Mine Health & Safety Amendment Bill: Department's response to public submissions; National Energy Bill:adoption

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Mineral Resources and Energy

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

The Department of Minerals and Energy summarised and responded to concerns raised during the public hearings on the Mine Health and Safety Amendment Bill. In respect of the administrative fines, the Department had decided to name a minimum fine of R10 000 and maximum of R100 000, to take account of the proportional sizes of mines. The object of the stoppage of work following an accident was to be clarified as implementing preventative measures. Guidelines would make reference to section 54 of the principal Act. In respect of concerns that employees might be dismissed for medical unfitness to work, the Department was prepared to suspend dismissals pending appeals, and initiate a reintegration plan for injured workers. References to training would be amplified with mention of the training records that must be kept. In future an employer would only have to advise the Chief Inspector Mines of the name of an appointed CEO, to cater for concerns around small mines. The concerns on evidence before inquiries was already addressed by a clause on admissibility of such evidence before civil or criminal hearings. The wording around the Occupational Medical Practitioner indicated that such a person could be employed on a full or part time basis. The provision that a fine must be paid pending the outcome of an appeal was to be withdrawn.

Members spent considerable time debating the issue of fines, with many indicating that the fines were too small to compensate for loss of life, that the circumstances of the accident, and not the size of the mining concern, should be the principal deciding factor, and that it was important to consider whether payment could be enforced, otherwise the legislation would be meaningless. The Department said that this provision was intended to deal with non-compliance, not with accidents causing death, and was intended really to cater for a small range of circumstances, and the fines were administrative penalties, not to be viewed as any type of compensation. Members though that the ambit of the Bill was then perhaps too limited, and the Department would be guided by them on what they thought must be inserted. The Members felt that they needed further information from the Department. Further questions were posed on skills, and whether funding would be available for training

The Committee noted that there remained one inconsistent provision in the National Energy Bill, which referred to taking over personnel of a body that would not actually have been formed at the time the Bill came into operation. Clearly this needed amendment, and the State Law Advisers had suggested that the Committee approach the National Assembly and call for rejection of that sub-clause, so that a clean Bill could progress to the NCOP. It was agreed that this be done.

Meeting report

Mine Health and Safety Amendment Bill (the Bill): Department of Minerals and Energy (DME) responses to public submissions
Mr Thabo Gazi, Chief Inspector of Mines, DME, presented the responses drafted by the Department to the concerns that had been raised on the Bill at a previous meeting. He noted that his document would summarise the concerns raised, the comment and the action (if any) to be taken.

He noted that the first issue was that of administrative fines, and the question was posed whether minimum fines were prescribed, as this was said to be unclear from the Bill. Mr Gazi explained that the mining industry was extremely varied in size and scope, and that there was a need to have a proportional approach. Some mines were so small that imposition of any fine amounting to thousands of rands was way out of their ability to pay. The Department had decided that the amount of the fine would be proportional to the size of the operation, and that a minimum of R10 000 or maximum of R100 000 would be stated.

The next issue was that of employer investigations and the subsequent stopping of a workplace, as contained in clause 4, amending Section 11 of the principal Act. The concern was expressed that the Bill should provide for stopping of work at the site of a mining accident, and that work should not be resumed before the report was completed. Mr Gazi emphasised that the object of such investigations was clearly a safety assessment, and to provide an opportunity for the employer to ensure and prove that proper preventative measure were now being implemented. The DME pointed out that this was already provided for in Section 54 of the Mine Health and Safety Act (the principal Act) and the minimum guidelines under the new Section 11(5), as contained in clause 4, would provide reference to this.

Concerns were also raised over the appeals against dismissal, as it was pointed out that some employees were dismissed on the grounds of being deemed unfit to perform their work, but where their unfitness was the direct result of their past work. Mr Gazi noted that the Department had already initiated a research project to develop a reintegration plan for injured workers – such as moving to a division where they could, for example, make bags that were used for carrying explosives. In addition the DME agreed that the dismissal of workers should be suspended pending an appeal, and this would be incorporated in the Bill.

There had been uncertainty on training, with the question specifically asked as to what was formal and what was informal training. Mr Gazi said that DME agreed that there should be specific mention made of the training record that needed to be kept.

A concern was expressed around the proposed new Section 2A, which revolved around the power to appoint a CEO. This was raised specifically in relation to small mining concerns, where the same person could be owner, manager and operator. Mr Gazi noted that the DME had agreed that this would be amended and that the employer would only have to advise the Chief Inspector of Mines of the name of the appointed CEO.

Other points were raised, which Mr Gazi said had already been incorporated into the Bill. The point was made that people should not feel nervous of giving full and complete evidence before an investigation by reason of the fact that this evidence could be used to incriminate them in any criminal or civil proceedings. Mr Gazi indicated that a new Section 5B was being inserted into the Act that specifically dealt with admissibility of evidence obtained in inquiries.

The proposed wording around informing the Principal Inspector of Mines about the appointment of an Occupational Medical Practitioner was also dealt with. Mr Gazi noted that the wording now referred to information to be submitted within seven days of appointment, and should indicate whether that person was employed on a full or part time basis. Mr Gazi noted that more mine workers died from poor health than from accidents, and that the need to address this would be reflected in the Bill.

Finally, Mr Gazi noted that there would be withdrawal of the provision that a fine must be paid notwithstanding the fact that the outcome of an appeal was not yet known. The provisions of Section 59(2)(a) of the principal Act were to remain.

Mr T Mahlaba (ANC) argued that the fact that a death had occurred should be the yardstick that had to determine the harshness of fines. He asked if Mr Gazi was happy with the current scope of investigations under the proposed new Section 11(5), regarding investigations and reports required within 30 days of accidents. He asked about how quickly the inspectors could move in, whether this would be on the same day, or whether it would be a variable process, depending on whether the incident had attracted media attention.

Mr Gazi replied that the DME was indeed happy with the scope of investigations. He said that Section 60 would take care of Inspectorate committees involved with 11(5) issues.

Adv H Schmidt (DA) asked about the exit procedures for injured workers. He asked whether dismissal on medical grounds must coincide with a medical examination, to determine the extent and conditions of the injury.

Adv Schmidt commented, in relation to the fines, that the imposition of a fine should also take into account whether the payment of the fine could be enforced.

The Chairperson noted that it was difficult to fix a penalty immediately, but as time dragged on, the matter became less urgent. The Committee had suggested certain options, such as the cordoning-off of an area and suspension of operations until the matter was sorted out, or the establishment of a special tribunal that could immediately investigate, lay a charge, and impose a fine. He agreed that it would be useless to have a penalty or piece of litigation that was unenforceable.

Mr J Combrinck (ANC) remarked that the Bill now anticipated certain measures to determine the size of a company when it came to decisions about fines. It was possible for a company to lie about its strength.

An ANC Member distinguished between physical injury and trauma. He felt that measures were needed to concentrate on post-traumatic stress. He remarked that neither R10 000 nor R100 000 were substantial amounts. Something in the order of R1 million was a substantial amount.

Mr Gazi replied that the concern was more with stating minimum fines. One piece of legislation covering the whole mining industry was needed. This was process driven legislation. The minimum fines would be imposed for non-compliance with safety regulations, not for actions that led to someone’s death. The DME had identified 14 “deadly sins” in this regard. He noted that, for small mining concerns, it had become apparent that unguarded machinery was causing injury people. However, he said that small mines in the Northern Cape, for example, could not afford to pay a fine for this type of non-compliance.

The Chairperson protested that Members had been vocal in their views that even R1 million could not be considered sufficient compensation for a life. Members were thinking in terms of death, and he said that compliance issues were newly placed on the table for discussion.

Mr Gazi confirmed that the issue was around non-compliance, not compensation for death.

Mr Mahlaba insisted that non-compliance could lead to death. If a mining concern knew that fines for fatal accidents were harsh, it would rather invest in safety than face the possibility of such a fine. Small fines for small miners could create great potential for disaster.

Mr Gazi reiterated that the legislation was attempting to enforce compliance, not attempting to impose criminal persecution or deal with issues of compensation.

The Chairperson remarked that the Committee chose to deal with the wording as relating to non-compliance that could lead to death. He agreed that if there was no minimum fine, then court procedures could drag on.

Mr Gazi responded that he was willing to take his cue from the Committee, if the DME proposals were deemed inadequate.

Mr Mahlaba said that the Committee wanted to help the Department to be effective and to have the necessary teeth in the legislation. He stressed that the Committee had itself been at fault, because it had lacked statistics about the incidence of non-compliance, and had thus failed to come up with challenging standards. He feared that mining companies, if unchallenged, would continue to regard death as a matter for the lawyers, rather than as their responsibility. Perhaps there had to be more concern with increasing the maximum fine.

Mr Gazi replied that information on non-compliance did exist. There were reports, and there were  Presidential audits on mine safety.

A Member said that if Workmen’s Compensation did not cover death, then measures should be in place to force mine owners to assume responsibility. It had to be remembered that the impact would extend beyond the individual worker.

Ms S Makhoba, Legal Advisor to the DME, remarked that it could be hard to follow through with legislation. There was a limit to what inspectorates could do. Accidents were looked at and the evidence was weighed up. In order for there to be a successful prosecution based on negligence of an individual, that individual had to be identified. If fines were to be imposed, this could be added to the prosecution ability. She thought that further clarity was needed.

Mr C Kekana (ANC) concurred that in the case of small-scale subsistence mines, it might be better to do away with the minimum fine, and to let inspectors decide whether to handle the matter themselves, or refer the matter to a Court.

Mr Mahlaba asked if fines imposed in the past had been effective deterrents. He declared that the Committee needed to be better informed.

Mr Gazi replied that he would undertake to prepare additional information.

Mr Ngcobo asked Mr Gazi to return to the skills issue that he had brought up the day before.

Mr Gazi said that this had been discussed with the National Treasury. Funds were needed to train people. Programmes had been undertaken with Wits and Goldfields, but more support was needed.

The Chairperson replied that it was up to the Department to define what it needed and to submit a clear budget.

Mr Gazi said that the National Treasury had granted R500 000 the previous financial year, and the same amount this financial year. However, he pointed out that there were 82 vacancies across technical positions. He noted that it took eight years for a person to be trained for the inspectorate.

Mr Mahlaba pointed out the importance of building skills in the inspectorate, who were thin on the ground.

National Energy Bill: transitional provisions.
The Chairperson referred to the National Energy Bill, and reminded the Committee that one of the objectives of this Bill concerned the establishment of a South African National Energy Development Institute (SANEDI). However, a clause that was not acceptable to the Committee had somehow been retained in the Bill. This was sub-clause (2)(b) of clause 13, under the Transitional provisions in Chapter 4 of the Bill.

The Chairperson read out that the wording of this clause was: “As from the date of the commencement of this Act, the persons who, immediately before that date, constituted the personnel of SANEDI and of the National Energy Efficiency Agency (NEEA), are deemed to be the personnel  of SANEDI, without any interruption of service”. Both the NEEA and SANEDI were thus defined in the Bill as bodies that would have been in existence before commencement of the new legislation, which was clearly incorrect.

The Chairperson told Members that he had asked the legal advisers to assist the Committee with the procedure to delete this sub-clause (2)(b), as this Bill was on its way to the National Council of Provinces. Ms Desiree Swartz, Senior State Law Adviser, had suggested that the Committee follow Rule 251 of the National Assembly Rules. This would allow the Committee to indicate that the clause was to be rejected. The committee could propose the rejection to the National Assembly for consideration.

Members agreed that this advice would be followed and the matter negotiated with the National Assembly, so that a clean Bill could proceed to the NCOP.

The meeting was adjourned.


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