Explosives Bill: hearings

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18 October 2002
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Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
18 October 2002
EXPLOSIVES BILL: PUBLIC HEARINGS

Chairperson
: Mr ME George (ANC)

Documents handed out:
Explosives Bill [B43-2002]
Submission by the Department of Labour (please email
info@pmg.org.za for a copy)
Submission by the Department of Minerals and Energy (Appendix 1)
Submission by SASOL (Appendix 2)

SUMMARY
The Departments of Labour, Mineral and Energy Affairs and SASOL commented on the Explosives Bill. They shared similar concerns on the overlapping provisions of the Bill and the previous Act. In addition, which Act, either the Occupational Health and Safety Act, the Mine Health and Safety Act or the Explosives Act, would the public have to apply and comply with to act within the law. The Committee and Department duly noted the urgency of the matter and undertook to address it so that confusion would be minimal, if it could not be done away with completely, by the time the Bill was passed. He noted that it was in everyone's interest that the Explosives Bill be passed before the end of this session because it deals with public security.

MINUTES
Department of Labour submission
Ms Pillay: Assistant Manager, Legal Services, largely read the written submission (please see document attached). In addition, Ms Pillay stated that the Department was concerned with the timing of the promulgation of this bill. The Department could not believe that the process was so far along because at a meeting between the Departments of Labour, Mineral and Energy Affairs, Chamber of Mines and SAPS on 16 July 2002, there was an undertaking to work together and there was supposed to be further consultation. This undertaking was never adhered to. They were never given a draft bill even though they were expecting one and the most recent draft bill was also different to the last one they had seen. If the Bill was passed it would repeal the Explosives Act of 1956, leaving the Department of Labour with no legislation in terms of which to issue licences, permits and so forth. Passing the bill would leave the Department with a vacuum, which is untenable. Ms Pillay finished by saying that they do not want the Bill passed without further discussion and consultation.

Discussion
The Chair seemed quite taken aback by the "timing" issue raised by the Department of Labour and asked whether a Cabinet Committee had been formed and whether the Minister of Labour had attended.

A representative from the Department of Safety and Security explained that the Cabinet Committee met on 18 July and she could not say whether the Minister of Labour had attended.

The chair agreed that there should be no overlaps in the different Acts, but where there are any, the Explosives Act must have the final say. He also said that the Department of Labour were making very serious comments which should have been raised earlier and he could not believe that the "timing issue" was not raised before. This did not help the bill in any way and Departments should assist each other in getting legislation, which is beneficial to all, passed and not hamper the process.

The Chair also corrected the Department of Labour's contention that the draft bill was not published. He advised that it was published and had been available for comment for a long time. He then asked the Department what they had done, before today, to address this "vacuum" which may now be created in the law if the bill is promulgated. For such a serious implication, he would have expected a great deal more action from the Department than this last minute attempt at stopping the "vacuum" which is envisaged.

Mr Papier (Department of Labour) said that they were not trying to stop the bill, but that they were making their own regulations in accordance with this bill and these would be ready in two to three months. They would have no problem with the Bill being promulgated then.

The Chair then asked whether the Department of Labour expected the Department of Safety and Security to stop doing their work, while Labour caught up with theirs.

Mr Papier said this was not the expectation, but because they were not regularly consulted, they had no idea that the bill had come this far. If they had been consulted, they would not have found themselves in this situation. The understanding from the start was that they would work together and this did not happen.

The Chair then asked whether it would not be easier for all parties concerned if they all just stuck to their mandate. The Department would deal with safety issues in the work place only and should not be too concerned with the national safety issues which fall within the mandate of the Department of Safety and Security and SAPS.

Mr Papier said that this would make it easier, but because there is already confusion out there regarding which "safety" is referred to, the mandates become blurred and automatically you start to step outside your boundaries. This was another reason why the affected parties should have worked together.

The Chairperson noted Mr Papier's point, but said that he did not see the promulgation process being halted. He referred to the Department of Labour's argument against Clause 2(3). They had submitted that this clause needed to be qualified because in the event of a conflict between a provision in the Explosives Bill and a provision of the Department of Labour, the Explosives ill will prevail even where health and safety issues in the workplace were at issue. He said that this was not a good argument; the Bill was supposed to clear up some of the overlapping issues that were raised. He was totally unapologetic about the wording of Clause 2(3) and supported it wholeheartedly because in practice the Explosives Act would have the final say. The Department of Safety and Security must deal with just that. The implication being that the legislation dealing with the safety of the country must outweigh any other safety legislation. The Department of Safety and Security would have to meet with the Labour Portfolio Committee and the Labour Minister and he saw no reason for the bill being delayed.

Department of Mineral and Energy Affairs submission
Mr Noordsin was accompanied by Mr Frikkie Du Toit. Mr Noordsin read their submission. (please see document attached). They argued that certain matters relating to have been completely ignored in the latest version of the Explosives Bill. This will have a detrimental effect on the regulatory powers of the Mine Health and Safety Inspectorate and cause confusion in the mining industry. The Bill does not exclude any aspect of the use, storage, etc, of explosives at mines from its application. The mining industry would therefore have to comply with all the provisions of the Bill. Areas where such "manufacturing" of explosives take place would also have to be licensed under the Bill. However, because such areas could change at relatively frequent intervals because of the advancement of working faces, it means such areas would have to be re-licensed regularly.

The Department pointed out that there would be areas where an aspect that relates to security also relates to health or safety issues at mines. They recommended that it should be possible for the Minister to grant an exemption from compliance with the Explosives Act if the Minister was satisfied that the matter is properly regulated under the Mine Health and Safety Act. They also argued that a multi-disciplinary committee of affected persons should be established in the Bill to advise the Minister on how to deal with such matters.

Discussion
Ms Sosibo (ANC) asked Mr Noordsin how big this "multi-disciplinary committee" would be and who would be on it. Did the Department of Mineral and Energy Affairs envisage the SAPS being part of the committee?

7Mr Noordsin said that the SAPS would definitely be a part of this committee and that it would possibly be comprised of one or two members of each affected entity.

The Chair asked what the purpose of this Committee would be. He could not really see the point of this committee. The feeling was that if the Departments of Mineral and Energy Affairs and Labour accepted that the Department of Safety and Security does not want the added burden of dealing with occupational health and safety, then there would be no need for the committee. The Chair reiterated this point by way of example. If there is an unscheduled explosion at a mine, then the Department of Safety and Security would investigate the matter until it is satisfied that it was an accident and that is where its involvement would end. Mineral and Energy Affairs would then continue to sort out the problem, but to expect the Department of Safety and Security to be completely uninvolved is unreasonable.

Mr Noordsin said that the SAPS had actually suggested that this committee be formed.

The Chair asked who would be out there catching the criminals while the SAPS is suggesting and forming committees.

Mr Noordsin said that this type of committee already exists informally, but it is not covered by legislation. He said that as a mining engineer, the way he read the bill was that the SAPS will have regulatory power over almost every activity at the mine and this is not the position now. The current Act is a much clearer document on who is responsible for what. The Chair agreed that the ideal is to have a very clear idea of who is responsible for what.

Mr Noordsin preferred Section 31(c) of the current Act and thought it should be retained.

The Chair responded that the alternate wording suggested by their Department: "The Minister may exempt any person from any or all of the provisions of this Act or from a notice or instruction issued under the Act: provided that any exemption may be…", will cover the instances in the bill where the provisions of Section 31(c) is not retained. Mr Noordsin asked whether they would then have to apply for an exemption every time.

The Chairperson advised that a meeting with the Department of Mineral and Energy Affairs must also be arranged. He stressed that the bill must be passed before this session ends.

SASOL submission
Ms Eidelweiss Coetzer (please see document attached). She said that Sasol supports the new Explosives Act which will ensure the adequate control over explosives in South Africa. Their main concern was the interrelation between the new Explosives Act and the Draft Explosives Regulations in terms of Occupational Health and Safety Act. The Regulations would be administered by the Department of Labour, while the Explosives Act would still be the responsibility of the SAPS. While there did not appear to be any major conflict between the Act and the Regulations, the duplication can lead to problems in the future.

Discussion
The Chair agreed with Ms Coetzer on Clause 8(3) and (4). He told her that this point had been raised before and he agreed that the clause, as it stands, does not make sense. The clause will be redrafted.

Ms Coetzer said her main concern was the overlapping and that there was already confusion over who the final agent is. Ms Coetzer also maintained that there was not always agreement between the different bodies. When SASOL tried to get a certain substance declassified, not too long ago, they were running from the Department of Labour to SAPS to get this declassification done. This wasted time because they had to explain the same concepts to two different bodies.

The Chairperson agreed that this should not be allowed to happen and that where professionals are concerned, it is urgent that they have clarity as to who is responsible for what. This matter would be addressed before the bill is passed.

The Chair concluded the public hearings process by saying that the bill may cause some inconveniences for the ordinary person, but that overall the bill was in the best interests of all.

The meeting was adjourned.

Appendix 1:
COMMENTS BY THE MINE HEALTH AND SAFETY INSPECTORATRE OF THE DEPARTMENT OF MINERALS AND ENERGY ON THE EXPLOSIVES BILL
12 September 2002

Introduction

When the draft Explosives Bill came to the attention of the Mine Health and Safety Inspectorate, interdepartmental meetings were arranged to discuss the Bill. Three meetings were held between representatives of the SAPS, the DME the Department of Labour and the Chamber of Mines. At these meeting the parties represented agreed that:

health and safety at mines, including in relation to explosives, must be dealt with in terms of the Mine Health and Safety Act, Act No. 29 of 1996 (MHSA) and the Explosives Bill would be amended to exclude from its ambit all activities relating to explosives insofar as those activities were related to health and safety and were governed by or under the MHSA;
the intention with the Explosives Bill was and would be to regulate security issues relating to explosives, including at mines (and at other work places). Notwithstanding this, the Bill would not cover the underground manufacturing, use, storage, etc. of explosives at mines;
in order to address "grey" areas (where security matters also covered health and safety matters or vice versa), a multi-disciplinary committee of affected persons would be established in the Bill to advise the Minister on how to deal with such matters.

It seems that these matters have been completely ignored in the latest version of the Explosives Bill. This will have a detrimental effect on the regulatory powers of the Mine Health and Safety Inspectorate and subsequent confusion in the mining industry.

BACKGROUND

2.1 Legislative background

In terms of the MHSA The Mine Health and Safety Inspectorate of the Department of Minerals and Energy (DME) is responsible to ensure health and safety at mines and that all the provisions of the MHSA are complied with and enforced. Through section 98 (1) (k) the Minister of Minerals and Energy may make regulations regarding the transport, handling, storage and the use of explosives and the mixing of substances to make explosives at mines. The DME, through the Mine Health and Safety Inspectorate, is therefore responsible in terms of the MHSA for all aspects of explosives at mines relating to health and safety.

Currently section 31 c of the Explosives Act, Act No. 26 of 1956 provides that the Explosives Act (except section 8A) does not apply to the transfer, transport, use, storage and distribution of explosives in so far as these activities are governed by any regulation made under the Mines and Works Act. Because of this exclusion, the Explosives Act currently has very little application to the mining industry. For practical purposes the Explosives Act applies to surface magazines at mines and the transport of explosives to such magazines.

Distinguishing between health and safety and security

The DME fully accepts that it is the SAPS's function to ensure security in the country, including at mines. However, this function should be distinguished from ensuring healthy and safe use of explosives on mines. The extent to which the unsafe use of explosives could possibly create security risks on mines requires closer co-operation between the DME, the mining industry and the SAPS, but does not necessarily require regulatory control under two separate statutes. The principle should be that a specialist statute (in this case the MHSA) dealing with specific matters (health and safety at mines) should not be used as a means for regulating those matters. Such matters should not also be regulated in another statute (eg. the Explosives Bill should not also regulate health and safety issues). Those matters should also not be duplicated in another statute. This will merely mean that there will be confusion as to which statue should be complied with and which enforcing agency will have the final say.

The Bill

Unlike what is the position under the Explosive Act, the Bill does not exclude any aspect of the use, storage, etc, of explosives at mines from its application. At this stage the mining industry will therefore have to comply with all the provisions of the Bill. It should be clear that there is hardly any security risk under those circumstances, but much more of a health and safety risk. Areas where such "manufacturing" of explosives take place would also have to be licensed under the Bill. However, because such areas could change at relatively frequent intervals because of the advancement of working faces, it means such areas would have to be re-licensed regularly.

PROPOSED AMENDMENTS

Proposed amendments arising from the agreement reached on 16 July

Arising from the agreement reached on 16 July referred to above, it is proposed that the following amendments be made to the Bill:

3.1.1 In order to implement paragraph 1.1 above, amend section 2 of the Bill by inserting a new sub-section (2) (d) as follows:

"(d) to the transfer, storage, transportation, manufacturing, destruction, distribution or any other use of explosives in so far as those activities are related to health and safety and are governed by or under the Mine Health and Safety Act, 1996 (Act No. 29 of 1996)"

3.1.2 In order to implement paragraph 1.3 above, insert the following as a new clause 32 (1) (s) to be 32 (1) (t):

"the establishment of a multi-disciplinary committee of affected persons to advise the Minister on how to deal with matters covered in this Act that relate not only to security matters"

3.1.3 In order to implement paragraph 1.2 above, amend the preamble to the Bill as follows:

"To provide for the control of explosives for security reasons; and to provide for matters connected therewith."

Other proposed amendments

As was mentioned before, there will be areas where an aspect that relates to security also relates to health or safety issues at mines. It is recommended that it should be possible for the Minister to grant exemption from compliance with the Explosives Act, for example, if the Minister is satisfied that the matter is properly regulated under the MHSA. It is therefore recommended that an appropriate enabling provision along the following lines be inserted:

"The Minister may exempt any person from any or all of the provisions of this Act or from a notice or instruction issued under the Act: provided that any exemption may be:

general or particular;
for any period;
on any conditions that will achieve the objectives of this Act;
amended or withdrawn at any time."

PORTFOLIO COMMITTEE HEARINGS

The DME would be more than willing, in the event of the Portfolio Committee deciding to hold public hearings on the Explosives Bill, to appear before the committee to discuss its views. In this regard you are kindly requested to contact Mr. K Hewitson of the DME. His contact details are: tel no: 082 460 5067 and e-mail:
beshew@mepta.pwv.gov.za

The Chief Inspector of Mines in the Mine Health and Safety Inspectorate is Ms. MA Hermanus. Her contact details are: tel no: 082 465 6102 and e-mail
mavish@mepta.pwv.gov.za

Appendix:
COMMENTS BY THE SASOL GROUP ON THE EXPLOSIVES BILL

Submitted in response to the invitation for comments by

COMMITTEE OF SAFETY AND SECURITY - NATIONAL PARLIAMENT
October 2002

INTRODUCTION

The Department of Safety and Security has indicated its intention to repeal the Explosives Act (Act No 26 of 1956) and to promulgate an updated Explosives Act which are more in line with international standards.
Sasol supports the new Explosives Act which will ensure the adequate control over explosives in South Africa and has previously submitted comment on prior drafts of the proposed legislation. The following additional comments (and where applicable recommendations) are submitted in the interest of ensuring that the legislation concerned will be practical and implementable by the industry generally, and Sasol in particular :

GENERAL

Detailed comments on certain Chapters of the Draft Legislation are forwarded in this document. In general, however, the following viewpoints need to be highlighted.
A main concern is the interrelation between the new Explosives Act and the Draft Explosives Regulations in terms of Occupational Health and Safety Act. Whereas the Regulations are going to be administrated by the Department of Labour, the Explosives Act will still be the responsibility of the SAPS (CIE). Although there does not appear to be any major conflict between the Act and the Regulations, the duplication can lead to problems in the future. It will be necessary to make available clear guidelines to industry on how the administration between the Labour Department and SAPS are going to interrelate with each other to prevent confusion, contradictions and possible conflict between the two Departments. In particular it would be useful to have an indication as to which Act takes priority.
The use of the term "Chief Inspector of Explosives" (CIE) causes complication in the understanding of this term; in particular it causes confusion with the use of "Chief Inspector (CI)" in the Explosives Act and the OHS regulations. Will it not be more practical to consider redefining these terms?
In the draft Explosives Regulations in terms of Occupational Health and Safety Act reference is made to the Explosives Act. To ensure clarity will it not be in the best interest of all parties concerned to also make mention of the Explosives Regulations in the new Explosives Act.

SPECIFIC COMMENTS AND RECOMMENDATIONS ON THE VARIOUS CHAPTERS OF THE EXPLOSIVES BILL:

1. DEFINITIONS

"explosives" In the draft Explosives Regulations in terms of the Occupational Health and Safety Act the definition of explosives refers to non-detonable and explosives. Is this in line with the new Explosives Act? Will it not be more practical to bring these terms non-sensitised into the definition?

"suitable person"
(b) Is this definition regarding citizenship or residence status in line with globalisation. Will it not be better to include "any person with the necessary qualifications, which is acceptable to the CIE"?

2. CHAPTER 2

Clause 5(3)
In an event as stated in this clause which department, labour or SAP, will have precedence in the safety issues?
Clause 8(3) & (4)
We suggest that an inspector has to be liable for damages caused to a third party where damages were caused due to negligence on the inspector's side.

CHAPTER 6

Clause 23(3) (a)
Typing error: "the person was driving, ox was a passenger …"

Clause 24
How will production losses (waste or inefficiency) be dealt with?

4. CHAPTER 9

Clause 33(k)
Which department, Labour or SAP, will have jurisdiction.

SHEDULE 2
The meaning/reason for the insertion to this schedule is unclear.

CONCLUSION
Recommendations are contained in the body of the above comments where applicable.

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