Chapter 7 Legal Proceedings and Offences

82. Jurisdiction of Labour Court

1) The Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of this Act except where this Act provides otherwise.

2) The Labour Court has no jurisdiction in respect of offences in terms of this Act.

83. No discrimination against employees who exercise rights

1) No person may discriminate against any employee for--

  1. exercising a right in terms of this Act or in terms of a collective agreement contemplated in this Act;
  2. doing anything that the employee is entitled to do in terms of this Act or in terms of a collective agreement contemplated in this Act;
  3. refusing to do anything that the employee is entitled to refuse to do in terms of this Act or in terms of a collective agreement contemplated in this Act;
  4. refusing to do anything that the employee is prohibited from doing in terms of this Act or in terms of a collective agreement contemplated in this Act; and
  5. standing for election, or performing any function, as a health and safety representative or a member of a health and safety committee.

2) For the purposes of this section--

  1. "discriminate" means to dismiss an employee or to engage in any other conduct which has the effect of prejudicing or disadvantaging the employee, or which prejudices or disadvantages the employee relative to other employees; and
  2. "employee" includes any applicant for employment who has previously been employed at a mine.

84. Safety equipment not to be interfered with

Unless specifically authorised by the employer, no person--

  1. other than an inspector acting in terms of section 50, may remove personal protective equipment from a mine, or cause that equipment to be removed;
  2. other than an inspector acting in terms of section 50, may remove anything that is provided in the interest of health or safety, or cause that equipment to be removed; or
  3. may alter, damage, misuse, render ineffective or interfere with; anything that is provided in the interest of health or safety, or cause that equipment to be altered, damaged, misused. rendered ineffective or interfered with.

(Section 50 outlines the inspector's powers which includes entering any mining area and questioning persons and examining documents and machinery.)

85. Juvenile employment underground prohibited

1) No person may cause or permit an employee under the age of 18 years to work underground at a mine.

2) No employee under the age of 18 years may work underground at a mine.

3) Despite subsections (1) and (2), an employee under the age of 18 years but over the age of 16 years may work underground as part of vocational education or training.

86. Negligent act or omission

1) Any person who, by a negligent act or by a negligent omission, causes serious injury or serious illness to a person at a mine, commits an offence.

2) Any person, other than an employer or employee, who, by a negligent act or by a negligent omission, endangers the health and safety of a person at a mine, commits an offence.

3) [Subsection (3) deleted by s.35 of Act No. 72 of 1997].

87. Breach of confidence

1) Any person who discloses any information that they acquired in the performance of a function in terms of this Act and that relates to the financial and business affairs of an employer or any other person who employs employees, commits an offence.

2) Subsection (1) does not apply if the information--

  1. was disclosed to enable a person to perform a function in terms of this Act;
  2. must be disclosed in terms of this Act, any other law or an order of court; or
  3. was disclosed to a health and safety representative or health and safety committee in terms of Chapter 3.

88. Hindering administration of this Act

Any person who hinders, opposes, obstructs or unduly influences any person who is performing a function in terms of this Act commits an offence.

89. Falsifying documents

Any person who obtains or attempts to obtain a prescribed certificate of competency by means of fraud, dishonesty, false pretences or the presentation or submission of a false or forged document commits an offence.

90. Failure to attend when summoned

A person commits an offence who, having been instructed or summoned to attend an inquiry--

  1. without sufficient cause fails--

    1. to appear at the time and place specified; or

    2. to remain in attendance until excused by the person presiding at the inquiry;

  2. attends as required, but without sufficient cause--

    1. fails to comply with an instruction in terms of section 70(c)(i); or

      (Section 70(c)(i) empowers a person presiding at an inquiry to instruct anyone to produce a document for the purposes of the inquiry.)

    2. refuses to be sworn or to make an affirmation; or

  3. attends as required and having been sworn or having made an affirmation--

    1. without sufficient cause fails to answer any question fully and to the best of that person's ability; or
    2. gives evidence, knowing or believing it to be false.

91. Failure to comply with this Act

1) Any person, other than an employer, commits an offence who contravenes, or fails to comply with, any--

  1. provision of this Act;
  2. regulation; or
  3. condition, suspension, notice, order, instruction, prohibition, authorisation, permission, consent, exemption, certificate or document determined, given, issued, promulgated or granted by or under this Act by the Minister, Chief Inspector of Mines, inspector, any person authorised under section 49(4) or any person to whom any power has been delegated or the performance of any duty has been assigned under section 96.

1A) Any employer who contravenes, or fails to comply with, section 62, 63(3), 71, 85, 86, 88, 89 or 90 commits an offence.

1B) Any employer is liable to a fine in terms of section 55D if the employer contravenes, or fails to comply with, any--

  1. provision of this Act, other than a provision referred to in subsection (1A), or any provision of Chapter 3 or section 83;
  2. regulation; or
  3. condition, suspension, notice, order, instruction, prohibition, authorisation, permission, consent, exemption, certificate or document determined, given, issued, promulgated or granted by or under this Act by the Minister, Chief Inspector of Mines, inspector, any person authorised under section 49(4) or any person to whom any power has been delegated or the performance of any duty has been assigned under section 96.

1C) Despite subsection (1B), any employer who contravenes or fails to comply with any standard in a code of practice prepared in terms of section 9(2) is not liable to a fine in terms of section 55D if--

  1. the standard exceeds any compulsory standard in any relevant guideline issued by the Chief Inspector of Mines; and
  2. the conduct constituting the contravention or failure complies with the compulsory standard in any relevant guideline issued by the Chief Inspector of Mines.

2) Despite subsection (1)(a), a contravention of the provisions of Chapter 3 or section 83 does not constitute an offence.

(Chapter 3 deals with health and safety representatives and committees.)

3) A person appointed under section 4(1) to perform any function entrusted to an employer by this Act commits an offence if that person fails to exercise reasonable care in performing that function.

4) Any chief executive officer or member of the board contemplated in section 2A who performs a function in terms of section 2A(1) or (3) commits an offence if that person fails to take reasonable steps in performing that function.

92. Penalties

1) Any person convicted of an offence in terms of section 87, may be sentenced to a fine or to imprisonment to be determined by the court.

2) Any person convicted of an offence in terms of section 90(a) or (b)(i), may be sentenced to the penalty applicable to a similar offence in a magistrate's court.

3) Any person convicted of an offence in terms of section 90(c)(ii), may be sentenced to any penalty that may be imposed in law for perjury.

4) Any person convicted of an offence in terms of this Act for which no penalty is otherwise expressly determined, may be sentenced to a fine or to imprisonment for a period not exceeding six months.

5) Any person convicted of an offence in terms of any section mentioned in Column 1 of the Table below, may be sentenced to a fine or to imprisonment for a period not exceeding the period mentioned in Column 2 of that Table opposite the number of that section.

Table of Maximum Terms of Imprisonment
Section under which convicted Maximum term of imprisonment
15 2 years
16 1 year
21(1), (3) or(4) 2 years
22 2 years
24 1 year
52 2 years
53 2 years
62 2 years
66(3) 2 years
70 2 years
71 2 years
84 2 years
85 1 year
86 3 years
88 2 years
89 1 year
90(b)(ii) or (c)(i) 2 years

93. Magistrate's court has jurisdiction to impose penalties

Despite anything to the contrary contained in any other law, a magistrate's court has jurisdiction to impose any penalty provided for in this Act.

94. Serving of documents

Unless otherwise provided in this Act, a notice, order or other document which, in terms of this Act, must be served on or delivered to a person, will have been properly served or delivered if it has been either--

  1. served on or delivered to that person; or
  2. sent by registered post to that person's last known address; or
  3. published in the Gazette.

95. Proof of facts

In any legal proceedings in terms of this Act--

  1. if it is alleged that a person at a mine is or was an employee, that person is presumed to be an employee at that mine, unless the contrary is proved;
  2. if it is proved that a false statement, entry or information appears in or on a book, plan, record or other document, the person who kept that document is presumed to have made, entered, recorded or stored that statement, entry, record or information, unless the contrary is proved; and
  3. subject to the provisions of sections 63(1), 63(3) and 71(2), any statement, entry or information in or on any book, plan, record or other document is admissible in evidence as an admission of the facts in or on it by the person who made, entered, recorded or stored it unless it is proved that that person did not make, enter, record or store it within the scope of their functions.

(Section 63(1) provides that every answer given in an investigation is privileged.

Section 63(3) provides that a report that an inspector has directed to be privileged may not be used in any civil, criminal or disciplinary proceedings, inquests or inquiries.

Section 71(2) provides that a witness's privilege in a court of law applies equally to any person being questioned at an inquiry.)

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