"Mine Health and Safety Act"

Chapter 5 Inspectorate of Mine Health and Safety

47. Inspectorate established

1) A Mine Health and Safety Inspectorate is hereby established.

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--

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;
appoint an officer with the prescribed qualifications and experience as the Medical Inspector;
appoint officers with the prescribed qualifications and experience as inspectors;
administer the Mine Health and Safety Inspectorate;
determine and implement policies to promote the health and safety of persons at mines and any person affected by mining activities;
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.)
collect, process and distribute information relating to health and safety;
advise the Minister on health or safety matters at mines;
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;
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; and
perform any duties relating to health or safety at mines that the Minister directs or prescribes.

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 Act , the Chief Inspector of Mines--

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
must consult with the officer appointed in terms of section 4 of the Minerals 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--

enter into agreements with other persons; and
authorise a competent independent person to perform any or all the functions of an inspector.

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

50. Inspectors' powers

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

enter any mine at any time without warrant or notice;
enter any other place after obtaining the necessary warrant in terms of subsection (7); and
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--

question any person on any matter to which this Act relates;
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;
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
examine any document produced in terms of paragraph (b), and make a copy of it or take an extract from it;
inspect--
1. any article, substance or machinery;
2. any work performed; or
3. any condition;
inspect arrangements made by the employer for medical surveillance of employees;
seize any document, article, substance or machinery or any part or sample of it; and
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.

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 Minerals 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--

operations at the mine or a part of the mine be halted;
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;
the employer must take the steps set out in the instruction, within the specified period, to rectify the occurrence, practice or condition; or
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 Chief Inspector of Mines as soon as practicable.

6) Any instruction issued under subsection (1)(a) is effective from the time fixed by the inspector and remains in force until set aside by the Chief Inspector of Mines or until the inspector's instructions have been complied with.

7) Before giving any instruction under subsection (1)(a) the inspector must allow the employer or the employer's representative and the representatives of employees a reasonable opportunity to make representations.

8) For the purposes of subsection (7), the representatives of the employees are--

representatives designated in accordance with a collective agreement concluded in terms of section 26;
if paragraph (a) does not apply, full-time health and safety representatives responsible for the mine or part of the mine which will be affected by the instruction;
if paragraphs (a) and (b) do not apply, the health and safety representatives responsible for the working places which will be affected by the instruction; or
if paragraphs (a), (b) and (c) do not apply, the employees who will be affected by the instruction or an employee or employees nominated or elected by them.

9) If an inspector has reason to believe that the delay caused by allowing representations could endanger the health or safety of any person, the inspector is not required to allow representations before issuing an instruction under subsection (1)(a).

10) Before giving any instruction under subsection (1)(b) to (d), the inspector must allow such opportunity to make representations as may be prescribed.

55. Inspectors' power to order compliance

1) If an inspector has reason to believe that an employer has failed to comply with any provision of this Act, the inspector may instruct that employer in writing to take any steps that the inspector--

considers necessary to comply with the provision; and
specifies in the instruction.

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

2) When issuing an instruction under subsection (1), an inspector must specify the period within which the specified steps must be taken. A period specified in an instruction may be extended by an inspector at any time by giving notice in writing to the person concerned.

55A. Inspector's Powers to Recommend Fine

1) An inspector who has reason to believe that an employer has contravened or failed to comply with any provision contemplated in section 91(1B), may make a recommendation in writing to the Principal Inspector of Mines that a fine be imposed on the employer.

2) An inspector who does not make a recommendation in circumstances contemplated in subsection (1), must record in writing the reasons for not making a recommendation and submit them to the Principal Inspector of Mines, if--

the contravention or failure--
1. poses or posed a high risk of harm to employees or to persons who are not employees, but who may be directly affected by the activities at the mine; or
2. concerns a category of non-compliance contemplated in the guidelines issued in terms of section 55G; or
the employer has--
1. knowingly exposed employees, or persons who are not employees, but who may be directly affected by activities at the mine, to a serious hazard that has arisen; or
2. previously failed to comply with any provision of this Act.

3) The inspector concerned must provide a copy of the recommendation or record contemplated in subsection (1) or (2) to--

the employer;
the health and safety committee, or if there is no health and safety committee, to any health and safety representative responsible for the working place in question; and
the representative trade union, or if there is no representative trade union, to every registered trade union with members at the mine.

55B. Principal Inspector of Mines may give Further Instructions

The Principal Inspector of Mines may, after considering a record contemplated in section 55A(2), return the matter to the inspector concerned together with instructions that the inspector must recommend a fine as contemplated in section 55A(1), in which case section 55A(3), read with the changes required by the context, applies.

55C. Principal Inspector of Mines may refer matter to Attorney-General

1) The Principal Inspector of Mines may, after consultation with an attorney-general who has jurisdiction, refer a matter that forms the subject of a recommendation contemplated in section 55A and all other relevant information to the attorney-general if it appears that the employer has committed an offence in terms of this Act or the common law.

2) The Principal Inspector of Mines must in writing inform the employer, committee or a representative and the trade union as contemplated in section 55A(3) of any referral under subsection (1).

3) An employer may not be fined in terms of section 55D if the matter that forms the subject of a recommendation has been referred to an attorney-general in terms of this section or has formed the basis of a prosecution instituted against the employer.

4) No prosecution concerning a matter that forms the subject of a recommendation may be instituted against an employer unless it has been referred to an attorney-general in terms of this section.

5) No representations made by an employer in terms of section 55D may be used in any criminal or civil proceedings against such employer.

55D. Principal Inspector of Mines may Impose Fine

1) If the Principal Inspector of Mines does not refer a matter that forms the subject of a recommendation to an attorney-general, the Principal Inspector of Mines must--

disregard the recommendation; or
invite the employer, committee or a representative and the trade union as contemplated in section 55A(3) and the inspector concerned to make representations within the prescribed period.

2) After considering the representations as contemplated in subsection (1)(b), the Principal Inspector of Mines must--

disregard the recommendation; or
impose a fine not exceeding R200 000,00 on an employer in accordance with the guidelines issued in terms of section 55G.

3) The Principal Inspector of Mines must provide a copy of any decision made in terms of subsection (1)(a) or (2) to the Chief Inspector of Mines and to the employer, committee or a representative and the trade union as contemplated in section 55A(3).

55E. Determination of Employer's Liability

1) In determining for the purposes of sections 55A and 55D whether or not an employer has contravened or failed to comply with any provision contemplated in section 91(1B), the obligations placed on the employer by--

sections 2(1)(a) and (b), 5(1) and (2), 6(1)(b), 7(1), 10(1) and (2), 11(3), 21(1)(a), (b) and (c) and 21(3) and (4) must be regarded as excluding the limitation that the employer must only comply with the obligations as far as reasonably practicable; and
sections 2(2), 3(1)(c), 4(3)(b) and 6(3) must be regarded as excluding the limitation that the employer is only required to take reasonable steps to comply with the obligations.

2) Subject to subsection (1), a fine may only be imposed under section 55D if it is established on a balance of probabilities that the employer contravened, or failed to comply with, a provision contemplated in section 91(1B).

3) A recommendation to impose a fine under sections 55A must be disregarded and a fine imposed under section 55D must be set aside, if it is established on a balance of probabilities that--

in respect of a section referred to in, and as construed by, section (1)(a), the employer had done what was reasonably practicable to comply with the section in question;
in respect of a section referred to in, and as construed by, section (1)(b), the employer had taken reasonable steps to comply with the section in question;
in respect of any provision contemplated in section 91(1B), except for a provision referred to in subsection (1)(a) or (b) of this section, the employer's failure to comply with the provision was not due to negligence on the part of the employer; or
in respect of any provision contemplated in section 91(1B), unless the provision provides otherwise, the employer's failure to comply with the provision was not due to negligence on the part of the employer.

55F. Employer must pay Fine

1) An employer must pay any fine imposed in terms of section 55D to the Principal Inspector of Mines within the prescribed period.

2) If the employer fails to pay the fine within the prescribed period, the Principal Inspector of Mines may apply to the Labour Court for the fine to be made an order of that Court.

55G. Chief Inspector of Mines must issue Guidelines

1) The Chief Inspector of Mines must, after consulting the Council, issue guidelines regarding--

the referral for criminal prosecution of any offence in terms of this Act or the common law;
the recommendation of fines by an inspector in terms of section 55A; and
the imposition of fines and the appropriate levels of fines to be imposed in terms of section 55D.

2) The guidelines contemplated in subsection (1)(b) and (c) must--

provide that the effect of the employer's conduct in respect of health and safety matters on the amount of a fine imposed in terms of section 55D, must be indicated, including the extent to which--
1. the employer's compliance record, health and safety record or inadequate or no steps taken to rectify the problem has resulted in an increase of the fine; and
2. the implementation of a health and safety policy by the employer, the employer's compliance record, health and safety record or adequate steps taken to rectify the problem has resulted in a decrease of the fine; and
determine categories of non-compliance by employers for the purposes of section 55A(2).

3) In determining the categories contemplated in subsection (2)(b), the Chief Inspector of Mines may differentiate between mines, types of mines, parts of a mine, occupations and types of work.

55H. Use of Fines

1) Money received by the Principal Inspector of Mines in payment of fines imposed in terms of section 55D must be paid to a fund established and controlled by the Council.

2) The Council must, with the agreement of the Minister, use the money in the fund for the promotion of health and safety in the mining industry.

3) The report of the Chief Inspector of Mines referred to in section 49(1)(j) must reflect the financial affairs of the fund.

56. Instructions to be posted at mine

The employer of a mine must--

promptly supply a copy of any instruction of an inspector to--
1. the health and safety representative representing the employees affected by the instruction; and
2. the health and safety committee responsible for those employees; and
promptly publicise the instruction by--
1. prominently and conspicuously displaying copies of the instruction to the employees whose interests may be affected; and
2. causing its contents to be communicated orally to those employees.

57. Right to appeal inspectors' decisions

1) Any person who is the subject of a decision of an inspector, or at whose instance a decision of an inspector was taken, except a decision contemplated in section 55A, may appeal against that decision to the Chief Inspector of Mines.

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

be lodged with the Chief Inspector of Mines within 30 days of the decision, or such further period as may be prescribed; and
set out the grounds of appeal.

3) After considering the grounds of the appeal and the inspector's reasons for the decision, the Chief Inspector of Mines must as soon as practicable--

confirm, set aside or vary the decision; or
substitute any other decision for the decision of the inspector.

57A. Right to Appeal against Principals Inspector of Mines' Decision

1) Any person adversely affected by a decision of the Principal Inspector of Mines in terms of section 55D(1)(a) or (2) may appeal against that decision to the Chief Inspector of Mines, and section 57(2) and (3), read with the changes required by the context, applies to the appeal.

2) For the purposes of this section, a person contemplated in subsection (1) includes--

the employer;
the health and safety committee;
any health and safety representative responsible for the working place in question; and
any registered trade union with members at the mine.

58. Right to appeal Chief Inspector of Mines' decision

1) Any person adversely affected by a decision of the Chief Inspector of Mines, either in terms of section 57(3) or in the exercise of any power under this Act, may appeal against the decision to the Labour Court.

2) An appeal under subsection (1), must be lodged with the registrar of the Labour Court in accordance with the rules of the Labour Court, within 60 days of the date that the Chief Inspector of Mines decision was given.

3) The Labour Court must consider the appeal and confirm, set aside or vary the decision.

59. Appeal does not suspend decision

1) An appeal against a decision under either section 57, 57A or 58 does not suspend the decision.

2) Despite subsection (1)--

an appeal in terms of section 57A or 58 against a decision to impose a fine suspends the obligation to pay the fine, pending the outcome of the appeal;
the Labour Court map suspend the operation of the decision, pending the determination of the matter, if there are reasonable grounds for doing so.

60. Initiating investigations

1) The Chief Inspector of Mines must instruct an inspector to investigate any accident or occurrence at a mine that results in the death of any person.

2) At any time an inspector may investigate--

any accident or occurrence at a mine that results in the serious injury or serious illness of any person;
any occurrence, practice or condition concerning health or safety of persons at one or more mines; or
any actual or suspected contravention of, or failure to comply with, any provision of this Act.

3) If there is cause for concern on health or safety grounds, an inspector must investigate any matter referred to in subsection (2), if--

instructed to do so by the Chief Inspector of Mines; or
requested to do so by--
1. a registered trade union with members at the mine or mines;
2. a health and safety representative or health and safety committee at the mine; or
3. if there is no health and safety representative, an employee at the mine.

61. Chief Inspector of Mines may designate assistant in investigation

At any time before or during an investigation, the Chief Inspector of Mines may designate one or more persons to assist the inspector holding the investigation.

62. Duty to answer questions during investigation

Persons questioned during an investigation must answer every question to the best of their ability, but no person is required to answer any question if the answer may be self-incriminating.

63. Enhancing effectiveness of investigation

1) For the purposes of enhancing the effectiveness of an investigation in terms of section 60 the Chief Inspector of Mines, in consultation with the appropriate Attorney-General, may issue a certificate that no prosecution may be instituted in respect of any contravention of, or failure to comply with, a provision of this Act related to the event being investigated. If a certificate is issued, no fine in terms of section 55D or disciplinary action related to the event investigated may thereafter be imposed on or taken against any person.

2) The Chief Inspector of Mines must communicate in writing the protection afforded under subsection (1) to all persons questioned during the investigation.

3) Persons questioned during the investigation who are afforded protection under this section must answer every question to the best of their ability and may not refuse to answer any question on the grounds that the answer may be self-incriminating.

64. Reports on investigations

1) After completing an investigation, an inspector must prepare a written report of the findings, recommendations and any remedial steps.

2) The inspector--

must submit a copy of the report referred to in subsection (1) to the Chief Inspector of Mines;
must supply a copy of the report to the employer and to the health and safety representative, health and safety committee, registered trade union or employee that requested the investigation; and
may instruct the employer of the mine concerned to prominently and conspicuously display a copy of the report or portion of it for employees to read.

65. Initiating inquiries

1) Unless the provisions of section 63 have been invoked, the Chief Inspector of Mines must direct an inspector to conduct an inquiry into any accident or occurrence at a mine that results in the death of any person.

2) Unless the provisions of section 63 have been invoked, the Chief Inspector of Mines may direct an inspector to conduct an inquiry into--

any accident or occurrence at a mine that results in the serious injury or serious illness of any person,
any occurrence, practice or condition concerning health or safety of persons at one or more mines; or
any actual or suspected contravention of, or failure to comply with, any provision of this Act.

3) If there is cause for concern on health or safety grounds and if the provisions of section 63 have not been invoked, the Chief Inspector of Mines may direct an inspector to conduct an inquiry into any matter referred to in subsection (2) if requested in writing to do so by--

a registered trade union with members at the mine or mines;
a health and safety representative or health and safety committee at the mine; or
if there is no health and safety representative at the mine, an employee.

4) This section does not limit any other law regulating the holding of an inquest or other inquiry into the death of a person.

66. Investigation may be converted into inquiry

1) At any time during an investigation, the Chief Inspector of Mines may convert it into an inquiry.

2) The provisions of sections 68 to 71 relating to attendance and examination of witnesses at inquiries apply equally to a converted investigation.

3) Any person instructed or summoned to give evidence at an inquiry that was converted from an investigation is not entitled to refuse to give evidence only on the grounds that a statement had previously been given, or documents previously been adduced, during the investigation.

4) This section does not Preclude or limit holding an inquiry after an investigation has been completed.

67. Chief Inspector of Mines may designate assistant in inquiry

At any time before or during an inquiry the Chief Inspector of Mines may designate one or more persons to assist in the inquiry or to preside at the inquiry.

68. Inquiry to be public

1) An inquiry must be held in public.

2) Despite subsection (1) the person presiding at an inquiry may of that person's own accord or at the request of a witness exclude members of the public or specific persons or categories of persons from attending the proceedings or part of the proceedings when the proper conduct of the inquiry requires.

3) The person presiding at an inquiry may make any order necessary to ensure that employees at the mine and members of the public have access to the premises in which the inquiry is held.

69. Right to participate in inquiry

The persons listed in this section may participate in an inquiry and, either personally or through a representative, may put questions to witnesses and inspect any book, plan, record or Other document or item presented at the inquiry. The persons entitled to participate are--

any person who has a material interest in the inquiry;
a representative of any registered trade union with members at the mine in respect of which the inquiry is being held; and
any health and safety representative responsible for the working place in respect of which the inquiry is being held.

70. Powers of person presiding at inquiry

The person presiding at an inquiry may--

instruct or summon any person to appear at any specified time and place;
question any person under oath or affirmation;
instruct any person--
1. to produce any book, plan, record or other document or item necessary for the purposes of the inquiry; or
2. to perform any other act in relation to this Act necessary for the purpose of the inquiry.

71. Duty of persons summoned or instructed

1) Subject to subsection (2), every person giving evidence at an inquiry must answer any relevant question.

2) The law regarding a witness's privilege in a court of law applies equally to any person being questioned at an inquiry.

3) The person presiding at an inquiry may direct that any evidence given by a person during an inquiry may not be used for the purposes of sections 55A to 55D, or any appeal relating to those sections, or in any criminal or disciplinary proceedings against that person except in criminal proceedings on a charge of perjury against that person.

4) When a directive has been issued under subsection (3), the person involved is not entitled to refuse to answer any relevant question only on the grounds that the answer could expose that person to a criminal charge, disciplinary proceedings or a recommendation under section 55A.

5) A person instructed in terms of section 70(c) must comply with that instruction unless the person has sufficient cause for not doing so.

(It is an offence to fail to attend an inquiry if required to do so, or to refuse to answer questions, or to give false evidence. See section 90.)

72. Inquiry records and reports

1) A person presiding at an inquiry must--

record the evidence given at the inquiry, including any evidence given with the assistance of an interpreter;
at the conclusion of the inquiry, prepare a written report of the findings, recommendations and any remedial steps;
submit a copy of the report and the record of the inquiry to the Chief Inspector of Mines;
supply a copy of the report and the record of the inquiry to the employer and to any health and safety representative health and safety committee or registered trade union that requested the inquiry; and
on request, supply a copy of the report and the record of the inquiry to any person who has a material interest in the inquiry.

2) An inspector may instruct the employer of the mine concerned to prominently and conspicuously display a copy of the report or any portion of it for employees to read.

3) The Chief Inspector of Mines may submit a copy of the report to the appropriate Attorney-General.

73. Chief Inspector of Mines may order further inquiry

Upon considering the evidence and the report referred to in section 72, the Chief Inspector of Mines may require that the matter be inquired into further.

74. Inquiry and inquest may be conducted jointly

1) An inquiry in terms of this Act into the death of a person may be held jointly with an inquest in terms of the Inquests Act, 1959 (Act No. 58 of 1959).

(The Inquests Act provides for the holding of inquests in cases of deaths apparently occurring from unnatural causes.)

2) The judicial officer contemplated in the Inquests Act, 1959 (Act No. 58 of 1959), must preside at a joint inquiry referred to in subsection (1) and the person instructed to hold the inquiry in terms of this Act must be deemed to be an assessor appointed in terms of the Inquests Act, 1959.

3) The provisions of the Inquests Act, 1959 (Act No. 58 of 1959), apply to a joint inquiry.

4) The assessor referred to in subsection (2) must--

a) prepare a report contemplated in section 72(1)(b); and b) submit the report and the record of the joint inquiry to the Chief Inspector of Mines.