to conduct an inquiry into any matter referred to in
subsection (2) if requested in writing to do so by -
(a) a registered trade union with members at the mine or mines;
(b) a health and safety representative or health and safety committee at the
mine; or
(c) if there is no health and safety representative at the mine, an
employee.
(4) This section does not limit any other law regulating the holding of an
inquest or other inquiry into the death of a person.
Investigation may be converted into inquiry
66. (1) At any time during an investigation, the Chief Inspector may convert it
into an inquiry.
(2) The provisions of sections 68 to 71 relating to attendance and examination
of witnesses at inquiries apply equally to a converted investigation.
(3) Any person instructed or summoned to give evidence at an inquiry that was
converted from an investigation is not entitled to refuse to give evidence
only on the grounds that a statement had previously been given, or documents
previously been adduced, during the investigation.
(4) This section does not preclude or limit holding an inquiry after an
investigation has been completed.
Chief Inspector may designate assistant in inquiry
67. At any time before or during an inquiry the Chief Inspector may designate
one or more persons to assist in the inquiry or to preside at the inquiry.
Inquiry to be public
68. (1) An inquiry must be held in public.
(2) Despite subsection (1) the person presiding at an inquiry may of that
person's own accord or at the request of a witness exclude members of the
public or specific persons or categories of persons from attending the
proceedings or part of the proceedings when the proper conduct of the
inquiry requires.
(3) The person presiding at an inquiry may make any order necessary to ensure
that employees at the mine and members of the public have access to the
premises in which the inquiry is held.
Right to participate in inquiry
69. The persons listed in this section may participate in an inquiry and,
either personally or through a representative, may put questions to
witnesses and inspect any book, plan, record or other document or item
presented at the inquiry. The persons entitled to participate are -
(a) any person who has a material interest in the inquiry;
(b) a representative of any registered trade union with members at the mine
in respect of which the inquiry is being held; and
(c) a health and safety representative responsible for the working place in
respect of which the inquiry is being held.
Powers of person presiding at inquiry
70. The person presiding at an inquiry may -
(a) instruct or summon any person to appear at any specified time and place;
(b) question any person under oath or affirmation;
(c) instruct any person -
(i) to produce any book, plan, record or other document or item
necessary for the purposes of the inquiry; or
(ii) to perform any other act in relation to this Act necessary for the
purpose of the inquiry.
Duty of persons summoned or instructed
71. (1) Subject to subsection (2), every person giving evidence at an inquiry
must answer any relevant question.
(2) The law regarding a witness's privilege in a court of law applies equally to
any person being questioned at an inquiry.
(3) The person presiding at an inquiry may direct that any evidence given by a
person during an inquiry may not be used in any criminal or disciplinary
proceedings against that person except in criminal proceedings on a charge
of perjury against that person.
71-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. See s. 90.
(4) When a directive has been issued under subsection (3), the person involved
is not entitled to refuse to answer any relevant question only on the
grounds that the answer could expose that person to a criminal charge.
(5) A person instructed in terms of section 70(c) must comply with that
instruction unless the person has sufficient cause for not doing so.
Inquiry records and reports
72. (1) A person presiding at an inquiry must
(a) record the evidence given at the inquiry, including any evidence given
with the assistance of an interpreter;
(b) at the conclusion of the inquiry, prepare a written report of the
findings, recommendations and any remedial steps;
(c) submit a copy of the report and the record of the inquiry to the Chief
Inspector,
(d) supply a copy of the report and the record of the inquiry to the manager
and to any health and safety representative, health and safety committee
or registered trade union that requested the inquiry; and
(e) on request, supply a copy of the report and the record of the inquiry to
any person who has a material interest in the inquiry.
(2) An inspector may instruct the manager of the mine concerned to prominently
and conspicuously display a copy of the report or any portion of it for
employees to read.
(3) The Chief Inspector may submit a copy of the report to the appropriate
Attorney-General.
Chief Inspector may order further inquiry
73. Upon considering the evidence and the report referred to in section 72, the
Chief Inspector may require that the matter be inquired into further.
Inquiry and inquest may be conducted jointly
74. (1) An inquiry in terms of this Act into the death of a person may be held
jointly with an inquest in terms of the Inquests Act, 1959 (Act No. 58 of
1959).
74(1) - The Inquests Act provides for the
holding of inquests in cases of deaths
apparently occurring from unnatural
causes.
(2) The judicial officer contemplated in the Inquests Act, 1959 (Act No. 58 of
1959), must preside at a joint inquiry referred to in subsection (1) and the
person instructed to hold the inquiry in terms of this Act must be deemed to
be an assessor appointed in terms of the Inquests Act, 1959.
(3) The provisions of the Inquests Act, 1959 (Act No. 58 of 1959), apply to a
joint inquiry.
(4) The assessor referred to in subsection (2) must -
(a) prepare a report contemplated in section 72(1)(b); and
(b) submit the report and the record of the joint inquiry to the Chief
Inspector
CHAPTER 6
MINISTER'S POWERS
Minister may prohibit or restrict work
75. (1) For any reason relating to health or safety, the Minister, by notice in
the Gazette, may prohibit or restrict any work or any exposure of a person
to a substance or an environmental condition, if -
(a) the Minister has consulted the Council on the prohibition or
restriction; and
(b) unless the Minister believes that the public interest requires the
notice to be published immediately, the Minister has -
(i) published a draft of the proposed notice at least three months
previously; and
(ii) at that time invited interested persons to submit comments and
representations concerning the proposed notice within a specified
period.
(2) The Minister may attach any conditions to a prohibition or restriction by
specifying them in the published notice.
(3) The Minister, after consulting the Council, may amend or withdraw a notice
under subsection (1) at any time.
Minister may declare health hazards
76. (1) The Minister, by notice in the Gazette, may declare that an
environmental condition or a substance present at a mine is a health hazard
to employees who are or may be exposed to that condition or substance, if -
(a) the Minister has consulted the Council on the issuing of the
declaration; and
(b) unless the Minister believes that the public interest requires the
notice to be published immediately, the Minister has -
(i) published a draft of the proposed notice at least three months
previously; and
(ii) at that time invited interested persons to submit comments and
representations concerning the proposed notice within a specified
period.
(2) In connection with any health hazard, the Minister, after consulting the
Council, by notice in the Gazette, may -
(a) impose conditions on the performance of work by employees exposed to the
health hazard;
(b) stipulate the standards of fitness for an employee to perform work
involving exposure to the health hazard;
(c) require managers to take measures to eliminate, control and minimise
health risks associated with the health hazard;
(d) require managers to conduct specified occupational hygiene measurements;
(e) require managers to conduct specified medical surveillance in respect of
employees exposed to the health hazard; and
(f) provide for any other matter that the Minister considers necessary to
protect employees exposed to the health hazard.
Application of Minister's notice
77. A notice under either section 75 or 76 may differentiate between mines,
types of mines, parts of a mine, occupations and types of work.
Exemption from Minister's notice
78. (1) A notice under either section 75 or 76 may exempt a particular person
or group of persons from compliance with that notice if the Minister is
satisfied that any of the following conditions exists -
(a) in the circumstances the exemption is desirable;
(b) the performance of the work by that person or group of persons is
temporary; or
(c) the risk to which that person or group of persons is exposed is
negligible.
(2) The Minister, after consulting the Council, may cancel an exemption granted
under subsection (1) at any time.
Exemption from all or part of this Act
79. (1) The manager of a mine may request an exemption from the Minister, and
if satisfied that the manager has consulted appropriately with the affected
employees or their representatives, the Minister may exempt the manager from
any or all the provisions of this Act or from a notice or instruction issued
under this Act. An exemption may be -
(a) general or particular;
(b) for any period; and
(c) on any conditions that provide the same overall protection which would
result from the full application of this Act.
(2) When an exemption is granted under subsection (1), the Minister must issue a
certificate of exemption to the manager, specifying the scope, period and
conditions of the exemption.
(3) The Minister may amend or withdraw a certificate of exemption at any time.
(4) The manager must prominently and conspicuously display any exemption
granted, or deemed to have been granted, under this section to the employees
to read.
Minister may apply other laws to mine
80. (1) After consulting the Council, the Minister, by notice in the Gazette,
may declare that any provision of the Occupational Health and Safety Act,
1993 (Act No. 181 of 1993), or any regulation made under that Act, or the
provisions of any other Act or regulations, must apply to a mine.
80(1)-The Occupational Health and Safety
Act provides for the health and safety of
persons at work and for the establishment
of an advisory council for occupational
health and safety.
(2) A declaration in terms of subsection (1) may differentiate between mines,
types of mines, parts of a mine, occupations and types of work.
Minister to table annual report
81. (1) Within 30 days of receiving the annual report of the Chief Inspector,
the Minister must table it in Parliament.
(2) If Parliament is not in session at the end of the period referred to in
subsection (1), the Minister must table the report within 14 days of the
beginning of the next session of Parliament.
CHAPTER 7
LEGAL PROCEEDINGS AND OFFENCES
Jurisdiction of Labour Court
82. (1) The Labour Court has exclusive Jurisdiction to determine any dispute
about the interpretation or application of any provision of this Act except
where this Act provides otherwise.
(2) The Labour Court has no jurisdiction in respect of offences in terms of this
Act.
No discrimination against employees who exercise rights
83. (1) No person may discriminate against any employee for -
(a) exercising a right in terms of this Act or in terms of a collective
agreement contemplated in this Act;
(b) doing anything that the employee is entitled to do in terms of this Act
or in terms of a collective agreement contemplated in this Act;
(c) refusing to do anything that the employee is entitled to refuse to do in
terms of this Act or in terms of a collective agreement contemplated in
this Act;
(d) refusing to do anything that the employee is prohibited from doing in
terms of this Act or in terms of a collective agreement contemplated in
this Act; and
(e) standing for election, or performing any function, as a health and
safety representative or a member of a health and safety committee.
(2) For the purposes of this section -
(a) "discriminate" means to dismiss an employee or to engage in any other
conduct which has the effect of prejudicing or disadvantaging the
employee, or which prejudices or disadvantages the employee relative to
other employees; and
(b) "employee" includes any applicant for employment who has previously been
employed at a mine.
Safety equipment not to be interfered with
84. Unless specifically authorised by the manager, no person
(a) other than an inspector acting in terms of section 50, may remove
personal protective equipment from a mine, or cause that equipment to be
removed;
(b) other than an inspector acting in terms of section 50, may remove
anything that is provided in the interest of health or safety, or cause
that equipment to be removed; or
(c) 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.
84(1)-Section 50, outlines the
inspector's powers which includes
entering any mining area and questioning
persons and examining documents and
machinery.
Juvenile employment underground prohibited
85. (1) No person may cause or permit an employee under the age of 18 years to
work underground at a mine.
(2) No employee under the age of 18 years may work underground at a mine.
(3) Despite subsections (1) and (2), an employee under the age of 18 years but
over the age of 16 years may work underground as part of vocational
education or training.
Negligent act or omission
86. (1) Any person who, by a negligent act or by a negligent omission,
endangers the health or safety of a person at a mine or causes serious
injury to a person at a mine, commits an offence.
(2) An owner or a manager must be convicted of an offence in terms of subsection
(1) if the State proves that -
(a) the health or safety of a person at the mine was endangered or that a
person was seriously injured at the mine;
(b) the working environment at the mine was not safe and was not without
risk to the health of employees; and
(c) the danger or injury was due, either wholly or partly, to the condition
of the working environment at the mine.
(3) Despite subsection (2), the owner or manager may not be so convicted if it
is proved that the owner or manager did what was reasonably practicable to
provide and maintain a working environment at the mine that was safe and
without risk to the health of employees.
Breach of confidence
87. (1) Any person who discloses any information that they acquired in the
performance of a function in terms of this Act and that relates to the
financial and business affairs of an owner or employer, commits an offence.
(2) Subsection (1) does not apply if the information -
(a) was disclosed to enable a person to perform a function in terms of this
Act;
(b) must be disclosed in terms of this Act, any other law or an order of
court; or
(c) was disclosed to a health and safety representative or health and safety
committee in terms of Chapter 3.
Hindering administration of this Act
88. Any person who hinders, opposes, obstructs or unduly influences any person
who is performing a function in terms of this Act commits an offence.
Falsifying documents
89. 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.
Failure to attend when summoned
90. A person commits an offence who, having been instructed or summoned to
attend an inquiry -
(a) without sufficient cause fails -
(i) to appear at the time and place specified; or
(ii) to remain in attendance until excused by the person presiding at
the inquiry;
(b) attends as required, but without sufficient cause -
(i) fails to comply with an instruction in terms of section 70(c)(i); or
90(b)(i)-Section 70(c)(i), empowers a
person presiding at an inquiry to
instruct anyone to produce a document for
the purposes of the inquiry.
(ii) refuses to be sworn or to make an affirmation; or
(c) attends as required and having been sworn or having made an affirmation
-
(i) without sufficient cause fails to answer any question fully and to
the best of that person I s ability; or
(ii) gives evidence, knowing or believing it to be false.
Failure to comply with this Act
91. (1) Any person commits an offence who contravenes, or fails to comply with
-
(a) a provision of this Act;
(b) a regulation made under this Act; or
(c) any condition, suspension, notice, order, instruction, prohibition,
authorisation, permission, consent, exemption, certificate or document
determined, given, issued, promulgated or granted by or under this Act
by the Minister, Chief Inspector, inspector or any other person
authorised under this Act.
(2) Despite subsection (1)(a), a contravention of the provisions of Chapter 3 or
section 83 does not constitute an offence.
91 (2) - Chapter 3 deals with health and
safety representatives and committees.
(3) A person appointed under section 4(1) to perform any function entrusted to
an owner by this Act commits an offence if that person fails to exercise
reasonable care in performing that function.
Penalties
92. (1) Any person convicted of an offence in terms of section 87, may be
sentenced to a fine or to imprisonment to be determined by the court.
(2) Any person convicted of an offence in terms of section 90(a) or (b)(i), may
be sentenced to the penalty applicable to a similar offence in a
magistrate's court.
(3) Any person convicted of an offence in terms of section 90(c)(ii), may be
sentenced to any penalty that may be imposed in law for perjury.
(4) Any person convicted of an offence in terms of this Act for which no penalty
is otherwise expressly determined, may be sentenced to a fine or to
imprisonment for a period not exceeding six months.
(5) Any person convicted of an offence in terms of any section mentioned in
Column I of the Table below, may be sentenced to a fine or to imprisonment
for a period not exceeding the period mentioned in Column 2 of that Table
opposite the number of that section.
TABLE-MAXIMUM TERMS OF IMPRISONMENT
Column 1 Column 2
Section under which convicted Maximum term of imprisonment
---------------------------------------------------------------
2(1)(a) or (b) 2 years
2(2) 2 years
3(1) 2 years
4(2) 1 year
4(3) 2 years
5 2 years
6 2 years
7 2 years
8 1 year
9(2) 2 years
9(3), (4) or (5) 1 year
10 2 years
11(1) 2 years
11(2) 2 years
11(3) 1 year
11(4)(a) 2 years
11(4)(b) 1 year
11(5)(a) 2 years
11(5)(b) 1 year
11(5)(d) 2 years
11(8) 1 year
12 2 years
13(1), (2), (3), (4) or (6) 2 years
14 2 years
15 2 years
16(1) 1 year
17 2 years
21(1), (3) or (4) 2 years
22 2 years
24 1 year
32(2) or (3) 1 year
52 2 years
53 2 years
54(1) 2 years
55(1) 2 years
62 2 years
66(4) 2 years
70 2 years
71 2 years
84 2 years
85 1 year
86 3 years
88 2 years
89 1 year
90(b)(ii) or (c)(i) 2 years
Magistrate's court has jurisdiction to impose penalties
93. Despite anything to the contrary contained in any other law, a magistrate's
court has jurisdiction to impose any penalty provided for in this Act.
Serving of documents
94. Unless otherwise provided in this Act, a notice, order or other document
which, in terms of this Act, must be served on or delivered to a person,
will have been properly served or delivered if it has been either -
(a) served on or delivered to that person; or
(b) sent by registered post to that person's last known address; or
(c) published in the Gazette.
Proof of facts
95. In any legal proceedings in terms of this Act -
(a) if it is alleged that a person at a mine is or was an employee, that
person is presumed to be an employee at that mine, unless the contrary
is proved;
(b) if it is proved that a false statement, entry or information appears in
or on a book, plan, record or other document, the person who kept that
document is presumed to have made, entered, recorded or stored that
statement, entry, record or information, unless the contrary is proved;
and
(c) subject to the provisions of sections 63(1), 63(3) and 71(2), any
statement, entry or information in or on any book, plan, record or other
document is admissible in evidence as an admission of the facts in or on
it by the person who made, entered, recorded or stored it unless it is
proved that that person did not make, enter, record or store it within
the scope of their functions.
95(c)-Section 63(1), provides that every
answer given in an investigation is
privileged.
95(c)-Section 63(3), provides that a
report that an inspector ha directed to
be privileged may not be used in any
civil, criminal or disciplinary
proceedings, inquests or inquiries.
95(c)-Section 71(2), provides that a
witness's privilege in a court of law
applies equally to any person being
questioned at an inquiry.
CHAPTER 8
GENERAL PROVISIONS
Delegation and exercise of power
96. (1) The Minister may delegate any power conferred upon the Minister by or
under this Act, except the power to make regulations, to the Chief
Inspector.
(2) The Chief Inspector may delegate any power or assign the performance of any
duty conferred or imposed upon the Chief Inspector by or under this Act to -
(a) any inspector; or
(b) any other person with appropriate knowledge and experience who is under
the control of the Chief Inspector.
(3) A delegation or assignment under subsection (1) or (2) must be in writing,
and may be subject to any conditions or restrictions determined by the
Minister or Chief Inspector, as the case may be.
(4) A delegation under subsection (1) or (2) does not prevent the exercise of
that power by the Minister or Chief Inspector, as the case may be.
Minister's power to add and change Schedules
97. (1) The Minister, after consulting the Council, by notice in the Gazette
may add to, change or replace any Schedule to this Act other than Schedules
2, 3 and, subject to subsection (5), Schedule 4.
(2) The Minister, after consulting the Council, by notice in the Gazette may add
to this Act a further Schedule containing matters in respect of which health
and safety committees may consult.
(3) The Minister, after consulting the Council, by notice in the Gazette may add
to this Act a further Schedule containing the constitution of the Council
and its permanent committees.
(4) The Minister, after consulting the Council, by notice in the Gazette may add
to this Act a further Schedule containing the constitution of the Mining
Qualifications Authority.
(5) The Minister, after consulting the Council, by notice in the Gazette may add
to Schedule 4 further items containing transitional provisions necessary for
the implementation of this Act.
(6) The Minister, after consulting the Council and in consultation with the
Minister of Health, by notice in the Gazette may add to this Act a further
Schedule to suspend or vary the application of the Occupational Diseases in
Mines and Works Act, 1973 (Act No. 78 of 1973), except in relation to the
determination or payment of compensation.
(7) The Minister may add to, change or replace any page header or sidenote by
notice in the Government Gazette.
Regulations
98. (1) The Minister, after consulting the Council, by notice in the Gazette
may make regulations regarding -
(a) health and safety of persons at mines;
(b) health and safety standards, codes of practice and the provision of
protective clothing, equipment and facilities in connection with health
and safety at mines;
(c) the performance of work by employees exposed to a health hazard and the
measures to eliminate, control and minimise health risks;
(d) health and safety management systems at mines;
(e) orderly operations at mines;
(f) the powers, duties, functions and responsibilities of employees at mines
and of the owners, employers and managers;
(g) the issuing of permits for the use of machinery, equipment and material
at mines and the accreditation of persons to test machinery, equipment
and material for these purposes;
(h) the conditions under which machinery, equipment or material may be
erected or used at mines;
(i) the elimination, control and minimisation of health and safety hazards;
(j) requirements for the safe use, handling, processing, storage, transport
and disposal of hazardous substances used in the mining process and
waste produced at the mine;
(k) the transport, handling, storage and use of explosives and the mixing of
substances to make explosives at a mine;
(l) the protection of equipment, structures, water sources and the surface
of land;
(m) the conditions in which equipment, structures, water sources or the
surface of land may be used, and the prohibition on, or restriction of,
the erection of equipment and structures and the use of water sources or
the surface of land in the vicinity of the working places at a mine;
(n) the making safe of undermined ground and of dangerous excavations,
tailings, waste dumps, ash dumps and structures of whatever nature made
in the course of prospecting or mining operations or which are connected
with those operations;
(o) the monitoring and control as contemplated in section 49(3)(a) of those
environmental aspects at mines which affect, or may affect, the health
and safety of employees or other persons;
98(1)(o)-Section 49(3)(a), empowers the
Chief Inspector to monitor and control
those environmental aspects at mines that
affect the health and safety of employees
or other persons.
(p) standards of housing and nutrition of employees who are accommodated at
the mine;
(q) initial standards of fitness to perform work involving exposure to a
health hazard, standards of fitness to continue performing such work and
the conditions under which employees may be withdrawn either temporarily
or permanently from such work;
(r) standards of occupational hygiene measurement techniques, the frequency
and manner in which measurements must be made, the manner of record
keeping and reporting of occupational hygiene measurements made at
mines;
(s) standards of medical tests or biological monitoring used in medical
surveillance, the persons who may carry out those tests and that
monitoring, the interpretation of results of medical surveillance, the
frequency for carrying out periodic medical surveillance, the keeping of
records of medical surveillance and the reporting of confidential
extracts from records of medical surveillance;
(t) the manner of reporting prescribed accidents and health matters at
mines, the keeping of records and statistics in relation to accidents
and health matters and the provision of emergency medical treatment
after an accident or in connection with a health matter;
(u) the manner of reporting prescribed occupational diseases at mines, the
keeping of records in relation to occupational diseases and the control
and provision of medical services in connection with occupational
diseases;
(v) the form of an exit certificate and the content of medical examinations
associated with an exit certificate;
(w) the form of any application to be made in terms of this Act and of any
consent or document required to be submitted with an application, and
the information or details which must accompany an application;
(x) the form of any register, record, notice, sketch plan or information to
be kept, given, published or submitted in terms of or for the purposes
of this Act, and the manner in which a register, record, notice, sketch
plan or information is to be kept, given, published or submitted;
(y) the drawing up and keeping of mine plans and the submission of
statistical and other reports in relation to minerals, mines and
machinery;
(z) negotiations and consultations in terms of sections 26 and 33 and the
time periods within which the negotiations and consultations must be
completed;
(zA) qualifications for appointment as a health and safety representative,
the election and terms of office of representatives, the circumstances
in which a representative must vacate office, the circumstances in which
a representative may be removed from office, the manner in which
vacancies may be filled, the functions of representatives, the manner in
which the functions of representatives must be conducted, the facilities
and assistance that must be provided to representatives and the training
of representatives;
(zB) the establishment of health and safety committees, the election and
appointment of members to a committee, the terms of office of members of
a committee, the circumstances in which a member must vacate office, the
circumstances in which a member may be removed from office, the manner
in which vacancies may be filled, meetings of the committees, the rules
and procedures of the committees, the facilities and assistance that
must be provided to committees and the training of the members of
committees;
(zC) the appointment of members to the Council in accordance with the
provisions of Schedule 2, the functions of the Council, the payment of
allowances to members, the funding of the Council and its permanent
committees, and any other matter the regulation of which, in the opinion
of the Minister, may be necessary for the proper functioning of the
Council and its committees.
(zD) the appointment of members of the Mining Qualifications Authority In
accordance with Schedule 2;
(zE) qualifications for inspectors;
(zF) the establishment of one or more accounts with a view to funding
research and surveys regarding, and for the promotion of health and
safety at mines, and the control of those accounts by the Chief
Inspector;
(zG) the manner in which the presence of witnesses at inquiries must be
obtained in terms of section 71, and the procedures to be followed at
inquiries;
98(1)(zG)-Section 71, deals with the duty
of every person summoned at an inquiry to
answer any question.
(zH) procedures to be followed in respect of appeals to the Chief Inspector
or Medical Inspector under this Act;
(zI) fees payable in relation to applications, appeals and documents;
(zJ) the payment of levies by mines on the basis of health and safety risk
for research and surveys regarding, and for the promotion of, health and
safety at mines;
(zK) the imposition of monetary and other obligations in connection with
safe-making referred to in paragraph (n) on persons who -
(i) are or were responsible for the undermining of any ground or the
making of any excavations, tailings, waste dumps, ash dumps or
structures or for the dangerous condition of any of them; or
(ii) will benefit from that safe-making;
(zL) the assumption by the State of responsibility for safe-making referred
to in paragraph (n) in particular cases;
(zM) the use of plain language in documents that are required to be
published, displayed or distributed in terms of this Act; and
(zN) any other matter the regulation of which may be necessary or desirable
in order to achieve the objects of this Act.
(2) No regulation may be made relating to -
(a) State revenue or expenditure except with the concurrence of the Minister
of Finance;
(b) any health matter, except after consultation with the Minister for
Health.
(3) The Minister, after consultation with the Mining Qualifications Authority,
by notice in the Gazette, may make regulations to provide for -
(a) the qualifications for employment in any occupation;
(b) conditions for acceptance as a candidate for examinations;
(c) the issuing of certificates of competency in respect of any occupation;
(d) the funding of the Mining Qualifications Authority including the manner
by which such funds may be raised;
(e) procedures for assessing competency;
(f) the accreditation of assessors;
(g) the establishment of examination bodies;
(h) the appointment of examiners and moderators;
(i) the monitoring and administration of examinations;
(j) the setting of examination fees;
(k) the accreditation of providers of training;
(l) the establishment of quality assurance procedures;
(m) the issue of qualifications;
(n) the registering of qualifications; and
(o) any other matter, the regulation of which may be necessary or desirable
in order to promote the activities of the Mining Qualifications
Authority.
(4) Regulations made in terms of subsection (3) must be in accordance with the
National Qualifications Framework approved in terms of the South African
Qualifications Authority Act, 1995 (Act No. 58 of 1995).
(5) The Minister may incorporate all or part of any health and safety standard,
without restating the text of it, in a regulation by referring to the
number, title and year of issue of that health and safety standard or, to
any other particulars by which that health and safety standard is
sufficiently identified.
(6) The Minister must consult the Council before incorporating a health and
safety standard in a regulation.
(7) The Minister, after consulting the Council, by notice in the Gazette, may
make regulations imposing any function of an owner or manager on any
employer other than the owner.
(8) For the purposes of this Act, any health and safety standard referred to in
subsection (5) incorporated in a regulation is deemed to be a regulation, in
so far as it is not repugnant to any regulation made under subsection (1).
(9) Whenever a health and safety standard which has been incorporated in a
regulation is subsequently amended or substituted by the competent
authority, the regulation referred to in subsection (5) incorporating that
health and safety standard is deemed to refer to that health and safety,
standard as so amended or substituted, unless a contrary intention is stated
in the notice.
(10) The Chief Inspector must keep a register of particulars of -
(a) every amendment or substitution of a health and safety standard
incorporated in the regulations;
(b) the publication of any amendment or substitutions;
(c) every publication in which a health and safety standard that has been
incorporated in the regulations under subsection (5) was published; and
(d) the place in the Republic where each of those standards and publications
obtainable or otherwise available for inspection.
(11) The Chief Inspector must allow any person to inspect the register kept in
terms of subsection (9) and to make an extract from it.
(12) The provisions of section 31 of the Standards Act, 1993 (Act No. 29 of
1993), do not apply to any incorporation of a health and safety standard or
to any amendment or substitution of a health and safety standard under this
section.
Amendment of laws
99. Each of the laws referred to in Schedule 3 is hereby amended to the extent
specified in that Schedule.
Transitional arrangements
100. (1) The amendment of laws referred to in Schedule 3 does no affect any
transitional arrangement made in Schedule 4.
(2) The transitional arrangements in Schedule 4 must be read and applied as
substantive provisions of this Act.
Interpretation
101. (1) The provisions of this Act bind the State except in so far as criminal
liability is concerned.
(2) Subject to sections 26 and 33, no agreement may affect any -
101 (2)-Section 26, deals with the
election and appointment of health and
safety representatives. Section 33,
deals with the election and appointment
of members of health and safety
committees.
(a) provision of this Act;
(b) condition, notice, order, instruction, prohibition, authorisation,
permission, consent, exemption, certificate or document determined,
given, issued, promulgated or granted by or under this Act by the
Minister, Chief Inspector, inspector or any other person authorised
under this Act; or
(c) any condition contained in any exemption.
(3) Subsection (2) applies to any agreement whether entered into before or after
the commencement of this Act or before or after the issuing of the documents
referred to in subsection (2).
(4) Any notice, order or any other document issued in good faith in terms of
this Act, is valid according to its terms, despite any want of form or lack
of power on the part of any person to issue or authenticate it, provided the
necessary power is subsequently conferred upon that person.
Definitions
102. In this Act, unless the context otherwise indicates
"biological monitoring" means a planned programme of periodic collection and
analysis of body fluid, tissues, excreta or exhaled air in order to detect
and quantify the exposure to or absorption of any substance or organism;
"Chief Inspector" means the officer appointed in terms of section 48(1) and
includes any officer acting in that capacity;
"Commission" means the Commission for Conciliation, Mediation and
Arbitration established in terms of section 112 of the Labour Relations Act;
"Council" means the Mine Health and Safety Council established by section
41(1);
"Department" means the Department of Mineral and Energy Affairs;
"employee" means any person who is employed or working at a mine;
"employer" means any person who employs employees;
"engine" means any appliance or combination of appliances by which power,
other than human or animal power, can be applied to do mechanical work;
"hazard" means a source of or exposure to danger;
"health" refers to occupational health at mines;
"health and safety committee" means a health and safety committee
established in terms of section 34;
"health and safety equipment" means an article or part of an article that is
manufactured, provided or installed in the interest of the health or safety
of any person;
"health and safety representative" means an employee elected and appointed
in terms of section 29;
"health and safety standard" means any standard, irrespective of whether or
not it has the force of law, which, if applied for the purposes of this Act,
will in the opinion of the Minister promote the attainment of an object of
this Act;
"health hazard" means any physical, chemical or biological hazard to health,
including anything declared to be a health hazard by the Minister;
"health-threatening occurrence" means any occurrence that has or may have
the potential to cause serious illness or damage to health;
"healthy" means free from illness or injury attributable to occupational
causes;
"inspector" means an officer appointed in terms of section 49(1)(c) and a
Medical Inspector;
"Labour Court" means the Labour Court established by section 151 of the
Labour Relations Act;
"Labour Relations Act" means the Labour Relations Act, 1995 (Act No. 66 of
1995);
"machinery" means any engine, boiler or appliance or any combination of
them, which is situated at a mine and used or intended to be used -
(a) for generating, developing, receiving, storing, converting,
transforming, transmitting or distributing any form of power or energy;
or
(b) for conveying persons, material or minerals;
"manager" means any competent person appointed in terms of section 3(1)(a);
"Medical Inspector" means a Medical Inspector appointed in terms of section
49(1)(b);
"medical practitioner" means a medical practitioner as defined in the
Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act
No. 56 of 1974);
"medical surveillance" means a planned programme of periodic examination,
which may include clinical examinations, biological monitoring or medical
tests, of employees by an occupational health practitioner or by an
occupational medical practitioner contemplated in section 13;
"mine" means, when -
(a) used as a noun -
(i) any borehole, or excavation, in any tailings or in the earth,
including the portion of the earth that is under the sea or other
water, made for the purpose of searching for or winning a mineral,
whether it is being worked or not; or
(ii) any other place where a mineral deposit is being exploited,
including the mining area and all buildings, structures, machinery,
mine dumps, access roads or objects situated on or in that area that
are used or intended to be used in connection with searching,
winning, exploiting or processing of a mineral, or for health and
safety purposes. But, if two or more excavations, boreholes or
places are being worked in conjunction with one another, they are
deemed to comprise one mine, unless the Chief Inspector notifies
their owner in writing that those excavations, boreholes or places
comprise two or more mines; or
(iii) a works; and
(b) used as a verb, the making of any excavation or borehole referred to in
paragraph (a)(i), or the exploitation of any mineral deposit in any
other manner, for the purpose of winning a mineral, including
prospecting in connection with the winning of a mineral;
"mineral" means any substance, excluding water, but including sand, stone,
rock, gravel and clay, as well as soil, other than top soil -
(a) whether that substance is in solid, liquid or gaseous form;
(b) that occurs naturally in or on the earth, in or under water or in
tailings; and
(c) that has been formed by or subjected to a geological process;
"Minerals Act" means the Minerals Act, 1991 (Act No. 50 of 1991);
"mining area" means the mining area as defined in section I of the Minerals
Act;
"Minister" means the Minister of Mineral and Energy Affairs;
"occupational disease" means any health disorder including an occupational
disease as contemplated by the Occupational Diseases in Mines and Works Act,
1973 (Act No. 78 of 1973), or by the Compensation for Occupational Injuries
and Diseases Act, 1993 (Act No. 130 of 1993);
"occupational health" includes occupational hygiene and occupational
medicine;
"occupational health practitioner" means an occupational medical
practitioner or a person who holds a qualification in occupational health
recognised by the South African Interim Nursing Council;
"occupational hygiene" means the anticipation, recognition, evaluation and
control of conditions at the mine, that may cause illness or adverse health
effects to persons;
"occupational medicine" means the prevention, diagnosis and treatment of
illness, injury and adverse health effects associated with a particular type
of work-,
"occupational medical practitioner" means a medical practitioner who holds a
qualification in occupational medicine, or an equivalent qualification,
recognised by the Interim National Medical and Dental Council of South
Africa or a medical practitioner engaged in accordance with section 13(4);
"officer" means a woman or man who has been appointed permanently despite
the fact that such appointment may be on probation to a post contemplated in
section 8(1)(a) of the Public Service Act, 1994 (Proclamation No. 103 of
1994), and includes a woman or man contemplated in section 8(1)(b) or
8(3)(c) of that Act;
"organism" means any biological entity which is capable of causing illness
to persons;
"owner" in relation to a mine, means
(a) the holder of a prospecting permit or mining authorisation issued under
the Minerals Act; or
(b) if a prospecting permit or mining authorisation does not exist, the last
person who worked the mine or that person's successor in title;
"prescribed" means prescribed by regulation;
"processing" means the recovering, extracting, concentrating, refining,
calcining, classifying, crushing, milling, screening, washing, reduction,
smelting or gasification of any mineral, and
"process" has a similar meaning;
"prospecting" means intentionally searching for any mineral by means that
disturb any tailings or the surface of the earth, including the portion of
the earth that is under the sea or under other water, by means of excavation
or drilling, but does not include mine as a verb;
"reasonably practicable" means practicable having regard to -
(a) the severity and scope of the hazard or risk concerned;
(b) the state of knowledge reasonably available concerning that hazard or
risk and of any means of removing or mitigating that hazard or risk;
(c) the availability and suitability of means to remove or mitigate that
hazard or risk; and
(d) the costs and the benefits of removing or mitigating that hazard or
risk;
"record" includes information contained in or on a computer printout, tape
or disc or any other computer storage medium;
"record of medical surveillance" means a record kept in terms of section
13(3);
"registered trade union" means a trade union registered in terms of the
Labour Relations Act;
"regulation" means a regulation made under section 98 or in force in terms
of item 4 of Schedule 4;
"representative trade union" means a registered trade union, or two or more
registered trade unions acting jointly, that have as members the majority of
employees at a mine;
"risk" means the likelihood that occupational injury or harm to persons will
occur;
"safety" means safety at mines;
"serious injury" means any injury which is reportable under this Act;
"serious illness" means any illness resulting from occupational exposure
that affects the health of a person to the extent that it incapacitates the
affected person from resuming that person's normal or similar occupation for
four days or more;
"standard" means any provision occurring -
(a) in a specification, compulsory specification, code of practice or
standard method as defined in section I of the Standards Act, 1993 (Act
No. 29 of 1993); or
(b) in any specification, code or any other directive having standardisation
as its aim and issued by an institution or organisation inside or
outside the Republic which, whether generally or with respect to any
particular article or matter and whether internationally or in any
particular country or territory, seeks to promote standardisation;
"substance" includes any solid, liquid, vapour, gas or aerosol, alone or in
any combination;
"this Act" includes -
(a) the section numbers, but not the page headers, headings or sidenotes;
(b) the Schedules;
(c) the regulations; and
(d) any condition to which any permit, licence, permission, consent,
exemption, approval, notice, authorisation, environmental management
programme or directive issued, given, granted or approved or deemed to
be issued, given, granted or approved in terms of this Act;
"working place" means any place at a mine where employees travel or work;
"works" means any place, excluding a mine, where any person carries out -
(a) the transmitting and distributing to another consumer of any form of
power from a mine, by the owner thereof, to the terminal point of bulk
supply or where the supply is not in bulk, to the power supply meter on
any such other consumer's premises; or
(b) training at any central rescue station; or
(c) the making, repairing, re-opening or closing of any subterranean tunnel;
or
(d) any operations necessary or in connection with any of the operations
listed in this paragraph.
Occupational Health and Safety Act, 1993, not applicable
103. The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is not
applicable to any matter in respect of which any provision of this Act is
applicable.
Civil liability of State
104. The State does not incur any civil liability only because an officer took
an action or failed to take an action that the officer may take or is
required to take under or in terms of this Act, and in taking or failing to
take that action the officer acted without negligence and in good faith.
Act binds State
105. The provisions of this Act bind the State except in so far as any criminal
liability is concerned.
Short title and commencement
106. (1) This Act is called the Mine Health and Safety Act, 1996.
(2) This Act comes into operation on a date fixed by the President by
proclamation in the Government Gazette.
SCHEDULE 1
GUIDELINES FOR DETERMINING THE NUMBER OF FULL-TIME HEALTH AND
SAFETY REPRESENTATIVES
1. Introduction
(1) This Schedule contains guidelines for determining the number of full-time
health and safety representatives.
(2) This Act places the highest value on agreement. The parties referred to in
section 26 must refer to this Schedule, using its guidelines in a manner
that best suits the particular mine.
(3) If agreement is not reached, the Commissioner appointed by the Commission
must refer to this Schedule, using its guidelines in a manner that best
suits the particular mine.
2. Minimum threshold
(1) There should be a full-time health and safety representative in every mine
that requires the use of a full-time health and safety representative,
taking into account -
(a) the volume, size and physical location of the mine;
(b) the health and safety record of the mine;
(c) the number of designated working places; and
(d) the objects of this Act.
(2) The guidelines as to the size of the mine that should have a full-time
health and safety representative is a mine with 500 employees.
3. Number of full-time health and safety representatives
(1) The formula for determining the number of full-time health and safety
representatives should take into account -
(a) the nature, size and physical location of the mine;
(b) the health and safety record of the mine;
(c) the number of designated working places;
(d) the number of health and safety representatives;
(e) the number of shafts and the number of employees at the shaft; and
(f) the objects of this Act.
SCHEDULE 2
NOMINATION AND APPOINTMENT OF MEMBERS TO TRIPARTITE INSTITUTIONS
The Minister must make the regulations referred to in sections 42(2) and 45(2)
in a manner that ensures that -
(a) members appointed to represent employees are either -
(i) all nominated by agreement between registered trade unions
representing at least 75% of employees belonging to such trade
unions in the mining industry; or
(ii) failing agreement in terms of subparagraph (i)
(aa) at least half are persons nominated by a registered trade union
or unions representing the majority of employees belonging to
such trade unions in the mining industry; and
(bb) the rest are persons nominated by registered trade unions and
appointed in accordance with the significance of the trade
unions concerned; and
(b) members appointed to represent owners are either -
(i) all nominated by agreement between employers' organisations whose
members employ at least 75% of employees in the mining industry; or
(ii) failing agreement in terms of subparagraph (i) -
(aa) at least half are persons nominated by an employers'
organisation or organisations that employ the majority of the
employees in the mining industry; and
(bb) the rest are persons nominated by employers' organisations and
appointed in accordance with the significance of the
organisations concerned.
GENERAL EXPLANATORY NOTE:
Words between double square brackets indicate omissions from existing
enactments.
Words between double pointed brackets indicate insertions in existing
enactments.
SCHEDULE 3
AMENDMENT OF LAWS
A: MINERALS ACT, 1991
Amendment of section 1 of Act 50 of 1991, as amended by section 1 of Act 103 of
1993
1. Section 1 of the Minerals Act, 1991 (in this Schedule referred to as the
principal Act), is hereby amended -
(a) by the deletion of the definitions of "certificated", " engine",
"investigating officer", "machinery", "manager", "mine safety
committee", " peace officer", "regional director", "regional mining
engineer", "serious bodily harm" and "works";
(b) by the insertion before the definition of "Department" of the following
definition:
" 'Chief Inspector' means the Chief Inspector appointed in terms of
section 48 of the Mine Health and Safety Act, 1996;"; and
(c) by the insertion before the definition of "elevator" of the following
definition:
" 'Director: Mineral Development' means any officer appointed in terms
of section 4;".
Amendment of section 2 of Act 50 of 1991, as substituted by section 2 of Act 103
of 1993
2. Section 2 of the principal Act is hereby amended by the deletion of
subsection (2).
Amendment of section 8 of Act 50 of 1991
3. Section 8 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection:
"(1) No holder of any prospecting permit shall remove any mineral found
by [[<<>><<>>".
Amendment of section 9 of Act 50 of 1991
4. Section 9 of the principal Act is hereby amended -
(a) by the substitution for paragraph (a) of subsection (3) of the following
paragraph:
"(a) with the manner in which and scale on which the applicant intends
to mine the mineral concerned optimally [[";
(b) by the substitution for paragraph (c) of subsection (3) of the following
paragraph:
"(c) that such applicant has the ability and can make the necessary
provision to mine such mineral optimally [[";
(c) by the substitution for paragraph (c) of subsection (5) of the following
paragraph:
"(c) particulars about the manner in which and scale on which the
applicant intends to mine such mineral under such mining
authorization optimally [[<<>> (d) by the deletion of the word "and" at the end of paragraph (d) of
subsection (5) and by the substitution for paragraph (e) of that
subsection of the following paragraph:
"(e) particulars about the applicant's ability to make the necessary
provision to mine such mineral optimally [[<<>>";
(e) by the addition to subsection (5) of the following paragraph:
"<<>>"; and
(f) by the addition of the following subsections:
"<<
(8) Subsection (7) shall apply mutatis mutandis in relation to the issuing of a
prospecting permit in terms of section 6 or a permission in terms of section
8.>>".
Amendment of section 12 of Act 50 of 1991
5. Section 12 of the principal Act is hereby amended by the addition of the
following subsection, the existing section becoming subsection (1):
<<"(2) Before issuing a certificate referred to in subsection (1), the
Director: Mineral Development shall consult with the Chief
Inspector in that regard, and no such certificate shall be issued if
the Chief Inspector is of opinion that the provisions of the Mine
Health and Safety Act, 1996, have not been complied with by the
holder referred to in subsection (1).>>".
Substitution of section 15 of Act 50 of 1991
6. Section 15 of the principal Act is hereby substituted for the following
section:
"Restriction on issuing of more than one prospecting permit or mining
authorization in respect of same mineral and land
15. No prospecting permit or mining authorization shall be issued in
respect of any mineral in respect of land or tailings, as the case
may be, if a prospecting permit or mining authorization has already
been issued in respect of such mineral and land or tailings, as the
case may be, unless the [[<<>>".
Amendment of section 25 of Act 50 of 1991
7. Section 25 of the principal Act is hereby amended by the substitution for
subsection (2) of the following subsection:
"(2) The Manager of a mine [[".
Repeal of sections 26 to 37 of Act 50 of 1991
8. Sections 26 to 37 of the principal Act are hereby repealed.
Amendment of section 39 of Act 50 of 1991
9. Section 39 of the principal Act is hereby amended by the substitution in
subsection (3) of the words following upon paragraph (c) of the following
words:
"he <<>><<>>".
Amendment of section 41 of Act 50 of 1991
10. Section 41 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection:
"(1) The [[<<>>".
Amendment of section 51 of Act 50 of 1991, as amended by section 20 of Act 103
of 1993
11. Section 51 of the principal Act is hereby amended -
(a) by the substitution for paragraph (b) of subsection (2) of the following
paragraph:
"(b) question any person and take a statement from [[<<>><<>>"; and
(b) by the deletion of paragraph (d) of subsection (2).
Insertion of sections 53A, 53B and 53C in Act 50 of 1991
12. The following sections are hereby inserted after section 53:
"Orders, suspensions and instructions
<<
(a) order the owner, manager or any official, employee or agent of
such mine or place to take immediate rectifying steps; or
(b) order that the operations at such mine or place or part thereof
be suspended, and give such instructions in connection therewith
as he or she may deem desirable.
(2) Any order referred to in subsection (1)(b) shall be confirmed or set aside
by the Director: Mineral Development, who shall notify the owner or manager
of the mine or presumptive mine concerned in writing of his or her decision
as soon as practicable.
(3) Any order given under subsection (1)(b) shall take effect from the time
fixed by the officer concerned and shall remain in force until set aside by
the Director: Mining Development or until the instructions of the officer
have been complied with.>> <<
53B. (1) If any contravention or suspected contravention of or any failure or
suspected failure to comply with any provision of this Act occurs at any
mine or place presumed to be a mine, an inquiry may be held into any such
matter by an officer designated by the Director-General.
(2) The Director-General may, either before the commencement or at any stage of
an inquiry held in terms of subsection (1) or (4) designate one or more
other officers to assist in the holding of such inquiry and may designate an
officer to preside at such inquiry.
(3) Any investigating officer holding an inquiry into any matter in terms of
this section shall, if necessary with the assistance of an interpreter, take
down or record by mechanical means the evidence given thereat and submit a
written copy thereof with a report thereon to the Director: Mineral
Development, who shall transmit it to the Director-General, unless otherwise
directed by the latter.
(4) Upon consideration of the evidence and report referred to in subsection (3)
the Director-General may require that the matter concerned be inquired into
further.>> <<
53C. (1) An investigating officer holding an inquiry in terms of section 53B(1)
or (4) into any matter or who is to preside or is presiding at such inquiry
may, for the purposes of such inquiry -
(a) direct or summon any person to appear before him or her at such time and
place as may be determined by him or her; or
(b) order any person present at the place where such inquiry is being held -
(i) to give evidence thereat;
(ii) to produce any document or thing which he or she may deem necessary
for the proper disposal of such inquiry; or
(iii) to perform any other act in relation to this Act which he or she
may direct.>> <<
(b) If at any inquiry held in terms of section 53B(1) or (4) evidence has
been or is being given from which any person may reasonably infer that
he or she may be charged with contravening any provision of this Act or
failing to comply therewith or may be held responsible in any manner for
the matter comprising the subject of such inquiry, he or she shall have
the right, but is not compelled, to give evidence and, either personally
or through a representative -
(i) to be heard;
(ii) to call any witness or to request the investigating officer to
direct or summon any witness on his or her behalf, either to give
evidence thereat or to produce any document or thing;
(iii) to cross-examine anybody giving evidence at such inquiry; and
(iv) to peruse any document which has been presented as evidence.
(3) Any person who satisfies an investigating officer that he or she has a
material interest in any inquiry held in terms of section 53B(1) or (4) may,
either personally or through a representative, put such questions as the
investigating officer may consider relevant to such inquiry, to a witness
giving evidence thereat.>> <<
(b) No person called as a witness at any inquiry held in terms of section
5313(1) or (4) shall, when he or she is requested thereto, refuse or fall to
take an oath or, if he or she objects thereto, to make an affirmation.
(c) No person to whom an oath referred to in paragraph (a) has been administered
or who has made an affirmation so referred to, shall give evidence knowing
it to be false or make a statement under oath or affirmation which is
contrary to any statement which that person made under oath or affirmation
on a previous occasion.>> <<
(6) (a) Any inquiry or any part thereof held in terms of section 5313(1) or (4)
shall, in so far as it is in the opinion of the investigating officer
practically possible or desirable, be held in public.
(b) The investigating officer may decide whether any witness who has to give
evidence or has given evidence at any inquiry referred to in paragraph
(a), shall be present whilst other witnesses are giving their evidence
thereat.>> <<
53D. No person shall, in relation to any inquiry held in terms of section
53B(1) or (4) -
(a) without reasonable justification fail to comply with any direction,
summons or order issued or given under section 53C(1) or by virtue of a
request under section 53C(2)(b)(ii);
(b) refuse or fail to answer to the best of his or her knowledge any
question lawfully put to him or her by or with the concurrence of the
investigating officer: Provided that no person shall be obliged to
answer any question whereby that person may incriminate himself or
herself;
(c) in any manner whatsoever advise, encourage, incite, order or persuade
any person who has been directed, summoned or ordered under section
53C(1) or by virtue of a request under section 53C(2)(b)(ii), not to
comply with such direction, summons or order or in any manner prevent
him or her from doing so;
(d) refuse or fail, when required thereto by the investigating officer, to
furnish him or her with the means or to render him or her the necessary
assistance for holding such inquiry;
(e) refuse or fail, when required thereto by the investigating officer, to
attend an inquiry; or
(f) intentionally insult an investigating officer or intentionally interrupt
the proceedings thereat.>>".
Amendment of section 54 of Act 50 of 1991
13. Section 54 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection:
"(1) The holder of or applicant for any prospecting permit or mining
authorization [[<<>><<>><<>>".
Amendment of section 60 of Act 50 of 1993
14. Section 60 of the principal Act is hereby amended -
(a) by the substitution for subsection (1) of the following subsection:
"(1) Any person who contravenes or fails to comply with -
(a) any provision of -
(i) section 5(2), 8(1), [[
(ii) section 7(1) [[
(iii) section 19(1) or (2), [[<<>>
(iv) [[
(v) [[
(vi) [[
(vii) [[<<>>
(viii) [[<<>>
(b) any provision of -
(i) any direction, notice, suspension, order, instruction or
condition issued, given or determined under section 22(1),
23(1), [[<<>> (ii) any request referred to in section 51(3); or
(iii) any notice issued under section 25(1),
shall be guilty of an offence."; and
(b) by the substitution for subsection 2 of the following subsection:
"(2) Any person who contravenes or fails to comply with a provision of
this Act, a regulation or any condition, notice, order, instruction,
prohibition, authorization, permission, consent, exemption,
certificate or document determined, given, issued, promulgated or
granted by or under this Act by the Director-General, [[<<>>".
Amendment of section 61 of Act 50 of 1991, as amended by section 22 of Act 103
of 1993
15. Section 61 of the principal Act is hereby amended by the deletion of
paragraphs (d), (e) and (f) of subsection (1).
Amendment of section 63 of Act 50 of 1991, as amended by section 24 of Act 103
of 1993
16. Section 63 of the principal Act is hereby amended -
(a) by the deletion of paragraphs (a), (b), (h)(iv) and (v), (i), (j), (k),
(l), (n), (u), (v), (w) and (x) of subsection (1);
(b) by the substitution for paragraph (m) of subsection (1) of the following
paragraph:
"(m) the manner in which the presence of witnesses at inquiries held in
terms of section [[<<>>";
(c) by the substitution for subsection (2) of the following subsection:
"(2) No regulation relating to State revenue or expenditure [["; and
(d) by the deletion of subsection (3).
Substitution of expression in Act 50 of 1991
17. The principal Act is hereby amended by the substitution for the expression
"regional director", wherever it occurs in the Act, of the expression
"Director: Mineral Development".
Substitution of long title of Act 50 of 1991
18. The following long title is hereby substituted for the long title of the
principal Act:
"To regulate the prospecting for and the optimal exploitation,
processing and utilization of minerals; [[".
B: REFERENCE TO GOVERNMENT MINING ENGINEER IN CERTAIN ACTS
Substitution for Government Mining Engineer
The following Acts are hereby amended by the substitution for the expression
"Government Mining Engineer", wherever it occurs, of the expression "Chief
Inspector as contemplated in the Mine Health and Safety Act, 1996,":
Advertising on Roads and Ribbon Development Act, 1940 (Act No. 21 of 1940)
Rand Water Board Statutes (Private) Act, 1950 (Act No. 17 of 1950)
Mines and Works Act, 1956 (Act No. 27 of 1956)
National Roads Act, 1971 (Act No. 54 of 1971)
Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973)
National Building Regulations and Building Standards Act, 1977 (Act No. 103 of
1977).
SCHEDULE 4
TRANSITIONAL PROVISIONS
1. Any health and safety standard which, immediately prior to the commencement
of this Act, was incorporated under the provisions of the Minerals Act or
the regulations made under that Act is deemed to be a health and safety
standard incorporated under this item.
2. A certificate of fitness issued under the provisions of the Occupational
Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973), which was valid
immediately before the commencement of this Act shall be deemed to be
sufficient proof that the employee is fit to perform work until the
certificate is cancelled or expires.
3. A declaration in respect of any work which has been declared under the
Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973), to
be risk work at controlled mines is deemed to be a declaration made under
section 76(1) of this Act and remains in force until the declaration is
withdrawn or superseded under this Act.
4. Any regulation made or deemed to be made under the Minerals Act that relate
to health and safety issues that can be regulated under this Act remains in
force until amended or repealed under this Act.
5. To the extent that it grants exemptions from the operation of a provision
similar to a provision of this Act, an exemption is deemed to have been
granted under section 79 if -
(a) it was granted under the provisions of the Minerals Act; and
(b) it is still in force when this Act commences.
6. Section 85 does not apply to an employee employed at any mine immediately
before the commencement of that section.