Mine Health and Safety Act, 1996

Mine Health and Safety Regulations 2008.pdf

To provide for protection of the health and safety of employees and other persons at mines and, for that purpose--

      to promote a culture of health and safety;

      to provide for the enforcement of health and safety measures;

      to provide for appropriate systems of employee, employer and State participation in health and safety matters;

      to establish representative tripartite institutions to review legislation, promote health and enhance properly targeted research;

      to provide for effective monitoring systems and inspections, investigations and inquiries to improve health and safety;

      to promote training and human resources development;

      to regulate employers' and employees' duties to identify hazards and eliminate, control and minimise the risk to health and safety;

      to entrench the right to refuse to work in dangerous conditions; and

      to give effect to the public international law obligations of the Republic relating to mining health and safety;

      and to provide for matters connected therewith.

Chapter 1 Objects of Act

1. Objects of Act

The objects of this Act are--

a)        to protect the health and safety of persons at mines;

b)        to require employers and employees to identify hazards and eliminate, control and minimise the risks relating to health and safety at mines;

c)        to give effect to the public international law obligations of the Republic that concern health and safety at mines;

d)        to provide for employee participation in matters of health and safety through health and safety representatives and the health and safety committees at mines;

e)        to provide for effective monitoring of health and safety conditions at mines;

f)          to provide for enforcement of health and safety measures at mines;

g)        to provide for investigations and inquiries to improve health and safety at mines; and

h)        to promote--

i)          a culture of health and safety in the mining industry;

ii)         training in health and safety in the mining industry; and

iii)        co-operation and consultation on health and safety between the State, employers, employees and their representatives.

Chapter 2 Health and Safety at Mines

 

2. Employer to ensure safety

1)        The employer of every mine that is being worked must--

a)        ensure, as far as reasonably practicable, that the mine is designed, constructed and equipped--

i)          to Provide conditions for safe operation and a healthy working environment; and

ii)         with a communication system and with electrical, mechanical and other equipment as necessary to achieve those conditions;

b)        ensure, as far as reasonably practicable, that the mine is commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering the health and safety of themselves or of any other person;

c)        compile an annual report on health and safety at the mine including the statistics on health and safety that must be kept in terms of this Act and the annual medical report referred to in section 16; and

d)        if the employer is a body corporate, and employs more than 50 employees, publish and distribute the report referred to in paragraph (c), in an appropriate form, to the body corporate's shareholders or members.

2)        The employer of a mine that is not being worked, but in respect of which a closure certificate in terms of the Minerals and Petroleum Resources and Development Act has not been issued. must take reasonable steps to continuously prevent injuries, ill-health, loss of life or damage of any kind from occurring at or because of the mine.

2A. Chief Executive Officer charged with certain Functions

1)        Every chief executive officer must take reasonable steps to ensure that the functions of the employer as contemplated in this Act, are properly performed.

2)        Without derogating from any responsibility or liability of the chief executive officer in terms of subsection (1), the chief executive officer may entrust any function contemplated in the said subsection to any person under the control of the chief executive officer, which person must act subject to the control and directions of the chief executive officer.

3)        If the employer is a body corporate, the functions of the chief executive officer contemplated in subsections (1) and (2) may be performed by a member of the board of the body corporate designated by the board.

4)        Subsections (1), (2) and (3) do not relieve an employer of any duty imposed on employers by this Act.

5)        Every person appointed in terms of section 3 or 4(1) must perform their functions subject to the control and direction of the chief executive officer or the person contemplated in subsection (3).

6)        

a)        The employer must inform the Chief Inspector of Mines, in writing, within seven days of the appointment of the chief executive officer.

b)        The information to the Chief Inspector of Mines include-

i)          the name of the chief executive officer;

ii)         the nature of such person's function; and

iii)        the name of persons who are managers under the supervision of the chief executive officer.

3. Employer must appoint manager

1)        The employer of every mine that is being worked must--

a)        appoint one or more managers with the qualifications as may be prescribed to be responsible for the day to day management and operation of the mine, and if more than one manager is appointed, ensure that the managers' functions do not overlap;

b)        supply the managers with the means to perform their functions; and

c)        take reasonable steps to ensure that the managers perform their functions.

2)        The appointment of a manager does not relieve the employer of any duty imposed on employers by this Act or any other law.

3)        If no manager is appointed in terms of subsection (1), the employer must perform the functions of a manager in terms of this Act.

4. Employer may entrust functions to another person

1)        An employer may appoint any person except a manager to perform any function entrusted to the employer by sections 2 and 3 of this Act.

2)        An employer who appoints a person under subsection (1) must notify the Chief Inspector of Mines of that appointment within seven days, and must include in that notice--

a)        the name of the person appointed;

b)        the nature of the person's functions; and

c)        the names of the manager or managers over whom that person has control.

(The Chief Inspector of Mines is appointed in terms of section 48 and his functions are set out in section 49.)

3)        An employer who appoints a person under subsection (1) must--

a)        supply each person appointed with the means to perform their functions; and

b)        take reasonable steps to ensure that they perform their functions.

4)        The appointment of a person under subsection (1) does not relieve the employer of any duty imposed on employers by this Act or any other law.

5. Employer to maintain healthy and safe mine environment

1)        As far as reasonably practicable, every employer must provide and maintain a working environment that is safe and without risk to the health of employees.

2)        As far as reasonably practicable, every employer must--

a)        identify the relevant hazards and assess the related risks to which persons who ark not employees may be exposed; and

b)        ensure that persons who are not employees, but who may be directly affected by the activities at the mine, are not exposed to any hazards to their health and safety.

(Negligent failure resulting in endangerment to a person at a mine is an offence. See section 86.)

6. Employer to ensure adequate supply of health and safety equipment

1)        Every employer must--

a)        supply all necessary health and safety equipment and health and safety facilities to each employee; and

b)        maintain, as far as reasonably practicable, that equipment and those facilities in a serviceable and hygienic condition.

2)        Every employer must ensure that sufficient quantities of all necessary personal protective equipment are available so that every employee who is required to use that equipment is able to do so.

3)        Every employer must take reasonable steps to ensure that all employees who are required to use personal protective equipment are instructed in the proper use, the limitations and the appropriate maintenance of that equipment.

(Employees have a duty to use and take care of personal protective equipment and other health and safety facilities. See section 22.

Interference with health and safety facilities is an offence. See section 84.

Employees must not be made to pay for health and safety facilities. See section 24.)

7. Employer to staff mine with due regard to health and safety

1)        As far as reasonably practicable, every employer must--

a)        ensure that every employee complies with the requirements of this Act;

b)        institute the measures necessary to secure, maintain and enhance health and safety;

c)        provide persons appointed under subsections (2) and (4) with the means to comply with the requirements of this Act and with any instruction given by an inspector;

d)        consider an employee's training and capabilities in respect of health and safety before assigning a task to that employee; and

e)        ensure that work is performed under the general supervision of a person trained to understand the hazards associated with the work and who has the authority to ensure that the precautionary measures laid down by the employers are implemented.

(Employees have a duty to comply with health and safety measures. See section 22.)

2)        The employer may appoint any person with qualifications as may be prescribed to perform any function of the employer in terms of this Act.

3)        The appointment of a person under subsection (2) does not relieve the employer of any duty imposed on employers by this Act.

4)        An employer may appoint any person with qualifications as may be prescribed to perform any function of the employer in terms of this Act.

5)        The appointment of a person under subsection (4) does not relieve the employer of any duty imposed on employers by this Act.

8. Employer must establish health and safety policy

1)        Every employer must prepare a document that--

a)        describes the organisation of work;

b)        establishes a policy concerning the protection of employees' health and safety at work;

c)        establishes a policy concerning the protection of persons who are not employees but who may be directly affected by the activities at the mine; and

d)        outlines the arrangements for carrying out and reviewing policies.

2)        The employer must consult with the health and safety committee on the preparation or revision of the document and policies referred to in subsection (1).

(The requirements for establishing a health and safety committee are set out in Chapter 3.)

3)        The employer must--

a)        prominently and conspicuously display a copy of the document referred to in subsection (1) for employees to read; and

b)        give each health and safety representative a copy of the document.

9. Codes of practice

1)        Any employer may prepare and implement a code of practice on any matter affecting the health or safety of employees and other persons who may be directly affected by activities at the mine.

2)        An employer must prepare and implement a code of practice on any matter affecting the health or safety of employees and other persons who may be directly affected by activities at the mine if the Chief Inspector of Mines requires it.

3)        A code of practice required by the Chief Inspector of Mines must comply with guidelines issued by the Chief Inspector of Mines.

4)        The employer must consult with the health and safety committee on the preparation, implementation or revision of any code of practice.

5)        The employer must deliver a copy of every code of practice prepared in terms of subsection (2) to the Chief Inspector of Mines.

6)        The Chief Inspector of Mines must review a code of practice of a mine if requested to do so by a registered trade union with members at the mine, or a health and safety committee or a health and safety representative at the mine.

7)        At any time, an inspector may instruct an employer to review any code of practice within a specified period if that code of practice--

a)        does not comply with a guideline of the Chief Inspector of Mines; or

b)        is inadequate to protect the health or safety of employees.

10. Employer to provide health and safety training

1)        As far as reasonably practicable, every employer must--

a)        provide employees with any information, instruction, training or supervision that is necessary to enable them to perform their work safely and without risk to health; and

b)        ensure that every employee becomes familiar with work-related hazards and risks and the measures that must be taken to eliminate, control and minimise those hazards and risks.

(Employees must not be made to pay for health and safety training. See section 24.)

2)        As far as reasonably practicable, every employer must ensure that every employee is properly trained--

a)        to deal with every risk to the employee's health or safety that--

i)          is associated with any work that the employee has to perform, and

ii)         has been recorded in terms of section 11;

b)        in the measures necessary to eliminate, control and minimise those risks to health or safety;

c)        in the procedures to be followed to perform that employee's work; and

d)        in relevant emergency procedures.

3)        In respect of every employee, the provisions of subsection (2) must be complied with--

a)        before that employee first starts work;

b)        at intervals determined by the employer after consulting the health and safety committee;

c)        before significant changes are introduced to procedures, mining and ventilation layouts, mining methods, plant or equipment and material; and

d)        before significant changes are made to the nature of that employee's occupation or work.

4)        The employer must keep a record of all formal training provided in respect of each employee in terms of subsection (2).

5)        All mines must submit a workplace skills plan and the annual training reports to the Mining Qualifications Authority.

11. Employer to assess and respond to risk

1)        Every employer must--

a)        identify the hazards to health or safety to which employees may be exposed while they are at work;

b)        assess the risks to health or safety to which employees may be exposed while they are at work;

c)        record the significant hazards identified and risks assessed; and

d)        make those records available for inspection by employees.

2)        Every employer, after consulting the health and safety committee at the mine, must determine all measures, including changing the organisation of work and the design of safe systems of work, necessary to--

a)        eliminate any recorded risk;

b)        control the risk at source;

c)        minimise the risk; and

d)        in so far as the risk remains--

i)          provide for personal protective equipment; and

ii)         institute a programme to monitor the risk to which employees may be exposed.

3)        Every employer must, as far as reasonably practicable, implement the measures determined necessary in terms of subsection (2) in the order in which the measures are listed in the paragraphs of that subsection.

4)        Every employer must--

a)        periodically review the hazards identified and risks assessed, including the results of occupational hygiene measurements and medical surveillance, to determine whether further elimination, control and minimisation of risk is possible; and

b)        consult with the health and safety committee on the review.

5)        Every employer must--

a)        conduct an investigation into every--

i)          accident that must be reported in terms of this Act;

ii)         serious illness; and

iii)        health-threatening occurrence;

aA)     commence an investigation referred to in paragraph (a) within 10 days from the date of such accident, serious illness or health threatening occurrence;

b)        consult the health and safety committee on investigations in terms of this section;

c)        conduct an investigation in co-operation with the health and safety representative responsible for the working place in which the investigation takes place;

d)        on completion of each investigation, prepare a report that--

i)          identifies the causes and the underlying causes of the accident, serious illness or health-threatening occurrence;

ii)         identifies any unsafe conditions, acts, or procedures that contributed in any manner to the accident, serious illness or health-threatening occurrence; and

iii)        makes recommendations to prevent a similar accident, serious illness or health-threatening occurrence; and

e)        deliver a copy of the report referred to in paragraph (d) within 30 days from the date of the accident, serious illness or health-threatening occurrence being investigated to the Principal Inspector of Mines and the health and safety committee. If there is no health and safety committee the employer must deliver a copy of the report to the health and safety representative responsible for the working place.

5A)     An investigation in terms of subsection (5) must be completed within 30 days after the accident, serious illness or health-threatening occurrence being investigated or such longer period as the Principal Inspector of Mines may permit.

5B)     The employer must notify the Principal Inspector of Mines of any accident or occurrence at a mine that results in-

a)        the serious injury;

b)        illness; or

c)        death,

of any person, in order to allow the Principal Inspector of Mines to instruct an Inspector to conduct an investigation simultaneously with the employer as required in section 11(5)(a).

6)        An investigation referred to in subsection (5) may be held jointly with an investigation conducted by an inspector in terms of section 60.

(Section 60 empowers an inspector to investigate health and safety hazards if instructed by the Chief Inspector of Mines or requested by a trade union, a health and safety representative or a health and safety committee.)

7)        If there is no health and safety committee at a mine, the consultations required in this section must be held with--

a)        the health and safety representatives; or

b)        if there is no health and safety representative at the mine, with the employees.

8)        In the event of an incident in which a person died, or was injured to such an extent that he or she is likely to die, or suffered the loss of a limb or part of a limb, no person may without the consent of the 45 Principal Inspector of Mines disturb the site at which the incident occurred or remove any article or substance involved in the incident:

Provided that an article or substance may only be removed if it is necessary to-

a)        prevent any further incident;

b)        remove the injured or dead; or

c)        rescue any person from danger.

12. Employer to conduct occupational hygiene measurements

1)        The employer must engage the part-time or full-time services of a person qualified in occupational hygiene techniques to measure levels of exposure to hazards at the mine--

a)        if required to do so by regulation or a notice in the Gazette; or

b)        if, after assessing risks in terms of section 11(1), it is necessary to do so.

2)        Every system of occupational hygiene measurements must--

a)        be appropriate, considering the hazards to which the employees are or may be exposed; and

b)        be designed so that it provides information that the employer can use in determining measures to eliminate, control and minimise the health risks and hazards to which employees are or may be exposed.

3)        The employer must keep a record of all occupational hygiene measurements in terms of subsection (1) in a manner that can be linked as far as practicable to each employee's record of medical surveillance.

13. Employer to establish system of medical surveillance

1)        The employer must establish and maintain a system of medical surveillance of employees exposed to health hazards--

a)        if required to do so by regulation or a notice in the Gazette; or

b)        if, after assessing risks in terms of section 11(1), it is necessary to do so.

2)        Every system of medical surveillance must --

a)        be appropriate, considering the health hazards to which the employees are or may be exposed;

b)        be designed so that it provides information that the employer can use in determining measures to--

i)          eliminate, control and minimise the health risk and hazards to which employees are or may be exposed; or

ii)         prevent, detect and treat occupational diseases; and

c)        consist of an initial medical examination and other medical examinations at appropriate intervals.

3)        Every employer who establishes or maintains a system of medical surveillance must--

a)        engage the part-time or full-time services of--

i)          an occupational medical practitioner; and

ii)         [deleted by the Mine Health and Safety Amendment Act No. 74 of 2008];

b)        supply the practitioners with the means to perform their functions; and

c)        keep a record of medical surveillance for each employee exposed to a health hazard.

4)        [deleted by the Mine Health and Safety Amendment Act No. 74 of 2008].

4A)     The employer must inform the Principal Inspector of Mines, in writing, within seven days of the appointment of the occupational medical practitioner.

4B)     The information submitted in terms of subsection (4A) must include-

a)        the name of a occupational medical practitioner;

b)        his or her practice number; and

c)        whether the occupational medical practitioner is engaged full time 10 or part time .

5)        An occupational medical practitioner must take every measure that is reasonably practicable to--

a)        promote the health and safety of employees at the mine; and

b)        assist employees in matters related to occupational medicine.

6)        If any employee is declared unfit to perform work as a result of an occupational disease, the employer must conduct an investigation in terms of section 11(5).

(Employees have the right to challenge a decision that they are unfit to perform work. See section 20.)

7)        If an employee is temporarily unfit to perform work as a result of any occupational disease, but there is a reasonable expectation that the employee's health will improve so that the employee can return to work, the occupational medical practitioner must record that fact and notify both the employer and employee of it.

8)        The employer must--

a)        retain the records referred to in sections 12(3), 13(3)(c) and 14(2) until the mine closes; and

b)        when the mine closes, deliver those records to the Medical Inspector.

14. Record of hazardous work

1)        The employer at every mine must keep a service record, in the prescribed form, of employees at the mine who perform work in respect of which medical surveillance is conducted in terms of section 13.

2)        The employer must deliver to the Medical Inspector a copy of the relevant part of the record kept in terms of subsection (1)--

a)        when an employee whose name appears in that record ceases to be employed at that mine; or

b)        when required to do so by the Chief Inspector of Mines.

15. Record of medical surveillance

1)        An employee's record of medical surveillance kept in terms of section 13(3)(c) must be kept confidential and may be made available only--

a)        in accordance with the ethics of medical practice;

b)        if required by law or court order; or

c)        if the employee has consented, in writing, to the release of that information.

(Improper disclosure of confidential information is an offence. See section 87.

Breach of confidence may result in an administrative sanction. See section 39.)

2)        Any person required to maintain an employee's record of medical surveillance must --

a)        store it safely; and

b)        not destroy it or dispose of it, or allow it to be destroyed or disposed of, for 40 years from the last date of the medical surveillance of that employee.

16. Annual medical reports

1)        Every occupational medical practitioner at a mine must compile an annual report covering employees at that mine, giving an analysis of the employees' health based on the employees' record of medical surveillance, without disclosing the names of the employees.

2)        The annual report compiled in terms of subsection (1) must be given to the employer, who must deliver one copy of the report to each of--

a)        [Paragraph (a) deleted by s.9 of Act No. 72 of 1997];

b)        the health and safety committees, or if there is no health and safety committee, the health and safety representatives; and

c)        the Medical Inspector.

17. Exit certificates

1)        If an employee was subject to, or was required to be subject to, medical surveillance in terms of this Act and such employee's employment at a mine is terminated for any reason, the employer must arrange an exit medical examination of the employee.

2)        The examination referred to in subsection (1) must be held before, or within 30 days after, termination of employment.

3)        The employee must attend the examination.

4)        The occupational medical practitioner conducting the examination must--

a)        produce an exit certificate with respect to that employee indicating the results of all medical surveillance and the presence or absence of any occupational disease; and

b)        enter a copy of the exit certificate into the employee's record of medical surveillance.

18. Costs of examination

The employer must pay the costs of all clinical examinations and medical tests performed in terms of this Act unless this Act expressly provides otherwise.

19. Employees' right to information

1)        An employee may request, and the employer must then provide, a copy of the record or of any part of it that--

a)        is being kept in terms of sections 12(3) and 13(3)(c), and

(Section 12(3) instructs the employer to keep a record of all occupational hygiene measurements so that they can be linked to each employee's record of medical surveillance.

Section 13(3)(c) instructs every employer to keep a record of medical surveillance for each employee exposed to a health hazard.)

b)        relates to that employee.

2)        The occupational medical practitioner conducting an examination in terms of section 17 must provide the employee with a copy of the exit certificate Prepared as a result of that examination.

20. Employee may dispute finding of unfitness to perform work

1)        An employee may appeal to the Medical Inspector against--

a)        a decision that the employee is unfit to perform any particular category of work; or

b)        any finding of an occupational medical practitioner contained in an exit certificate prepared in terms of section 17.

2)        An appeal under subsection (1) must--

a)        be lodged with the Medical Inspector within 30 days of the relevant decision or finding, or such further period as may be prescribed; and

b)        state the grounds of the appeal.

3)        When the Medical Inspector receives an appeal under subsection (1), the Medical Inspector must choose a medical practitioner who is not employed by the employer of the employee, and arrange for that employee to be re-examined by that medical practitioner, at the cost of the Chief Inspector of Mines.

4)        The medical practitioner referred to in subsection (3) must report to the Medical Inspector, who must then consider the appeal and--

a)        confirm, set aside or vary the decision or finding of the occupational medical practitioner; or

b)        substitute any other decision or finding for that decision or finding.

5)        Nothing in this section precludes an employee from--

a)        obtaining and paying for a medical opinion from any other medical practitioner; or

b)        pursuing any other legal remedy.

6)        For the purposes of this section, " employee" includes any applicant for employment who has previously been employed at a mine.

7)        An employee lodging an appeal under subsection (1) may not be dismissed on any grounds relating to unfitness to perform work, pending the outcome of the appeal.

21. Manufacturer's and supplier's duty for health and safety

1)        Any person who--

a)        designs, manufactures, repairs. imports or supplies any article for use at a mine must ensure, as far as reasonably practicable--

i)          that the article is safe and without risk to health and safety when used properly; and

ii)         that it complies with all the requirements in terms of this Act;

b)        erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health and safety when used properly; or

c)        designs, manufactures, erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that ergonomic principles are considered and implemented during design, manufacture, erection or installation.

2)        Any person who bears a duty in terms of subsection (1) is relieved of that duty to the extent that is reasonable in the circumstances, if--

a)        that person designs, manufactures, repairs, imports or supplies an article for or to another person; and

b)        that other person provides a written undertaking to take specified steps sufficient to ensure, as far as reasonably practicable, that the article will be safe and without risk to health and safety when used properly and that it complies with all prescribed requirements.

3)        Any person who designs or constructs a building or structure, including a temporary structure, for use at a mine must ensure, as far as reasonably practicable, that the design or construction is safe and without risk to health and safety when used properly.

4)        Every person who manufactures, imports or supplies any hazardous substance for use at a mine must--

a)        ensure, as far as reasonably practicable, that the substance is safe and without risk to health and safety when used, handled, processed, stored or transported at a mine in accordance with the information provided in terms of paragraph (b);

b)        provide adequate information about--

i)          the use of the substance;

ii)         the risks to health and safety associated with the substance,

iii)        any restriction or control on the use, transport and storage of the substance, including but not limited to exposure limits;

iv)        the safety precautions to ensure that the substance is without risk to health or safety;

v)         the procedure to be followed in the case of an accident involving excessive exposure to the substance, or any other emergency involving the substance; and

vi)        the disposal of used containers in which the substance has been stored and any waste involving the substance; and

c)        ensure that the information provided in terms of paragraph (b) complies with the provisions of the Hazardous Substances Act, 1973 (Act No. 15 of 1973).

(The Hazardous Substances Act provides for the control of substances which may cause ill health due to their toxic or flammable nature.)

(Negligent failure resulting in endangerment to a person at a mine is an offence. See section 86.)

22. Employees' duties for health and safety

Every employee at a mine, while at that mine, must--

a)        take reasonable care to protect their own health and safety;

b)        take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee;

c)        use and take proper care of protective clothing, and other health and safety facilities and equipment provided for the protection, health or safety of that employee and other employees;

(Employers have a duty to provide personal protective equipment for employees. See section 6.)

d)        report promptly to their immediate supervisor any situation which the employee believes presents a risk to the health or safety of that employee or any other person, and with which the employee cannot properly deal;

e)        co-operate with any person to permit compliance with the duties and responsibilities placed on that person in terms of this Act; and

f)          comply with prescribed health and safety measures.

(It is an offence to fail to comply with a duty under this Act. See section 91.

It is an offence to discriminate against an employee who has asserted any right granted by this Act. See section 83.)

23. Employees' right to leave dangerous working place

1)        The employee has the right to leave any working place whenever--

a)        circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee; or

b)        the health and safety representative responsible for that working place directs that employee to leave that working place.

(A health and safety representative has the right to direct an employee to leave a dangerous working place. See section 30(1)(b).)

2)        Every employer, after consulting the health and safety committee at the mine, must determine effective procedures for the general exercise of the rights granted by subsection (1), and those procedures must provide for--

a)        notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of subsection (1);

b)        participation by representatives of employers and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right referred to in subsection (1);

c)        participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right referred to in subsection (1);

d)        where appropriate, the assignment to suitable alternative work of any employee who left, or refuses to work in, a working place contemplated in subsection (1); and

e)        notification to any employee who has to perform work or is requested to perform work in a working place contemplated in subsection (1) of the fact that another employee has refused to work there and of the reason for that refusal.

3)        If there is no health and safety committee at a mine, the consultation required in subsection (2) must be held with--

a)        the health and safety representatives; or

b)        if there is no health and safety representative at the mine, with the employees.

4)        The Minister, by notice in the Gazette, must determine minimum requirements for the procedures contemplated in subsection (2).

(It is an offence to discriminate against an employee who has asserted any right granted by this Act. See section 83.)

24. Employees not to pay for safety measures

No person may make any deduction from an employee's wages, or permit an employee to make any payment to any person, in respect of anything which the employer is obliged to provide or to do in terms of this Act in the interest of the health and safety of an employee.

25. Health and safety representatives and committees

1)        Every mine with 20 or more employees must have a health and safety representative for each shift at each designated working place at the mine.

(The process for designating working places is set out in section 27.)

2)        Every mine with 100 or more employees must have one or more health and safety committees.

3)        A health and safety representative or a member of a health and safety committee does not incur any civil liability only because of doing or failing to do something which a health and safety representative or a member of a health and safety committee may do or is required to do in terms of this Act.

(It is an offence to fail to do anything required by this Act. See section 91.)

26. Negotiations and consultations before appointment of representatives

1)        The employer of any mine where there must be a health and safety representative in terms of section 25 must meet, within the prescribed period, with the representative trade union of the mine to enter into negotiations to conclude a collective agreement concerning--

a)        the designation of working places;

b)        the number of full-time health and safety representatives;

c)        the election or appointment of health and safety representatives;

d)        the terms of office of health and safety representatives and the circumstances and the manner in which they may be removed from office;

e)        the manner in which vacancies are to be filled;

f)          the manner in which health and safety representatives must perform their functions in terms of this Act;

g)        the procedures for the effective exercise of the right to withdraw from serious danger in terms of section 23;

h)        circumstances and the manner in which meetings referred to in sections 30(1)(i) and 31(2) must be held;

(Section 30(1)(i) allows a health and safety representative to attend any meeting of a health and safety committee when appropriate.

Section 31(2) requires an employer to provide reasonable time and facilities for employees to meet monthly with their health and safety representative.)

i)          the facilities and assistance that must be provided to a health and safety representative in terms of section 31(3);

(Section 31(3) requires an employer to provide health and safety representatives with the facilities, assistance and training necessary to enable them to function effectively.)

j)          the training of health and safety representatives;

k)        a procedure that provides for the conciliation and arbitration of disputes arising from the application or the interpretation of the collective agreement or any provision of this Chapter;

l)          any prescribed matter; and

m)       any other matter which the parties believe will promote health and safety at the mine or mines concerned.

2)        Before concluding a collective agreement referred to in subsection (1) with the representative trade union, the employer must consult on the matters referred to in that subsection with all other registered trade unions with members at that mine.

3)        A collective agreement referred to in subsection (1) may include two or more employers as parties to the agreement.

4)        To the extent that an agreement concluded in terms of subsection (1) deals with any matter regulated by this Chapter or by any regulation regarding any matter regulated by this Chapter, the provisions of this Chapter or such regulation do not apply.

5)        The provisions applicable to collective agreements in terms of the Labour Relations Act, read with the changes required by the context, apply to agreements concluded in terms of subsection (1).

(See Part B of Chapter 3 of the Labour Relations Act.)

6)        If there is no representative trade union at the mine, the employer must within the prescribed period--

a)        consult with the registered trade unions with members at the mine on the matters referred to in subsection (1); and

b)        endeavour to reach agreement on the number of full-time health and safety representatives at the mine.

7)        If there is no registered trade union with members at the mine, the employer must, within the prescribed period--

a)        consult with the employees or any elected representative of the employees on the matters referred to in subsection (1); and

b)        endeavour to reach agreement on the number of full-time health and safety representatives at the mine.

8)        A dispute exists if either--

a)        no collective agreement in terms of subsection (1) is concluded on the number of full-time health and safety representatives at a mine; or

b)        no agreement is reached in terms of either subsection (6)(b) or (7)(b).

9)        When a dispute exists in terms of subsection (8), any party to the dispute may refer it to the Commission.

10)      When a dispute is referred to the Commission under subsection (9), the Commission must attempt to resolve it through conciliation.

11)      If a dispute remains unresolved, any party to the dispute may request that it be resolved through arbitration, in which case the Commission, taking into account the guidelines in Schedule 1, must determine the number of full-time health and safety representatives.

12)      Nothing in this section Precludes the employer from consulting with any employee who is not a member of a registered trade union or any representative of those employees concerning the matters referred to in subsection (1).

27. Designation of working places

1)        If a collective agreement is concluded after the negotiations and consultations referred to in section 26, the employer must designate working places at the mine in accordance with that agreement.

2)        If no collective agreement is concluded after the negotiations and consultations referred to in section 26, the employer must designate working places at the mine so that--

a)        every working place at the mine is designated;

b)        no health and safety representative is responsible for more than 100 employees; and

c)        no health and safety representative is responsible for more than 50 employees if the designated working place includes separate working places.

28. Qualifications of representatives

1)        To qualify to serve as a health and safety representative referred to in section 25(1), an employee must--

a)        be employed in a full-time capacity in the designated working place; and

b)        be acquainted with conditions and activities at the designated working place.

(Section 25(1) stipulates that every mine with 20 or more employees must have a health and safety representative for each shift at each designated working place.)

2)        To qualify to serve as a full-time health and safety representative an employee must --

a)        be employed in full-time capacity at the mine;

b)        comply with any other qualifications which may be--

i)          agreed by a health and safety committee; or

ii)         prescribed.

29. Election and appointment of representatives

1)        At a mine referred to in section 25(1), the employees in a designated working place may elect from among themselves health and safety representatives.

2)        The employees at the mine may elect from among themselves any full-time health and safety representatives that may be agreed or determined in terms of section 26.

(Section 26 deals with the election or appointment of health and safety representatives.)

3)        The elections referred to in subsections (1) and (2) must be conducted in the prescribed manner.

4)        The employees elected as representatives in terms of this section must be appointed by the employer in the prescribed manner.

30. Rights and powers of representatives

1)        A health and safety representative may--

a)        represent employees on all aspects of health and safety,

b)        direct any employee to leave any working place whenever circumstances arise at that working place which, with reasonable justification, appears to the health and safety representative to pose a serious danger to the health or safety of that employee;

c)        assist any employee who has left a working place in terms of section 23;

(Section 23 empowers an employee to leave any dangerous working place and requires every employer to follow certain procedures in this regard.)

d)        identify potential hazards and risks to health or safety;

e)        make representations or recommendations to the employer or to a health and safety committee on any matter affecting the health or safety of employees;

f)          inspect any relevant document which must be kept in terms of this Act;

g)        request relevant information and reports from an inspector;

h)        with the approval of the employer, be assisted by or consult an adviser or technical expert who may be either another employee or any other person;

i)          attend any meeting of a health and safety committee--

i)          of which that representative is a member; or

ii)         which will consider a representation or recommendation made by that representative;

j)          request--

i)          an inspector to conduct an investigation in terms of section 60; or

(Section 60 requires an inspector to investigate serious health and safety contraventions.)

ii)         the Chief Inspector of Mines to conduct an inquiry in terms of section 65;

k)        participate in consultations on health and safety with--

i)          the employer or person acting on behalf of the employer; or

ii)         an inspector;

l)          participate in any health and safety inspection by--

i)          the employer or person acting on behalf of an employer; or

ii)         an inspector;

(Inspections are carried out by inspectors acting under section 50(2)(e).)

m)       inspect working places with regard to the health and safety of employees at intervals agreed with the employer;

n)        participate in any internal health or safety audit;

o)        investigate complaints by any employee relating to health and safety at work;

p)        examine the causes of accidents and other dangerous occurrences in collaboration with the employer or person acting on behalf of the employer;

q)        visit the site of an accident or dangerous occurrence at any reasonable time;

r)         attend a post-accident inspection;

s)        co-operate with the employer in the conducting of investigations in terms of section 11(5);

(Section 11(5) requires every employer working in co-operation with a health and safety representative health threatening situations.

Section 11(6) provides that this investigation may be conducted jointly with an inspector.)

t)         participate in an inquiry held in terms of section 65; and

u)        perform the functions--

i)          agreed by the health and safety committee; or

ii)         prescribed.

2)        The rights and powers referred to in subsection (1) apply to health and safety representatives referred to in section 25(1) only in respect of the working places for which they are responsible.

3)        If a health and safety representative requests information or reports under subsection (1)(g), the inspector must supply the representative with the information or reports in their possession.

(Section 25(1) stipulates that every mine with 20 or more employees must have a health and safety representative for each shift at each designated working place.)

4)        An employer may not unreasonably withhold the approval required in terms of subsection (1)(h).

5)        A health and safety representative intending to exercise the right to inspect working places under subsection (1)(m) must--

a)        give the employer reasonable notice of the inspection; and

b)        permit the employer to participate in the inspection.

6)        Health and safety representatives are entitled to perform their functions and to receive training during ordinary working hours.

7)        Any time reasonably spent by a health and safety representative for a purpose referred to in subsection (6) must be considered for all purposes to be time spent carrying out the employment duties of that representative.

31. Duty to compensate and assist representatives

1)        The employer must pay every full-time health and safety representative appropriate remuneration at least equal to the remuneration the representative earned immediately before being appointed as a full-time health and safety representative.

2)        The employer must provide reasonable time and facilities for employees to meet monthly with their health and safety representatives in order to consider--

a)        health and safety in their working places; and

b)        reports by the representatives on the performance of their functions.

3)        The employer must provide health and safety representatives with--

a)        the facilities and assistance reasonably necessary to perform their functions;

b)        training that is reasonably required to enable them to perform their functions; and

c)        time off from work, without loss of remuneration, to attend any training course that is agreed or prescribed.

4)        Unless otherwise agreed, the assistance referred to in subsection (3)(a) does not include any costs associated with advisers or independent experts contemplated in either section 30(1)(h) or section 36(1)(g).

5)        On the completion of a term of office as a full-time health and safety representative, the health and safety representative is entitled to--

a)        employment in the same position held immediately before being appointed as a full-time health and safety representative; or

b)        employment in a position that is at least as favourable as the position held immediately before being appointed a full-time health and safety representative.

32. Duty to inform representatives

Every employer must notify the health and safety representatives concerned and, if there is a health and safety committee, the employee co-chairperson of that committee--

a)        in good time, of inspections, investigations or inquiries of which an inspector has notified the employer; and

b)        as soon as practicable, of any accident, serious illness or health-threatening occurrence, or other dangerous event.

33. Negotiation and consultation on establishment of committees

1)        The employer of any mine in respect of which a health and safety committee must be established in terms of section 25(2), must meet, within the prescribed period, with the representative trade union at the mine to enter into negotiations to conclude a collective agreement concerning--

a)        the number of health and safety committees to be established at the mine and the working places for which they will be responsible;

b)        the number of employer and employee representatives on the committees;

c)        the election and appointment of members of health and safety committees;

d)        the terms of office of members of the health and safety committee and the circumstances and the manner in which the members may be removed from office;

e)        the manner in which vacancies are to be filled;

f)          the circumstances and the manner in which meetings may be held;

g)        the facilities and assistance which must be provided to health and safety committees in terms of section 37(a); and

h)        a procedure that provides for the conciliation and arbitration of disputes arising from the application or interpretation of the collective agreement or any provision of this Chapter.

(Section 25(2) provides that every mine with 100 or more employees must have one or more health and safety committees.)

2)        Before concluding a collective agreement referred to in subsection (1) with the representative trade union, the employer must consult on the matters referred to in that subsection with all other registered trade unions with members at that mine.

3)        A collective agreement referred to in subsection (1) may include two or more employers as Parties to the agreement.

4)        To the extent that an agreement concluded in terms of subsection (1) deals with any matter regulated by this Chapter or by any regulation regarding any matter regulated by this Chapter, the provisions of this Chapter or such regulation do not apply.

5)        The provisions applicable to collective agreements in terms of the Labour Relations Act, read with the changes required by the context, apply to agreements concluded in terms of subsection (1).

(See Part B of Chapter 3 of the Labour Relations Act.)

6)        If there is no representative trade union at the mine, the employer must consult, within the prescribed period. with the registered trade unions with members at the mine on the matters referred to in subsection (1).

7)        If there is no registered trade union with members at the mine, the employer must, within the prescribed period, consult with the employees or any elected representatives of the employees on the matters referred to in subsection (1).

8)        The negotiations and consultations referred to in this section may be held at the same time as those referred to in section 26

34. Establishment of health and safety committees

1)        If a collective agreement is concluded in terms of section 33(1), health and safety committees must be established in terms of that agreement.

2)        If no collective agreement is concluded in terms of section 33(1), the employer must establish health and safety committees after the consultation referred to in section 33(6) or (7) and in accordance with this section and the regulations.

3)        A health and safety committee must consist of--

a)        at least four employee representatives; and

b)        a number of employer representatives equal to or less than the number of employee representatives.

4)        The health and safety representatives must appoint the employee representatives on the health and safety committee. The employee representatives must be--

a)        broadly representative of the working places at the mine; and

b)        employees at that mine.

5)        No more than two of the employee representatives may be appointed from full-time employees who are not health and safety representatives, unless all of the health and safety representatives have been appointed to the committee and there are still employee committee positions to be filled.

6)        The employer must appoint the employer representatives on the health and safety committee. The persons appointed must include persons who have authority to develop and implement health and safety policies at the mine.

35. Committee procedures

1)        The employee and employer representatives on a health and safety committee must each elect a chairperson from their number. Unless otherwise agreed by the committee, the two chairpersons must alternate as the presiding chairperson of the committee.

2)        Unless otherwise agreed by a health and safety committee, the committee must meet at least once a month.

3)        A health and safety committee may determine its own rules and procedures.

4)        Persons other than employee or employer representatives may be invited to attend meetings of the health and safety committee and to participate in its proceedings.

36. Rights and powers of health and safety committee

1)        A health and safety committee may--

a)        represent employees on all aspects of health and safety;

b)        participate in consultations on any health and safety matter listed in the Schedule referred to in section 97(2);

(Section 97(2) Empowers the Minister after consulting the Council to publish a notice in the Gazette that adds a further Schedule containing matters in respect of which health and safety committees may consult.)

c)        request the Chief Inspector of Mines to review any code of practice;

(The rules governing the codes of practice are set out in section 9.)

d)        request relevant information from any person who is required, in terms of this Act, to Provide that information to the committee;

e)        agree on additional qualifications or functions of health and safety representatives;

f)          request--

i)          an inspector to conduct an investigation in terms of section 60; or

(Section 60 requires an inspector to investigate serious health and safety contraventions.)

ii)         the Chief Inspector of Mines to conduct an inquiry in terms of section 65;

(Section 65 requires the Chief Inspector of Mines to direct an inspector to conduct an inquiry into the death of any person and into any health and safety contraventions.)

g)        with the approval of the employer, be assisted by or consult an adviser or a technical expert who may be either another employee or any other person;

h)        take reasonable time to prepare for each meeting of the committee; and

i)          take reasonable time to report on meetings of the committee to the health and safety representatives at the mine.

2)        No employer may unreasonably withhold the approval required in terms of subsection (1)(g).

3)        Members of health and safety committees are entitled to perform their functions and to receive training during ordinary working hours.

4)        Any time reasonably spent by a member of a health and safety committee for a purpose referred to in subsection (3) must be considered for all purposes to be time spent carrying out the employment duties of that member.

37. Duty to support committee

The employer must--

a)        provide the health and safety committee with the facilities and assistance reasonably necessary to perform its functions;

b)        supply the health and safety committee with the annual report referred to in section 2(1)(c) and any information necessary to perform its functions.

(Section 2(1)(c) requires the employer to compile and annual report on health and safety at the mine.)

38. Disclosure of information

1)        Whenever an employer, inspector or a person who conducts an inquiry in terms of section 65, is required by the provisions of this Chapter to supply information or reports to a health and safety representative or to the health and safety committee, that employer, inspector or person--

a)        must not disclose any information that is private personal information relating to an employee, unless the employee consents in writing to the disclosure of that information; and

b)        is not required td supply any information--

i)          that is legally privileged;

ii)         that the employer, inspector or person could not disclose without contravening a prohibition imposed upon the employer by any law or court order; or

iii)        that is confidential and, if disclosed, may cause substantial harm to an employee or the employer.

2)        No employee may unreasonably withhold the consent required in terms of subsection (1)(a).

(Section 65 requires the Chief Inspector of Mines to direct an inspector to conduct an inquiry into the death of any person and into any health and safety contraventions.

Improper disclosure of confidential information is an offence. See section 87.)

39. Disputes concerning disclosure of information

1)        If there is a dispute about what information is required to be disclosed in terms of the provisions of this Chapter, any party to the dispute may refer the dispute in writing to the Commission.

2)        The party who refers a dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

3)        The Commission must attempt to resolve the dispute through conciliation.

4)        If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

5)        A commissioner appointed to arbitrate a dispute must first decide whether or not the information is required to be supplied in terms of the provisions of this Chapter.

6)        If the commissioner decides that the information is required and if it is information contemplated in section 38(1)(a) or (b)(iii), the commissioner must balance the harm that disclosure is likely to cause to an employee or employer or any other person who employs employees, against the harm that the failure to disclose the information is likely to cause to the ability of health and safety representatives or members of the health and safety committee to perform their functions effectively.

7)        If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or the employer.

8)        When making an order under subsection (7), the commissioner must take into account any previous breach of confidentiality in respect of information disclosed in terms of the provisions of this Chapter, and may refuse to order the disclosure of the information or any other confidential information which might otherwise be disclosed for a period specified in the arbitration award.

9)        In any dispute about an alleged breach of confidentiality, the commissioner may order that the right to disclosure of information in terms of the provisions of this Chapter be withdrawn for a period specified in the arbitration award.

40. Disputes concerning this Chapter

1)        Any party to a dispute about the interpretation or application of any provision of this Chapter, other than a dispute contemplated in section 26(8) or 39, may refer the dispute in writing to the Commission.

(Section 26(8) provides that a dispute exists if no collective agreement is concluded or reached on the number of full-time health and safety representatives.)

2)        The party who refers a dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

3)        The Commission must attempt to resolve the dispute through conciliation.

4)        If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration as soon as possible,

5)        The provisions relating to arbitration in the Labour Relations Act, read with changes required by the context, apply to an arbitration referred to in sections 26(11) and 39 and subsection (4).

(See sections 133 - 146 of the Labour Relations Act.)

Chapter 4 Tripartite Institutions

41. Establishment of tripartite institutions

1)        A Mine Health and Safety Council is hereby established to advise the Minister on health and safety at mines.

2)        A committee, ad hoc committee or subcommittee may when necessary be established. which committee may include-

a)        the Mining Regulation Advisory Committee;

b)        the Mining Occupational Health Advisory Committee; and

c)        the Safety in Mines Research Advisory Committee.

3)        A Mining Qualifications Authority is hereby established to advise the Minister on--

a)        qualifications and learning achievements in the mining industry to improve health and safety standards through proper training and education;

b)        standards and competency setting, assessment, examinations, quality assurance and accreditation in the mining industry; and

c)        proposals for the registration of education and training standards and qualifications in the mining industry on the National Qualifications Framework referred to in the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995).

(The South African Qualifications Authority Act provides for a National Qualifications Framework which aims to enhance the quality of education and training.)

42. Mine Health and Safety Council

1)        The Council consists of--

a)        five members representing employers in the mining industry;

b)        five members representing employees in the mining industry;

c)        four members representing departments of the State; and

d)        the Chief Inspector of Mines, who must chair the Council.

2)        The Minister must appoint the members of the Council in accordance with the regulations.

2A) The Council may appoint members to committees, ad hoc, subcommittees and other committees, for any period of time and on any conditions.

2B)     The structure and functions of any committee contemplated in subsection (2A) must be provided for in the constitution contemplated in section 97(3) .

3)        The Council and its committees must govern themselves in accordance with the constitution contemplated in section 97(3).

(Section 97(3) empowers the Minister, after consulting the Council and by notice in the Gazette, to add a Schedule containing the constitution of the Council and its committees.)

4)        The Council may delegate any of its powers and assign any of its duties by or under this Act in accordance with the constitution contemplated in section 97(3).

5)        A delegation or an assignment under subsection (4)--

a)        must be in writing;

b)        may be subject to such conditions and restrictions as the Council may determine; and

c)        does not prevent the exercise of that power or the performance of that duty by the Council.

6)        Members of the Council, or of a committee of the Council, are each entitled to have their views reflected in any report of the Council or committee, as the case may be.

7)        Each year, the Minister, with the agreement of the Minister of Finance, must provide sufficient funds for the administration of the Council, and committees of the Council, from public funds.

43. Council's duties

The Council must--

a)        advise the Minister on health and safety at mines including, but not limited to, any legislation on mine rehabilitation in so far as it concerns health and safety;

b)        co-ordinate the activities of its committees, receive reports from the committees and liaise with the Mining Qualifications Authority on matters relating to health and safety;

c)        liaise with any other statutory bodies concerned with matters relating to health and safety;

d)        promote a culture of health and safety in the mining industry;

e)        at least once every two years arrange and co-ordinate a tripartite summit to review the state of health and safety at mines;

eA) annually advise the Minister on relevant research relating to health and safety at mines; and

f)          perform every duty imposed upon the Council in terms of this Act.

44. Duties of committees

[This section repealed by the Mine Health and Safety Amendment Act No. 74 of 2008].

45. Mining Qualifications Authority

1)        The Mining Qualifications Authority consists of--

a)        five members representing employers in the mining industry;

b)        five members representing employees in the mining industry;

c)        four members representing departments of State; and

d)        the Chief Inspector of Mines of Mines who must chair the Mining Qualifications Authority.

2)        The members of the Mining Qualifications Authority must be appointed in accordance with the constitution contemplated in section 97(4).

3)        The Mining Qualifications Authority and its committees must govern themselves in accordance with the constitution contemplated in section 97(4).

(Section 97(4) empowers the Minister, after consulting the Council and by notice in the Gazette, to add a Schedule containing the constitution of the Mining Qualifications Authority.)

46. Mining Qualifications Authority's functions

1)        The Mining Qualifications Authority must--

a)        seek registration in terms of the South African Qualifications Act, 1995 (Act No. 58 of 1995), as a body responsible for generating education and training standards and qualifications as contemplated in section 5(1)(a)(ii)(aa) of that Act;

(Section 5(1)(a)(ii)(aa) of the South African Qualifications Authority Act provides for the registration of bodies responsible for establishing educational training standards.)

b)        seek accreditation in terms of the South African Qualifications Act, 1995 (Act No. 58 of 1995), as a body responsible for monitoring and auditing achievements as contemplated in section 5(1)(a)(ii)(bb) of that Act;

(Section 5(1)(a)(ii)(bb) provides for the accreditation of bodies responsible for monitoring achievements in terms of standards or qualifications.)

c)        set education and training standards or qualifications to bodies registered with that Authority and responsible for developing education and training standards;

d)        generate education and training standards and qualifications in the mining industry;

e)        monitor and audit achievement in terms of those standards and qualifications; and

f)          perform the functions of a sector education and training authority in terms of the Skills Development Act, 1998 (Act No 97 of 1998).

2)        The Mining Qualifications Authority --

a)        may appoint permanent and ad hoc committees, and subcommittees, for any period and on any conditions;

b)        must administer and control its financial affairs in accordance with the Skills Development Act, 1998 (Act no 97 of 1998); and

c)        may do anything necessary to achieve its objectives.

3)        The Mining Qualifications Authority may delegate any of its powers or assign any of its duties by or under this Act in accordance with the constitution contemplated in section 97(4).

4)        A delegation or an assignment under subsection (3)--

a)        must be in writing;

b)        may be subject to such conditions and restrictions as the Authority may determine; and

c)        does not Prevent the exercise of that power or the performance of that duty by the Authority.

5)        In performing its functions, the Mining Qualifications Authority must comply with the policies and criteria formulated by the South African Qualifications Authority in terms of section 5(1)(a)(ii) of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995).

Chapter 5 Inspectorate of Mine Health and Safety
47. Inspectorate established

1)        

a)        A juristic person to be known as the Mine Health and Safety Inspectorate is hereby established.

b)        The Public Finance Management Act, 1999 (Act No. 1 of 1999), applies to the Inspectorate.

2)        The Minister, by notice in the Gazette, may establish regions of the country for the purpose of administering this Act through regional offices of the Mine Health and Safety Inspectorate.

48. Chief Inspector of Mines

1)        The Minister must appoint an officer, with suitable mining qualifications and appropriate experience in health and safety at mines, to be Chief Inspector of Mines.

2)        Subject to the control and direction of the Minister, the Chief Inspector of Mines must perform the functions entrusted to the Chief Inspector of Mines by this Act.

3)        The Chief Inspector of Mines may perform any of the functions of an inspector.

49. Chief Inspector of Mines' functions

1)        Without limiting any statutory duty of any other person in terms of this Act, the Chief Inspector of Mines must--

a)        ensure that the provisions of this Act are complied with and enforced and that every duty imposed upon the Chief Inspector of Mines, the Medical Inspector or inspectors in terms of any other law is performed;

b)        appoint an officer with the prescribed qualifications and experience as the Medical Inspector;

c)        appoint officers with the prescribed qualifications and experience as inspectors;

d)        administer the Mine Health and Safety Inspectorate;

e)        determine and implement policies to promote the health and safety of persons at mines and any person affected by mining activities;

f)          consult with the Council before issuing guidelines on the form, content and distribution of codes of practice referred to in section 9;

(Section 9 requires any employer to prepare a code of practice.)

g)        collect, process and distribute information relating to health and safety;

h)        advise the Minister on health or safety matters at mines;

i)          each year, after consulting the Council and with the approval of the Minister, publish and distribute a plan of action for the activities of the Mine Health and Safety Inspectorate;

j)          complete a report on health and safety at mines and the activities of the Mine Health and Safety Inspectorate for each year and submit the report to the Minister within three months of the end of the year concerned;

k)        perform any duties relating to health or safety at mines that the Minister directs or prescribes;

l)          develop and maintain an integrated mine health and safety database and reporting system;

m)       conduct or commission relevant research and evaluate and publish the results of the research; and

n)        provide logistical, administrative and technical support to the Council.

2)        The Chief Inspector of Mines must furnish a prescribed certificate to the Medical Inspector and to each inspector.

3)        Despite the provisions of the Minerals and Petroleum Resources Development Act or any other law, the Chief Inspector of Mines--

a)        has the power to monitor and control those environmental aspects at mines that affect, or may affect, the health or safety of employees or other persons; and

b)        must consult with the appropriate officer appointed in terms of the Minerals and Petroleum Resources Development Act concerning the exercise of those powers.

(Section 4 of the Minerals Act deals with the appointment and functions of Directors: Mineral Development under the Department of Mineral and Energy Affairs.)

4)        To further the objectives of this Act the Chief Inspector of Mines may--

a)        enter into agreements with other persons;

b)        authorise a competent independent person to perform any or all the functions of an inspector;

c)        perform any act, whether in the Republic or elsewhere, that is calculated, directly or indirectly, to enhance the value of the services which the Mine Health and Safety Inspectorate renders, or perform any prescribed act;

d)        require all mines or groups of mines to prepare and implement a health and safety management system for mines;

e)        require all mines or groups of mines to prepare and implement a hazard management system for significant hazards mentioned under section 11;

f)          in consultation with the Minister and the Minister of Finance acquire or dispose of immovable property;

g)        hire, purchase or otherwise acquire any movable property and proprietary right, and lease or dispose of property;

h)        collaborate with any other body or institution or establish and control facilities for the collection and dissemination of scientific and technical information relating to health and safety at mines;

i)          collaborate with any educational, governmental or scientific body or institution in connection with the provision of instruction for, or the training of, persons required by the Mine Health and Safety Inspectorate;

j)          provide financial or other assistance in connection with the training of persons in so far as is necessary to ensure that a sufficient number of trained persons are available to enable the Mine Health and Safety Inspectorate to perform its functions efficiently;

k)        insure the Mine Health and Safety Inspectorate against any loss, damage, risk or liability;

l)          invest any of the money of the Mine Health and Safety Inspectorate; and

m)       institute or defend any legal action.

5)        The Chief Inspector of Mines must furnish a prescribed certificate to each person authorised under subsection (4)(b).

6)        The Chief lnspector of Mines must issue guidelines by notice in the Gazette.

49A. Financial and judicial management of Mine Health and Safety Inspectorate

1)        The funds of the Mine Health and Safety Inspectorate consist of-

a)        money appropriated by Parliament;

b)        any donations made to the Mine Health and Safety Inspectorate;

c)        revenue made on investments; and

d)        money raised and received in terms of this Act.

2)        The Mine Health and Safety Inspectorate must utilise its funds to defray expenses incurred by it in the performance of its functions.

3)        The Chief Inspector of Mines must, after consultation with the Council, use the monies collected in terms of section 55B for the promotion of health and safety in the mining industry.

4)        The Chief Inspector of Mines as the accounting authority of the Inspectorate must-

a)        open a bank account in the name of the Mine Health and Safety Inspectorate with an institution registered as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990); and

b)        deposit therein all money received in terms of subsection (1).

5)        The Mine Health and Safety Inspectorate may invest any of its funds not immediately required-

a)        subject to any investment policy that may be prescribed; and

b)        in such a manner as may be approved by the Minister.

6)        The Mine Health and Safety Inspectorate's financial year is from 1 April in any year to 31 March in the following year.

7)        The report of the Chief Inspector of Mines referred to in section 49(1)(j) must reflect the financial affairs of the Mine Health and Safety Inspectorate.

8)        Despite any other law, the Mine Health and Safety Inspectorate may not be placed under judicial management or in liquidation except if authorised by an Act of Parliament adopted especially for that purpose.

49B. Co-operative governance

1)        The Chief Inspector of Mines must co-ordinate the exercise of the functions of the Mine Health and Safety Inspectorate with other organs of state in respect of regulating and promoting occupational health and safety, in accordance with the principles of co-operative governance contemplated in Chapter 3 of the Constitution.

2)        The Chief Inspector of Mines may conclude co-operative agreements with relevant organs of state to give effect to the co-operation contemplated in subsection (1).

50. Inspectors' powers

1)        An inspector may for the purposes of monitoring or enforcing compliance with this Act--

a)        enter any mine at any time without warrant or notice;

b)        enter any other place after obtaining the necessary warrant in terms of subsection (7); and

c)        bring into and use at any mine, or at any place referred to in paragraph (b), vehicles, equipment and material as necessary to perform any function in terms of this Act.

2)        While the inspector is at any mine or place referred to in subsection (1), the inspector may, for the purposes of monitoring or enforcing compliance with this Act--

a)        question any person on any matter to which this Act relates;

b)        require any person who has control over, or custody of, any document, including but not limited to, a plan, book or record to produce that document to the inspector immediately or at any other time and place that the inspector requires;

c)        require from any person referred to in paragraph (b) an explanation of any entry or non-entry in any document over which that person has custody or control;

d)        examine any document produced in terms of paragraph (b), and make a copy of it or take an extract from it;

e)        inspect--

i)          any article, substance or machinery;

ii)         any work performed; or

iii)        any condition;

f)          inspect arrangements made by the employer for medical surveillance of employees;

g)        seize any document, article, substance or machinery or any part or sample of it; and

h)        perform any other prescribed function.

(It is an offence to interfere with or hinder an inspector. See section 88.)

3)        An inspector may instruct any employer, employee or any other person who performs an activity regulated by this Act or any former employer or employee or person who formerly performed an activity regulated by this Act, to appear before the inspector to be questioned on any matter to which this Act relates.

(It is an offence to fail to comply with an inspector's instruction. See section 91.)

4)        Before an inspector may seize any document under subsection (2)(g), the employer of the mine may copy it.

5)        An inspector may remove any article, substance or machinery or any part or sample of it from any mine or place referred to in subsection (1) for examination or analysis.

6)        When an inspector seizes or removes any item under this section, the inspector must issue a receipt for that item to the employer of the mine or place involved.

7)        A magistrate may issue a warrant contemplated in subsection (1)(b) only on written application by an inspector setting out under oath or affirmation the need to enter a place other than a mine to monitor or enforce compliance with this Act.

7A)     The Inspector may impose a prohibition on the further functioning of the site where-

a)        a person's death;

b)        serious injury or illness to a person; or

c)        a health threatening occurrence,

has occurred by blocking, barring or barricading the site in such a manner as the Inspector may deem necessary.

8)        For the purpose of this section, " mine" does not include any home, or residential quarters, situated at the mine.

51. Inspector may be accompanied

When performing any function under this Act, an inspector may be accompanied by an interpreter or any other person reasonably required to assist the inspector.

52. Duty to assist inspector and answer questions

1)        When an inspector enters any mine or place referred to in section 50(1), the employer and each employee performing any work there must provide any facility that the inspector reasonably requires.

(It is offence to fail to comply with an inspector's instruction. See section 91.)

2)        Persons questioned by an inspector under section 50(2)(a) or (c) or (3) must answer each question to the best of their ability, but no person is required to answer any question if the answer may be self-incriminating.

53. Duty to produce documents required by inspector

Any person who holds or should hold a permit, licence, permission, certificate, authorisation or any other document issued in accordance with this Act or the Mineral and Petroleum Resources Development Act, must produce it at the request of the Chief Inspector of Mines or any inspector.

(It is an offence to obtain a required certificate of competency by fraudulent means. See section 89.)

54. Inspector's power to deal with dangerous conditions

1)        If an inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, the inspector may give any instruction necessary to protect the health or safety of persons at the mine, including but not limited to an instruction that--

a)        operations at the mine or a part of the mine be halted;

b)        the performance of any act or practice at the mine or a part of the mine be suspended or halted, and may place conditions on the performance of that act or practice;

c)        the employer must take the steps set out in the instruction, within the specified period, to rectify the occurrence, practice or condition; or

d)        all affected persons, other than those who are required to assist in taking steps referred to in paragraph (c), be moved to safety.

(It is an offence to fail to comply with an inspector's instruction. See section 91.)

2)        An instruction under subsection (1) must be given to the employer or a person designated by the employer or, in their absence, the most senior employee available at the mine to whom the instruction can be issued.

3)        An inspector may issue an instruction under subsection (1) either orally or in writing. If it is issued orally, the inspector must confirm it in writing and give it to the person concerned at the earliest opportunity.

4)        If an instruction issued under subsection (1) is not issued to the employer, the inspector must give a copy of the instruction to the employer at the earliest opportunity.

5)        Any instruction issued under subsection (1)(a) must either be confirmed, varied or set aside by the