Commentary: South African mine safety practices face scrutiny

Mine safety is a matter of continuing concern worldwide, there being a wide spectrum of legislation and the manner in which it is administered and enforced. Recent attempts by the South African government provide a case study illustrating the difficulties of balancing enforcement against other considerations.

The South African Department of Mineral Resources is looking to tighten safety enforcement at South African mines because it believes mine deaths are not falling enough. South Africa’s President Jacob Zuma has pledged that his government will “vigorously support and entrench a culture of zero harm” in the industry and has affirmed that the safety record at South African mines has become a central issue which will be placed under government scrutiny. Minister of Mineral Resources Susan Shabangu has added that her department would not hesitate to shut mines for days at a time should there not be an increased focus on safety. While South African miners are committed to reducing fatalities, the government’s position has met with increased concern on the part of South African mine owners because of the manner in which the policy is being administered.

Mine safety stoppages in South Africa are enforced under Section 54 of the 1996 Mine Health and Safety Act. This provision permits a safety inspector mandated by the South African Department of Mineral Resources to issue an instruction halting or suspending mining operations or practices if the inspector believes there is an occurrence, practice or condition at a mine which endangers or may endanger a person’s health or safety. South African courts have held that Section 54 enjoins a safety inspector to objectively ascertain that a state of affairs exists which would lead a reasonable person to believe that it will endanger the health or safety of any person at the mine concerned, and only issue a suspension instruction where it is necessary to protect the health or safety of that person. 

Notwithstanding court decisions, reports suggest that safety inspectors are enforcing safety stoppages for what would appear to be minor safety breaches: such as leaving a first aid box unlocked, and halting 100% of a mine’s activities when an incident occurs at a remote location in a mine. Mine safety inspectors also have the ability to suspend the competence certificates of supervisors and mine managers. This renders them unable to perform their work and forces operations and management to stop and lie idle for a substantial period, despite fixed costs having to be met while production is suspended. 

South African mine owners have called for greater restraint in the application and enforcement of Section 54 to achieve what others argue would be a better balance between the needs to improve safety at South African mines and the need for profitable mining operations to sustain the South African economy. There have also been court challenges to the implementation of Section 54. A task team comprising the government, organized labour and industry players has accordingly been constituted for the purposes of looking at ways to ensure that such a balance is achieved. The work of this task team, however, is being undertaken against a backdrop of proposed new mine safety regulations which are likely to come in force by the end of 2012, which contemplate an increase in administrative penalties and liability for industry chief executives where fatalities could have been avoided. 

In the current regulatory climate however, South African miners could take steps to avoid Section 54 stoppages by continuously monitoring and urgently rectifying circumstances at the mine which could lead a reasonable person to believe that they would compromise health and safety. It goes without saying that South African miners should also, as a minimum, continue to meet their obligations under the Mine Health and Safety Act by ensuring a satisfactory mine environment, adequate supplies of health and safety equipment, appropriate staffing, practical policies and codes of practice, regular health and safety training, repeated occupational hygiene measurements and the establishment of appropriate systems of medical surveillance.

— Reitumetse Benedict Phiri is an associate at Fasken Martineau’s Johannesburg office. For more information visit www.fasken.com.