Mine Health and Safety Amendment Bill: response to submissions

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Mineral Resources and Energy

19 August 2008
Chairperson: Mr E Ngcobo (ANC)
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Meeting Summary

The Committee was given a brief background on the Mine Health and Safety Council and provided with a great deal of figures on fatality rates in mines. Occupational health and mine safety in SA had generally improved over the last 10 years while employment in mines had increased by 6.25%. Information on exposure to airborne pollutants, noise and thermal stress in mines was also provided although the accuracy of the information could not be completely vouchsafed as it was provided by the mining industry itself.

The Department outlined responses to proposals and comments about the Bill. They emphasised that the Bill aimed at improving enforcement as this was the issue with which the Inspectorate was grappling. The Inspectorate was under resourced and lacked skills and it felt that the industry took advantage of this fact. The Bill called for a re-arrangement of the regulatory structure. The Inspectorate would no longer be linked with the department but would be coupled with the MHSC. The sanctions called for in the Bill were discussed at length. Members felt that mines should be held more accountable for accidents. Collusion in the mining industry and the poaching of government employees by mines were also some of the concerns that were raised. The option of closing a mine until an accident investigation had been completed and a report furnished was raised. The Chair suggested that a mining summit be held where all these concerns could be discussed.

Meeting report

The Department of Minerals and Energy was represented by Mr Thabo Gazi Chief Inspector of Mines; Mr G Ndamse, Director: Legal Unit; Ms S Makhoba, Legal Adviser; Ms G Babuseng Principal Inspector and Mr R Van Rensburg, Executive Assistant to Chief Inspector of Mines.

Mr Thabo Gazi provided a brief background on the Mine Health and Safety Council (MHSC). When the MHSC was established it was not envisaged to be a public entity which it now was. The Minister of Finance had allocated R3m per annum for its administration. It however continued to grapple with governance and qualifications issues. In 2003 health safety targets were set. It was envisaged that fatalities would be reduced by 20% as a result. Health targets were set specifically for Silicosis and Noise Induced Hearing Loss (NIHL).

Mr Gazi provided a tabular and graphical breakdown of figures on fatalities in the different types of mines. For the period 2004/2005 there had been a general decline in fatalities by 16%. In 2006/2007 fatality injury frequency rates had reduced by 11% even though it had drastically increased to 300% in diamond mining. For the same period lost time injury frequency rates had reduced by 4.8%. Mr Gazi noted that SA's occupational health and safety on mines over the last ten years had improved a great deal. He however pointed out that over the last three years the improvement was not that impressive.

The Committee was provided with a graphical representation of fatality and injury rates per million hours worked for the period 2003-2008 for the various types of mines such as coal, platinum and diamond and for different types of accidents, that is, machinery and transportation. Mr Gazi said that overall there had been a general increase in employment in mines by 6.25% for the period 2006/2007.

The Committee was provided with figures on airborne pollutants exposures for workers in different types of mines. The figures were broken down between high, medium and low exposures. Mr Gazi said that the figures seemed unrealistic and that there was no way for the department to confirm the accuracy thereof. The figures were provided by the mining industry. For example in the gold mining industry with over 200 000 employees there were apparently only 1494 employees exposed to a high exposure of airborne pollutants. He said that there was a need to control the occupational environment as it had a huge impact on the economic environment. Noise and thermal stress exposure figures were also provided. Mr Gazi questioned the reliability of these figures as well given that the source was the industry itself.

The Committee was given a breakdown of appeals that employees had lodged against decisions of unfitness or any findings contained in exit certificates. The MHSC also had an award scheme for mines that performed well.

Ms G Babuseng, Principal Inspector, continued with the rationale for the amendments called for by the Bill as opposed to the concerns raised to these by the industry. It had been agreed that mines had to keep records of formal training. Amendments to section 13 meant that mines could no longer use the services of medical practitioners; only occupational medical practitioners may be used at mines. She referred to exit medical examinations and said that there were concerns that mine employees might decide to abscond. Having taken note of the concern, the department decided to retain the 30 day limitation.

Ms S Makhoba, Legal Adviser, said that in as much as employers were required to conduct investigations after small accidents, the Inspectorate had no access to the information. As an incentive to employers to furnish the information to the Inspectorate, it was agreed that such report could not be used as evidentiary evidence against the employer. This however applied to small accidents only. She stated that the MHSC currently had sub committees. The committees were tasked with dealing with the review of regulations. There was however problems around the  flexibility of committees to deal with issues. The Bill now empowered the Council to appoint further committees. The permanent status of current committees was now removed. The Council would henceforth decide what the terms of reference would be. The comments received were not “hectically opposed” to the amendment.

Mr G Ndamse, Director: Legal Unit, referred to the admin fine system and said that it was a thorny issue. Some of the smaller mines had complained that the fines were too high. Trade unions like National Union of Mineworkers (NUM) had wanted the fines to be calculated at 10% of the turnover of mines. He felt that the maximum fine of R1m could act as a deterrent to mines. People’s lives were at risk and other concerns relating to the amount of the fines could be dealt with by means of guidelines.

Mr Ndamse referred to the offences by mines and said that the Chamber of Mines had asked for protection in criminal and civil matters. He said that the department was tasked with creating offences so how could it be expected to give protection against such offences. The Bill amended section 91 of the Act and now held the employer liable as well since the owners of mines need to be held accountable.

Ms Makhoba said that NUM had suggested that where appeal processes of employees were yet to be finalised such employees should be afforded protection. She felt that there was merit in the suggestion and that it would be considered. The department however needed guidance from the Committee on the appointment of CEOs.

Mr Gazi said that once legislation was in place there was a need to enforce it. He noted that in the past various commissions had raised questions over the ability of the Inspectorate to enforce mine health and safety. The Inspectorate was under resourced and the mining industry was aware of it. There was thus a need to strengthen enforcement. Competent investigators were needed to carry out investigations. The Inspectorate had been criticized on its ability to prosecute cases. One of the changes proposed to the MHSC was to improve its governance. There was also a need for focused research in the industry.

Mr Gazi referred to the amendment of section 47 of the Act which made the Inspectorate a juristic person and an entity of government. He said that the MHSC brought expert knowledge from the industry to the Minister. Before the amendment, the Inspectorate could not act quickly when action needed to be taken. The amendment rearranged the regulatory structure. With the new structure the Inspectorate was now separated from the department and now linked with the MHSC. The amendment was considered to be an improvement. A niche institution was needed to enforce legislation.

Discussion
The Chair said that the task ahead was huge as a great deal of realignment was needed.

Ms A Dreyer (DA) said that the success of the Bill lay in its implementation. There was thus a need for quality inspectors which were in short supply given skills shortages. She asked from where skilled inspectors were to be sourced.  

Ms Makhoba responded that obtaining the correct skills was a challenge but it was nevertheless being worked on. Universities were considered one such source to obtain skills.

Mr T Mahlaba (ANC) said that the industry was rife with cover ups of incidents. The legislation attempts to prevent cover ups. It was considered a huge challenge. He asked why provision was made for the indemnifying of employers when they were forthcoming with information regarding incidents. The information provided by employers could not be used against them?

Mr Mahlaba said that if R1m was the maximum for fines, what was the minimum? What value did one place on an individual’s life? He asked if the industry was honest with the department. He noted that there was a great deal of collusion in the industry. State resources such as department employees need to be protected and should not be allowed to be poached by wealthy mines.

Mr Mahlaba also asked why only formal training was to be recorded. He asked if there was prescription on what type of training was compulsory. Further, why was it better to move the Inspectorate under the MHSC? He referred to employer investigations into incidents and was not happy with the time periods proposed in the Bill. Investigations should proceed immediately after incidents and the outcome should be made available as soon as possible. He felt that mines should be shut down until a report on the incident was made available.

Mr Gazi referred to section 11 which dealt with investigations. He noted that section 60 empowered inspectors to do investigations. He said that it was difficult to investigate each of the 4000 deaths when there were only 200 inspectors. Section 11 said that employers had to share the outcomes of their investigations with the Inspectorate. As previously explained, employers had asked to be protected in furnishing the information. As a result the information furnished could not be used against the employer. The provision however only applied to smaller incidents. Section 10 dealt with records of formal training. It was a legislative requirement and it was considered adequate.

Ms Makhoba said that the employer was held accountable. Fines had to be paid. She responded to the comment that mines should shut down if there was a fatality and stated that a measure was indeed needed to ensure effective compliance. Monetary compensation was not always good enough. Guidelines would nevertheless be issued for the issuing of fines. Collusion in the industry was considered a major concern and attempts were made to find a common ground on the matter.

Ms N Mathibela (ANC) said that there were not enough inspectors, there was a lack of skills and that funding was lacking. She noted that mine health and safety was about the lives of individuals and asked how many hours miners worked. She said that the exit of miners due to failure of medical examinations was concerning. She asked what other sources of income these miners had. Could alternative work other than mining not be found for these individuals? The conditions at mines needed to change. She had first hand seen the conditions on a visit to a mine. International standards were considered much better than what was present in SA.  

Mr Gazi said that there was no budget to do enquiries. He stated that a process had been started on the re-integration of injured workers. It had been discussed at Council structures and a policy document was available.

Mr E Lukas (IFP) said that in comparing international mining standards with that of SA it was evident that they were different. SA’s mining was labour intensive whereas international mines were mechanized. Labour in SA was cheap. Another consideration was that the scales of production were also different. He referred to the fatality figures and asked why fatalities in diamond mining were so high given that diamond mining had in the past been one of the safest.

Mr Lukas was concerned about the poaching of government experts by mining companies. It was a problem that had surfaced many years ago and it was time for it to be addressed.

He referred to the fact that miners were often discarded once they became sick or old. It was an unacceptable reality and it was an issue that also needed to be discussed. Mr Lukas asked what had changed since the new dispensation came in place in 1994. Training and the keeping of records was considered important. Record keeping however had to be accurate. Mr Lukas strongly felt that owners of mines should be held accountable for offences.

Mr Gazi referred to international standards on mining and said that overseas there had been deliberate expenditure on research. Research in SA was done very voluntarily. Voluntary research had also been done by the Chamber of Mines.

The Chair agreed with these sentiments and said that perhaps a mining summit was needed to discuss issues. Experts also need to be present at the summit. The Chair said that he was well aware of the frustrations that Mr Gazi was experiencing given his own background. The problems were evident but the issue was what could be done about it. The Committee needed to address the shortcomings present in the industry. He said that members must be aware that lobbying was very powerful however Parliament was nevertheless supreme.

The Chair said that the proposed mining summit could look into why the Inspectorate was so poorly resourced. He even ventured to say that perhaps the poor resourcing of the Inspectorate could be deliberate. Another concern was that mines should do more to empower communities that surround them. He asked to what extent the National Nuclear Regulator (NNR) inspected mines. There was a need to place various institutions under one umbrella. He noted that some of the experts working for CSIR were independent freelancers and these persons were not bound by CSIR rules. It was a disconcerting fact.

Mr Ncgobo pointed out that the South African Mining Development Association
(SAMDA) had a bad track record and there was a need to look into how they functioned. The Chair made mention of the findings of Judge Leon’s commission into mining health and safety and asked why his recommendations had not been implemented. Reference was made to earlier comments that few cases made it to court due to the costs involved. He proposed that tribunals be used instead. The issue relating to skills or the supposed shortage thereof was about realignment. Skills were available - they just needed to be realigned. Further discussion on the issue was proposed by the Chair. Mr Ncgobo said that a figure should also be set for a minimum fine. Setting only a maximum fine with no minimum made it discretionary. It was considered a dangerous situation.

Mr Gazi appreciated the comments made by members. He clarified that he had not referred to SAMDA but had referred to small scale mining.

Ms Makhoba said that the R1m fine was the maximum set out in the Bill.

Mr Gazi said that the Leon Commission had been finalised in 1994. It had recommended SIMRAC (Safety in Mines Research Advisory Committee ). He referred to the setting of minimum fines and said that there would be guidelines. The Bill made provision for guidelines. Guidelines would be flexible in order to keep up with market changes.

Mr Gazi said that the NNR looked at nuclear risks. As radioactivity was present in gold mines, he said that there was a close working relationship with the NNR.

He pointed out that the State Law Advisers had considered the option of tribunals not appropriate.

The Chair responded that the problem with guidelines was that these fell within regulations. The regulations were only done after a Bill was passed. The Committee needed to see what the guidelines were. Some Committees requested to inspect the draft guidelines outlined in regulations. The guidelines should not defeat the purpose of the Bill. However, guidelines were not always a solution.

Mr Gazi said the point was noted.

The Chair said that the loss of human life in mining was a critical issue. It needed a great deal of discussion. Stopping mining operations after an accident until a report was made available to the department, should be looked into.

The meeting was adjourned.

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