Click below for the draft Mine Health and Safety Amendment Bill 2022.
 | Draft_MHS_Bill_2022.pdf (823.4KB) |
| Draft_MHS_Bill_2022.pdf (823.4KB) |
A SIAOSH Technical Commitee, of which I am a member, will review and comment on the draft Bill starting 6 July 2022. Comments close on 29 July 2022. Coomnts will be shared on this page.
Below are some of the arguments against the draft Bill in its current form:
REASONABLY PRACTICABLE
South Africa has ratified the Interntional Labour Organosation's (ILO) C155 - Occupational Safety and Health Convention, 1981 (No. 155) which promotes 'reasonability and practicability' as the basis for the discharge of duties of employers. It is inexplicable that SA now proposes to depart from this International Convention by omitting these vital words. What is the agenda behind this?
By selectively omitting the words ‘reasonably practicable’ which is universally accepted as a yardstick to judge whether an employer has properly discharged his or her duties, the Bill appears to venture into the area of strict liability which, in turn, has been consistently rejected by criminal courts including the Constitutional Court and Supreme Court of Appeal. Strict liability infers that an employer may be convicted of contraventions in the absence of the fault element (culpa or negligence). In 1997 the Constitutional Court ruled that in South Africa the principle of strict liability infringes negatively on the right to a fair trial provided for in section 35(3) of the Constitution, as well as with the right to freedom and security of the person provided for in section 12(1) of the Constitution of the Republic of South Africa, 1996. (See Coetzee 1997 (1) SACR 379 (CC) at 442h–Justice O'Regan; Magagula 2001 (2) SACR 123 (T) at 145–146, 146b).
Repugnance to the notion of criminal liability without fault is evidenced too in the reluctance of courts to interpret statutory provisions which contain no express mens rea requirement as not requiring mens rea. In S v Arenstein 1967 (3) SA 366 (A) at 381D–E, Van Winsen AJA held as follows:
'In view of such general maximums as nulla poena sine culpa and actus non facit reum nisi mens sit rea, the Legislature, in the absence of clear and convincing indications to the contrary in the enactment in question, is presumed to have intended that violations of statutory prohibitions would not be punishable in the absence of mens rea in some degree or other.'
Strict liability has no place in occupational health and safety legislation where negligence or culpa is the fault element as opposed to intention or dolus. The Consumer Protection Act (CPA) is an example of strict liability where the fault element is omitted. The Supreme Court of Appeal said that the CPA was designed to offer protection to the vulnerable consumer as well as to promote social and economic welfare of the consumers. However, unlike the MHS Act, the CPA is not a criminal statute.
In Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others [2014] (Labour Appeal Court (LAC) the court stated that '‘Sections 8 and 9 therefore place a duty on the employer to act proactively to avoid any harm or injury to its employees and others. There is no standard as to what is reasonably practicable. Each case will have to be determined on its own facts and circumstances. As can be seen from the definition of reasonably practicable it involves weighing different considerations from risk evaluation, means of removing or avoiding the risk, resource availability and a cost-benefit analysis. In Edwards v National Coal Board, Lord Justice Asquith stated: "Reasonably practicable' as traditionally interpreted, is a narrower term than 'physically possible' and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measure necessary to avert the risk is placed in the other; and that, if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon who the duty is laid discharges the burden of proving that compliance was not reasonably practicable."
It is submitted that, although reference is made to OHASA (Occupational Health & Safety Act) in the above Labour Appeal Court case, (the equivalent of the Supreme Court of Appeal), the same principle applies duties placed on employers in the MHS Act. More so since the duties imposed upon employers in various other unamended sections of the Act routinely 'temper' employer duties with reasonability and practicability. Consistency is required in legislation. Examples:
Section 5. Employer to maintain healthy and safe mine environment
(1) As far as is 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 is reasonably practicable, every employer must -
(a) identify the relevant hazards and assess the related risks to which persons who are 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.
Section 7. Employer to staff mine with due regard to health and safety
(1) As far as is 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.
Section 11. Employer to assess and respond to risk.
Section 11(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.
The Court held in Anglogold Ashanti Limited v Mbonambi & others [2016] (LC) that 'the starting point in the determination of any reasonable grounds for the suspension of the instructions concerned was the standard of safety prescribed by the (MHS) Act. The standard was one of reasonable practicality. In the present case, no circumstances existed on the inspected level of the mine which rendered the whole mining operation unsafe, or on which the third respondent could rely to infer that not only the relevant level but the whole mine was unsafe. Therefore, the instructions insofar as they related to a prohibition across the entire mine in respect of explosives and training were out of all proportion to the issues identified by the third respondent. Consequently, there were reasonable grounds for the Court to suspend the operation of the instructions'.
Various other employer duties such as those placed manufacturers and suppliers, (sections 21) remain 'tempered' with 'reasonability and practicability' as defined. It is also submitted that any deliberate attempt to hold employers to a higher standard by removing 'reasonably practicable' is irrational and ultimately doomed to be overturned by the Constitutional Court which in 2021 endorsed the principle of 'Lex non cogit ad impossibilia'. This common law principle completely aligns with various elements of the definition of 'reasonability and practicability'. In van Zyl v RAF CC 2021) the court stated, 'Against this backdrop, the impossibility principle flourishes. Variations of the concept of impossibility, like nemo tenetur ad impossibilia (nobody must keep a commitment to do impossible things) and impotentia excusat legem (impossibility excuses the law), are related and frequently interlinked concepts, emanating from the underlying principles of not only justice and equity, but also science, reality, reasonableness and fairness which suffuse our legal system. The rights to human dignity and access to courts are engaged in the case of the affected persons. If the impossibility principle can be used to provide equitable relief in this instance, the prelude to section 23(1) cannot implicitly exclude this relief. This is because the impossibility principle is distinguishable from "any law"; it is, instead, right reason to which all law aspires. It lives through expressions of public policy and the principles of equity and fairness. To conclude that the preamble to section 23(1) implicitly excludes the application of the impossibility principle would be a perversion of justice. A legislative provision seeking to exclude the precepts of the impossibility principle would have to do so explicitly and constitutionally. Without an express exclusion, an interpretation that favours an implicit exclusion would conflict with the Constitution'.
Lex non cogit ad impossibilia means the law does not compel a man to do anything impossible or to do something which he cannot possibly perform. It is an umbrella 'defence' which will override any legislation which seeks to expand upon an employer's potential criminal liability. Other common law principles endorsed by the Constitutional Court and which emphasise this point are 'Nemo tenetur ad impossibilia' (nobody must keep a commitment to do impossible things), 'Impotentia excusat legem' (Also known as impossibility excuses the law). 'Nulla poena sine culpa' (no punishment without fault).
DANGEROUS CONDITIONS “SAFETY STOPPAGES”
Anglogold Ashanti Limited v Mbonambi & others [2016] (LC) "Although section 58 (of the MHS Act) establishes a right of appeal against a decision made by a chief inspector (a remedy that the applicant has elected to invoke), any decision made in terms of section 54 and/or 55 clearly constitutes administrative action for the purposes of the Promotion of Administrative Justice Act (PAJA). An order or instruction is therefore subject to review under section 6 of PAJA. This is mentioned because the applicant's primary submission in the present application is that the respondents failed correctly to identify dangerous conditions at the mine and respond to them proportionally. Proportionality, of course, is an element of the right to reasonable administrative action established by section 33(1) of the Constitution. Prof Hoexter, in Administrative Law in South Africa (2ed) Juta & Co 2012 describes the essential elements of proportionality as balance, necessity and suitability, the latter referring to the use of lawful and appropriate means to establish the administrator's objective. In other words, it is the notion that one ought not to use a sledgehammer to crack a nut. For present purposes, given the nature of the present application, (a disproportionate safety stoppage) it is not necessary for me to say any more about precisely how the principle of proportionality ought to be applied in the present instance. With reference to the judgment in Bert's Bricks (Pty) Ltd and another v Inspector of Mines, North West Region and others [2012] ZAPPHC this principle was applied in the context of a challenge to an instruction purportedly issued under section 54(1) of the MHSA. The court held that section 54(1)(a) and (b) of the MHSA meant that:
"(1) objectively a state of affairs must exist which would lead a reasonable man to believe that it may endanger the health or safety of any person at the mine;
(2) the inspector may only give an instruction which is necessary to protect the health or safety of that person."
The court concluded that there were no objective facts which would lead a reasonable person to believe that damage caused to a single trackless mobile vehicle necessitated the suspension of the operation of all trackless mobile machinery".