Schedule 6 Constitution of the Mine Health and Safety Council

1. Establishment of Council and Committees

1) The Council and the permanent committees of the Council, the Mining Regulation Advisory Committee, the Mining Occupational Health Advisory Committee and the Safety in Mines Research Advisory Committee are established by section 41(1) and (2) of this Act.

2) The Council may establish ad hoc committees and subcommittees for such periods as the Council may consider necessary, to achieve the object or perform the functions of the Council.

(Ad hoc and subcommittees are distinguished between in the definition of "other committee".)

3) Every permanent or ad hoc committee may, subject to such conditions as the Council may determine, establish subcommittees, for such periods as the committee may consider necessary, to perform any function of that committee.

2. Legal Status

1) The Council is a body corporate.

2) All actions, suits or other proceedings at law, by or against any committee must be brought by or against the Council.

3) The Council may authorise any person or persons to act on behalf of the Council and to sign all such documents and to take all such steps as may be necessary in connection with any proceedings at law brought by or against the Council.

3. Object of Council

The object of the Council is to advise the Minister on health and safety at mines.

(Section 41(1) prescribes the object of the Council.)

4. Functions of Council

The Council must--

1. advise the Minister on health and safety at mines including, but not limited to, any legislation on mine rehabilitation in so far as it concerns health and safety;
2. co-ordinate the activities of the committees;
3. consider the reports of the committees;
4. liaise with the Mining Qualifications Authority on matters relating to health and safety;
5. e) liaise with any other statutory bodies concerned with matters relating to health and safety;
6. promote a culture of health and safety in the mining industry;
7. at least once every two years arrange and co-ordinate a tripartite summit to review the state of health and safety at mines;
8. for each year consider an overall programme for relevant health and safety for approval as prescribed and deliver a copy to the Minister of Finance for consideration; and
9. perform every duty imposed upon the Council in terms of this Act.

(Sections 43(a) to (f) determine the duties of the Council.)

5. Functions of Permanent Committees

1) The Mining Regulation Advisory Committee must advise the Council on--

1. proposed changes to legislation to improve health or safety at mines;
2. proposals for changes to legislation made by any committee;
3. guidelines for codes of practice; and
4. standards approved by the South African Bureau of Standards.

(Sections 44(1)(a) to (d) determine the duties of MRAC.)

2) The Mining Occupational Health Advisory Committee must advise the Council on--

1. policy relating to health;
2. standards, systems and procedures for assessing, avoiding, eliminating. controlling and minimising health risks;
3. regulations on any aspect of health;
4. health research; and
5. collecting, processing and distributing health data in the mining industry.

(Sections 44(2)(a) to (e) determine the duties of MOHAC.)

3) The Safety in Mines Research Advisory Committee must advise the Council on--

1. criteria for determining the funding of health or safety research;

(Section 98(l)(zJ) empowers the Minister to make regulations for the payment of levies for funding research and surveys and for the promotion of health and safety at mines.)

2. the need for research into health or safety at mines;
3. research projects, including priorities of projects, cost, assessment, ratification and execution;
4. communication and publication of research results; and
5. the management of the cost of the overall programme.

(Sections 44(3)(a) to (e) and 44(4)(a) to (d) determine the duties of SIMRAC.)

4) The Safety in Mines Research Advisory Committee must prepare the programme for relevant health or safety research for the Council to consider. The programme must include--

1. a review of health or safety performance in the different mining sectors;
2. an evaluation of the research proposals made by the Council or any committee,
3. the focus of health or safety research and priorities for the different sectors of mining; and
4. an estimate of the cost of the programme.

(Sections 44(3)(a) to (e) and 44(4)(a) to (d) determine the duties of SIMRAC. The Council considers the overall programme in terms of item 4(h).)

6. Functions of Other Committees

Other committees must perform the functions delegated or assigned to them in terms of item 7.

7. Delegation and Assignment of Functions

1) The Council may delegate or assign any of the functions of the Council by or under this Act to any committee.

2) Permanent and ad hoc committees may delegate or assign any of their functions to any of their subcommittees.

3) A delegation or assignment under subitem (1) or (2)--

1. must be in writing.
2. is subject to such conditions and restrictions as determined by the Council, a permanent or an ad hoc committee, as the case may be; and
3. does not prevent the performance of that function by the Council, a permanent or an ad hoc committee, as the case may be.

(Sections 42(4) and (5) enable the Council to delegate any of its powers of assign any of its duties by or under this Act to committees.)

8. Composition of Council and Committees

1) The Council consists of -

1. five members representing employers in the mining industry;
2. five members representing employees in the mining industry;
3. four members representing departments of State; and
4. the Chief Inspector of Mines, who most chair the Council.

(Section 42(1) prescribes the membership of the Council.)

2) Every permanent committee consists of -

1. five members representing employers in the mining industry;
2. five members representing employees in the mining industry;
3. four members representing departments of State; and
4. an officer of the Mine Health and Safety Inspectorate who must chair the committee.

3) Every other committee consists of the number of members determined by the relevant establishing authority.

4) The parties are entitled to equal representation on other committees.

9. Nomination and Appointment of Members

1) Members of the Council and permanent committees are nominated and appointed in accordance with the regulations and members of any other committee are nominated and appointed in accordance with this item.

(See Regulations 18.1 to 18.7.)

2) Every party on the relevant establishing authority may nominate persons as members representing their party on any other committee.

3) The relevant establishing authority--

1. must appoint the members; and
2. may appoint one of the members as chairperson.

4) If the relevant establishing authority does not appoint a chairperson, the members of the committee may appoint a chairperson from among their number.

5) Members representing employees or employers on any other committee may hold office for such period as the relevant establishing authority may determine, which period may not exceed three years. A member whose period of office expires, may be reappointed.

(Regulation 18.5 determines the term of office of members of the Council and its permanent committees.)

6) If the office of a member of any other committee is vacated before the end of the period of office of such member, a person to replace such member must, subject to the provisions of this Constitution--

1. be nominated by the party that was represented by the member; and
2. be appointed by the relevant establishing authority for a period not exceeding the balance of the period of office of the member in whose place the person is appointed.

(Regulation 18.6 deals with the filling of casual vacancies of the Council and permanent committees.)

7) The appointment of any member of any other committee is subject to any condition that the relevant establishing authority determine.

8) The chairperson of the relevant establishing authority must in writing notify the members of their appointment.

9) If a member appointed in terms of this item does not accept such appointment, a person to replace such person must be appointed in accordance with this item.

10) Every party must appoint an alternate for each of its members on the Council, a permanent or ad hoc committee and must notify the chairperson of the Council or the relevant permanent or ad hoc committee as the case may be, of such appointment.

11) The relevant establishing authority--

1. may appoint alternates for members of subcommittees; and

2. must notify--

   1. the alternates of their appointment; and
   2. the members of their respective alternates.

10. Vacation of Office

1) A member vacates office--

1. on expiry of the member's period of office;

2. if such member--

   1. is absent from two consecutive meetings of the Council or committee for which such member is appointed without notifying the chairperson before the meeting that the member will be absent;
   2. resigns as a member; or

   3. is required to vacate office by the party or the organisation which that member represents;

3. if such member was nominated by an organisation and that organisation no longer meets the criteria allowing it to nominate members; or
4. if the Council or committee on which the member serves, is abolished.

2) If a member vacates office, the alternate appointed for such member ceases to hold office as alternate.

11. Functions of Chairperson

1) Every chairperson must with regard to the Council or committee which the person chairs--

1. allow each party to appoint from among its members a person to act as convenor of such party for communication purposes. If a party does not appoint such convenor, the chairperson may appoint any member of that party as convenor of the party;
2. cause meetings to be convened; and
3. ensure the orderly conduct of meetings and that all resolutions are recorded.

2) If in the opinion of the chairperson the behaviour of any member is disruptive to the orderly conduct of the meeting, the chairperson may order that member to leave a meeting.

3) If the chairperson of the Council or a permanent committee is unable to attend a meeting, the chairperson may designate another officer of the Mine Health and Safety Inspectorate to chair the meeting.

(If the chairperson of any other committee is unable to attend a meeting, a member of that committee may be elected in terms of item 16(3) to chair the meeting.)

12. Appointment and Functions of Secretary

1) The Chief Inspector of Mines must appoint a secretary for--

1. the Council and every permanent and ad hoc committee; and
2. any subcommittee if the establishing authority so requires.

2) If a secretary is not appointed for a subcommittee, the members of that committee must keep a record of and report to the relevant establishing authority on their activities.

3) A secretary must, with regard to the Council or committee for which the secretary is appointed--

1. prepare the agenda for every meeting;
2. prepare the minutes of every meeting;
3. record every resolution of such meeting and if so requested by a member, the views of that member;
4. keep general records, records of members, minutes, documents and files of the Council or such committee; and

5. serve every member with--

   1. a convening notice and the agenda of a meeting at least five clear days before the meeting or two clear days before an urgent meeting;
   2. any reports or documentation to be considered at a meeting, a reasonable period before the meeting; and
   3. the minutes of every meeting.

13. Rights and Obligations of Members

1) Any member who is unable to attend a meeting of the Council or any committee--

1. may designate any alternate of that member's party on the Council or that committee as the case may be, to represent the member at the meeting; and
2. must before the meeting give notice of it to the chairperson.

2) An alternate designated under subitem 1 has the rights and obligations of the member whom that alternate represents.

3) Every member has the right to--

1. be heard on any matter considered at the meeting;
2. take part in the resolution of any matter before the meeting; and
3. have their views, on any matter considered at the meeting, recorded in the minutes of the meeting and in any report or recommendation of the meeting.

(Section 42(6) entitles members to have their views reflected in any report of the Council or committee.)

14. Meetings

1) The Council must meet at such intervals as required for the proper performance of the functions of the Council, but at least once every six months.

2) Every permanent and ad hoc committee must meet at such intervals as required for the proper performance of the functions of the committee, but at least once every three months.

3) Subcommittees must meet at such intervals as determined by their activities and the dates for the completion of their tasks.

4) An urgent meeting of the Council or any committee may be called by the chairperson at the written request of at least two members or when the chairperson deems it necessary.

5) The Council may direct any committee to call an urgent meeting to resolve any matter determined by the Council.

6) A permanent or ad hoc committee may direct any of its subcommittees to call an urgent meeting to resolve any matter determined by such committee.

15. Quorum

1) Eight members form a quorum for any meeting of the Council or a permanent committee provided that at least two members of each party are present.

2) The quorum for any other committee must be determined by the relevant establishing authority.

3) Despite subitems (1) and (2), if the convenors of the parties in the Council or any committee so agree, a smaller number may constitute a quorum for an urgent meeting of the Council or that committee, as the case may be.

4) If a quorum is not Present at a meeting, the meeting must be postponed to- a date, time and place determined by the chairperson. The members present at the subsequent meeting form a quorum for that meeting.

16. Procedures at Meetings

1) Items may be added to the agenda of any meeting if the meeting so decides.

2) Any member who has a direct or personal financial interest in any matter before the meeting must, before the matter is discussed by the meeting, declare such interest to the meeting and the chairperson must determine whether such member may participate in the consideration of that matter.

3) If the designated chairperson is not present at a meeting the members may elect from among their number a chairperson for that meeting.

17. Resolution of Meeting

1) The Council or any committee must endeavour to reach consensus on any matter that requires resolution.

2) If consensus cannot be reached on any matter after sincere endeavours to do so, a decision of the majority of members present and voting at a meeting constitutes the resolution on that matter by the Council or any committee, as the case may be.

3) Any report or advice of the Council or any committee which reflects a resolution that was not reached by consensus, must reflect--

1. the different views of the members on the matter so resolved; and
2. which members supported each view.

4) No resolution nor any act authorised by the Council or any committee is invalid merely because of a vacancy on the Council or that committee or because any person not entitled to sit as a member sat at such meeting at the time the resolution was taken or the act was authorised if a quorum was constituted by the rest of the members present at the meeting and entitled to sit as members at the meeting.

18. Funds of Council

1) The funds of the Council consist of--

1. moneys appropriated by Parliament to perform the functions of the Council;
2. other moneys received in terms of this Act;
3. revenue obtained from investments;
4. fees or royalties obtained from intellectual property of the Council;
5. donations or contributions received from any person, body, government or administration; and
6. any other money received from any other source.

   (Section 42(7) empowers the Minister to provide funds for the administration of the Council and its committees from public funds.)

2) Moneys appropriated by Parliament must be used for -

1. the payment to members who are not in the full-time service of the State of such remuneration and allowances as the Minister may determine with the agreement of the Minister of Finance; and
2. the payment for administrative functions of the Council and committees.

(Section 42(7) requires the agreement of the Minister of Finance for the provision of funds for the administration of the Council and its committees from public funds.)

3) Moneys referred to in subitem (1)(b), (c), (d) or (f) may be--

1. used as contemplated in this Act;
2. invested with any bank registered as such under the Banks Act, 1990 (Act No. 94 of 1990), or invested in such other manner as may be determined by the Minister with the agreement of the Minister of Finance; and
3. used to register or utilise any intellectual property of the Council.

4) Moneys referred to in subitem (1)(e) must be utilised in accordance with the conditions, if any, imposed by the donor or contributor of such moneys.

5) The chairperson of the Council must for each financial year submit a statement of estimated income and expenditure during such financial year to the Minister who, with the agreement of the Minister of Finance, must approve the budget for--

1. the first financial year, before the first meeting of the Council; and
2. every other financial year, before the beginning of such financial year.

19. Accountability

1) The chairperson of the Council is the accounting officer of the Council.

2) The accounting officer is responsible for all moneys received and payments made by the Council.

3) The financial year of the Council ends on 31 March in each year.

4) The accounting officer must cause records to be kept in accordance with the Generally Accepted Accounting Principles that are necessary to represent fairly the state of affairs and business of the Council and to explain the transactions and financial position of the Council.

5) Annual financial statements must be prepared in respect of every financial year. The statements must consist of--

1. a balance sheet dealing with the state of affairs of the Council;
2. a return of income received and expenses incurred by the Council; and
3. a statement of cash flow information.

6) The books of account, statements of account and annual financial statements of the Council must be audited annually by the Auditor-General. The Auditor-General must compile a report on the audit and submit a copy of it to the Minister and the chairperson of the Council.

7) The secretary of the Council must supply each member of the Council with a copy of the report of the Auditor-General.

8) As soon as practicable after the report of the Auditor-General has been submitted to the Minister in terms of subitem (6), the Minister must table it in Parliament.

20. Administrative Functions

1) The administrative functions of the Council and committees may with the approval of the Minister be rendered by--

1. any person contracted to perform such functions; and
2. officers of the Mine Health and Safety Inspectorate.

2) The Council may with the approval of the Minister conclude a contract with any person to perform any administrative functions of the Council and committees.

21. Abolition of Council or Committee

1) The Council and the permanent committees may be abolished by an Act of Parliament.

2) The Council may at any time abolish any other committee.

3) A permanent or ad hoc committee may at any time abolish any subcommittee established by that committee.

(See item 1 for the establishment of the Council and committees.)

22. Limitation of Liability

1) A member does not incur any civil liability only because of doing or failing to do something which such member may do or is required to do in terms of this Act.

2) The Council does not incur any civil liability only because a member or any person contracted to perform a function of the Council or a committee, or an officer of the Mine Health and Safety Inspectorate assigned to perform such function, took an action or failed to take an action under or in terms of this Act, and in taking or failing to take that action acted without negligence and in good faith.

23. Amendment of Constitution

1)

1. If the Minister wants to amend the constitution, the Minister must furnish a proposal containing such amendments to the chairperson of the Council, who must convene a meeting to consider the proposal.

2. At such meeting the Council must consider the proposal and resolve either to--

   1. support the proposal as it is;
   2. support the proposal with certain amendments; or

   3. oppose the proposal.

3. The Council must submit its resolution to the Minister.
4. If the Council resolves to support the proposal with certain amendments or to oppose the proposal, the motivation for such resolution and the amendments, if any, must be included in the submission to the Minister.

2)

1. If the Council wants the constitution to be amended, the Council must submit a proposal regarding such amendment to the Minister.
2. Such proposal by the Council is deemed to be consultation by the Minister with the Council as contemplated in section 97(1).
3. If the Minister is not satisfied with the amendments or the motivation for the amendments, the Minister may refer the proposal back to the Council for further consideration.

(Section 97(1) read with 97(3) of this Act authorises the Minister to add to, change or replace this Constitution, after consultation with the Council, by publication in the Gazette.)

24. Definitions

Unless the context otherwise indicates--

alternate
means any person appointed as an alternate to a member under item 9(10);

chairperson
means any person who chairs any meeting of the Council or a committee;

clear day
means any day of the week except Sundays and public holidays;

committee
means any permanent committee or other committee;

consensus
means unanimous agreement;

establishing authority
means--

1. in the case of the Council and a permanent committee, Parliament by legislation;
2. in the case of an ad hoc committee, the Council; and
3. in the case of a subcommittee, the Council, or any permanent or ad hoc committee that establishes the subcommittee;

member
means any member of the Council or any committee and includes any alternate designated by a member to represent that member at a meeting of the Council or committee;

other committee
means--

1. an ad hoc committee established for a limited term to perform any function of the Council which is not a function of any permanent committee; and

2. a subcommittee established by--

   1. the Council to perform any function of the Council which is not assigned by or under this Act to a permanent committee; and
   2. a permanent or an ad hoc committee to perform any function of that committee; and

(If a function of the Council needs to be performed on a permanent basis by a committee, the Council may either delegate or assign the function to a permanent committee or request that a new permanent committee be established by legislation to perform the function.)

party
means employers, employees or the State, as the case may be.