By Colin Rice

The Mine Health and Safety Act 29 of 1996 (MHSA) is an excellent example of where government responded to the demands of trade unions and other workers' interest groups, and enacted legislation to improve the health and safety of mineworkers. In order to benefit from the victories won in the Act, it is essential that our industry has a clear understanding of the Act's origins, structure, and objects.

Every person has the expectation that they will be able to return from work safe and healthy every day. It is therefore the fundamental duty of every employer to ensure that their employees are able to work in a safe environment and in a manner that does not endanger their health – this is a common law right and obligation. Similarly, it is the fundamental duty of every employee to take care of themselves and their fellow workers.

Unfortunately, in many industries employers do not provide a safe and healthy workplace and so interest groups, trade unions and non-governmental organizations (NGO’s) pressurise Government to change laws or to enact new laws to improve standards in these industries. This can result in industry-specific legislation promulgated to regulate health and safety in these industries.

The mining industry is an excellent example of this where The National Union of Mineworkers (NUM) pressurized Government in the late 1980’s to improve the health and safety of mineworkers. This pressure ultimately resulted in the Leon Commission of Enquiry and the new Mine Health and Safety Act 29 of 1996 (MHSA).

The MHSA outlines the responsibilities and duties of the employer and the employee and so sets out a clear framework for the operation of mining activities. These responsibilities and duties then flow downward through the organizational levels of the mine ultimately to the contractors and suppliers who work for and supply equipment to the mines.

Unfortunately, the level of knowledge and understanding of what the MHSA says is not always very good and so the level of compliance with the law is sometimes very poor. This is particularly true of the exploration industry where contractors are frequently exposed to very severe legal consequences because of their ignorance or lack of understanding of the law.

Origin of the Mine Health and Safety Act 29 of 1996

The Mines and Works Act 12 of 1911 was promulgated to regulate mining activities in South Africa and remained in force until it was repealed in 1956. The Mines and Works Act was extremely controversial in that it formalised the racial segregation of responsibility in mines and it distinguished between white and black workers in terms of health and safety. Black workers had no representation in matters of safety and black mine workers had no right to leave a dangerous place unless given permission to do so.

The Mines and Works Act 12 of 1911 was repealed and replaced by the Mines and Works Act 27 of 1956, this Act was in turn repealed and replaced by the Minerals Act 50 of 1991. Despite this legislation, huge numbers of workers continued to be killed or injured in our mines and several trade unions, most notably The National Union of Mineworkers (NUM) campaigned ceaselessly for increased standards of health and safety in the mines. In response to this pressure, Government set up the Commission of Enquiry into Health and Safety in the Mining Industry in 1994 (later known as the Leon Commission). The purpose of the commission was to investigate health and safety in the mines and to make recommendations to improve standards of health and safety.

In its final report, the Commission estimated that more than 69 000 workers were killed and more than 1 million were injured between 1900 and 1993 in South African mines. Accident statistics suggested that a mineworker who worked on a goldmine for 20 years stood a one in thirty chance of being killed or injured!

As a result of the sustained pressure from The National Union of Mineworkers campaign and the work of the Leon Commission, the Mine Health and Safety Act 26 was enacted in 1996 and it has received worldwide praise and support.

Why does the Mine Health and Safety Act apply to exploration drilling operations?

Section 102 of the MHSA contains a number of definitions of terms used in the Act and defines a “mine” as follows:

Section 102 also defines a mineral as follows:

It is very clear therefore that an exploration borehole is by definition, a mine and so clearly the MHSA is applicable to all exploration operations. It is interesting that water is excluded from the definition of a mineral and so I would like to briefly discuss the drilling of water wells.  

Since water is not considered a mineral, drilling operations for water wells are regulated by OHSA and not MHSA. There is however an exception: if a water well is drilled on land that is covered by an exploration permit or a mining authorisation, then the drilling operation will be regulated by the MHSA. In many respects, the MHSA is more onerous than the OHSA and so waterwell drilling contractors frequently have great difficulty meeting mine requirements when they are asked to drill for water in a mine lease area.

The structure of the Mine Health and Safety Act 29 of 1996

At first glance the Mine Health and Safety Act, like any other legislation looks very complicated but in fact the structure is relatively simple and once one understands the structure, it is relatively easy to understand.

Essentially the Act is comprised of 2 parts:

1. The Act and,

2. The Regulations of the Act.

The Act is composed of 8 Chapters that are divided into 106 sections as shown in Table 1 and 8 Schedules that contain more detail on specific issues. The most important schedule is Schedule 8 that details the maximum fines or periods of imprisonment that can be imposed for offences under the Act. We will examine this important Schedule in a later article.

Table 1: Structure of the Mine Health and Safety Act 29 of 1996

The Act itself does not really tell us much about how to implement health and safety measures on mines – this detail is contained in the Regulations and a sound understanding of the Regulations is essential.

There is one further feature of the structure of the Act I need to make clear – we saw earlier the MHSA replaced the Minerals Act 50 of 1991 which in turn replaced the Mines and Works Act 27 of 1956. When Acts of Parliament are revised and rewritten legislators take the view that if the Regulations are still applicable then they are left unchanged and they remain in force as if they were a part of the “new” legislation. It is common therefore that Regulations of “old” legislation are retained in the newer legislation and so in cases like this, the Regulations will then consist of two parts – the old Regulations and new Regulations.

The Mine Health and Safety Act 29 of 1996 is an example of this – the Regulations of the MHSA are in two parts: Regulations in terms of Mine Health and Safety Act 29 of 1996 and Regulations in terms of the Minerals Act 50 of 1991. It is important to recognise this structure because it assists in searching for certain regulations.

The confusion around having old and new Regulations is addressed in Schedule 4 of the Act which states:

This means that the Regulations of the Minerals Act 50 of 1991 (which in fact are the Regulations of the Mines and Works Act) are still in force until they are replaced or repealed.

The legal implications of these regulations will be an important focus of the future content we share on DrillSafe. This month, we focus on the legal implications of hoisting operations.

In later articles in this series, I will delve examine in detail the implications the details of the law  

Objects of the Mine Health and Safety Act 29 of 1996

The MHSA was promulgated in 1996 and has been widely acclaimed as an excellent piece of legislation because it addresses a number of issues that are central to the improvement of standards of health and safety in mines. The objects of the Act can be summarised as follows:

• to protect the health and safety of persons at mines

• to require employers' and employees' to identify hazards and eliminate, control and minimise risks;

• to provide for employee participation in matters of health and safety

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

• to provide for effective monitoring systems and inspections, investigations and inquiries;

• to promote training in health and safety;

• to entrench the right of employees to refuse to work in dangerous conditions.

Other laws that have an impact on exploration drilling operations

While the MHSA is the primary piece of legislation that regulates exploration drilling operations, there are a number of other Acts that also have an impact on what we do – discussion of all of these is beyond the scope of this series of articles but it is important to recognise that the Occupational Health and Safety Act (OHSA) applies to some of the activities related to exploration drilling.

Section 103 of the MHSA states:

Effectively this means that if a particular issue is not addressed in the MHSA then the OHSA will apply. This is very important for us in the exploration drilling industry because, as we will see in later articles, the MHSA does not directly address drilling operations and so, in my opinion, many regulations of the OHSA apply to our operations. This potentially means that aspects of what we do may be “illegal”.

These and other important issues will be discussed in future articles in the Legal Focus section of DrillSafe. This month we are focusing on the legal aspects of hoisting operations.