Mining house CEOs not yet criminally liable for health and safety breaches – lawyer.
Dispelling inaccurate reports emanating from some quarters, Kenneth Coster, a senior associate at law firm Webber Wentzel’s mining, energy and natural resources practice group, says that CEOs are not currently criminally liable for health and safety breaches under the Mine Health and Safety (MHS) Amendment Act. However, Coster advises that CEOs and mining houses prepare for the imposition of tougher penalties in future. “The new section 86A of the MHS Amendment Act that extends criminal liability to CEOs and mine management has not yet come into effect, which means directors will not face criminal liability for breaches of health and safety [regulations] at this stage. “However, even though it is hoped that when this section does become operative, it will appear in a far less onerous form and mining companies are advised to get their houses in order,” says Coster. Last week, Mining Weekly reported that under the new amendments to the mine Health and Safety Act of 1996, CEOs and management would be liable to a fine and a prison term. This is also the first time that both a company and its CEO can be prosecuted for health and safety breaches. Proactive Steps Coster says that, in practice, this means that mining houses should take proactive steps in anticipation of stricter enforcement. “The MHS Amendment Act would better serve mines and miners by focusing on those provisions which deal with improving prevention, monitoring, qualifications and the use of better technology, instead of casting wide, unwarranted, criminal liability on CEOs. “Mines need to ensure that their appointments are competent and in line with prevailing legislation to ensure they understand and can deal with every risk to an employee’s health and safety,” says Coster.
Govt adopts punitive approach to violations of mine health and safety regulations.
The newly formed Department of Mining has taken the first steps towards adopting a punitive approach to violations of mine health and safety regulations. The department has broadened the legal framework governing companies and individuals within the mining industry, whereby companies will be more liable for health and safety misdemeanours. One of the key aspects of the punitive approach is the role of the new Mine Health and Safety Inspectorate, which will be responsible for conducting health and safety inspections on mines and reporting the findings to the department. Legal advisory firm Brink Cohen Le Roux director Celeste Coles is optimistic that the inspectorate will play a key role in the industry as it is independent of the Department of Mining. She says that some of the new powers of the inspectorate include developing and maintaining an integrated mine health and safety database and reporting system. The inspectorate will also have a mandate to conduct and commission relevant research into the industry and to provide the Department of Mining with logistical, administrative and technical support. The office of the chief inspector of mines will form the vital communication link between the inspectorate and mining houses. “With the independence of the inspectorate, the chief inspector of mines may perform any act that is calculated, directly or indirectly, that will enhance the value of the services which the mine health and safety inspectorate deems [necessary],” says Coles. This approach follows two years during which multiple mine health and safety misdemeanours were highlighted. Under the new approach, companies and CEOs, in particular, will be more liable for unsafe and unhealthy practices than under the current preventive approach. At a recent mine health and safety law summit, Department of Mining chief inspector of mines Thabo Gazi reported that the department felt that, because the mining industry was labour intensive and inherently dangerous, enforcement guidelines needed to be put in place. The legal liability of companies has been broadened to the extent that, if an employee fails to take the necessary preventive measures, as stipulated by the Mine Health and Safety Act, this is seen as the fault of the corporation as a whole. This leaves the door open for prosecution of not only the employee responsible for implementing the safety procedures, but also the company. Legal advisory firm Brink Cohen Le Roux director Peter le Roux comments: “A feature of the preventive approach to health and safety regulations was the fact that there was significant cooperation from companies with the relevant authorities. With the punitive system, companies might become reluctant to fully co-operate with the authorities as they might not want to disclose the full extent of negligence [on their part].” The new approach also encourages a situation whereby an offending mining company is presumed guilty until proved innocent, which is contrary to the law of the country.
Draconian mine safety regulations defended.
Although amendments to the Mine Health and Safety Act have been described as unnecessarily draconian by some commentators, law firm Routledge Modise director Maryann Middleton is adamant they will have a significant positive impact on the South African mining industry. “In the past, penalties placed on mining companies were not very onerous. Historically, penalties in terms of Section 92 of the Act stated that the maximum penalty for an offending company was three years’ imprisonment and a fine, the sum of which was determined by a court,’’ she says, adding that, with the new punitive approach contained in the Amendment Act, companies will be forced to concern themselves more with the implementation of stricter health and safety procedures. Middleton explains that a new guideline has been established that clearly outlines the penalties that offending companies face, with the maximum penalty being a fine of R1-million, five years’ imprisonment, or both. However, any negligent act or omission which results in a death, serious injury or illness carries a penalty of R3-million or five years’ imprisonment, or both, plus the possibility of the withdrawal of the mining rights.
One of the most controversial amendments is Section 26, which increases the scope of criminal liability in so far as any employer, CEO, manager, or agent of the company can be held personally liable for the non-implementation of predetermined health and safety standards. “This is a hotly contested amendment because it really puts the risk squarely on the heads of CEOs, who will have to find a health and safety representative who will be willing to accept the risks associated with drawing up a sustainable programme. These employees, in essence, become the most important employees in respect of risk assessment on the mines and will want a remuneration package that reflects this,” says Middleton. All the amendments, apart from Section 26 and Section 16, have already come into effect. Section 26 will possibly come into effect when the Department of Mining is satisfied that there has been significant buy-in from industry. “The department requires that all mining companies submit to it a comprehensive list of the key role-players in the company who will be responsible for implementing health and safety procedures. Once this information has been handed over, the department will have all the information required to enforce the provisions of Section 26 when it comes into effect,” says Middleton. At the heart of implementing these amendments is the Mine Health and Safety Inspectorate that has been given extended powers, which, Middleton believes, will go a long way to ensuring adherence to the amendments. “Since the inspectorate has become an independent juristic person, it has reinvented itself in a way that has very few grey areas. The permanent committees previously established under the Act have been replaced with committees set up when necessary or on an ad hoc basis, which eliminates the possibility of graft. The inspectorate is also accountable for its own funding and is only partially dependent on government subsidies,” says Middleton.