A. 47-74. Inspectorate Of Mine Health And Safety

Question 0

What is the requirements for the Chief Inspector of Mines?

Answer 0

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 the 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.

Question 1

What is the requirements to establish an Inspectorate?

Answer 1

47. Inspectorate established.-
    1)
    a) A juristic person to be known as the Mine Health and Safety Inspectorate is hereby established.
    b) The Public Finance Management Act, 1999 (Act No.1 of 1999), applies to the Inspectorate.
    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.

Question 2

What are the functions of the Chief Inspector of Mines?

Answer 2

49. Chief Inspector of Mine’s functions.-
    1) Without limiting any statutory duty of any other person in terms of this Act, the Chief Inspector of Mines must-
    a) 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;
    b) appoint an officer with the prescribed qualifications and experience as the Medical Inspector;
    c) appoint officers with the prescribed qualifications and experience as inspectors;
    d) administer the Mine Health and Safety Inspectorate;
    e) determine and implement policies to promote the health and safety of persons at mines and any person affected by mining activities;
    f) consult with the Council before issuing guidelines on the form, content and distribution of codes of practice referred to in section 9;
    g) collect, process and distribute information relating to health and safety;
    h) advise the Minister on health or safety matters at mines;
    i) 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;
    j) 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;
    k) perform any duties relating to health and safety at mines that the Minister directs or prescribes;
    l) develop and maintain an integrated mine health and safety database and reporting system;
    m) conduct or commission relevant research and evaluate and publish the results of the research; and
    n) provide logistical, administrative and technical support to the Council.
    2) The Chief Inspector of Mines must furnish a prescribed certificate to the Medical Inspector and to each inspector.
    3) Despite the provision of the Mineral and Petroleum Resources and Development Act or any other laws, the Chief Inspector of Mines-
    a) 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
    b) must consult with the appropriate officer appointed in terms of the Mineral and Petroleum Resources Development Act concerning the exercise of those powers.
    4) To further the objectives of this Act the Chief Inspector of Mines may-
    a) enter into agreements with other persons;
    b) authorise a competent independent person to perform any or all the functions of an inspector;
    c) perform any act, whether in the Republic or elsewhere, that is calculated, directly or indirectly, to enhance the value of the services which the Mine Health and Safety Inspectorate renders, or perform any prescribed act;
    d) require all mines or groups of mines to prepare and implement a health and safety management system for mines;
    e) require all mines or groups of mines to prepare and implement a hazard management system for significant hazards mentioned under section 11;
    f) in consultation with the Minister and the Minister of Finance acquire or dispose of immovable property;
    g) hire, purchase or otherwise acquire any movable property and proprietary right, and lease or dispose of property;
    h) collaborate with any other body or institution or establish and control facilities for the collection and dissemination of scientific and technical information relating to health and safety at mines;
    i) collaborate with any educational, governmental or scientific body or institution in connection with the provision of instruction for, or the training of, persons required by the Mine Health and Safety Inspectorate;
    j) provide financial or other assistance in connection with the training of persons in os far as is necessary to ensure that a sufficient number of trained persons are available to enable the Mine Health and Safety Inspectorate to perform its functions efficiently;
    k) insure the Mine Health and Safety Inspectorate against any loss, damage, risk or liability;
    l) invest any of the money of the Mine Health and Safety Inspectorate; and
    m) institute or defend any legal action.
    5) The Chief Inspector must furnish a prescribed certificate to each person authorised under subsection (4)(b).
    6) The Chief Inspector of Mines must issue guidelines by notice in the Gazette.

Question 3

What is the Financial and judicial management of the Mine Health and Safety Inspectorate?

Answer 3

49A. Financial and judicial management of Mine Health and Safety Inspectorate.-

1) The funds of the Mine Health and Safety Inspectorate consist of-
a) money appropriated by Parliament;
b) any donations made to the Mine Health and Safety Inspectorate;
c) revenue made on investments; and
d) money raised and received in terms of this Act.
2) The Mine Health and Safety Inspectorate must utilise its funds to defray expenses incurred by it in the performance of its functions.
3) The Chief Inspector of Mines must, after consultation with the Council, use the monies collected in terms of section 55B for the promotion of health and safety in the mining industry.
4) The Chief Inspector of Mines as the accounting authority of the Inspectorate must-
a) open a bank account in the name of the Mine Health and Safety Inspectorate with an institution registered as a bank in terms of the Banks Act, 1990 (Act No.94 of 1990); and
b) deposit therein all money received in terms of subsection (1).
5) The Mine Health and Safety Inspectorate may invest any of its funds not immediately required-
a) subject to any investment policy that may be prescribed; and
b) in such a manner as may be approved by the Minister.
6) The Mine Health and Safety Inspectorate’s financial year is from 1 April in any year to 31 March in the following year.
7) The report of the Chief Inspector of Mines referred to in section 49(1)(j) must reflect the financial affairs of the Mine Health and Safety Inspectorate.
8) Despite any other law, the Mine Health and Safety Inspectorate may not be placed under judicial management or in liquidation except if authorised by an Act of Parliament adopted especially for that purpose.

Question 4

What co-operative governance must the Chief Inspector of Mines co-ordinate?

Answer 4

49B. Co-operative governance.-

1) The Chief Inspector of Mines must co-ordinate the exercise of the functions of the Mine Health and Safety Inspectorate with other organs of state in respect of regulating and promoting occupational health and safety, in accordance with the principles of co-operative governance contemplated in Chapter 3 of the Constitution.
2) The Chief Inspector of Mines may conclude co-operative agreements with relevant organs of state to give effect to the co-operation contemplated in subsection (1).

Question 5

What is the Inspector’s powers?

Answer 5

50. Inspector’s powers-
    1) An inspector may for the purposes of monitoring or enforcing compliance with this Act-
    a) enter any mine at any time without warrant or notice;
    b) enter any other place after obtaining the necessary warrant in terms of subsection (7); and
    c) 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-
    a) question any person on any matter to which this Act relates;
    b) 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;
    c) 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 custody or control;
    d) examine any document produced in terms of paragraph (b), and make a copy of it or take an extract from it;
    e) inspect-
    i. any article, substance or machinery;
    ii. any work performed; or
    iii. any condition;
    f) inspect arrangements made by the employer for medical surveillance of employees;
    g) seize any document, article, substance or machinery or any part or sample of it; and
    h) perform any other prescribed function.
    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.
    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.

Question 10

What is the inspector’s powers to deal with compliance?

Answer 10

55. Inspector’s 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-
    a) considers necessary to comply with the provision; and
    b) specifies in the instruction.
    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.

Question 11

What is the inspector’s powers to recommend a fine?

Answer 11

55A. Inspector’s powers to recommend fine.-

1) An inspector may make a recommendation in writing to the Principal Inspector of Mines that a fine be imposed on an employer who has failed to comply with any provision contemplated in section 91(1B).
3) The inspector concerned must serve a copy of the recommendation on-
a) the employer;
b) 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
c) the representative trade union, or if there is no representative trade union, to every registered trade union with members at the mine.
4) The employer may make written representations to the Principal Inspector of Mines within 30 days of the recommendation.
5) A representation made in terms of this section may not be used against the employer in any criminal or civil proceedings in respect of the same set of facts.

Question 12

When may the Principal Inspector of Mines impose a fine in terms of regulation 55B?

Answer 12

maximum fine may not exceed R1 000 000
55B. Principal Inspector of Mines may impose fines. –

1) The Principal Inspector of Mines, after considering the recommendation and any representations made in accordance with section 55A, may
a) disregard the recommendation;
b) impose a fine not exceeding the maximum amount mentioned in Table 2 of Schedule 8; or
c) refer the matter to the prosecuting authority for a decision as to whether the employer should be charged with an offence.
2) The Principal Inspector of Mines must notify the employer, committee, representative and trade union contemplated in section 55A(3), as the case may be, of any decision made in terms of subsection (1)
3) An employer must pay any fine imposed in terms of this section within 30 day of the imposition of the fine.
4) If the employer fails to pay the fine within the specified period, the Chief Inspector of Mines may apply to the Labour Court for the fine to be made an order of that court.

Question 13

What is the requirements for an employer for instructions to be posted at a mine?

Answer 13

56. Instruction to be posted at mine.-

The employer of a mine must-

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

Question 14

What is the rights to appeal an inspector’s decision?

Answer 14

57. Right to appeal inspectors’ decisions.-
    1) Any person adversely affected by a decision of an inspector, except a decision contemplated ins section 55B, may appeal against that decision to the Chief Inspector of Mines.
    2) An appeal under subsection (1) must-
    a) be lodged with the Chief Inspector of Mines within 30 days of the decision, or such further period as may be prescribed; and
    b) 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-
    a) confirm, set aside or vary the decision; or
    b) substitute any other decision for the decision of the inspector.

Question 15

What is the rights to appeal a Chief Inspector of Mines’ decision?

Answer 15

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.

Question 16

Does an appeal suspend a decision?

Answer 16

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)-
    a) 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; and
    b) the Labour Court may suspend the operation of the decision, pending the determination of the matter, if there are reasonable ground for doing so.

Question 17

What is the requirements to initiate an investigation?

Answer 17

60. Initiating investigations.-
    1) The Chief Inspector of Mines must instruct an inspector to investigate any accident or occurrence at amine that results in the death of any person.
    2) At any time an inspector may investigate-
    a) any accident or occurrence at a mine that results in the serious injury or serious illness of any person;
    b) any occurrence, practice or condition concerning health or safety of persons at one or more mines; or
    c) 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-
    a) instructed to do so by the Chief Inspector of Mines; or
    b) requested to do so by-
    i. a registered trade union with members at the mine or mines;
    ii. a health and safety representative or health and safety committee at the mine; or
    iii. if there is no health and safety representative, an employee at the mine.

Question 18

May the Chief Inspector of Mines designate an assistant in an investigation?

Answer 18

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.

Question 19

What is a persons duty to answer questions during an investigation?

Answer 19

R200 000 or 2 yrs imprisonment
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.

Question 20

What are the requirements to enhance the effectiveness of an investigation?

Answer 20

63. Enhancing effectiveness of investigation.-
    1)
    a) For the purpose of enhancing the effectiveness of an investigation in terms of section 60 the National Prosecuting Authority, after receiving representations from the Chief Inspector of Mines, 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.
    b) If a certificate is issued, no fine in terms of section 55B 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.

Question 21

What are the duties of an inspector with regards to reports on an investigation?

Answer 21

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-
    a) must submit a copy of the report referred to in subsection 91) to the Chief Inspector of Mines;
    b) 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
    c) 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.

Question 22

When can the Chief Inspector of Mines initiate an inquiry?

Answer 22

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-
    a) any accident or occurrence at a mine that results in the serious injury or serious illness of any person;
    b) any occurrence, practice or condition concerning health or safety of persons at one or more mines; or
    c) 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) a registered trade union with members at the mine or mines;
    b) a health and safety representative or health and safety committee at the mine; or
    c) 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.

Question 23

When can an investigation be converted into an inquiry?

Answer 23

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 section 68 to 71 relating to the 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. R200 000 or 2 yrs imprisonment
    4) this section does not preclude or limit holding an inquiry after an investigation has been completed.

Question 24

May the Chief Inspector of Mines designate an assistant in an inquiry?

Answer 24

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.

Question 25

Must an inquiry be public?

Answer 25

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.

Question 26

Who has the right to participate in an inquiry?

Answer 26

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-

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

Question 27

What are the powers of a person presiding at an inquiry?

Answer 27

R200 000 or 2 yrs imprisonment
70. Powers of person presiding at inquiry.-

The person presiding at an inquiry may-

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

Question 28

What is the duty of a person summoned or instructed to an inquiry?

Answer 28

R200 000 or 2 yrs imprisonment
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 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.

Question 29

What is the requirements for the records and reports of an inquiry?

Answer 29

72. Inquiry records and reports.-
    1) A person presiding at an inquiry must-
    a) record the evidence given at the inquiry, including any evidence given with the assistance of an interpreter;
    b) at the conclusion of the inquiry, prepare a written report of the findings, recommendations and any remedial steps;
    c) submit a copy of the report and the record of the inquiry to the Chief Inspector of Mines;
    d) 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
    e) 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.

Question 30

May the Chief Inspector of Mines order a further inquiry?

Answer 30

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.

Question 31

May an inquiry and inquest be conducted jointly?

Answer 31

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).
    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 1995), 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.

Question 33

With whom may the Inspector be accompanied?

Answer 33

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.

Question 34

What are persons duties to assist the Inspector and answer questions?

Answer 34

R200 000 or 2 yrs imprisonment
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.
2) Persons questioned by an inspector under section 50(2)(a) or (c) or (3) must answer any question to the best of their ability, but no person is required to answer any question if the answer may be self-incriminating.

Question 35

What is any persons duty to produce documents required by the inspector?

Answer 35

R200 000 or 2 yrs imprisonment
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 and Petroleum Resources Development Act, must produce it at the request of the Chief Inspector of Mines or any inspector.

Question 36

What is the Inspector’s powers to deal with dangerous conditions?

Answer 36

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-
    a) operations at the mine or a part of the mine be halted;
    b) 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;
    c) the employer must take the steps set out in the instruction, within the specified period, to rectify the occurrence, practice or condition; or
    d) all affected persons, other than those who are required to assist in taking steps referred to in paragraph (c), be moved to safety.
    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 or until the inspector’s instructions have been complied with.