Mine Health & Safety Amendment Bill: Department’s briefing & adoption

NCOP Economic and Business Development

21 October 2008
Chairperson: Mr J Sibiya (ANC, Limpopo Province)
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Meeting Summary

The Department of Minerals and Energy briefed the Committee on the Mine Health and Safety Amendment Bill. The Committee was initially provided with a brief breakdown of the mineral sector’s profile, and thereafter of the occupational diseases associated with mining, such as tuberculosis and silicosis. The Inspectorate’s efforts to enforce compliance, by way of legal sanctions, was described and insight into the regulatory capacity of the Inspectorate was also provided. There was a serious problem of losing inspectors to the mining industry. Inspectors were being poached at an alarming rate and hence there were many vacancies that needed to be filled, although the Department did explain that it was doing its best to do so.

The Department then proceeded to go through the Bill, explaining what each of the amendments Mr Gazi continued with the Bill itself by explaining what each amendment entailed. Sections 2A, 10, 11(5), 13, 17, 20, 23, 41-44, 47, 49&49A, 50, 55A-H, 58, 76, 86A and 91 were those sections amended. The Inspectorate did however foresee that there could be possible challenges or concerns attached to the implementation of some of the amended sections. Sections 11, 49(1)(l), 49(4)(d),50(7A), 55A(5), 55(B), 58, 92,54, 86(2) were the sections pointed out. Mr Gazi did however present proposals to address the challenges or concerns attached to these amended sections.

Members were concerned about the capacity problems that the Inspectorate was experiencing, and asked what had been done to fill the vacancies, and what in particular was proposed for the internship programmes. They further queried the number and amount of fines that had been issued over the past period, and noted that these seemed rather low, in light of the size and wealth of the industry. They questioned whether there was sufficient monitoring of inspectors, why the Bill was making allowance for inspections and investigations by mines as well as the Department, and whether this would not be contradictory. Questions were also asked about disability arising from accidents, insurance, synergy with the Department of Labour, and stoppages at mines. Members raised the concern that the Committee should have been given more time to consider the amendments, but were not in principle opposed to the subject or content of the Bill. The Committee agreed to the adoption of the Bill.

Meeting report

Mine, Health and Safety Amendment Bill: Department of Minerals and Energy (DME) Briefing
Mr Thabo Gazi, Chief Inspector of Mines, Department of Minerals and Energy, briefed the Committee on the Mine Health and Safety Amendment Bill. He provided the Committee initially with a brief breakdown of the mineral sector’s profile. This included information that the sector contributed directly 7%, and indirectly 15%, to the Gross Domestic Product (GDP) of South Africa, as well as providing employment to 460 000 individuals. He thereafter gave the Committee a graphical breakdown of occupational diseases associated with mining, such as tuberculosis and silicosis. Interestingly enough loss of hearing was the biggest occupational health risk associated with the sector.

Mr Gazi also presented the Inspectorate’s efforts in being able to enforce compliance by way of legal sanctions attached to minor and serious breaches, as well as sanctions attached to causes of serious injuries or death. The range of legal sanctions available were improvement notices, administrative fines, stoppage orders, investigations coupled with fines and finally an inquiry or inquest. Figures on the application of each of the applicable sanctions in the various provinces for the last three years were provided. He then turned to the regulatory capacity of the Inspectorate. There was a serious problem of losing inspectors to the mining industry. Inspectors were being poached at an alarming rate and hence there were many vacancies that needed filling. Attempts were, however, being made to fill vacancies as they occurred. The challenge was finding persons with the relevant qualifications. The Mine Health and Safety Inspectorate (MHSI) had to come up with innovative solutions to address the issue of skills capacity. The result was training and development, an internship programme, as well as a bursary scheme for students with the view to later joining the Inspectorate on completion of studies.

Mr Gazi then continued to take the Committee through the Bill itself, explaining what each amendment entailed (see attached presentation for details) and dealing with the amendments to  Sections 2A, 10, 11(5), 13, 17, 20, 23, 41-44, 47, 49 & 49A, 50, 55A-H, 58, 76, 86A and 91 of the Mine, Health and Safety Act (the principal Act). The Inspectorate had identified possible difficulties with the implementation of some of these sections, in particular Sections 11, 49(1)(l), 49(4)(d), 50(7A), 55A (5), 55(B), 58, 92, 54, and 86(2), but presented proposals to address the challenges attached to these sections.

Discussion
Mr W Douglas (ACDP, Western Cape) felt that R600 000 worth of fines having been levied in total for the mining industry was far too little, given that the industry was a multi-billion dollar one. He asked what solution there was to this problem.

Mr Gazi responded that the amendments were good and believed that it would stem the tide. Even though the MHSI had capacity problems it had, from June 2007, started to enforce far more strictly. The situation was difficult in that inspectors had to do inspections whilst also having to contend with administrative duties as well, and it was difficult to get to all situations. He also pointed out that the fine amounts had been increased substantially by way of this Bill. Mining companies opposed the payment of fines, no matter how small or large they were, because they did not wish to have these reflected in their Annual Report. Some mining companies would incur huge legal costs to oppose the payment of relatively small fines for this very reason. The Inspectorate was taking action against mines that did not wish to pay fines.

Mr Douglas referred to vacancies in the Inspectorate and asked how the legislation was going to be enforced if there was a shortage of inspectors. He asked how the Inspectorate was planning to increase the number of inspectors. Mr Douglas further asked what was being done about the health issues that had been highlighted in the briefing. 

Mr Gazi noted that the Inspectorate did not receive a specific budget for training. DME received R5million in total for training, but not all was allocated to this section. Inspectors in the past had been retirees, whereas now they were young individuals. He said that discussions with the Department of Public Service and Administration had taken place over salaries as the private sector was poaching government employees. With the MHSI being established as a juristic person in terms of the Section 47 amendment, more flexible conditions of employment could be put in place that would hopefully address the problem.

Ms S Chen (DA, Gauteng) agreed that if capacity in the Inspectorate was a problem then there would equally be a problem in enforcing the legislation. She asked whether affirmative action or black economic empowerment requirements affected the ability of the Inspectorate to attract the right people to fill the vacancies. She referred to the proposal by the Inspectorate for the deletion of portions of Section 49 due to lack of capacity to enforce them and referred, in particular, to the  lack of capacity for the issuing of permits at present. She asked whether the Inspectorate had considered any alternatives.

Mr Gazi said that it had been realised that the process of permit granting was very going to be difficult. The Inspectorate simply did not have the capacity to currently deal with it. Practically it would not be possible, as there were so many mines but so few inspectors.

Mr D Gamede (ANC, KZN) stated that the briefing had spoken to deaths that had taken place in the sector, but had not said much about disabilities. He asked what was done in respect of people who became disabled from accidents that had occurred in mines.

Mr Gazi assured Mr Gamede that there was a policy on disability in place. International practice had been used as basis for the policy. The issue was however how to implement the policy. Co-operation and assistance of both employers and unions were needed.

Mr Gamede also asked why the number of notices served each year was increasing. The same could be said for stoppage orders. He felt that something was amiss, as mines were not complying. Mr Gamede asked if, when stoppage orders were given, whether they involved the same repeat offenders each time stoppages were ordered.

He referred to the increases in the numbers of notices and stoppages that had been ordered and said that where there was non-compliance action had to be taken. Action was only taken where it was needed. Mr Gazi said that there were instances where stoppages took place at the same mines. He however explained that one mine may have 100 different work places. Hence stoppages could be at different places at the same mine.
 
Mr Gamede also asked what plan the Inspectorate had in place to retain staff, and what incentives were being offered.

Mr Gamede was concerned about the amendment outlined for Section 11(5), which provided for an employer to undertake an investigation into an incident. He felt that the employer would be biased and the truth would not prevail. He felt it would be better that the Inspectorate undertake an investigation itself.

Mr Gazi explained that the Section 11(5) investigation by the employer did not mean that the government would not be able to investigate an incident. Section 60 provided for a government investigation. Both sections were considered empowering sections. He noted that if there were 4000 incidents annually the Inspectorate did not have the capacity to look into each and every one. That was the reason for inserting the provisions of Section 11(5). If need be, government would undertake an investigation.

Mr Gamede referred to the Section 47 amendment which provided for the MHSI to be established as a juristic person, and asked whether discussions with the Department of Labour were taking place. He asked whether there was going to be synergy.

 Mr Gazi pointed out that there was a co-operative agreement with the Department of Labour. There were no issues of boundaries. He noted that the provision in Section 47 was merely dealing with the Inspectorate reacting to an issue that was a problem.

Ms A Mchunu (IFP, Kwazulu Natal) was concerned about health issues in the mining sector. She felt that preventative measures were needed to ensure better diets for miners. Ms Mchunu mentioned that DeBeers Mining had in the past had a programme to educate miners about good nutrition. 

Mr Gazi stated that the assistance of communities by mining houses was handled under the Minerals and Petroleum Resources Development Act. He did emphasise that mines were required to have social and labour plans. Mr Gazi said that the issue was important and agreed to raise it further in the Department.

An ANC member asked what the responsibility of CEOs of mining houses was.

Mr Gazi referred to the amendment to Section 2A, and said that the CEO would have to take responsibility for incidents at mines. The amendment ensured that someone would have to be held accountable, and was inserted in the light of the fact that many mining companies were multinationals.

The Chairperson asked how the Inspectorate intended to keep inspectors loyal and focused.

Mr Gazi conceded that there had been incidents in the past where inspectors had colluded with mines. He did point out that there were disciplinary procedures in place to deal with the issue.
 
The Chairperson asked why so many administrative fines were being set aside. He asked if bribery was an issue.

Mr Gazi explained that there were instances where there was no supporting basis for fines, and hence they would be set aside. The final question was about whether a citation by an inspector was defensible, and he noted that sometimes there might be problems that arose from challenges around capacity.

The Chairperson also asked why the DME had wished to re-instate “may” in Section 50 and to delete the newly inserted “must”.

Mr Gazi noted that in the revised Section 50 the word “may” was preferred, after careful consideration. He explained that annually there were more or less 4 000 incidents at mines. It was not practical for an inspector to call for stoppages at each incident. The inspector needed to use his or her discretion to decide whether a stoppage was needed. Hence the use of “may” was retained.

Ms M Themba (ANC, Mpumalanga) took over as Acting Chairperson.

Ms Mchunu said that no mention had been made of insurance cover for mines.

Mr Gazi said that insurance was dealt with by the Departments of Health and Labour. DME could not be seen to impact on other Departments’ work. The issue was one of jurisdiction.

Ms Themba asked how the Inspectorate intended to attract students in the provinces to sign up as interns.

Mr Gazi said that there were learner-inspector and internship programmes. The internship programme was administrative and not practical. The learner-inspector programme was more difficult, as it was necessary to attract graduates, and he conceded that this particular internship programme did need to be strengthened.

Ms Themba asked the State Law Adviser’s Office for comment on the Bill.

Ms Phumelele Ngema, State Law Adviser, Office of the Chief State Law Adviser, disagreed with the DME on the amendments being proposed to Section 55A(5). The DME had suggested that “subject matter” replace “set of facts” in the section. However Ms Ngema felt that it should be left as it was in the principal Act, to read the “set of facts”.

She also informed members that Section 86A extended criminal liability to an employer if the offence was committed by an employee, in other words applied vicarious liability.

Ms Ngema felt that members should seriously consider the deletion of Sections 49(1)(l) and 49(4)(d) as proposed by the DME. She noted that Section 49(4)(d) was to be deleted as the Inspectorate lacked capacity at this stage to deal with permits.

Ms Themba asked Ms Ngema whether the Committee was being asked to decide whether Sections 49(1) (l) and 49(4)(d) should be retained or deleted.
 
Ms Shelly Makoba, Deputy Director General of Mine Safety, DME, responded that the removal of Section 49(4)(d) was an initial amendment. The Section imposed powers that went beyond the capacity of the Inspectorate. She referred to Section 49(1)(l) and said that implementation of legislation should be up to the industry and not the Inspectorate. The Inspectorate should be tasked with enforcement. That was the reason for the proposal now to delete Section 49(1)(l).

Mr Gazi said that it had been an oversight to have left this particular matter in the initial draft of the Bill and it would be meaningless to deal with it.

Mr Douglas felt that the Committee should have been given more time to consider the amendments in the Bill. He was however in principle not opposed to the amendments.

Mr D Mkono (ANC, Eastern Cape) shared Mr Douglas’s sentiments.

Ms Themba agreed with both members and said that the Committee’s work programme needed to be recognised.

The Committee went through the Bill, and agreed to adopt it, as amended.
 
The meeting was adjourned.

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