Mine Health and Safety Amendment Bill: deliberations

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Mineral Resources and Energy

18 September 2008
Chairperson: Mr E Ngcobo (ANC)
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Meeting Summary

The State Law Adviser and the Chief Inspector of Mines took the Committee through the proposed amendments to the Mine Health and Safety Amendment Bill. Clause 2 was being amended to oblige the employer to notify the Chief Inspector of Mines of the appointment of a Chief Executive Officer. In clause 3, training would be clarified as "all formal training", and members suggested that skills qualifications should be submitted to the Mining Qualifications Authority. Members discussed clause 4 extensively. The State Law Advisers had originally suggested certain amendments by inserting new Subclauses (5B) and (9). The Chief Inspector of Mines pointed out that regulations already covered some of the issues. However, the Committee decided that it would be preferable to have an obligation on employers to notify the Principal Inspector of Mines of certain incidents in the Act. The regulations and the new provisions would need to be checked for consistency against each other, to ensure that they were not contradictory, and furthermore those portions of the regulations that were not being carried over into the new Act must remain captured in the regulations. However, after extensive discussion, members agreed that the proposed new subsections 11(9)(a) and (b) were not needed. It was noted that section 13 of the principal Act would have new subsections (4A) and (4B). Clause 12 would be amended to given the Chief Inspector the responsibility to issue guidelines, and clause 13 now specified also what the report of the Chief Inspector of Mines must contain. New wording was to be inserted also to specify that money collected from fines should be used for the specific purpose of improving health and safety.  A further amendment was made to section 50 of the principal Act, by insertion of a new subsection (7A) to allow the Inspector to prohibit further functioning of sites in defined circumstances. Clauses 16 and 17 were now being deleted, as their content was reflected elsewhere, and clause 18 was amended to contain a fuller indication of the sections of the principal Act to be deleted. Technical corrections were made to clause 27, and in addition the penalties of corporate prohibition, restraining or immobilisation, and asset forfeiture, contained in the original draft, were being removed. Clause 31 was corrected to include all sections that created offences. 

The point was also raised that during the public hearings the participants had highlighted several problems with the Act that were not covered in the Bill, and the Department had decided to deal with them also by way of this Bill. Therefore amendments were also being proposed for section 20 (by insertion of a new subsection to provide that an employee lodging an appeal could not be dismissed pending the outcome), section 23, and to substitute section 98(1) of the principal Act.

The State Law Advisers proposed a new section 86A that sought to impose strict liability and vicarious liability on employers, and to impose criminal liability in respect of all deaths on a mine. Members pointed out that this was seeking to create a new criminal offence, that was diametrically opposed to the principle that actual intent or negligence must be proved. At the conclusion of the morning session, Members therefore asked that this clause be redrafted and re-presented later in the day for further deliberations

In the afternoon session, the Chairperson drew the attention of the Committee to a letter received from the CEO of the Chamber of Mines, which would be copied and circulated to Committee Members for their perusal. Dr Frans Barker, Senior Executive of the Chamber of Mines, was given the opportunity to make comments on the Bill and proceeded to express a plea for co-operation. He argued that the amended legislation was overly punitive and constraining. The Chairperson reminded him that the session was not a platform for the expression of stakeholder interests. The Chairperson then requested the Committee to consider the upgrading of the Mine Health and Safety Inspectorate. This matter had received attention alongside previous deliberations on the Bill, and Members were asked to consider whether this was adequately covered in the Bill, or whether further clauses must be added. Members decided that if the Inspectorate was reflected as a juristic person, then the concerns seemed to be addressed, and therefore that the Bill was sufficient. 

The State Law Adviser then noted that certain of the clauses had been revised during the adjournment, and read out the revised wording for these clauses, set out in the attached second set of amendments. These had addressed the various concerns and comments raised in the morning session, including the concerns around the new Section 86A, which had now removed the references to the automatic criminal responsibility attaching to employers. Members then reviewed the Bill, clause by clause, and resolved to adopt it. The Committee Report was also adopted.

Meeting report

Mine Health and Safety Amendment Bill (the Bill): Deliberations
The Chairperson noted that discussions during the last meetings related in part to mine accidents. The Department would be further briefing the Committee on how this was dealt with in the legislation.

Mr Thabo Gazi, Chief Inspector of Mine, Department of Minerals and Energy, noted that after the last meeting the State Law Advisers had worked on the document further. He would highlight areas where the Committee had raised concerns.

Ms Pumelele Ngema, State Law Adviser, Office of the Chief State Law Adviser, noted that she would speak to the document marked "B".

Clause 2
The amendment proposed related to the new subsection (6) as members did not think that the appointment of the Chief Executive Officer should be discretionary. Therefore the employer was now obliged to notify the Chief Inspector of Mines (CIM) and set out what must be disclosed.

The Chairperson asked where the Chief Executive Officer (CEO) was to be appointed.

Mr Gazi noted that CEOs were appointed by mines to run their operations. Those appointments must be notified to the CIM.

Clause 3
A question had been raised about training, and how "all training" should be defined. Ms Ngema noted that this should be formal training, and the necessary wording "formal training" had been inserted after the word "all".

Mr J Combrinck noted that a major driver of the good safety programmes was skills. The Mining Qualifications Authority had said that the skills programmes were not being provided to it. He believed that something extra might be needed to force the mines to provide the Qualifications Authority with some of these programmes.

Mr Gazi noted that mines would submit workplace skills plans, which would be used to prepare the final plans. That was presently done on a voluntary basis under the Skills legislation, but it was possible to think about some other way to do this.

Clause 4
Ms Ngema said that this referred to section 11 of the Mine Health and Safety Act (the principal Act). The amendments now proposed to insert a new subsection (5B), obliging the employer to notify the Principal Inspector of Mines (PIM) of any accident or occurrence at a mine that resulted in serious injury, illness or death. This would allow the Principal Inspector to take a decision to conduct an investigation simultaneously and to be privy to all the information.

Further subsections were also being added. Another new insertion was a new subsection 11(8), which prescribed that where an incident occurred involving death, or serious injury likely to cause death, or loss of a limb, then the site may not be disturbed, save for safety purposes. The Principal Inspector of Mines may require the employer to submit a report, but this may not be used in criminal or civil proceedings, inquests, disciplinary hearings or for purposes of a fine.

Mr Gazi wished to draw attention to Regulation 23(1) of the Act, under the heading "Accident to be reported". This said that the employer must report to the PIM, in the manner described, any accident (which was then specified). He said that once this had been pointed out, the State Law Adviser agreed that perhaps the new subsections just described could be left out. Furthermore Regulation 10(1) of the Act also noted that when an accident caused immediate death the site must not be disturbed or altered before it had been inspected.

Adv H Schmidt (DA) asked whether Regulation 10 was not being widened by the proposed new sub-clause.

Mr Gazi noted that in fact the Regulation was more extensive than the proposal now put forward.

The Chairperson said that the copies of the regulations should have been circulated. He asked that copies be made now, and that the Committee would revert to this point once they had the regulations in front of them.

Mr T Mahlaba (ANC) said that it was necessary to take note of this. If this was already in the regulations, the issue of "may" and "must" had already been taken care of.

The Chairperson responded that Regulations were discretionary, and the Minister may change them. He would prefer to put this content in the Act. He suggested, therefore, that this wording should indeed be inserted into the Bill, which was seeking to ensure higher standards of safety. He would like to avoid the situation where industry may lobby for a change in the Regulations.

Mr O Monareng (ANC) agreed; the only problem was that this was that there was still reference to "may".

Ms N Mathibela (ANC) noted that mine deaths were a continuing problem. She would prefer to have the provisions in the Act, and strongly supported the Chairperson's views.

Mr D Kekana (ANC) noted that Mr Gazi had said that the Regulations were more extensive. He thought that details could be in the regulations still, as long as the principles were captured in the Act.

Mr Mahlaba wondered if this could not be fast-tracked. He referred to the proposed new subsection (5B), which did contain the word "must". However, the Principal Inspector of Mines "may" require the report (in the proposed new subsection 9)(a). He thought that this was inconsistent.

Mr Mahlaba also asked for a further explanation as to why this should not be used in criminal proceedings.

Ms Ngema said that section 11(5)(d) of the Principal Act required every employer to conduct an investigation into every accident that had to be reported under this Act, and into serious illness and health threatening incidents. On completion of each investigation every employer must prepare a report that identified the causes of the accident or occurrence, a report that identified any unsafe procedures, and a report to state what measures would be taken. The PIM’s requirement for a report was worded as "may" because already, in the Act, the employer was required to do an investigation, and, once the Inspector was informed, he himself could do investigations simultaneously. Therefore, the PIM may, despite having his own report, ask for another report from the employer. The "must" wording in the proposed new subsection (5B) was peremptory.

Mr Mahlaba asked why there was a problem in making this mandatory, despite the fact that the Inspector may do his own investigation.

Mr Monareng said that the Principal Inspector of Mines could already conduct an investigation. He was not too concerned about the distinction between the "may" and "must" as this would be at the discretion of the PIM to decide whether it was necessary to have that report. He would not encourage investigations independently by employers; he would have thought that the report by the PIM would suffice.

Mr Gazi said that he and the State Law Adviser would look again at the "may" and "must" clauses.

The Chairperson pointed out that the Inspector's report may be far more detailed and there would not necessarily be a need to get that report. The employer would need to create a report, but it may not be necessary to send it on.

Mr C Molefe (ANC) agreed with Mr Mahlaba, in order to close all the gaps. There was no harm in obtaining the report.

The Chairperson said that perhaps the report should be submitted at a specific time to somebody in the Department.

Mr Mahlaba asked Mr Gazi whether the Inspectors of Mines would investigate all incidents that resulted in serious injury, illness or death. If not, and if it was also discretionary as to which reports might be required, this might mean that some incidents could slip through the gaps. There were not sufficient inspectors already.

Ms A Dreyer (DA) added that she would also like to know whether there was the capacity to inspect all incidents, and whether an amendment to require the Department of Minerals and Energy (DME) to inspect everything could be implemented.

Ms Ngema pointed out that the current section 11(5)(e) of the principal Act said that a report must be delivered to the Health and Safety Committee or to the representative responsible for the working place. However, it was being proposed that this section be amended.

Mr Mahlaba asked why then the Chief Inspector "may" call for the report, if it was mandatory to deliver the report to the representative on the Health and Safety Committee.

Mr Molefe said that the Chief Inspector was a departmental official. There was nothing to stop him getting the report.

Mr Gazi quoted section 11(5) of the principal Act. Every employer would have to conduct an investigation into every accident that must be reported under this Act. Section 60 said that the PIM must instruct an inspector to investigate any occurrence that resulted in injury, death or serious illness. Subsection (2) said that he also had the discretion to investigate anything else. About 4 000 accidents were happening every year. The inspectors were not able to investigate each one. Employers were doing investigations of more incidents that the inspectors could, and this section was now seeking to get that information.

Mr Mahlaba said that nothing was now compelling the employer to submit a report to the PIM, but only internally to the Health and Safety Committee. He still feared that incidents could be taking place but that the Inspector was not aware of them. If it was agreed that there was not sufficient capacity within the PIM, then all the more reason existed for calling for the compulsory reports.

Mr Monareng made the point that if the legislation required certain results, then the Department must create capacity.

Adv Schmidt noted that he was concerned about elevation of Regulations to the Act, saying that there could be a conflict. For instance, Regulation 10 dealt also with discontinuance of work, and this particular part of the regulation should probably be left in the form of regulation. He urged that where there was to be insertion into the Act, then the proposals and the regulations must be checked against each other for consistency. All consequences must be considered.

Adv Schmidt fully supported Mr Mahlaba, because a number of times the PIM had been asked to explain what the causes of the incidents were, and this was often not available. He believed that there was no harm in referring all reports compiled to the PIM. This would allow for studies of tendencies and overall pictures.

The Chairperson agreed that there would be merit in doing this.

Mr Molefe noted that whenever the reports were being spoken of, there was seeming reluctance to release the reports. Lives of people were at stake and that was surely more important than semantics.

Ms Ngema reminded Members that the requirements about the reports would now be inserted into the principal Act by way of these amendments being proposed. The Bill already contained a proposed new wording for section 11(5)(e) would already require the Mine to deliver a copy already to the PIM. Therefore what had been proposed as the new section 11(9)(a) could in fact be removed.

Mr Gazi asked if he and the State Law Adviser should not discuss new wording and revert to the Committee later.

The Chairperson noted that there was no time to do so. This Bill would have to be finalised by the following week.

Mr Mahlaba hoped that subclause 11(9)(b) would remain.

Ms Ngema noted that processes would be followed, and that a report on an accident enquiry would not automatically be accepted as evidence in Court proceedings as somebody would have to speak to the report and give evidence.

Adv Schmidt noted that there was a difference in the uses of the word "may" in the proposed new subclauses (9)(a) and (b). He pointed out that the drafter of a report could, in a criminal trial, be compelled to testify. That was why there had been a problem with the reports in the past. If full and complete reports were required for the primary purpose of getting full information about the causes of the accident, then he agreed that these reports should not be able to be used to incriminate automatically. If there was the fear of incrimination, full reports were unlikely to be given.

The Chairperson suggested that this clause served little purpose, and should perhaps be deleted. He would not like the Court to be precluded from calling for the report.

Mr Gazi agreed with this. He said that the purpose of inserting the new sub-clause was misplaced. It was intending to focus on reports that the PIM was not receiving.

Clause 5
Ms Ngema noted that new subsections (4A) and (4B) were to be inserted into section 13 of the principal Act.

New Clauses
Ms Ngema noted that during the public hearings there had been comments about various sections of the Act that had not been mentioned in the Bill, but valid points had been raised about the need to amend those sections. The Department had therefore prepared wording.

Amendment of section 20
A new subsection (7) was proposed to provide that an employee lodging an appeal under subsection (1) could not be dismissed on any grounds relating to unfitness to perform work, pending the outcome of the appeal

Amendment of section 23 of the principal Act
Ms Ngema said that it was suggested that subsection (4) be inserted to allow the Minister to determine minimum requirements for the procedures contemplated in subsection (2)

Clause 12
Ms Ngema noted that this related to section 49 of the principal Act, dealing with the functions of the Chief Inspector. He was being given the responsibility to issue guidelines by notice in the Gazette.

The Chairperson asked what those would be.

Mr Gazi noted that these would relate to how inspectors were to carry out inspections, and it also related to the administrative fines

Clause 13
This had inserted a new section 49A dealing with the financial and judicial management of the Mine Health and Safety Inspectorate. It was now suggested that a new subsection (6) be added to deal with the report of the Chief Inspector of Mines, and what this must reflect. 

Mr Gazi noted that there had been some comments about the use of fines. The State Law Adviser, in capturing the reporting on financial affairs, had drafted a clause that combined the Administrative Funds' money with the normal funds of the Inspectorate. It would cause a conflict if the money collected from fines was to be used for general administration, and he said that the wording needed to make it clear that the fines could only be used for the improvement of health and safety.

Ms Ngema said that there was thus a suggestion that it be specifically stated that the CIM must use the funds for the promotion of mining health and safety.

Adv Schmidt noted that anything to do with money was the sole prerogative of the National Treasury, and he asked whether the fines could be retained by the Inspectorate of Mine Health and Safety.

Mr Mahlaba asked how this situation would differ from, for instance, traffic fines. He believed that there was no reason for this.

Mr Gazi noted that the Public Finance Management Act (PFMA) made provision that if it was stipulated in a piece of legislation that funds were to be used for a specific purpose, then the funds would not have to be given to National Treasury. Funds were also collected and used directly for research, but a report was submitted on the use of these funds.

It was agreed that the new wording would be inserted.

New Clause: Amendment of section 50 of the Principal Act
Ms Ngema noted that this section dealt with the Inspector's powers. It was now proposed that a new sub clause (7A) be inserted to deal with the Inspector's powers to prohibit further functioning of sites under certain defined circumstances.

Clauses 16, 17 and 18
Ms Ngema noted that in the original draft, clause 16 had related to the finances, and the use of the administrative fine. The original draft's clause 17 had contained amendments to clause 55D of the principal Act, but the content of this clause was in fact also contained in the new clause on the powers. The original draft's clause 18 had set out the repeal of certain clauses. However, because of the new amendments, clauses 16 and 17 could now fall away. Clauses 18 was to be replaced with a new clause that set out more fully all the provisions of the principal Act that were to be repealed.

New clause 18
Ms Ngema noted that this new clause would clearly set out that sections 55C, 55D, 55E, 55G and 55H were being repealed.

New Clause: new Section 86A
Ms Ngema said that section 86 dealt with negligent acts or omissions on the part of employees and employers. This new section dealt with criminal liability. It extended vicarious liability to the employer, if a Chief Executive Officer, Manager, Agent or employee had committed an offence or omission, provided that this was within the scope of authority or employment, and that the employer connived at or permitted that action, or did not take all responsible steps to prevent that action or omission. If instructions had been issued prohibiting the action or omission, this in itself would not be sufficient proof that reasonable steps were taken to prevent the act or omission. Furthermore, the defence of ignorance or mistake could not be admitted.

The Chairperson pointed out that there seemed to be some words missing from the first sentence of the new section.

Ms Ngema conceded that this was correct, and read out the words that had mistakenly been omitted.

Adv Schmidt noted that in order to hold someone criminally liable, it would be necessary to prove intent or negligence. The mere fact of a death at a mine did not mean that a crime was being committed by the employer. He objected strongly to the way in which the clause was phrased. Vicarious liability could not apply to criminal procedures, and it was necessary to prove a link, by way of intention or negligence, before blame could attach.

Mr Monareng pointed out that the courts would make that determination. He thought that the heading of the clause was problematic.

The Chairperson said that the drafters would need to look at the clause again.

Ms Ngema said that this section was intending to create a new offence. Culpable homicide was often an alternative to the main offence of murder. This whole section was not only talking to death, but also spoke to injuries.

The Chairperson understood the point, but still questioned whether it had been properly framed.

Mr Mahlaba thought that it would be useful to hear from the drafters how this was likely to be implemented.

Ms Ngema said that if a criminal law charge was being made, there would have to be proof of wrongful action. She cited the instance where something happened at the mine, but if it could be shown that something at the mine had been conducive to that happening, and led to death, then this would be deemed to be an offence. If it was another miner who had caused the occurrence, he would normally be prosecuted. This section was seeking to extend the liability of that individual to the owner of the mine. The prosecuting authority would decide what the competent charge would be. The Act could not set out all the offences, but it was seeking to establish a principle.

The Chairperson explained the causes of the Chernobyl disaster, which had involved employees pressing a panic button that effectively overrode the normal procedures, and which caused a massive rise in watts. In a mine there might be automated systems that were supposed to protect the mine. If precautionary measures had not been taken to make it impossible for a worker to violate protecting automatic systems, then he agreed that this would be an incorrect action, as fail-safe systems should not be allowed to be bypassed.

Mr Monareng noted that the Department had previously explained the categories of injuries. If a worker had directly or indirectly contributed to a fatality, this would generally be due to negligence, or lack of compliance. An employee should not be placed in the same category as the owners of a mine, because the mine owners should be putting in place certain safety measures.

The Chairperson said that this Bill was dealing with the safety of mines. It must therefore deal with the owners of the mines. There might be a situation where the mine owner could argue his way out of liability, but that must be done in the appropriate forum. He agreed that the mere mention of employees would be opening up the categories too far. The owner should be able to explain that certain standards were correct, but that other intervening circumstances had caused the accident.

Adv Schmidt said that there were two different principles. One was to say that if the employee committed an offence, then the employer was vicariously liable, if he had failed to take certain steps to prevent the commission of the offence. However, there was no such offence in law that if a death occurred for which blame could not be attributed in the normal course to the employer, he must be responsible. Murder was the intentional killing of a human being. Culpable homicide involved negligence. Without proof of either intention or negligence, there could be no offence. The mere fact of death during the activities of a mine could never be an offence, no matter whether it was contained in the legislation or not. This section would have to be linked directly to the employer or the employee committing an offence. Nothing else would be competent in law.

The Chairperson noted that the whole section would have to be redrafted.

Ms Ngema noted that the drafters had had some problems with this clause. They had looked at what other jurisdictions had done. The suggestions made by the National Union of Mineworkers had actually been contrary to the criminal justice system of South Africa. This section sought to address their concerns, and she said that it was similar to what other jurisdictions had done.

Mr Mahlaba proposed that this issue be flagged for further consideration. The principle of strict liability was supported, but it should be reconsidered. He asked how many of the Members would be present later on to debate this issue.

The Chairperson noted that the Chief Whip would have to deal with the issue, but he urged Members to cooperate fully, especially given the short time to get this legislation through.

Mr Monareng said that he could live with the clause, as it set out the fundamental principles.

The Chairperson said that he still would like the concerns around constitutionality and legality to be addressed.

Adv Schmidt noted that this new section sought to constitute a new offence, without referral to any other known offence in South African law. This was against the tenet of South African law, and this should have been raised with the Minister of Justice. There was no reference to guilt. He was not opposed to preventing deaths on the mine but this must be done within the legal framework. Vicarious liability was accepted, but the offence as set out here was a quantum leap that could not be supported.

Clause 26
Ms Ngema noted that there were corrections being made to look at the issues of contravening and failing to comply with the provisions of the Act, with a substitution of words in line 7.

In addition, the words "or imprisonment" were being inserted into line 17.

Clause 27
This related to penalties. Technical corrections were being made. Ms Ngema noted that the original draft had sought to insert new subsections 92(6) and 92(7). However, subsequent to this it had been suggested that the penalties of corporate prohibition, restraining or immobilisation, and asset forfeiture should be removed. Therefore the new wording provided that an owner could be sentenced to withdrawal or suspension of the permit, or a fine of R3 million.

The new subsection (7) then stated that the person could, in addition, be ordered to repair any damage caused, and to comply with the provisions of the Act.

New Clause
Ms Ngema said that section 98(1) was being substituted. The original paragraphs (a) and (b) were to be deleted. New wording would then be substituted for what had originally been in (b). The remaining corrections to this new section were consequential.

Clause 31
Ms Ngema noted that in the original draft not all the sections that created offences were listed. The new schedule now set out specified the maximum fines that may be imposed.

Chamber of Mines submission
On resumption of the meeting after the lunch adjournment, The Chairperson announced that a letter had been received from the CEO of the Chamber of Mines, which would be circulated to members. He pointed out that a representative of the Chamber was present, who would address the Committee on matters pertaining to the letter.

Dr Frans Barker, Senior Executive, Chamber of Mines, commenced with a plea to the Committee that all parties concerned work together, and cautioned against the introduction of overly punitive measures. He claimed that there had been an improvement in safety matters over the preceding ten years. He conceded that the year before had been a less fortunate one, but ventured that 2008 had once again shown an improvement. He said that the Chamber had only had “one bite of the cherry”, whereas other parties had more. He warned that people of quality could be discouraged from entering the mine industry, by punitive and constraining legislation. He referred to measures that obliged the Chief Inspector to close down a mine in the event of accidents, as “mind boggling”. He maintained that mining was by its very nature hazardous and health threatening. He also said that it was surprising to hear the suggestion that if a third part intentionally caused death to someone during the course of mining operations, the employer or mine owner could be charged with that offence.

The Chairperson responded that the current session was not intended to provide a platform for the expression of stakeholder interests. Dr Barker had hijacked the opportunity to provide background, and this constituted a misuse of privilege.

Dr Barker apologised.

The Chairperson turned to the matter of upgrading the inspectorate. He noted that the Chief Inspector had attended to inputs from the Committee. Common ground had to be reached about the improved monitoring of safety situations. It was not desirable to create an agency that would frustrate efforts towards legislation, and he asked the Committee to consider where it stood on this issue.

Mr Thabo Gazi, Chief Inspector of Mines, DME, drew attention to clause 47(1), to the effect that a juristic person known as the Mine Health and Safety Inspectorate, would be established. The Public Finance Management Act of 1999 would apply to the Inspectorate. He also referred to clause 48(2), noting that the Inspectorate would be subject to control by the Minister. He stated that any institutional arrangement arrived at would be directly responsible to the Minister.

The Chairperson reminded the Committee that the Chief Inspector had advanced some options, including the possible fusion of the Inspectorate with the Council, an ad hoc body.

Mr Gazi continued that the Mine Health and Safety Council (the Council) was an advisory body, composed of five representatives. When it was established, the Department granted R3 million per year for its functioning. It had been declared a public entity by the Minister of Finance. The Council would sit to provide advice, and it had no fixed administrative structure.

The Chairperson asked about the possibility of upgrading the Inspectorate, granting it more personnel and more functions, without relying on the Council. The Inspectorate was under-resourced , and the Council was an ad hoc body, with duties not directly related to upgrading the Inspectorate. He asked in what form opportunities for upgrading the Inspectorate would be incorporated into the Bill.

Mr Monareng moved that the establishment of the Inspectorate as a juristic person in the Bill would be sufficient.

The Chairperson asked if there was support from other Members.

Other Members indicated their support and it was agreed that this be done.

Motion of Desirability
The Chairperson then read out a motion of desirability pertaining to the Mine Health and Safety Amendment Bill.

Nine votes were counted in favour of the Motion of Desirability, and none against it.

Clause by clause deliberations
The Chairperson requested that Ms Ngema, Senior State Law Advisor read out the clauses. The Clauses that had not been subjected to amendments were accepted.

All the following clauses, which had been subjected to amendments, were then read out and agreed to by Members: (see document on afternoon session amendments):

Clause 2  (Appointment of a Chief Executive officer), as amended.

Clause 3  (Records of training provided and submission of a workplace skills plan), as amended.

Clause 4  (Investigation of accidents and health-threatening occurrences), as amended.

Clause 5  ( Appointment of an occupational medical practitioner).

New Clauses  : 7 - Non-dismissal of employees pending the outcome of an appeal).

                       : 8 – Publication of minimum requirements for procedures)

Clause 12  (Publication of guidelines), as amended

Clause 13  (Use of monies to promote health and safety in the mining industry), as amended

New Clause : Clause 15 - Prohibition on the further functioning of the site where death or injury occurred, as amended.

Rejection of Clauses 16, 17 and 18 were confirmed.

New Clause : Clause 18 – Repeal of 55C, 55D, 55E, 55F, 55G, and 55H of the principal Act).

New Clause : New Section 86A (Criminal liability through non-compliance with safety provisions that results in death or serious injury. Employer liability through failure to take reasonable steps to prevent an act or omission committed by a chief executive officer, manager, agent or employee).
It was noted that this clause had now been amended since the morning session, with the removal of the provisions relating to automatic criminal liability for any death occurring. The new (amended) clause was accepted.

Clause 26 (Non-compliance with safety and health regulations), as amended.

Clause 27  (Fines or imprisonment for offences related to non-compliance), as amended.
New Clause  (Standards for establishment and functioning of mine rescue services), as amended

Clause 31  (Fines or imprisonment), as amended

The Chairperson announced that, now that the list of clauses had been read out and agreed to, a Report by the Committee could be forwarded to the National Assembly for ratification. He stressed that any remaining typographical errors had to be cleaned up by the following day.

The Committee agreed to the Report.

The Chairperson thanked all participants, and adjourned the meeting.


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