Clarity On MHSA Bill Critical
This is according to Willem le Roux, director for mine and occupational health and safety at ENSafrica, a law firm.
In November 2013, the previous Minister of the Department of Mineral Resources gave notice of her intention to introduce a draft Mine Health and Safety Amendment Bill (the 2013 Bill) in Parliament.
This was intended to amend the Mine Health and Safety Act, 1996 (MHSA). Subsequent to representations by interested parties, the minister issued a final draft bill at the end of last year. The Final Draft Bill is currently being reviewed by the National Economic Development and Labour Council (Nedlac).
Le Roux, who presented at a recent LexisNexis and ENSafrica seminar on mine health and safety, comments was referring to Section 29 of the final Draft Bill, which proposes to amend Section 92 of the current MHSA. The 2013 Bill contains a new subsection, which provides “that any employer who is a company convicted of an offence in terms of any section of the Act may be sentenced to a fine not exceeding 10% of the company’s annual turnover for the period during, which the company has failed to comply with the relevant provision, or to imprisonment not exceeding 10 years.”
This, said Le Roux, is too onerous. “For example, if a company delivers a report in terms of the section 11(5), 30 days after the required time, a maximum fine amounting to 10% of the company’s turnover for that period, may be imposed, which will, in most instances, be excessive.”
It would seem that the minister no longer intends to proceed with this proposed amendment as the same has been left out in the final draft bill. However, the final draft bill now contains a proposed provision in terms of which “any person”, in other words, a natural person or a company may be convicted of an offence of any provision of the MHSA and sentenced to a fine or to imprisonment for a period not exceeding 10 years.
“At present the maximum period of imprisonment for an offence is five years,” says Le Roux. In the case of a company only a fi ne is applicable. “It should be left to the court to exercise a wide discretion and take into account all relevant matters.”
However, Le Roux believed that the wrong impression can be sent to the court despite it still having discretion as far as the amount of the fine or term of imprisonment is concerned. He explained that criminal penalties for a contravention of the MHSA were substantially increased in 2008.
The further increase in penalties, he added, which may be imposed on the employer [the company] assumes that the current penalties do not act as a satisfactory deterrent and further assumes that more severe penalties will achieve the objective. “There is no basis for the assumptions,” he said.
Le Roux added that very often accidents occur as a result of the complacent behaviour on the part of employees, the cause of which is multifactorial.
“There is no justification to lay the blame for such conduct solely at the door of the employer. The imposition of such excessive penalties on the employer would, in those circumstances, be unfair and reasonable.
“The above measures will have vast, adverse and unintended consequences on the mining sector, apart from the destructive financial impact on business in a tough economic climate. It will also send a clear message to local and foreign investors not to invest in mining.”
He said that another consequence of such an “overly punitive approach” would be that certain employers may merely concentrate in complying with the letter of the law, rather than implementing leading practice and establishing the real and underlying causes of incidents, thereby reducing the possibility of incidents in future.
Meanwhile, one of the advantages of the Bill is its attempt to define an “employee” in Section 102. Currently an employee is any person employed or working on the mine. But in Section 32 of the Final Draft Bill the word “employee” means “any person who is employed by the employer or owner of a mine and such a person is working at a mine”.
This, said Le Roux, means that the employee of a contractor will no longer be regarded as the employee of the mining company for purposes of the MHSA.
“It is in fact a good reason to hold contractors more liable, especially in cases where work is driven by profits and where the care of employees may be neglected.
“In certain cases, the mining operation is run mostly by contractors for years and not the employer. In such cases the contractor company should carry the mine health and safety obligations of an employer. ”