MINE HEALTH AND SAFETY ACT NO. 29 OF 1996
[ASSENTED TO 30 MAY, 1996]
[DATE OF COMMENCEMENT: 15 JANUARY, 1997]
(Unless otherwise indicated)
(English text signed by the President)
This Act has been updated to Government Gazette 32226 dated 12 May,
2009.
as amended by Mine
Health and Safety Amendment Act, No. 72 of 1997
Skills Development Amendment Act, No. 31 of 2003 [with
effect from 14 November, 2003]
Mineral and Petroleum Resources Development Act, No. 28 of
2002 Mine Health and Safety Amendment
Act, No. 74 of 2008
Mine Health and Safety Amendment Act, No. 74 of 2008
(provisions mentioned below not yet proclaimed) Proposed amendment by Section to be amended S. 16 of Act No. 74 of 2008 S. 50 of Act No. 29 of 1996 S. 26 of Act No. 74 of 2008 Inserts s. 86A in Act No. 29 of 1996
GENERAL NOTE In terms
of s. 47 of Act No. 72 of 1997, the expressions in the principal Act are
amended by- (a) the substitution for the
expression "Chief Inspector", of the expression "Chief Inspector
of Mines"; (b) the substitution for
the expression "Government Gazette", of the expression
"Gazette"; (c) the
substitution for the expressions "owner", "owner or an
employer", "owner or manager", "owner or the
employer", "owner, manager", "management" and "an
owner or employer", of the expression "employer"; (d) the substitution for the expressions
"owners" and "owners, employers and managers", of the
expression "employers"; (e)
the substitution for the expression "manager", except in sections 3
and 4, of the expression "employer";
( f ) the substitution for the expression "a manager", except
in sections 3 and 4, of the expression "an employer"; and (g) the substitution for the expression
"managers, ", except in sections 3 and 4 of the expression
"employers, ". In terms of s.
34 of Act No. 74 of 2008, the expressions in the principal Act are amended
by- (a) the substitution for the
expression "permanent committee(s)", of the expression
"committee(s)"; (b) the
substitution for the expression "Minerals Act", of the expression
"Mineral and Petroleum Resources Development Act, 2002".
ACT
To provide for protection of the health and safety of
employees and other persons at mines and, for that purpose- to promote a
culture of health and safety; To provide
for the enforcement of health and safety measures;
To provide for appropriate systems of employee, employer and
State participation in health and safety matters;
To establish representative tripartite institutions to
review legislation, promote health and enhance properly targeted research;
To provide for effective monitoring systems and inspections,
investigations and inquiries to improve health and safety; to promote training and human resources
development;
To regulate employers' and employees' duties to identify
hazards and eliminate, control and minimise the risk to health and safety; to entrench the right to refuse to work in
dangerous conditions; and to give effect to the public international law
obligations of the Republic relating to mining health and safety; and to provide for matters connected
therewith.
ARRANGEMENT OF SECTIONS
CHAPTER 1
OBJECTS OF ACT
1. Objects of Act
2. 2A. 3. 4. 5.
6. 7. 8. 9. 10. 11. 12. 13. 14.
15. 16. 17. 18. 19. 20. 21. 22. 23. 24.
CHAPTER 2
HEALTH AND SAFETY AT MINES
Employer to ensure safety Chief executive officer charged
with certain functions Employer must appoint manager Employer may entrust
functions to another person Employer to maintain healthy and safe mine
environment Employer to ensure adequate supply of health and safety equipment
Employer to staff mine with due regard to health and safety Employer must
establish health and safety policy Codes of practice Employer to provide health
and safety training Employer to assess and respond to risk Employer to conduct
occupational hygiene measurements Employer to establish system of medical
surveillance Record of hazardous work Record of medical surveillance Annual
medical reports Exit certificates Costs of examination Employees' right to
information Employee may dispute finding of unfitness to perform work
Manufacturer's and supplier's duty for health and safety Employees' duties for
health and safety Employees' right to leave dangerous working place Employees
not to pay for safety measures
CHAPTER 3
HEALTH AND SAFETY
REPRESENTATIVES AND COMMITTEES
25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.
38. 39. 40.
41. 42. 43. 44. 45. 46.
47. 48. 49. 49A. 49B. 50. 51. 52. 53. 54. 55. 55A. 55B. 55C.
55D. 55E. 55F. 55G. 55H. 56. 57. 57A. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67.
68. 69. 70. 71. 72. 73.
Health and safety representatives and committees
Negotiations and consultations before appointment of representatives
Designation of working places Qualifications of representatives Election and
appointment of representatives Rights and powers of representatives Duty to
compensate and assist representatives Duty to inform representatives
Negotiation and consultation on establishment of committees Establishment of
health and safety committees Committee procedures Rights and powers of health and safety
committee Duty to support committee Disclosure of information Disputes concerning disclosure of information
Disputes concerning this Chapter
CHAPTER 4
TRIPARTITE INSTITUTIONS Establishment
of tripartite institutions Mine Health and Safety Council Council's duties . .
. . . . Mining Qualifications
Authority Mining Qualifications
Authority's functions
CHAPTER 5
INSPECTORATE OF MINE HEALTH AND SAFETY Inspectorate
established Chief Inspector of Mines
Chief Inspector of Mines' functions
Financial and judicial management of Mine Health and Safety Inspectorate
Co-operative governance Inspectors' powers Inspector may be accompanied Duty to assist inspector and answer questions
Duty to produce documents required by inspector Inspector's power to deal with
dangerous conditions Inspectors' power to order compliance Inspector's power to
recommend fine Principal Inspector of Mines may impose fines . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . Instructions to be posted
at mine Right to appeal inspectors' decisions . . . . . . Right to appeal Chief
Inspector of Mines' decision Appeal does not suspend decision Initiating investigations Chief Inspector of Mines may designate
assistant in investigation Duty to answer questions during investigation
Enhancing effectiveness of investigation Reports on investigations Initiating
inquiries Investigation may be converted
into inquiry Chief Inspector of Mines
may designate assistant in inquiry Inquiry to be public Right to participate in
inquiry Powers of person presiding at
inquiry Duty of persons summoned or instructed Inquiry records and reports
Chief Inspector of Mines may order further inquiry Note: This content is licensed for use by
mbali makhanya of Shepstone & Wylie Attorneys. Terms & Conditions
74.
75. 76. 77. 78. 79. 80. 81.
82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95.
96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. Schedule 1
Schedule 2 Schedule 3 Schedule 4
Schedule 5 Schedule 6 Schedule 7
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.
Inquiry and inquest may be conducted jointly
CHAPTER 6
MINISTER'S POWERS Minister
may prohibit or restrict work Minister may declare health hazards Application
of Minister's notice Exemption from Minister's notice Exemption from all or
part of this Act Minister may apply other laws to mine Minister to table annual
report
CHAPTER
7
LEGAL
PROCEEDINGS AND OFFENCES Jurisdiction of Labour Court No discrimination
against employees who exercise rights Safety equipment not to be interfered
with Juvenile employment underground prohibited Negligent act or omission
Breach of confidence Hindering
administration of this Act Falsifying documents Failure to attend when summoned
Failure to comply with this Act Penalties Magistrate's court has jurisdiction
to impose penalties Serving of documents Proof of facts
CHAPTER 8
GENERAL PROVISIONS Delegation
and exercise of power Minister's power to add and change Schedules Regulations
Amendment of laws Transitional arrangements Interpretation Definitions
Occupational Health and Safety Act, 1993, not applicable Civil liability of
State Act binds State Short title and commencement Guidelines for determining
the number of full-time health and safety representatives Nomination and
appointment of members to tripartite institutions Amendment of laws
Transitional provisions Suspension and variation of application of Occupational
Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973) Constitution of the
Mine Health and Safety Council Constitution of Mining Qualification Authority
Establishment of Authority and committees Legal status Objects of Authority
Functions of Authority Functions of committees Functions of other committees
Composition of Authority and committees Nomination and appointment of members
of committees Vacation of office Appointment and functions of the executive
officer Delegation and assignment of functions Functions of the chairperson
Appointment and functions of secretary Rights and obligations of members
Meetings Quorum
17. 18. 19. 20. 21. 22. 23. 24. Schedule 8
Procedures at meetings Resolution of meeting Funds of
Authority Accounting Abolition of Authority and committees Limitation of
Liability Amendments to constitution Interpretation Maximum fines or period of
imprisonment that can be imposed for offences
[An italicised word or phrase indicates that the word or
phrase is defined in section 102 of this Act.]
CHAPTER
1
OBJECTS
OF ACT
1. Objects of Act.-The objects of this Act are- (a) to protect the health and safety of
persons at mines; (b) to require
employers and employees to identify hazards and eliminate, control and minimise
the risks relating to health and safety at mines; (c) to give effect to the public
international law obligations of the Republic that concern health and safety at
mines; (d) to provide for employee
participation in matters of health and safety through health and safety
representatives and the health and safety committees at mines; (e) to provide for effective monitoring of
health and safety conditions at mines; (
f ) to provide for enforcement of health and safety measures at mines; (g) to provide for investigations and
inquiries to improve health and safety at mines; and (h) to promote- (i) a culture of health and safety in the
mining industry; (ii) training in health
and safety in the mining industry; and
(iii) co-operation and consultation on health and safety between the
State, employers, employees and their representatives.
CHAPTER 2
HEALTH AND SAFETY AT MINES
2. Employer to ensure safety.-(1) The employer of every mine
that is being worked must- (a) ensure,
as far as reasonably practicable, that the mine is designed, constructed and
equipped- (i) to provide conditions for
safe operation and a healthy working environment; and (ii) with a communication system and with
electrical, mechanical and other equipment as necessary to achieve those
conditions;
(b) ensure, as far as reasonably practicable, that the mine
is commissioned, operated, maintained and decommissioned in such a way that
employees can perform their work without endangering the health and safety of
themselves or of any other person; (c)
compile an annual report on health and safety at the mine including the
statistics on health and safety that must be kept in terms of this Act and the
annual medical report referred to in section 16; and
(d) if the employer is a body corporate, and employs more
than 50 employees, publish and distribute the report referred to in paragraph
(c), in an appropriate form, to the body corporate's shareholders or
members. [Para. (d) substituted by s. 1
of Act No. 72 of 1997.]
Wording of Sections
(2) The employer of a mine that is not being worked, but in respect of
which a closure certificate in terms of the Mineral and Petroleum Resources and
Development Act has not been issued, must take reasonable steps to continuously
prevent injuries, ill-health, loss of life or damage of any kind from occurring
at or because of the mine. [Sub-s. (2)
substituted by s. 1 of Act No. 74 of 2008.]
Wording of Sections
2A. Chief executive officer charged with certain
functions.-(1) Every chief executive officer must take reasonable steps to
ensure that the functions of the employer as contemplated in this Act, are
properly performed. (2) Without
derogating from any responsibility or liability of the chief executive officer
in terms of subsection (1), the chief executive officer may entrust any
function contemplated in the said subsection to any person under the control of
the chief executive officer, which person must act subject to the control and
directions of the chief executive officer.
(3) If the employer is a body corporate, the functions of the chief
executive officer contemplated in subsections (1) and (2) may be performed by a
member of the board of the body corporate designated by the board. (4) Subsections (1), (2) and (3) do not
relieve an employer of any duty imposed on employers by this Act. (5) Every person appointed in terms of
section 3 or 4 (1) must perform their functions subject to the control and
direction of the chief executive officer or the person contemplated in
subsection (3). (6) (a) The employer
must inform the Chief Inspector of Mines, in writing, within seven days of the
appointment of the chief executive officer.
(b) The information to the Chief Inspector of Mines include- (i) the name of the chief executive
officer; (ii) the nature of such
person's function; and (iii) the name of
persons who are managers under the supervision of the chief executive officer.
[S. 2A inserted by s. 2 of Act No. 72 of 1997. Sub-s. (6) added by s. 2 of Act
No. 74 of 2008.]
3. Employer must appoint
manager.
-(1) The employer of every mine that is being worked
must- (a) appoint one or more managers
with the qualifications as may be prescribed to be responsible for the day to
day management and operation of the mine, and if more than one manager is
appointed, ensure that the managers' functions do not overlap; [Para. (a) substituted by s. 3 of Act No. 72
of 1997.] Wording of Sections (b) supply the managers with the means to
perform their functions; and (c) take
reasonable steps to ensure that the managers perform their functions. (2) The appointment of a manager does not
relieve the employer of any duty imposed on employers by this Act or any other
law. (3) If no manager is appointed in
terms of subsection (1), the employer must perform the functions of a manager
in terms of this Act.
4. Employer may entrust
functions to another person.
-(1) An employer may appoint any person except a manager to
perform any function entrusted to the employer by sections 2 and 3 of this
Act. [Sub-s. (1) substituted by s. 4 of
Act No. 72 of 1997.] Wording of
Sections (2) An employer who appoints a
person under subsection (1) must notify the Chief Inspector of Mines of that
appointment within seven days, and must include in that notice- (a) the name of the person appointed; (b) the nature of the person's functions;
and (c) the names of the manager or
managers over whom that person has control.
(3) An employer who appoints a person under subsection (1)
must- (a) supply each person appointed
with the means to perform their functions; and
(b) take reasonable steps to ensure that they perform their
functions. (4) The appointment of a
person under subsection (1) does not relieve the employer of any duty imposed
on employers by this Act or any other law.
5. Employer to maintain
healthy and safe mine environment.
-(1) As far as reasonably practicable, every employer must
provide and maintain a working environment that is safe and without risk to the
health of employees. (2) As far as
reasonably practicable, every employer must-
(a) identify the relevant hazards and assess the related risks to which
persons who are not employees may be exposed; and (b) ensure that persons who are not
employees, but who may be directly affected by the activities at the mine, are
not exposed to any hazards to their health and safety. [S. 5 substituted by s. 5 of Act No. 72 of
1997.] Wording of Sections
6. Employer to ensure
adequate supply of health and safety equipment.-
(1) Every employer must-
(a) supply all necessary health and safety equipment and health and
safety facilities to each employee; and
(b) maintain, as far as reasonably practicable, that equipment and those
facilities in a serviceable and hygienic condition. [Sub-s. (1) substituted by s. 6 (a) of Act
No. 72 of 1997.] Wording of
Sections (2) Every employer must ensure
that sufficient quantities of all necessary personal protective equipment are
available so that every employee who is required to use that equipment is able
to do so. (3) Every employer must take
reasonable steps to ensure that all employees who are required to use personal
protective equipment are instructed in the proper use, the limitations and the
appropriate maintenance of that equipment.
[Sub-s. (3) substituted by s. 6 (b) of Act No. 72 of 1997.] Wording of Sections
7. Employer to staff mine
with due regard to health and safety.-
(1) As far as reasonably practicable, every employer
must- (a) ensure that every employee
complies with the requirements of this Act;
(b) institute the measures necessary to secure, maintain and enhance
health and safety; (c) provide persons
appointed under subsections (2) and (4) with the means to comply with the
requirements of this Act and with any instruction given by an inspector; [Para. (c) substituted by s. 7 (b) of Act No.
72 of 1997.] Wording of Sections (d) consider an employee's training and
capabilities in respect of health and safety before assigning a task to that
employee; and
(e) ensure that work is performed under the general
supervision of a person trained to understand the hazards associated with the
work and who has the authority to ensure that the precautionary measures laid
down by the employer are implemented.
[Sub-s. (1) amended by s. 7 (a) of Act No. 72 of 1997.] Wording of Sections (2) The employer may appoint any person with
qualifications as may be prescribed to perform any function of the employer in
terms of this Act. [Sub-s. (2)
substituted by s. 7 (c) of Act No. 72 of 1997.]
Wording of Sections
(3) The appointment of a person under subsection (2) does
not relieve the employer of any duty imposed on employers by this Act. (4) A manager may appoint any person with
qualifications as may be prescribed to perform any function of the manager in
terms of this Act. [Sub-s. (4) added by
s. 7 (d) of Act No. 72 of 1997.]
(5) The appointment of a person under subsection (4) does
not relieve the manager of any duty imposed on managers by this Act. [Sub-s. (5) added by s. 7 (d) of Act No. 72
of 1997.]
8. Employer must establish
health and safety policy.-
(1) Every employer must prepare a document that- (a) describes the organisation of work; (b) establishes a policy concerning the
protection of employees' health and safety at work; (c) establishes a policy concerning the
protection of persons who are not employees but who may be directly affected by
the activities at the mine; and [Para. (c)
substituted by s. 8 of Act No. 72 of 1997.]
Wording of Sections (d) outlines
the arrangements for carrying out and reviewing policies. (2) The employer must consult with the health
and safety committee on the preparation or revision of the document and
policies referred to in subsection (1).
(3) The employer must- (a) prominently
and conspicuously display a copy of the document referred to in subsection (1)
for employees to read; and (b) give each
health and safety representative a copy of the document.
9. Codes of practice.-
(1) Any employer may prepare and implement a code of
practice on any matter affecting the health or safety of employees and other
persons who may be directly affected by activities at the mine. (2) An employer must prepare and implement a
code of practice on any matter affecting the health or safety of employees and
other persons who may be directly affected by activities at the mine if the
Chief Inspector of Mines requires it.
(3) A code of practice required by the Chief Inspector of Mines must
comply with guidelines issued by the Chief Inspector of Mines. (4) The employer must consult with the health
and safety committee on the preparation, implementation or revision of any code
of practice. (5) The employer must deliver
a copy of every code of practice prepared in terms of subsection (2) to the
Chief Inspector of Mines. (6) The Chief
Inspector of Mines must review a code of practice of a mine if requested to do
so by a registered trade union with members at the mine, or a health and safety
committee or a health and safety representative at the mine. (7) At any time, an inspector may instruct an
employer to review any code of practice within a specified period if that code
of practice- (a) does not comply with a
guideline of the Chief Inspector of Mines; or
(b) is inadequate to protect the health or safety of employees.
10. Employer to provide
health and safety training.
-(1) As far as reasonably practicable, every employer
must- (a) provide employees with any
information, instruction, training or supervision that is necessary to enable them
to perform their work safely and without risk to health; and (b) ensure that every employee becomes
familiar with work-related hazards and risks and the measures that must be
taken to eliminate, control and minimise those hazards and risks. (2) As far as reasonably practicable, every
employer must ensure that every employee is properly trained-
(a) to deal with every risk to the employee's health or
safety that- (i) is associated with any
work that the employee has to perform; and
(ii) has been recorded in terms of section 11; (b) in the measures necessary to eliminate,
control and minimise those risks to health or safety; (c) in the procedures to be followed to
perform that employee's work; and (d) in
relevant emergency procedures. (3) In
respect of every employee, the provisions of subsection (2) must be complied
with- (a) before that employee first
starts work; (b) at intervals determined
by the employer after consulting the health and safety committee; (c) before significant changes are introduced
to procedures, mining and ventilation lay-outs, mining methods, plant or
equipment and material; and (d) before
significant changes are made to the nature of that employee's occupation or
work. (4) The employer must keep a
record of all formal training provided in respect of each employee in terms of
subsection (2). [Sub-s. (4) added by s.
3 of Act No. 74 of 2008.]
(5) All mines must submit a workplace skills plan and the
annual training reports to the Mining Qualifications Authority. [Sub-s. (5) added by s. 3 of Act No. 74 of
2008.]
11. Employer to assess and
respond to risk.-
(1) Every employer must-
(a) identify the hazards to health or safety to which employees may be
exposed while they are at work; (b)
assess the risks to health or safety to which employees may be exposed while
they are at work; (c) record the
significant hazards identified and risks assessed; and (d) make those records available for inspection
by employees. (2) Every employer, after
consulting the health and safety committee at the mine, must determine all
measures, including changing the organisation of work and the design of safe
systems of work, necessary to- (a)
eliminate any recorded risk; (b) control
the risk at source; (c) minimise the
risk; and (d) in so far as the risk
remains- (i) provide for personal
protective equipment; and (ii) institute
a programme to monitor the risk to which employees may be exposed. (3) Every employer must, as far as reasonably
practicable, implement the measures determined necessary in terms of subsection
(2) in the order in which the measures are listed in the paragraphs of that
subsection. (4) Every employer
must- (a) periodically review the
hazards identified and risks assessed, including the results of occupational
hygiene measurements and medical surveillance, to determine whether further
elimination, control and minimisation of risk is possible; and (b) consult with the health and safety
committee on the review. (5) Every
employer must- (a) conduct an investigation
into every- (i) accident that must be
reported in terms of this Act; (ii)
serious illness; and (iii)
health-threatening occurrence;
(aA) commence an investigation referred to in paragraph (a)
within 10 days from the date of such accident, serious illness or
health-threatening occurrence; [Para.
(aA) inserted by s. 4 (a) of Act No. 74 of 2008.]
(b) consult the health and safety committee on
investigations in terms of this section;
(c) conduct an investigation in co-operation with the health and safety
representative responsible for the working place in which the investigation
takes place; (d) on completion of each
investigation, prepare a report that-
(i) identifies the causes and the underlying causes of the accident,
serious illness or healththreatening occurrence; [Sub-para. (i) substituted by s. 4 (b) of Act
No. 74 of 2008.] Wording of
Sections (ii) identifies any unsafe conditions,
acts, or procedures that contributed in any manner to the accident, serious
illness or health-threatening occurrence; and
(iii) makes recommendations to prevent a similar accident, serious
illness or health-threatening occurrence; and
(e) deliver a copy of the report referred to in paragraph
(d) within 30 days from the date of the accident, serious illness or
health-threatening occurrence being investigated to the Principal Inspector of
Mines and the health and safety committee. If there is no health and safety
committee the employer must deliver a copy of the report to the health and
safety representative responsible for the working place. [Para. (e) substituted by s. 4 (c) of Act No.
74 of 2008.] Wording of Sections (5A) An investigation in terms of subsection
(5) must be completed within 30 days after the accident, serious illness or
health-threatening occurrence being investigated or such longer period as the
Principal Inspector of Mines may permit.
[Sub-s. (5A) inserted by s. 4 (d) of Act No. 74 of 2008.]
(5B) The employer must notify the Principal Inspector of
Mines of any accident or occurrence at a mine that results in- (a) the serious injury; (b) illness; or (c) death,
of any person, in order to allow the Principal Inspector of
Mines to instruct an Inspector to conduct an investigation simultaneously with
the employer as required in section 11 (5) (a).
[Sub-s. (5B) inserted by s. 4 (d) of Act No. 74 of 2008.]
(6) An investigation referred to in subsection (5) may be
held jointly with an investigation conducted by an inspector in terms of
section 60. (7) If there is no health
and safety committee at a mine, the consultations required in this section must
be held with- (a) the health and safety
representatives; or (b) if there is no
health and safety representative at the mine, with the employees. (8) In the event of an incident in which a
person died, or was injured to such an extent that he or she is likely to die,
or suffered the loss of a limb or part of a limb, no person may without the
consent of the Principal Inspector of Mines disturb the site at which the
incident occurred or remove any article or substance involved in the incident:
Provided that an article or substance may only be removed if it is necessary
to- (a) prevent any further
incident; (b) remove the injured or
dead; or (c) rescue any person from
danger. [Sub-s. (8) added by s. 4 (e) of
Act No. 74 of 2008.]
12. Employer to conduct
occupational hygiene measurements.-
(1) The employer must engage the part-time
or full-time services of a person qualified in occupational
hygiene techniques to measure levels of exposure to hazards at the mine- (a) if required to do so by regulation or a
notice in the Gazette; or (b) if, after
assessing risks in terms of section 11 (1), it is necessary to do so. (2) Every system of occupational hygiene
measurements must- (a) be appropriate,
considering the hazards to which the employees are or may be exposed; and (b) be designed so that it provides
information that the employer can use in determining measures to eliminate,
control and minimise the health risks and hazards to which employees are or may
be exposed. (3) The employer must keep a
record of all occupational hygiene measurements in terms of subsection (1) in a
manner that can be linked as far as practicable to each employee's record of
medical surveillance.
13. Employer to establish
system of medical surveillance.
-(1) The employer must establish and maintain a system of
medical surveillance of employees exposed to health hazards- (a) if required to do so by regulation or a
notice in the Gazette; or (b) if, after
assessing risks in terms of section 11 (1), it is necessary to do so. (2) Every system of medical surveillance
must- (a) be appropriate, considering
the health hazards to which the employees are or may be exposed; (b) be designed so that it provides
information that the employer can use in determining measures to- (i) eliminate, control and minimise the
health risk and hazards to which employees are or may be exposed; or (ii) prevent, detect and treat occupational
diseases; and (c) consist of an initial
medical examination and other medical examinations at appropriate intervals. (3) Every employer who establishes or
maintains a system of medical surveillance must- (a) engage the part-time or full-time
services of- (i) an occupational medical
practitioner; and (ii) . . . . . . [Sub-para. (ii) deleted by s. 5 (a) of Act
No. 74 of 2008.] Wording of
Sections (b) supply the practitioners
with the means to perform their functions; and
(c) keep a record of medical surveillance for each employee exposed to a
health hazard. (4) . . . . . . [Sub-s. (4) deleted by s. 5 (b) of Act No. 74
of 2008.] Wording of Sections (4A) The employer must inform the Principal
Inspector of Mines, in writing, within seven days of the appointment of the
occupational medical practitioner.
[Sub-s. (4A) inserted by s. 5 (c) of Act No. 74 of 2008.] (4B) The information submitted in terms of
subsection (4A) must include- (a) the
name of a occupational medical practitioner;
(b) his or her practice number; and
(c) whether the occupational medical practitioner is engaged full time
or part time. [Sub-s. (4B) inserted by s. 5 (c) of Act No. 74 of 2008.] (5) An occupational medical practitioner must
take every measure that is reasonably practicable to- (a) promote the health and safety of
employees at the mine; and (b) assist
employees in matters related to occupational medicine.
(6) If any employee is declared unfit to perform work as a
result of an occupational disease, the employer must conduct an investigation
in terms of section 11 (5). (7) If an
employee is temporarily unfit to perform work as a result of any occupational
disease, but there is a reasonable expectation that the employee's health will
improve so that the employee can return to work, the occupational medical
practitioner must record that fact and notify both the employer and employee of
it. (8) The employer must- (a) retain the records referred to in sections
12 (3), 13 (3) (c) and 14 (1) until the mine closes; and (b) when the mine closes, deliver those
records to the Medical Inspector.
14. Record of hazardous work.-
(1) The employer at every mine must keep a service record,
in the prescribed form, of employees at the mine who perform work in respect of
which medical surveillance is conducted in terms of section 13. (2) The employer must deliver to the Medical
Inspector a copy of the relevant part of the record kept in terms of subsection
(1)- (a) when an employee whose name
appears in that record ceases to be employed at that mine; or (b) when required to do so by the Chief
Inspector of Mines.
15. Record of medical
surveillance.-
(1) An employee's record of medical surveillance kept in
terms of section 13 (3) (c) must be kept confidential and may be made available
only- (a) in accordance with the ethics
of medical practice; (b) if required by
law or court order; or (c) if the
employee has consented, in writing, to the release of that information. (2) Any person required to maintain an
employee's record of medical surveillance must-
(a) store it safely; and (b) not
destroy it or dispose of it, or allow it to be destroyed or disposed of, for 40
years from the last date of the medical surveillance of that employee.
16. Annual medical reports.-
(1) Every occupational medical practitioner at a mine must
compile an annual report covering employees at that mine, giving an analysis of
the employees' health based on the employees' records of medical surveillance,
without disclosing the names of the employees.
(2) The annual report compiled in terms of subsection (1) must be given
to the employer, who must deliver one copy of the report to each of- (a) . . . . . . [Para. (a) deleted by s. 9 of Act No. 72 of
1997.] Wording of Sections (b) the health and safety committees, or if
there is no health and safety committee, the health and safety representatives;
and (c) the Medical Inspector.
17. Exit certificates.-
(1) If an employee was subject to, or was required to be
subject to, medical surveillance in terms of this Act and such employee's
employment at a mine is terminated for any reason, the employer must arrange an
exit medical examination of the employee.
[Sub-s. (1) substituted by s. 10 of Act No. 72 of 1997.] Wording of Sections (2) The examination referred to in subsection
(1) must be held before, or within 30 days after, termination of employment. [Sub-s. (2) substituted by s. 6 of Act No. 74
of 2008.] Wording of Sections
(3) The employee must attend the examination. (4) The occupational medical practitioner
conducting the examination must- (a)
produce an exit certificate with respect to that employee indicating the
results of all medical surveillance and the presence or absence of any
occupational disease; and (b) enter a
copy of the exit certificate into the employee's record of medical
surveillance.
18. Costs of examination.-
The employer must pay the costs of all clinical examinations
and medical tests performed in terms of this Act unless this Act expressly
provides otherwise.
19. Employees' right to
information.
-(1) An employee may request, and the employer must then
provide, a copy of the record or of any part of it that- (a) is being kept in terms of sections 12 (3)
and 13 (3) (c); and (b) relates to that
employee. (2) The occupational medical
practitioner conducting an examination in terms of section 17 must provide the
employee with a copy of the exit certificate prepared as a result of that
examination.
20. Employee may dispute
finding of unfitness to perform work.
-(1)
An employee may appeal to the Medical Inspector against- (a) a decision that the employee is unfit to
perform any particular category of work; or
(b) any finding of an occupational medical practitioner contained in an
exit certificate prepared in terms of section 17. (2) An appeal under subsection (1) must- (a) be lodged with the Medical Inspector
within 30 days of the relevant decision or finding, or such further period as
may be prescribed; and [Para. (a)
substituted by s. 11 of Act No. 72 of 1997.]
Wording of Sections (b) state the
grounds of the appeal. (3) When the
Medical Inspector receives an appeal under subsection (1), the Medical
Inspector must choose a medical practitioner who is not employed by the
employer of the employee, and arrange for that employee to be reexamined by
that medical practitioner, at the cost of the Chief Inspector of Mines. (4) The medical practitioner referred to in
subsection (3) must report to the Medical Inspector, who must then consider the
appeal and- (a) confirm, set aside or
vary the decision or finding of the occupational medical practitioner; or (b) substitute any other decision or finding
for that decision or finding. (5)
Nothing in this section precludes an employee from- (a) obtaining and paying for a medical
opinion from any other medical practitioner; or
(b) pursuing any other legal remedy.
(6) For the purposes of this section, "employee" includes any
applicant for employment who has previously been employed at a mine. (7) An employee lodging an appeal under
subsection (1) may not be dismissed on any grounds relating to unfitness to
perform work, pending the outcome of the appeal. [Sub-s. (7) added by s. 7 of Act No. 74 of
2008.]
21. Manufacturer's and
supplier's duty for health and safety.-
(1) Any person who-
(a) designs, manufactures, repairs, imports or supplies any article for
use at a mine must ensure, as far as reasonably practicable-
(i) that the article is safe and without risk to health and
safety when used properly; and (ii) that
it complies with all the requirements in terms of this Act; (b) erects or installs any article for use at
a mine must ensure, as far as reasonably practicable, that nothing about the manner
in which it is erected or installed makes it unsafe or creates a risk to health
and safety when used properly; or (c)
designs, manufactures, erects or installs any article for use at a mine must
ensure, as far as reasonably practicable, that ergonomic principles are
considered and implemented during design, manufacture, erection or
installation. (2) Any person who bears a
duty in terms of subsection (1) is relieved of that duty to the extent that is
reasonable in the circumstances, if- (a)
that person designs, manufactures, repairs, imports or supplies an article for
or to another person; and
(b) that other person provides a written undertaking to take
specified steps sufficient to ensure, as far as reasonably practicable, that
the article will be safe and without risk to health and safety when used
properly and that it complies with all prescribed requirements. (3) Any person who designs or constructs a
building or structure, including a temporary structure, for use at a mine must
ensure, as far as reasonably practicable, that the design or construction is
safe and without risk to health and safety when used properly. (4) Every person who manufactures, imports or
supplies any hazardous substance for use at a mine must- (a) ensure, as far as reasonably practicable,
that the substance is safe and without risk to health and safety when used,
handled, processed, stored or transported at a mine in accordance with the
information provided in terms of paragraph (b);
(b) provide adequate information about-
(i) the use of the substance;
(ii) the risks to health and safety associated with the substance; (iii) any restriction or control on the use,
transport and storage of the substance, including but not limited to exposure
limits; (iv) the safety precautions to
ensure that the substance is without risk to health or safety; (v) the procedure to be followed in the case
of an accident involving excessive exposure to the substance, or any other
emergency involving the substance; and
(vi) the disposal of used containers in which the substance has been
stored and any waste involving the substance; and (c) ensure that the information provided in
terms of paragraph (b) complies with the provisions of the Hazardous Substances
Act, 1973 (Act No. 15 of 1973).
22. Employees' duties for
health and safety.
-Every employee at a mine, while at that mine, must- (a) take reasonable care to protect their own
health and safety; (b) take reasonable
care to protect the health and safety of other persons who may be affected by
any act or omission of that employee;
(c) use and take proper care of protective clothing, and other health
and safety facilities and equipment provided for the protection, health or
safety of that employee and other employees;
(d) report promptly to their immediate supervisor any
situation which the employee believes presents a risk to the health or safety
of that employee or any other person, and with which the employee cannot
properly deal; (e) co-operate with any
person to permit compliance with the duties and responsibilities placed on that
person in terms of this Act; and ( f )
comply with prescribed health and safety measures.
23. Employees' right to
leave dangerous working place.-
(1) The employee has the right to leave any working
Place whenever- (a)
circumstances arise at that working place which, with reasonable justification,
appear to that employee to pose a serious danger to the health or safety of
that employee; or (b) the health and
safety representative responsible for that working place directs that employee
to leave that working place. (2) Every
employer, after consulting the health and safety committee at the mine, must
determine effective procedures for the general exercise of the rights granted
by subsection (1), and those procedures must provide for- (a) notification of supervisors and health
and safety representatives of dangers which have been perceived and responded
to in terms of subsection (1); (b) Participation
by representatives of employer and representatives of the employees in
endeavouring to resolve any issue that may arise from the exercise of the right
referred to in subsection (1); (c)
participation, where necessary, by an inspector or technical adviser to assist
in resolving any issue that may arise from the exercise of the right referred
to in subsection (1); (d) Where
appropriate, the assignment to suitable alternative work of any employee who
left, or refuses to work in, a working place contemplated in subsection (1); and
[Para. (d) Substituted by s. 12 of Act No. 72 of 1997.] Wording of Sections (e) notification to any
employee who has to perform work or is requested to perform work in a working
place contemplated in subsection (1) of the fact that another employee has
refused to work there and of the reason for that refusal. (3) If there is no health and safety
committee at a mine, the consultation required in subsection (2) must be held
with- (a) the health and safety
representatives; or (b) if there is no
health and safety representative at the mine, with the employees. (4) The Minister, by notice in the Gazette,
must determine minimum requirements for the procedures contemplated in
subsection (2). [Sub-s. (4) added by s.
8 of Act No. 74 of 2008.]
24. Employees not to pay for safety measures.-No person may
make any deduction from an employee's wages, or permit an employee to make any
payment to any person, in respect of anything which the employer is obliged to
provide or to do in terms of this Act in the interest of the health and safety
of an employee.
CHAPTER 3 HEALTH AND SAFETY REPRESENTATIVES AND
COMMITTEES
25. Health and safety
representatives and committees.
-(1) Every mine with 20 or more employees must have a health
and safety representative for each shift at each designated working place at
the mine. (2) Every mine with 100 or
more employees must have one or more health and safety committees. (3) A health and safety representative or a
member of a health and safety committee does not incur any civil liability only
because of doing or failing to do something which a health and safety
representative or a member of a health and safety committee may do or is
required to do in terms of this Act.
26. Negotiations and consultations
before appointment of representatives.
-(1) The employer of any mine where there must be a health
and safety representative in terms of section 25 must meet, within the
prescribed period, with the representative trade union of the mine to enter
into negotiations to conclude a collective agreement concerning- (a) the designation of working places; (b) the number of full-time health and safety
representatives; (c) the election or
appointment of health and safety representatives;
(d) the terms of office of health and safety representatives
and the circumstances and the manner in which they may be removed from
office; (e) the manner in which
vacancies are to be filled; ( f ) the
manner in which health and safety representatives must perform their functions
in terms of this Act; (g) the procedures
for the effective exercise of the right to withdraw from serious danger in
terms of section 23; (h) circumstances
and the manner in which meetings referred to in sections 30 (1) (i) and 31 (2)
must be held; (i) the facilities and
assistance that must be provided to health and safety representatives in terms
of section 31 (3); ( j) the training of
health and safety representatives; (k) a
procedure that provides for the conciliation and arbitration of disputes
arising from the application or the interpretation of the collective agreement
or any provision of this Chapter; [Para.
(k) substituted by s. 13 (a) of Act No. 72 of 1997.] Wording of Sections (l) any prescribed matter; and (m) any other matter which the parties
believe will promote health and safety at the mine or mines concerned. (2) Before concluding a collective agreement
referred to in subsection (1) with the representative trade union, the employer
must consult on the matters referred to in that subsection with all other
registered trade unions with members at that mine. (3) A collective agreement referred to in
subsection (1) may include two or more employers as parties to the agreement. (4) To the extent that an agreement concluded
in terms of subsection (1) deals with any matter regulated by this Chapter or
by any regulation regarding any matter regulated by this Chapter, the
provisions of this Chapter or such regulation do not apply. [Sub-s. (4) substituted by s. 13 (b) of Act No.
72 of 1997.] Wording of Sections (5) The provisions applicable to collective
agreements in terms of the Labour Relations Act, read with the changes required
by the context, apply to agreements concluded in terms of subsection (1). (6) If there is no representative trade union
at the mine, the employer must within the prescribed period- (a) consult with the registered trade unions
with members at the mine on the matters referred to in subsection (1); and (b) endeavour to reach agreement on the number
of full-time health and safety representatives at the mine. (7) If there is no registered trade union
with members at the mine, the employer must, within the prescribed period- (a) consult with the employees or any elected
representative of the employees on the matters referred to in subsection (1);
and (b) endeavour to reach agreement on
the number of full-time health and safety representatives at the mine. (8) A dispute exists if either- (a) no collective agreement in terms of
subsection (1) is concluded on the number of full-time health and safety
representatives at a mine; or (b) no
agreement is reached in terms of either subsection (6) (b) or (7) (b). (9) When a dispute exists in terms of
subsection (8), any party to the dispute may refer it to the Commission. (10) When a dispute is referred to the
Commission under subsection (9), the Commission must attempt to resolve it
through conciliation. (11) If a dispute
remains unresolved, any party to the dispute may request that it be resolved
through arbitration, in which case the Commission, taking into account the
guidelines in Schedule 1, must determine the number of full-time health and
safety representatives. (12) Nothing in
this section precludes the employer from consulting with any employee who is
not a member
of a registered trade union or any representative of those
employees concerning the matters referred to in subsection (1).
27. Designation of working
places.
-(1) If a collective agreement is concluded after the
negotiations and consultations referred to in section 26, the employer must
designate working places at the mine in accordance with that agreement. (2) If no collective agreement is concluded
after the negotiations and consultations referred to in section 26, the employer
must designate working places at the mine so that- (a) every working place at the mine is
designated; (b) no health and safety
representative is responsible for more than 100 employees; and (c) no health and safety representative is
responsible for more than 50 employees if the designated working place includes
separate working places.
28. Qualifications of
representatives.
-(1) To qualify to serve as a health and safety
representative referred to in section 25 (1), an employee must- (a) be employed in a full-time capacity in
the designated working place; and (b) be
acquainted with conditions and activities at the designated working place. (2) To qualify to serve as a full-time health
and safety representative an employee must-
(a) be employed in full-time capacity at the mine; (b) comply with any other qualifications
which may be- (i) agreed by a health and
safety committee; or (ii)
prescribed.
29. Election and appointment
of representatives.
-(1) At a mine referred to in section 25 (1), the employees
in a designated working place may elect from among themselves health and safety
representatives. (2) The employees at
the mine may elect from among themselves any full-time health and safety
representatives that may be agreed or determined in terms of section 26. (3) The elections referred to in subsections
(1) and (2) must be conducted in the prescribed manner. (4) The employees elected as representatives
in terms of this section must be appointed by the employer in the prescribed
manner.
30. Rights and powers of
representatives
.-(1) A health and safety representative may- (a) represent employees on all aspects of
health and safety; (b) direct any
employee to leave any working place whenever circumstances arise at that
working place which, with reasonable justification, appears to the health and
safety representative to pose a serious danger to the health or safety of that
employee; [Para. (b) substituted by s.
14 of Act No. 72 of 1997.] Wording of
Sections (c) assist any employee who has
left a working place in terms of section 23;
(d) identify potential hazards and risks to health or safety; (e) make representations or recommendations
to the employer or to a health and safety committee on any matter affecting the
health or safety of employees; ( f )
inspect any relevant document which must be kept in terms of this Act; (g) request relevant information and reports
from an inspector; (h) with the approval
of the employer, be assisted by or consult an adviser or technical expert who
may be either another employee or any other person;
(i) attend any meeting of a health and safety
committee- (i) of which that
representative is a member; or (ii)
which will consider a representation or recommendation made by that
representative; ( j) request- (i) an inspector to conduct an investigation
in terms of section 60; or (ii) the
Chief Inspector of Mines to conduct an inquiry in terms of section 65; (k) participate in consultations on health
and safety with- (i) the employer or
person acting on behalf of the employer; or
(ii) an inspector; (l)
participate in any health and safety inspection by- (i) the employer or person acting on behalf
of an employer; or (ii) an
inspector; (m) inspect working places
with regard to the health and safety of employees at intervals agreed with the
employer; (n) participate in any
internal health or safety audit; (o)
investigate complaints by any employee relating to health and safety at
work; (p) examine the causes of
accidents and other dangerous occurrences in collaboration with the employer or
person acting on behalf of the employer;
(q) visit the site of an accident or dangerous occurrence at any
reasonable time; (r) attend a
post-accident inspection; (s) co-operate
with the employer in the conducting of investigations in terms of section 11
(5); (t) participate in an inquiry held
in terms of section 65; and (u) perform
the functions- (i) agreed by the health
and safety committee; or (ii)
prescribed. (2) The rights and powers
referred to in subsection (1) apply to health and safety representatives
referred to in section 25 (1) only in respect of the working places for which
they are responsible. (3) If a health
and safety representative requests information or reports under subsection (1)
(g), the inspector must supply the representative with the information or
reports in their possession. (4) An
employer may not unreasonably withhold the approval required in terms of
subsection (1) (h). (5) A health and
safety representative intending to exercise the right to inspect working places
under subsection (1) (m) must- (a) give
the employer reasonable notice of the inspection; and (b) permit the employer to participate in the
inspection. (6) Health and safety
representatives are entitled to perform their functions and to receive training
during ordinary working hours. (7) Any
time reasonably spent by a health and safety representative for a purpose
referred to in subsection (6) must be considered for all purposes to be time
spent carrying out the employment duties of that representative.
31. Duty to compensate and
assist representatives.
(1) The employer must pay every full-time health and safety
representative appropriate remuneration at least equal to the remuneration the
representative earned immediately before being appointed as a full-time health
and safety representative. (2) The
employer must provide reasonable time and facilities for employees to meet
monthly with their health and safety representatives in order to consider- (a) health and safety in their working
places; and
(b) reports by the representatives on the performance of
their functions. (3) The employer must
provide health and safety representatives with-
(a) the facilities and assistance reasonably necessary to perform their
functions; (b) training that is
reasonable required to enable them to perform their functions; and (c) time off from work, without loss of
remuneration, to attend any training course that is agreed or prescribed. (4) Unless otherwise agreed, the assistance
referred to in subsection (3) (a) does not include any costs associated with
advisers or independent experts contemplated in either section 30 (1) (h) or
section 36 (1) (g). (5) On the
completion of a term of office as a full-time health and safety representative,
the health and safety representative is entitled to- (a) employment in the same position held
immediately before being appointed as a full-time health and safety
representative; or (b) employment in a
position that is at least as favourable as the position held immediately before
being appointed a full-time health and safety representative.
32. Duty to inform
representatives.-
Every employer must notify the health and safety
representatives concerned and, if there is a health and safety committee, the
employee co-chairperson of that committee-
(a) in good time, of inspections, investigations or inquiries of which
an inspector has notified the employer; and
(b) as soon as practicable, of any accident, serious illness or health-threatening
occurrence, or other dangerous event.
33. Negotiation and
consultation on establishment of committees.
-(1) The employer of any mine in respect of which a health
and safety committee must be established in terms of section 25 (2), must meet,
within the prescribed period, with the representative trade union at the mine
to enter into negotiations to conclude a collective agreement concerning- (a) the number of health and safety
committees to be established at the mine and the working places for which they
will be responsible; (b) the number of
employer and employee representatives on the committees; (c) the election and appointment of members
of health and safety committees; (d) the
terms of office of members of the health and safety committee and the
circumstances and the manner in which the members may be removed from
office; (e) the manner in which
vacancies are to be filled; ( f ) the
circumstances and the manner in which meetings may be held; (g) the facilities and assistance which must
be provided to health and safety committees in terms of section 37 (a);
and (h) a procedure that provides for
the conciliation and arbitration of disputes arising from the application or
interpretation of the collective agreement or any provision of this
Chapter. [Para. (h) substituted by s. 15
(a) of Act No. 72 of 1997.] Wording of
Sections (2) Before concluding a
collective agreement referred to in subsection (1) with the representative
trade union, the employer must consult on the matters referred to in that
subsection with all other registered trade unions with members at that
mine. (3) A collective agreement
referred to in subsection (1) may include two or more employers as parties to
the agreement. (4) To the extent that an
agreement concluded in terms of subsection (1) deals with any matter regulated
by this Chapter or by any regulation regarding any matter regulated by this
Chapter, the provisions of this Chapter or such regulation do not apply. [Sub-s. (4) substituted by s. 15 (b) of Act
No. 72 of 1997.] Wording of
Sections
(5) The provisions applicable to collective agreements in
terms of the Labour Relations Act, read with the changes required by the
context, apply to agreements concluded in terms of subsection (1). (6) If there is no representative trade union
at the mine, the employer must consult, within the prescribed period, with the
registered trade unions with members at the mine on the matters referred to in
subsection (1). (7) If there is no
registered trade union with members at the mine, the employer must, within the
prescribed period, consult with the employees or any elected representatives of
the employees on the matters referred to in subsection (1). (8) The negotiations and consultations
referred to in this section may be held at the same time as those referred to
in section 26.
34. Establishment of health
and safety committees.
-(1) If a collective agreement is concluded in terms of
section 33 (1), health and safety committees must be established in terms of
that agreement. (2) If no collective
agreement is concluded in terms of section 33 (1), the employer must establish
health and safety committees after the consultation referred to in section 33
(6) or (7) and in accordance with this section and the regulations. (3) A health and safety committee must
consist of- (a) at least four employee
representatives; and (b) a number of
employer representatives equal to or less than the number of employee
representatives. (4) The health and
safety representatives must appoint the employee representatives on the health
and safety committee. The employee representatives must be- (a) broadly representative of the working
places at the mine; and (b) employees at
that mine. (5) No more than two of the
employee representatives may be appointed from full-time employees who are not
health and safety representatives, unless all of the health and safety
representatives have been appointed to the committee and there are still
employee committee positions to be filled.
(6) The employer must appoint the employer representatives on the health
and safety committee. The persons appointed must include persons who have
authority to develop and implement health and safety policies at the mine.
35. Committee procedures.
-(1) The employee and employer representatives on a health
and safety committee must each elect a chairperson from their number. Unless
otherwise agreed by the committee, the two chairpersons must alternate as the
presiding chairperson of the committee.
(2) Unless otherwise agreed by a health and safety committee, the
committee must meet at least once a month.
(3) A health and safety committee may determine its own rules and
procedures. (4) Persons other than
employee or employer representatives may be invited to attend meetings of the
health and safety committee and to participate in its proceedings.
36. Rights and powers of health
and safety committee.
-(1) A health and safety committee may- (a) represent employees on all aspects of
health and safety; (b) participate in
consultations on any health and safety matter listed in the Schedule referred
to in section 97 (2); (c) request the
Chief Inspector of Mines to review any code of practice; (d) request relevant information from any
person who is required, in terms of this Act, to provide that information to
the committee; (e) agree on additional
qualifications or functions of health and safety representatives; ( f ) request- (i) an inspector to conduct an investigation
in terms of section 60; or
(ii) the Chief Inspector of Mines to conduct an inquiry in
terms of section 65; (g) with the
approval of the employer, be assisted by or consult an adviser or a technical
expert who may be either another employee or any other person; (h) take reasonable time to prepare for each
meeting of the committee; and (i) take
reasonable time to report on meetings of the committee to the health and safety
representatives at the mine. (2) No
employer may unreasonably withhold the approval required in terms of subsection
(1) (g). (3) Members of health and safety
committees are entitled to perform their functions and to receive training during
ordinary working hours. (4) Any time
reasonably spent by a member of a health and safety committee for a purpose
referred to in subsection (3) must be considered for all purposes to be time
spent carrying out the employment duties of that member.
37. Duty to support
committee.-The employer must-
(a) provide the
health and safety committee with the facilities and assistance reasonably
necessary to perform its functions; (b)
supply the health and safety committee with the annual report referred to in
section 2 (1) (c) and any information necessary to perform its functions.
38. Disclosure of information.
-(1) Whenever an employer, inspector or a person who
conducts an inquiry in terms of section 65, is required by the provisions of
this Chapter to supply information or reports to a health and safety
representative or to the health and safety committee, that employer, inspector
or person- (a) must not disclose any
information that is private personal information relating to an employee,
unless the employee consents in writing to the disclosure of that information;
and (b) is not required to supply any
information- (i) that is legally
privileged; (ii) that the employer,
inspector or person could not disclose without contravening a prohibition
imposed upon the employer by any law or court order; or (iii) that is confidential and, if disclosed,
may cause substantial harm to an employee or the employer. (2) No employee may unreasonably withhold the
consent required in terms of subsection (1) (a).
39. Disputes concerning
disclosure of information.
-(1) If there is a dispute about what information is
required to be disclosed in terms of the provisions of this Chapter, any party
to the dispute may refer the dispute in writing to the Commission. (2) The party who refers a dispute to the
Commission must satisfy it that a copy of the referral has been served on all
other parties to the dispute. (3) The
Commission must attempt to resolve the dispute through conciliation. (4) If the dispute remains unresolved, any
party to the dispute may request that the dispute be resolved through
arbitration. (5) A commissioner
appointed to arbitrate a dispute must first decide whether or not the
information is required to be supplied in terms of the provisions of this
Chapter. (6) If the commissioner decides
that the information is required and if it is information contemplated in
section 38 (1) (a) or (b) (iii), the commissioner must balance the harm that
disclosure is likely to cause to an employee or employer or any other person
who employs employees, against the harm that the failure to disclose the
information is likely to cause to the ability of health and safety
representatives or members of the health and safety committee to perform their
functions effectively. [Sub-s. (6)
substituted by s. 16 of Act No. 72 of 1997.]
Wording of Sections (7) If the
commissioner decides that the balance of harm favours the disclosure of the
information, the commissioner may order the disclosure of the information on
terms designed to limit the harm likely to be caused to
the employee or the employer. (8) When making an order under subsection
(7), the commissioner must take into account any previous breach of
confidentiality in respect of information disclosed in terms of the provisions
of this Chapter, and may refuse to order the disclosure of the information or
any other confidential information which might otherwise be disclosed for a
period specified in the arbitration award.
(9) In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information in terms of
the provisions of this Chapter be withdrawn for a period specified in the
arbitration award.
40. Disputes concerning this
Chapter.
-(1) Any party to a dispute about the interpretation or
application of any provision of this Chapter, other than a dispute contemplated
in section 26 (8) or 39, may refer the dispute in writing to the
Commission. (2) The party who refers a
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation. (4) If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration as soon as possible.
(5) The provisions relating to arbitration in the Labour Relations Act,
read with changes required by the context, apply to an arbitration referred to
in sections 26 (11) and 39 and subsection (4).
CHAPTER 4 TRIPARTITE
INSTITUTIONS
41. Establishment of
tripartite institutions.
-(1) A Mine Health and Safety Council is hereby established
to advise the Minister on health and safety at mines. (2) A committee, ad hoc committee or subcommittee
may when necessary be established, which committee may include- (a) the Mining Regulation Advisory
Committee; (b) the Mining Occupational
Health Advisory Committee; and (c) the
Safety in Mines Research Advisory Committee.
[Sub-s. (2) amended by s. 9 of Act No. 74 of 2008.] Wording of Sections (3) A Mining Qualifications Authority is
hereby established to advise the Minister on-
(a) qualifications and learning achievements in the mining industry to
improve health and safety standards through proper training and education; [Para. (a) substituted by s. 17 (a) of Act
No. 72 of 1997.] Wording of
Sections (b) standards and competency
setting, assessment, examinations, quality assurance and accreditation in the
mining industry; and
(c) proposals for the registration of education and training
standards and qualifications in the mining industry on the National
Qualifications Framework referred to in the South African Qualifications
Authority Act, 1995 (Act No. 58 of 1995).
[Para. (c) substituted by s. 17 (b) of Act No. 72 of 1997.] Wording of Sections
42. Mine Health and Safety
Council.-
(1) The Council consists of-
(a) five members representing employers in the mining industry; (b) five members representing employees in
the mining industry; (c) four members
representing departments of the State; and
(d) the Chief Inspector of Mines, who must chair the
Council. (2) The Minister must appoint
the members of the Council in accordance with the regulations. [Sub-s. (2)
substituted by s. 10 (a) of Act No. 74 of 2008.] Wording of Sections (2A) The Council may appoint members to
committees, ad hoc subcommittees and other committees, for any period of time
and on any conditions. [Sub-s. (2A)
inserted by s. 18 (a) of Act No. 72 of 1997 and substituted by s. 10 (b) of Act
No. 74 of 2008.] Wording of
Sections (2B) The structure and
functions of any committee contemplated in subsection (2A) must be provided for
in the constitution contemplated in section 97 (3). [Sub-s. (2B) inserted by s. 10 (c) of Act No.
74 of 2008.]
(3) The Council and its committees must govern themselves in
accordance with the constitution contemplated in section 97 (3). [Sub-s. (3) substituted by s. 18 (b) of Act
No. 72 of 1997.] Wording of
Sections (4) The Council may delegate
any of its powers and assign any of its duties by or under this Act in
accordance with the constitution contemplated in section 97 (3). [Sub-s. (4) substituted by s. 18 (b) of Act
No. 72 of 1997.] Wording of
Sections (5) A delegation or an assignment
under subsection (4)- (a) must be in
writing; (b) may be subject to such
conditions and restrictions a the Council may determine; and (c) does not prevent the exercise of that
power or the performance of that duty by the Council. (6) Members of the Council, or of a committee
of the Council, are each entitled to have their views reflected in any report
of the Council or committee, as the case may be. (7) Each year, the Minister, with the
agreement of the Minister of Finance, must provide sufficient funds for the
administration of the Council, and committees of the Council, from public
funds.
43. Council's duties.-
The Council must- (a)
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; [Para. (a) substituted by s. 19
(a) of Act No. 72 of 1997.] Wording of
Sections (b) co-ordinate the activities
of its committees, receive reports from the committees and liaise with the
Mining Qualifications Authority on matters relating to health and safety; (c) liaise with any other statutory bodies
concerned with matters relating to health and safety; (d) promote a culture of health and safety in
the mining industry; (e) at least once
every two years arrange and co-ordinate a tripartite summit to review the state
of health and safety at mines; [Para.
(e) substituted by s. 19 (b) of Act No. 72 of 1997.] Wording of Sections (eA)
annually adivse the Minister on relevant research relating to health and
safety at mines; and [Para. (eA) inserted by s. 19 (c) of Act No. 72 of 1997
and substituted by s. 11 of Act No. 74 of 2008.] Wording of Sections ( f ) perform every duty imposed upon the
Council in terms of this Act.
44. . . . . . .
[S. 44 amended by s. 20 of Act No. 72 of 1997 and repealed by s. 12 of
Act No. 74 of 2008.] Wording of
Sections
45. Mining Qualifications
Authority.-
(1) The Mining Qualifications Authority consists of- (a) five members representing employers in
the mining industry; (b) five members
representing employees in the mining industry;
(c) four members representing departments of State; and (d) the Chief Inspector of Mines, who must
chair the Mining Qualifications Authority. [Para. (d) substituted by s. 21 (a)
of Act No. 72 of 1997.] Wording of
Sections (2) The members of the Mining
Qualifications Authority must be appointed in accordance with the constitution
contemplated in section 97 (4). [Sub-s.
(2) substituted by s. 27 of Act No. 31 of 2003.] Wording of Sections (3) The Mining Qualifications Authority and
its committees must govern themselves in accordance with the constitution
contemplated in section 97 (4). [Sub-s.
(3) substituted by s. 21 (b) of Act No. 72 of 1997.] Wording of Sections
46. Mining Qualifications
Authority's functions.
-(1) The Mining Qualifications Authority must- (a) seek registration in terms of the South
African Qualifications Act, 1995 (Act No. 58 of 1995), as a body responsible
for generating education and training standards and qualifications as
contemplated in section 5 (1) (a) (ii) (aa) of that Act; [Para. (a) substituted by s. 22 (a) of Act
No. 72 of 1997.] Wording of Sections (b) seek accreditation in terms of the South
African Qualifications Act, 1995 (Act No. 58 of 1995), as a body responsible
for monitoring and auditing achievements as contemplated in section 5 (1) (a)
(ii) (bb) of that Act; (c) propose
education and training standards and qualifications to bodies registered with
that Authority and responsible for developing education and training
standards; [Para. (c) substituted by s.
22 (b) of Act No. 72 of 1997.] Wording
of Sections (d) generate education and
training standards and qualifications in the mining industry; [Para. (d)
substituted by s. 22 (b) of Act No. 72 of 1997.] Wording of Sections (e) monitor and audit achievement in terms of
the standards and qualifications; and (
f ) perform the functions of a sector education and training authority in terms
of the Skills Development Act, 1998 (Act No. 97 of 1998). [Para. ( f ) added by s. 28 (a) of Act No. 31
of 2003.] (2) The Mining Qualifications
Authority- (a) may appoint permanent and
ad hoc committees, and subcommittees, for any period and on any
conditions; (b) must administer and
control its financial affairs in accordance with the Skills Development Act,
1998 (Act No. 97 of 1998); and (c) may
do anything necessary to achieve its objectives. [Sub-s. (2) substituted by s. 28 (b) of Act
No. 31 of 2003.] Wording of
Sections (3) The Mining Qualifications
Authority may delegate any of its powers or assign any of its duties by or
under this Act in accordance with the constitution contemplated in section 97
(4). [Sub-s. (3) substituted by s. 22
(c) of Act No. 72 of 1997.] Wording of
Sections
(4) A delegation or an assignment under subsection (3)- (a) must be in writing; (b) may be subject to such conditions and
restrictions as the Authority may determine; and (c) does not prevent the exercise of that
power or the performance of that duty by the Authority. (5) In performing its functions, the Mining
Qualifications Authority must comply with the policies and criteria formulated
by the South African Qualifications Authority in terms of section 5 (1) (a)
(ii) of the South African Qualifications Authority Act, 1995 (Act No. 58 of
1995).
CHAPTER 5 INSPECTORATE OF MINE HEALTH AND SAFETY
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. [Sub-s. (1) substituted by s. 13 of Act No.
74 of 2008.] Wording of Sections (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- (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; [Para. ( j) substituted by s.
14 (a) of Act No. 74 of 2008.] Wording
of Sections (k) perform any duties
relating to health or safety at mines that the Minister directs or
prescribes;
[Para. (k) substituted by s. 14 (b) of Act No. 74 of
2008.] Wording of Sections (l) develop and maintain an integrated mine
health and safety database and reporting system; [Para. (l) added by s. 14 (c)
of Act No. 74 of 2008.]
(m) conduct or commission relevant research and evaluate and
publish the results of the research; and [Para. (m) added by s. 14 (c) of Act
No. 74 of 2008.]
(n) provide logistical, administrative and technical support
to the Council. [Para. (n) added by s. 14 (c) of Act No. 74 of 2008.]
(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 Mineral and
Petroleum Resources Development Act or any other law, 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.
[Sub-s. (3) amended by s. 14 (d) of Act No. 74 of 2008. Para. (b)
substituted by s. 14 (e) of Act No. 74 of 2008.] Wording of Sections (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 so 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.
[Sub-s. (4) substituted by s. 14 ( f ) of Act No. 74 of 2008.] Wording of Sections (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. [Sub-s. (6) added by s. 14 (g) of Act No.
74 of 2008.]
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. [S. 49A inserted by s. 15
of Act No. 74 of 2008.]
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).
[S. 49B inserted by s. 15 of Act No. 74 of 2008.]
50. Inspectors' 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 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.
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. (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 and Petroleum Resources Development
Act, must produce it at the request of the Chief Inspector of Mines or any
inspector.
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. [Sub-s. (1) amended by s. 23 of Act No. 72 of
1997.]
Wording of Sections
(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. (7) . . . . .
. [Sub-s. (7) deleted by s. 17 of Act
No. 74 of 2008.] Wording of
Sections (8) . . . . . . [Sub-s. (8) deleted by s. 17 of Act No. 74 of
2008.] Wording of Sections (9) . . . . . . [Sub-s. (9) deleted by s. 17 of Act No. 74 of
2008.] Wording of Sections (10) . . . . . . [Sub-s. (10) deleted by s. 17 of Act No. 74
of 2008.] Wording of Sections
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- (a) considers necessary to comply with the
provision; and (b) specifies in the
instruction. [Sub-s. (1) amended by s.
24 of Act No. 72 of 1997.] Wording of
Sections (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
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). [Sub-s.
(1) substituted by s. 18 (a) of Act No. 74 of 2008.] Wording of Sections (2) . . . . . . [Sub-s. (2) deleted by s. 18 (b) of Act No.
74 of 2008.] Wording of Sections (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. [Sub-s. (3) amended
by s. 18 (c) of Act No. 74 of 2008.]
Wording of Sections
(4) The employer may make written representations to the
Principal Inspector of Mines within 30 days of the recommendation. [Sub-s. (4) added by s. 18 (d) of Act No. 74
of 2008.]
(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. [S. 55A inserted
by s. 25 of Act No. 72 of 1997. Sub-s. (5) added by s. 18 (d) of Act No. 74 of
2008.]
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 days 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. [S. 55B inserted by s. 25 of Act No. 72 of
1997 and substituted by s. 19 of Act No. 74 of 2008.] Wording of Sections
55C. . . . . . . [S.
55C inserted by s. 25 of Act No. 72 of 1997 and repealed by s. 20 of Act No. 74
of 2008.] Wording of Sections
55D. . . . . . . [S.
55D inserted by s. 25 of Act No. 72 of 1997 and repealed by s. 20 of Act No. 74
of 2008.] Wording of Sections
55E. . . . . . . [S.
55E inserted by s. 25 of Act No. 72 of 1997 and repealed by s. 20 of Act No. 74
of 2008.] Wording of Sections
55F. . . . . . . [S.
55F inserted by s. 25 of Act No. 72 of 1997 and repealed by s. 20 of Act No. 74
of 2008.] Wording of Sections
55G. . . . . . . [S.
55G inserted by s. 25 of Act No. 72 of 1997 and repealed by s. 20 of Act No. 74
of 2008.] Wording of Sections
55H. . . . . . . [S.
55H inserted by s. 25 of Act No. 72 of 1997 and repealed by s. 20 of Act No. 74
of 2008.] Wording of Sections
56. Instructions 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.
57. Right to appeal
inspectors' decisions.-
(1) Any person adversely affected by a decision of an
inspector, except a decision contemplated in section 55B, may appeal against
that decision to the Chief Inspector of Mines.
[Sub-s. (1) substituted by s. 27 (a) of Act No. 72 of 1997 and by s. 21
of Act No. 74 of 2008.] Wording of
Sections (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 [Para. (a)
substituted by s. 27 (b) of Act No. 72 of 1997.] Wording of Sections (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.
57A. . . . . . . [S.
57A inserted by s. 28 of Act No. 72 of 1997 and repealed by s. 22 of Act No. 74
of 2008.] Wording of Sections
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)- (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 grounds for doing so. [S.
59 substituted by s. 29 of Act No. 72 of 1997.]
Wording of Sections
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.
[Sub-s. (1) substituted by s. 30 of Act No. 72 of
1997.] Wording of Sections (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. [Sub-s.
(2) substituted by s. 30 of Act No. 72 of 1997.] Wording of Sections (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.
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) (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.
[Sub-s. (1) substituted by s. 31 of Act No. 72 of 1997 and by s. 23 of
Act No. 74 of 2008.] Wording of
Sections (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- (a) must submit a copy of the report referred
to in subsection (1) 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.
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 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.
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- (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. [Para. (c)
substituted by s. 32 of Act No. 72 of 1997.]
Wording of Sections
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 purposes of the inquiry; or (ii) 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 in any criminal or disciplinary proceedings against that person
except in criminal proceedings on a charge of perjury against that person. [Sub-s. (3) substituted by s. 33 of Act No.
72 of 1997 and by s. 24 of Act No. 74 of 2008.]
Wording of Sections (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.
[Sub-s. (4) substituted by s. 33 of Act No. 72 of 1997.] Wording of Sections (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.
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.
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). (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 the Chief Inspector of Mines.
CHAPTER 6 MINISTER'S POWERS
75. Minister may prohibit or restrict work.-
(1) For any reason relating to health or safety, the
Minister, by notice in the Gazette, may prohibit or restrict any work or any
exposure of a person to a substance or an environmental condition, if- (a) the Minister has consulted the Council on
the prohibition or restriction; and (b)
unless the Minister believes that the public interest requires the notice to be
published immediately, the Minister has-
(i) published a draft of the proposed notice at least three months
previously; and (ii) at that time
invited interested persons to submit comments and representations concerning
the proposed notice within a specified period.
(2) The Minister may attach any conditions to a prohibition or
restriction by specifying them in the published notice. (3) The Minister, after consulting the
Council, may amend or withdraw a notice under subsection (1) at any time.
76. Minister may declare
health hazards.
-(1) The Minister, by notice in the Gazette, may declare
that an environmental condition or a substance present at a mine is a health
hazard to employees who are or may be exposed to that condition or substance,
if- (a) the Minister has consulted the
Council on the issuing of the declaration; and
(b) unless the Minister believes that the public interest requires the
notice to be published immediately, the Minister has- (i) published a draft of the proposed notice
at least three months previously; and
(ii) at that time invited interested persons to submit comments and
representations concerning the proposed notice within a specified period. (2) In connection with any health hazard, the
Minister, after consulting the Council, by notice in the Gazette, may- (a) impose conditions on the performance of
work by employees exposed to the health hazard;
(b) stipulate the standards of fitness for an employee to perform work
involving exposure to the health hazard;
(c) require employers to take measures to eliminate, control and
minimise health risks associated with the health hazard; (d) require employers to conduct specified
occupational hygiene measurements; (e)
require employers to conduct specified medical surveillance in respect of
employees exposed to the health hazard; and
( f ) provide for any other matter that the Minister considers necessary
to protect employees exposed to the health hazard. (3) The Minister may enter any mine at any
time only for the purposes of health hazards. [Sub-s. (3) added by s. 25 of Act
No. 74 of 2008.]
77. Application of
Minister's notice.
-A notice under either section 75 or 76 may differentiate
between mines, types of mines, parts of a mine, occupations and types of
work.
78. Exemption from
Minister's notice.
-(1) A notice under either section 75 or 76 may exempt a
particular person or group of persons from compliance with that notice if the
Minister is satisfied that any of the following conditions exists- (a) in the circumstances the exemption is
desirable; (b) the performance of the
work by that person or group of persons is temporary; or (c) the risk to which that person or group of
persons is exposed is negligible. (2)
The Minister, after consulting the Council, may cancel an exemption granted
under subsection (1) at any time.
79. Exemption from all or
part of this Act.
-(1) The employer of a mine may request an exemption from
the Minister, and if satisfied that the employer has consulted appropriately
with the affected employees or their representatives, the Minister may exempt
the employer from any or all the provisions of this Act or from a notice or
instruction issued under this Act. An exemption may be- (a) general or
particular; (b) for any period; and (c)
on any conditions that provide the same overall protection which would result
from the full application of this Act.
(2) When an exemption is granted under subsection (1), the Minister must
issue a certificate of exemption to the employer, specifying the scope, period
and conditions of the exemption. (3) The
Minister may amend or withdraw a certificate of exemption at any time. (4) The employer must prominently and
conspicuously display any exemption granted, or deemed to have been granted,
under this section to the employees to read.
80. Minister may apply other
laws to mine.
-(1) After consulting the Council, the Minister, by notice
in the Gazette, may declare that any provision of the Occupational Health and
Safety Act, 1993 (Act No. 181 of 1993), or any regulation made under that Act,
or the provisions of any other Act or regulations, must apply to a mine. (2) A declaration in terms of subsection (1)
may differentiate between mines, types of mines, parts of a mine, occupations
and types of work.
81. Minister to table annual
report
.-(1) Within 30 days of receiving the annual report of the
Chief Inspector of Mines, the Minister must table it in Parliament. (2) If Parliament is not in session at the
end of the period referred to in subsection (1), the Minister must table the
report within 14 days of the beginning of the next session of Parliament.
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- (a) exercising a right in terms of
this Act or in terms of a collective agreement contemplated in this Act; (b) 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;
(c) 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; (d) 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 (e) 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- (a) "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 (b) "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- (a) 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;
(b) 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
(c) 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.
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. [Sub-s. (1)
substituted by s. 35 (a) of Act No. 72 of 1997.] Wording of Sections (2) Any person, other
than an employer or employee, who, by a negligent act or by a negligent
omission, endangers the health or safety of a person at a mine, commits an
offence. [Sub-s. (2) substituted by s.
35 (b) of Act No. 72 of 1997.] Wording
of Sections (Date of commencement s. 86: 15 January, 1998.) (3) . . . . . . [Sub-s. (3) deleted by s. 35 (c) of Act No.
72 of 1997.] Wording of Sections
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.
[Sub-s. (1) substituted by s. 36 of Act No. 72 of 1997.] Wording of Sections (2) Subsection (1) does not apply if the
information- (a) was disclosed to enable
a person to perform a function in terms of this Act; (b) must be disclosed in terms of this Act,
any other law or an order of court; or
(c) 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- (a)
without sufficient cause fails- (i) to
appear at the time and place specified; Or (ii) to remain in attendance until
excused by the person presiding at the inquiry;
(b) Attends as required, but without sufficient cause- (i) fails to
comply with an instruction in terms of section 70 (c) (i); Or (ii) refuses to
be sworn or to make an affirmation; or
(c) attends as required and having been sworn or having made an
affirmation- (i) without sufficient
cause fails to answer any question fully and to the best of that person's
ability; or (ii) gives evidence, knowing or believing it to be false.
91. Failure to comply with
this Act.
-(1) Any person, including an employer, who contravenes, or
fails to comply with, any- (a) provision
of this Act; (b) Regulation; or (c) condition, suspension, notice, order,
instruction, prohibition, authorisation, permission, consent, exemption, certificate
or document determined, given, issued, prescribed 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, commits an offence and is liable to a fine or
imprisonment as may be prescribed.
[Sub-s. (1) substituted by s. 37 (a) of Act No. 72 of 1997 and by s. 27
(a) of Act No. 74 of 2008.] Wording of Sections
(1A) . . . . . . [Sub-s. (1A) inserted
by s. 37 (b) of Act No. 72 of 1997 and deleted by s. 27 (b) of Act No. 74 of
2008.] Wording of Sections (1B) Any
employer is liable to a fine in terms of section 55B if the employer
contravenes, or fails to comply with, any- (a) provision of this Act; [Para. (a) substituted by s. 27 (d) of Act
No. 74 of 2008.] Wording of Sections (b)
regulation; or (c) 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. [Sub-s. (1B) inserted by s. 37 (b) of Act No.
72 of 1997 and amended by s. 27 (c) of Act No. 74 of 2008.] Wording of Sections (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
55B if- (a) the standard exceeds any
compulsory standard in any relevant guideline issued by the Chief Inspector of
Mines; and (b) the conduct constituting
the contravention or failure complies with the compulsory standard in any
relevant guideline issued by the Chief Inspector of Mines. [Sub-s. (1C) inserted by s. 37 (b) of Act No.
72 of 1997 and amended by s. 27 (e) of Act No. 74 of 2008.] Wording of Sections (2) . . . . . . [Sub-s. (2) Deleted by s. 27 (f ) of Act No.
74 of 2008.] Wording of Sections (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.
[Sub-s. (4) added by s. 37 (c) of Act No. 72 of 1997.]
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 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
Table 1 of Schedule 8 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. [Sub-s. (5)
substituted by s. 28 (a) of Act No. 74 of 2008. Table substituted by s. 38 of
Act No. 72 of 1997 and deleted by s. 28 (b) of Act No. 74 of 2008.] Wording of Sections (6) Any owner convicted of an offence in
terms of section 86 or 86A may be sentenced to-
(a) withdrawal or suspension of the permit; or (b) a fine of three million rands or a period
of imprisonment not exceeding five years or to both such fine or
imprisonment. [Sub-s. (6) added by s. 28
(c) of Act No. 74 of 2008.]
(7) In the event of a conviction, the court may, in addition
to imposing a sentence in respect of the offence and making an order, order the
person convicted to- (a) repair any
damage caused, to the satisfaction of the Chief Inspector of Mines, and (b) comply with a provision of this Act
within a specified period of time. [Sub-s. (7) added by s. 28 (c) of Act No. 74
of 2008.]
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- (a) served on or delivered
to that person; Or (b) sent by registered post to that person's last known
address; Or (c) published in the Gazette.
95. Proof of facts.
-In any legal proceedings in terms of this Act- (a) 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;
(b) 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 (c) 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.
CHAPTER 8 GENERAL
PROVISIONS
96. Delegation and exercise
of power.
-(1) The Minister may delegate any power conferred upon the
Minister by or under this Act, except the power to make regulations, to the
Chief Inspector of Mines. (2) The Chief
Inspector of Mines may delegate any power or assign the performance of any duty
conferred or imposed upon the Chief Inspector of Mines by or under this Act, or
any other law, to- (a) any
inspector; (b) any other person with
appropriate knowledge and experience who is under the control of the Chief
Inspector of Mines; or (c) any other
person, after consulting the Council.
[Sub-s. (2) substituted by s. 39 of Act No. 72 of 1997.] Wording of Sections (3) A delegation or assignment under
subsection (1) or (2) must be in writing, and may be subject to any conditions
or restrictions determined by the Minister or Chief Inspector of Mines, as the
case may be. (4) A delegation under
subsection (1) or (2) does not prevent the exercise of that power by the
Minister or Chief Inspector of Mines, as the case may be.
97. Minister's power to add
and change Schedules.
-(1) The Minister, after consulting the Council, by notice
in the Gazette may add to, change or replace any Schedule to this Act other
than Schedules 2, 3 and 7 and, subject to subsection (5), Schedule 4. [Sub-s. (1) substituted by s. 29 of Act No.
31 of 2003.] Wording of Sections (2) The
Minister, after consulting the Council, by notice in the Gazette may add to
this Act a further Schedule containing matters in respect of which health and
safety committees may consult. (3) The
Minister, after consulting the Council, by notice in the Gazette, may add to
this Act a further Schedule containing the constitution of the Council and its
committees. [Sub-s. (3) substituted by
s. 40 (a) of Act No. 72 of 1997.]
Wording of Sections (4) The Minister, after consulting the Council and
the Mining Qualifications Authority, by notice in the Gazette may add to this
Act a further Schedule containing the constitution of the Mining Qualifications
Authority and its committees. [Sub-s.
(4) substituted by s. 40 (a) of Act No. 72 of 1997.]
Wording of Sections (5) The Minister, after consulting the
Council, by notice in the Gazette may add to Schedule 4 further items
containing transitional provisions necessary for the implementation of this
Act. (6) The Minister, after consulting
the Council and in consultation with the Minister of Health, by notice in the
Gazette may add to this Act a further Schedule to suspend or vary the
application of the Occupational Diseases in Mines and Works Act, 1973 (Act No.
78 of 1973), except in relation to the determination or payment of
compensation. (7) The Minister may add
to, change or replace any page header or side note by notice in the
Gazette.
98. Regulations.
-(1) The Minister, after consulting the Council, by notice
in the Gazette may make regulations regarding-
(a) health and safety of persons at mines; (b) health and safety standards, codes of
practice and the provision of protective clothing, equipment and facilities in
connection with health and safety at mines;
(c) the performance of work by employees exposed to a health hazard and
the measures to eliminate, control and minimise health risks; (d) health and safety employment systems at
mines; (e) orderly operations at
mines; ( f ) the powers, duties,
functions and responsibilities of employees at mines and of the employers; (g) the issuing of permits for the use of
machinery, equipment and material at mines and the accreditation of persons to
test machinery, equipment and material for these purposes; (h) the conditions under which machinery,
equipment or material may be erected or used at mines; (i) the elimination, control and minimisation
of health and safety hazards; ( j) requirements
for the safe use, handling, processing, storage, transport and disposal of
hazardous substances used in the mining process and waste produced at the
mine; (k) the transport, handling,
storage and use of explosives and the mixing of substances to make explosives
at a mine; (l) the protection of
equipment, structures, water sources and the surface of land; (m) the conditions in which equipment,
structures, water sources or the surface of land may be used, and the
prohibition on, or restriction of, the erection of equipment and structures and
the use of water sources or the surface of land in the vicinity of the working
places at a mine; (n) the making safe of
undermined ground and of dangerous excavations, tailings, waste dumps, ash
dumps and structures of whatever nature made in the course of prospecting or
mining operations or which are connected with those operations; (o) the monitoring and control as
contemplated in section 49 (3) (a) of those environmental aspects at mines
which affect, or may affect, the health and safety of employees or other
persons; (p) standards of housing and
nutrition of employees who are accommodated at the mine; (q) initial standards of fitness to perform
work involving exposure to a health hazard, standards of fitness to continue
performing such work and the conditions under which employees may be withdrawn
either temporarily or permanently from such work; (r) standards of occupational hygiene
measurement techniques, the frequency and manner in which measurements must be
made, the manner of record keeping and reporting of occupational hygiene
measurements made at mines; (s)
standards of medical tests or biological monitoring used in medical
surveillance, the persons who may carry out those tests and that monitoring,
the interpretation of results of medical surveillance, the frequency for
carrying out periodic medical surveillance, the keeping of records of medical
surveillance and the reporting of confidential extracts from records of medical
surveillance;
(t) the manner of reporting prescribed accidents and health
matters at mines, the keeping of records and statistics in relation to
accidents and health matters and the provision of emergency medical treatment
after an accident or in connection with a health matter;
(u) the manner of reporting prescribed occupational diseases
at mines, the keeping of records in relation to occupational diseases and the
control and provision of medical services in connection with occupational
diseases; (v) the form of an exit certificate
and the content of medical examinations associated with an exit
certificate;
(w) the form of any application to be made in terms of this
Act and of any consent or document required to be submitted with an
application, and the information or details which must accompany an
application; (x) the form of any
register, record, notice, sketch plan or information to be kept, given,
published or submitted in terms of or for the purposes of this Act, and the
manner in which a register, record, notice, sketch plan or information is to be
kept, given, published or submitted; (y)
the drawing up and keeping of mine plans and the submission of statistical and
other reports in relation to minerals, mines and machinery; (z) negotiations and consultations in terms
of sections 26 and 33 and the time periods within which the negotiations and
consultations must be completed;
(zA) qualifications for appointment as a health and safety
representative, the election and terms of office of representatives, the
circumstances in which a representative must vacate office, the circumstances
in which a representative may be removed from office, the manner in which
vacancies may be filled, the functions of representatives, the manner in which
the functions of representatives must be conducted, the facilities and
assistance that must be provided to representatives and the training of
representatives;
(zB) the establishment of health and safety committees, the
election and appointment of members to a committee, the terms of office of
members of a committee, the circumstances in which a member must vacate office,
the circumstances in which a member may be removed from office, the manner in
which vacancies may be filled, meetings of the committees, the rules and
procedures of the committees, the facilities and assistance that must be
provided to committees and the training of the members of committees; (zC) the appointment of members to the
Council in accordance with the provisions of Schedule 2, the functions of the
Council, the payment of allowances to members, the funding of the Council and
its committees, and any other matter the regulation of which, in the opinion of
the Minister, may be necessary for the proper functioning of the Council and
its committees; (zD) the appointment of
members of the Mining Qualifications Authority in accordance with Schedule
2; (zE) qualifications for
inspectors; (zF) the establishment of
one or more accounts and the control of those accounts by the Chief Inspector
of Mines with a view to funding- (i)
research and surveys regarding, and for the promotion of health and safety at
mines; and (ii) the administration costs
of the overall programme for relevant health and safety research; [Para. (zF)
substituted by s. 41 (a) of Act No. 72 of 1997.] Wording of Sections (zG) the manner in which the presence of
witnesses at inquiries must be obtained in terms of section 71, and the
procedures to be followed at inquiries;
(zH) procedures to be followed in respect of appeals to the Chief
Inspector of Mines or Medical Inspector under this Act; (zI) fees payable in relation to
applications, appeals and documents;
(zJ) the payment of levies by mines on the basis of health and safety
risk for- (i) research and surveys
regarding, and for the promotion of health and safety at mines; and (ii) the administration costs of the overall
programme for relevant health and safety research. [Para. (zJ) substituted by
s. 41 (b) of Act No. 72 of 1997.]
Wording of Sections (zK) the
imposition of monetary and other obligations in connection with safe-making
referred to in paragraph (n) on persons who-
(i) are or were responsible for the undermining of any ground or the
making of any excavations, tailings, waste dumps, ash dumps or structures or
for the dangerous condition of any of them; or
(ii) will benefit from that safe-making; (zL) the assumption by the State of
responsibility for safe-making referred to in paragraph (n) in particular
cases; (zM) the use of plain language in
documents that are required to be published, displayed or distributed in terms
of this Act; (zN) any other matter the
regulation of which may be necessary or desirable in order to achieve the
objects of this Act; [Para. (zN)
substituted by s. 29 (a) of Act No. 74 of 2008.] Wording of Sections (zO) the system of fines contemplated in
sections 55A and 55B, including regulations regarding forms and documents,
periods of time, procedures, records to be kept and the payment of fines; [Para. (zO) added by s. 41 (c) of Act No. 72
of 1997 and substituted by s. 29 (b) of Act No. 74 of 2008.] Wording of Sections (zP) minimum standards for the establishment,
functioning, training, equipping and staffing of rescue services at mines and
reporting by employers in respect of rescue services. [Para. (zP) added by s. 29 (c) of Act No. 74
of 2008.] (2) No regulation may be made
relating to- (a) State revenue or
expenditure except with the concurrence of the Minister of Finance; (b) any health matter, except after
consultation with the Minister for Health.
(3) The Minister, after consultation with the Mining Qualifications
Authority, by notice in the Gazette, may make regulations to provide for- (a) the qualifications for employment in any
occupation; (b) conditions for
acceptance as a candidate for examinations;
(c) the issuing of certificates of competency in respect of any
occupation; (d) the funding of the
Mining Qualifications Authority including the manner by which such funds may be
raised; (e) procedures for assessing
competency; ( f ) the accreditation of
assessors; (g) the establishment of
examination bodies; (h) the appointment
of examiners and moderators; (i) the
monitoring and administration of examinations;
( j) the setting of examination fees;
(k) the accreditation of providers of training; (l) the establishment of quality assurance
procedures; (m) the issue of
qualifications; (n) the registering of
qualifications; and (o) any other
matter, the regulation of which may be necessary or desirable in order to
promote the activities of the Mining Qualifications Authority. (4) Regulations made in terms of subsection
(3) must be in accordance with the National Qualifications Framework approved
in terms of the South African Qualifications Authority Act, 1995 (Act No. 58 of
1995). (5) The Minister may incorporate
all or part of any health and safety standard, without re-stating the text of
it, in a regulation by referring to the number, title and year of issue of that
health and safety standard or, to any other particulars by which that health
and safety standard is sufficiently identified.
(6) The Minister must consult the Council before incorporating a health
and safety standard in a regulation. (7)
The Minister, after consulting the Council, by notice in the Gazette may make
regulations imposing any function of an employer on any person, other than the
employer, who employs employees. [Sub-s.
(7) substituted by s. 41 (d) of Act No. 72 of 1997.] Wording of Sections
(8) For the purposes of this Act, any health and safety
standard referred to in subsection (5) incorporated in a regulation is deemed
to be a regulation, in so far as it is not repugnant to any regulation made
under subsection (1). (9) Whenever a
health and safety standard which has been incorporated in a regulation is
subsequently amended or substituted by the competent authority, the regulation
referred to in subsection (5) incorporating that health and safety standard is
deemed to refer to that health and safe standard as so amended or substituted,
unless a contrary intention is stated in the notice. (10) The Chief Inspector must keep a register
of particulars of- (a) every amendment
or substitution of a health and safety standard incorporated in the
regulations; (b) the publication of any
amendment or substitutions; (c) every
publication in which a health and safety standard that has been incorporated in
the regulations under subsection (5) was published; and (d) the place in the Republic where each of
those standards and publications is obtainable or otherwise available for
inspection. (11) The Chief Inspector of
Mines must allow any person to inspect the register kept in terms of subsection
(9) and to make an extract from it. (12)
The provisions of section 31 of the Standards Act, 1993 (Act No. 29 of 1993),
do not apply to any incorporation of a health and safety standard or to any
amendment or substitution of a health and safety standard under this
section.
99. Amendment of laws.
-Each of the laws referred to in Schedule 3 is hereby
amended to the extent specified in that Schedule.
100. Transitional
arrangements.
-(1) The amendment of laws referred to in Schedule
3 does not affect any transitional arrangement made in Schedule 4. (2) The transitional arrangements in Schedule
4 must be read and applied as substantive provisions of this Act.
101. Interpretation.
-(1) . . . . . .
[Sub-s. (1) deleted by s. 42 of Act No. 72 of 1997.] Wording of Sections (2) Subject to sections 26 and 33, no
agreement may affect any- (a) provision
of this Act; (b) condition, 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 or any
other person authorised under this Act; or
(c) any condition contained in any exemption. (3) Subsection (2) applies to any agreement
whether entered into before or after the commencement of this Act or before or
after the issuing of the documents referred to in subsection (2). (4) Any notice, order or any other document
issued in good faith in terms of this Act, is valid according to its terms,
despite any want of form or lack of power on the part of any person to issue or
authenticate it, provided the necessary power is subsequently conferred upon
that person.
102. Definitions.
-In this Act, unless the context otherwise indicates-
"biological monitoring" means a planned programme
of periodic collection and analysis of body fluid, tissues, excreta or exhaled
air in order to detect and quantify the exposure to or absorption of any
substance or organism;
"chief executive officer" means the person who is
responsible for the overall management and control of the business of an
employer; [Definition of "chief
executive officer" inserted by s. 43 (a) of Act No. 72 of 1997.]
"Chief Inspector of Mines" means the officer
appointed in terms of section 48 (1) and includes any officer acting in that
capacity;
"Commission" means the Commission for
Conciliation, Mediation and Arbitration established in terms of section 112 of
the Labour Relations Act;
"Constitution" means the Constitution of South Africa; [Definition of "Constitution"
inserted by s. 30 (a) of Act No. 74 of 2008.]
"Council" means the Mine Health and Safety Council
established by section 41 (1); "Department"
means the Department of Minerals and Energy;
[Definition of "Department" substituted by s. 43 (b) of Act
No. 72 of 1997.] Wording of Sections "employee" means any person who is
employed or working at a mine;
"employer" means an owner;
[Definition of "employer" substituted by s. 43 (c) of Act No.
72 of 1997.] Wording of Sections
"engine" means any appliance or combination of
appliances by which power, other than human or animal power, can be applied to
do mechanical work; "hazard"
means a source of or exposure to danger;
"health" refers to occupational health at mines; "health and safety committee" means
a health and safety committee established in terms of section 34;
"health and safety equipment" means an article or
part of an article that is manufactured, provided or installed in the interest
of the health or safety of any person;
"health and safety representative" means an employee elected
and appointed in terms of section 29;
"health and safety standard" means any standard,
irrespective of whether or not it has the force of law, which, if applied for
the purposes of this Act, will in the opinion of the Minister promote the
attainment of an object of this Act;
"health hazard" means any physical, chemical or
biological hazard to health, including anything declared to be a health hazard
by the Minister;
"health-threatening occurrence" means any
occurrence that has or may have the potential to cause serious illness or
damage to health; "healthy"
means free from illness or injury attributable to occupational causes;
"inspector" means an officer appointed in terms of
section 49 (1) (c), a Medical Inspector and any Principal Inspector of
Mines; [Definition of
"inspector" substituted by s. 43 (d) of Act 72 of 1997.] Wording of Sections "Labour Court" means the Labour
Court established by section 151 of the Labour Relations Act; "Labour Relations Act" means the
Labour Relations Act, 1995 (Act No. 66 of 1995);
"machinery" means any engine, boiler or appliance
or any combination of them, which is situated at a mine and used or intended to
be used- (a) for generating, developing,
receiving, storing, converting, transforming, transmitting or distributing any
form of power or energy; or (b) for
conveying persons, material or minerals;
"manager" means any competent person appointed in terms of
section 3 (1) (a); "Medical
Inspector" means a Medical Inspector appointed in terms of section 49 (1)
(b);
"medical practitioner" means a medical
practitioner as defined in the Medical, Dental and Supplementary Health Service
Professions Act, 1974 (Act No. 56 of 1974);
"medical surveillance" means a planned programme
of periodic examination, which may include clinical examinations, biological
monitoring or medical tests, of employees by an occupational health
practitioner or by an
occupational medical practitioner contemplated in section
13; "mine" means, when- (a) used as a noun- (i) any borehole, or excavation, in any
tailings or in the earth, including the portion of the earth that is under the
sea or other water, made for the purpose of searching for or winning a mineral,
whether it is being worked or not; or
(ii) any other place where a mineral deposit is being exploited,
including the mining area and all buildings, structures, machinery, mine dumps,
access roads or objects situated on or in that area that are used or intended
to be used in connection with searching, winning, exploiting or processing of a
mineral, or for health and safety purposes. But, if two or more excavations,
boreholes or places are being worked in conjunction with one another, they are
deemed to comprise one mine, unless the Chief Inspector of Mines notifies their
employer in writing that those excavations, boreholes or places comprise two or
more mines; or (iii) a works; and (b) used as a verb, the making of any
excavation or borehole referred to in paragraph (a) (i), or the exploitation of
any mineral deposit in any other manner, for the purpose of winning a mineral,
including prospecting in connection with the winning of a mineral;
"mineral" means any substance, excluding water,
but including sand, stone, rock, gravel and clay, as well as soil, other than
top soil- (a) whether that substance is
in solid, liquid or gaseous form; (b)
that occurs naturally in or on the earth, in or under water or in tailings;
and (c) that has been formed by or
subjected to a geological process;
"Mineral and Petroleum Resources Development Act"
means the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of
2002); [Definition of "Mineral and
Petroleum Resources Development Act" inserted by s. 30 (b) of Act No. 74
of 2008.]
"Minerals Act" . . . . . . [Definition of "Minerals Act"
deleted by s. 30 (c) of Act No. 74 of 2008.]
Wording of Sections
"mining area" means a prospecting area, mining
area, retention area, exploration area and production area as defined in
section 1 read with section 65 (2) (b) of the Petroleum and Mineral Resources
Development Act, 2002 (Act No. 28 of 2002).
[Definition of "mining area" substituted by s. 110 of Act No.
28 of 2002.] Wording of Sections
(Editorial Note: The reference to section 65 (2) (b) of the
Petroleum and Mineral Resources Development Act, 2002, in the definition above,
is incorrect as there is no such section in that Act. It is suggested that
section 1 of the Petroleum and Mineral Resources Development Act, 2002, was
intended. It is our policy to publish as per Gazette, but we have notified the
relevant Government Department and await their response.) "Minister" means the Minister of
Minerals and Energy; [Definition of
"Minister" substituted by s. 43 (e) of Act No. 72 of 1997.] Wording of Sections
"occupational disease" means any health disorder
including a compensatable disease as contemplated by the Occupational Diseases
in Mines and Works Act, 1973 (Act No. 78 of 1973), and an occupational disease
contemplated by the Compensation for Occupational Injuries and Diseases Act,
1993 (Act No. 130 of 1993); [Definition
of "occupational disease" substituted by s. 43 ( f ) of Act No. 72 of
1997.] Wording of Sections "occupational health" includes
occupational hygiene and occupational medicine;
"occupational health practitioner" . . . . . . [Definition of "occupational health
practitioner" deleted by s. 30 (d) of Act No. 74 of 2008.] Wording of Sections
"occupational hygiene" means the anticipation,
recognition, evaluation and control of conditions at the mine, that may cause
illness or adverse health effects to persons;
"occupational medicine" means the prevention,
diagnosis and treatment of illness, injury and adverse health effects
associated with a particular type of work;
"occupational medical practitioner" means a
medical practitioner who holds a qualification in occupational medicine, or an
equivalent qualification, recognised by the Health Professions Council of South
Africa; [Definition of
"occupational medical practitioner" substituted by s. 30 (e) of Act
No. 74 of 2008.] Wording of
Sections
"officer" means a woman or man who has been appointed
permanently despite the fact that such appointment may be on probation to a
post contemplated in section 8 (1) (a) of the Public Service Act, 1994
(Proclamation No. 103 of 1994), and includes a woman or man contemplated in
section 8 (1) (b) or 8 (3) (c) of that Act;
"organism" means any biological entity which is capable of
causing illness to persons;
"owner"- (a) in
relation to a mine, means- (i) the
holder of a prospecting permit or mining authorisation issued under the Mineral
and Petroleum Resources Development Act;
[Sub-para. (i) substituted by s. 30 ( f ) of Act No. 74 of 2008.] Wording of Sections (ii) if a prospecting permit or mining
authorisation does not exist, the person for whom the activities contemplated
in paragraph (b) of the definition of "mine" are undertaken, but
excluding an independent contractor; Or (iii) if neither (i) or (ii) is
applicable, the last person who worked the mine or that person's successor in
title; And (b) in relation to a works, means the person who is undertaking the
activities contemplated in the definition of "works", but excluding
an independent contractor; [Definition
of "owner" substituted by s. 43 (g) of Act No. 72 of 1997.] Wording of Sections "prescribed" means prescribed by
regulation;
"Principal Inspector of Mines" means the officer
appointed by the Chief Inspector of Mines to be in charge of health and safety
in any region established in terms of section 47 (2); [Definition of "Principal Inspector of
Mines" inserted by s. 43 (h) of Act No. 72 of 1997.]
"processing" means the recovering, extracting,
concentrating, refining, calcining, classifying, crushing, milling, screening,
washing, reduction, smelting or gasification of any mineral, and
"process" has a similar meaning;
"prospecting" means intentionally searching for
any mineral by means that disturb any tailings or the surface of the earth,
including the portion of the earth that is under the sea or under other water,
by means of excavation or drilling, but does not include mine as a verb;
"Public Finance Management Act" means the Public
Finance Management Act, 1999 (Act No. 1 of 1999); [Definition of "Public
Finance Management Act" inserted by s. 30 (g) of Act No. 74 of 2008.]
"Reasonably practicable" means practicable having regard
to- (a) the severity and scope of the
hazard or risk concerned; (b) The state
of knowledge reasonably available concerning that hazard or risk and of any
means of removing or mitigating that hazard or risk; (c) the availability and suitability of means
to remove or mitigate that hazard or risk; and
(d) the costs and the benefits of removing or mitigating that hazard or
risk;
"record" includes information contained in or on a
computer print-out, tape or disc or any other computer storage medium; "Record of medical surveillance"
means a record kept in terms of section 13 (3);
"Registered trade union" means a trade union registered in
terms of the Labour Relations Act;
"Regulation" means a regulation made under section 98 or in
force in terms of item 4 of Schedule 4;
"Representative trade union" means a registered trade union,
or two or more registered trade unions acting
jointly, that have as members the majority of employees at a
mine; "risk" means the
likelihood that occupational injury or harm to persons will occur; "safety" means safety at
mines; "serious injury" means
any injury which is reportable under this Act;
"serious illness" means any illness resulting from
occupational exposure that affects the health of a person to the extent that it
incapacitates the affected person from resuming that person's normal or similar
occupation for four days or more;
"standard" means any provision occurring- (a) in a specification, compulsory
specification, code of practice or standard method as defined in section 1 of
the Standards Act, 1993 (Act No. 29 of 1993); or
(b) in any specification, code or any other directive having
standardisation as its aim and issued by an institution or organisation inside
or outside the Republic which, whether generally or with respect to any
particular article or matter and whether internationally or in any particular
country or territory, seeks to promote standardisation; "substance" includes any solid,
liquid, vapour, gas or aerosol, alone or in any combination; "this Act" includes- (a) the section numbers, but not the page
headers, headings or sidenotes; (b) the
Schedules; (c) the regulations; and (d) any 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, an inspector, any
person authorised under section 49 (4) or any person to whom a power has been
delegated or the performance of a duty has been assigned under section 96; [Para. (d) substituted by s. 43 (i) of Act
No. 72 of 1997.] Wording of
Sections
"topsoil" means topsoil as defined in section 1 of
the Mineral and Petroleum Resources Development Act; [Definition of
"topsoil" inserted by s. 43 ( j) of Act No. 72 of 1997 and
substituted by s. 30 (h) of Act No. 74 of
2008.] Wording of Sections "working place" means any place at
a mine where employees travel or work;
"works" means any place, excluding a mine, where any person
carries out- (a) the transmitting and
distributing to another consumer of any form of power from a mine, by the
employer thereof, to the terminal point of bulk supply or where the supply is
not in bulk, to the power supply meter on any such other consumer's premises;
or (b) training at any central rescue
station; or (c) the making, repairing,
re-opening or closing of any subterranean tunnel; or (d) any operations necessary or in connection
with any of the operations listed in this paragraph.
103. Occupational Health and
Safety Act, 1993
, not applicable.-The Occupational Health and Safety Act,
1993 (Act No. 85 of 1993), is not applicable to any matter in respect of which
any provision of this Act is applicable.
104. Civil liability of
State.
-The State Liability Act, 1957 (Act No. 20 of 1957), applies
with the changes required by the context in respect of the Mine Health and
Safety Inspectorate, and in such application a reference in that Act to the
Minister of a department concerned must be construed as a reference to the
Chief Inspector of Mines. [S. 104
substituted by s. 31 of Act No. 74 of 2008.]
Wording of Sections
105. Act binds State.
-The provisions of this Act bind the State except in so far
as any criminal liability is concerned.
106. Short title and
commencement.-
(1) This Act is called the Mine Health and Safety Act,
1996. (2) This Act comes into operation
on a date fixed by the President by proclamation in the Gazette.
Schedule 1 GUIDELINE FOR DETERMINING THE NUMBER OF FULL-TIME
HEALTH AND SAFETY REPRESENTATIVES 1. Introduction (1) This Schedule contains
guidelines for determining the number of full-time health and safety
representatives. (2) This Act places the
highest value on agreement. The parties referred to in section 26 must refer to
this Schedule, using its guidelines in a manner that best suits the particular
mine. (3) If agreement is not reached,
the Commissioner appointed by the Commission must refer to this Schedule, using
its guidelines in a manner that best suits the particular mine. 2. Minimum threshold (1) There should be a full-time health and
safety representative in every mine that requires the use of a full-time health
and safety representative, taking into account-
(a) the volume, size and physical location of the mine; (b) The health and safety record of the
mine; (c) The number of designated
working places; And (d) the objects of this Act. (2) The guidelines as to the size of the mine
that should have a full-time health and safety representative is a mine with
500 employees. 3. Number of full-time
health and safety representatives (1)
The formula for determining the number of full-time health and safety
representatives should take into account-
(a) the nature, size and physical location of the mine; (b) the health and safety record of the
mine; (c) the number of designated
working places; (d) the number of health
and safety representatives; (e) the
number of shafts and the number of employees at the shaft; And (f) the objects
of this Act.
Schedule 2 NOMINATION AND
APPOINTMENT OF MEMBERS TO TRIPARTITE INSTITUTIONS [Schedule
2 amended by s. 44 of Act No. 72 of 1997.]
Wording of Sections The Minister
must make the regulations referred to in sections 42 (2) and 45 (2) in a manner
that ensures that- (a) members appointed
to represent employees are either- (i)
all nominated by agreement between registered trade unions representing at
least 75% of employees belonging to such trade unions in the mining industry; Or
(ii) failing agreement in terms of subparagraph (i)-
(aa) at least half are persons nominated by a registered
trade union or unions representing the majority of employees belonging to such
trade unions in the mining industry; and (bb) the rest are persons nominated by
registered trade unions and appointed in accordance with the significance of
the trade unions concerned; And (b) members appointed to represent employers
are either- (i) all nominated by agreement between employers' organisations
whose members employ at least 75% of employees in the mining industry; or (ii) failing agreement in terms of subparagraph
(i): (aa) at least half are persons
nominated by an employers' organisation or organisations whose members employ
the majority of the employees in the mining industry; and (bb) the rest are
persons nominated by employers' organisations and appointed in accordance with
the significance of the organisations concerned.
Schedule 3 AMENDMENT OF LAWS [Schedule 3 amended by s. 45 of Act
No. 72 of 1997.] Wording of
Sections
A. MINERALS ACT, 1991
1. Amends section 1 of the Minerals Act, No. 50 of 1991, as
follows:-paragraph (a) deletes the definitions of "certificated",
"engine", "investigating officer", "machinery",
"employer", "mine safety committee", "peace
officer", "regional director", "regional mining
engineer", "serious bodily harm" and "works";
paragraph (b) inserts the definition of "Chief Inspector of Mines";
and paragraph (c) inserts the definition of "Director: Mineral
Development". 2. Amends section 2
of the Minerals Act, No. 50 of 1991, by deleting subsection (2). 3. Amends section 8 of the Minerals Act, No.
50 of 1991, by substituting subsection (1).
4. Amends section 9 of the Minerals Act, No. 50 of 1991, as
follows:-paragraph (a) substitutes subsection (3) (a); paragraph (b) substitutes
subsection (3) (c); paragraph (c) substitutes subsection (5) (c); paragraph (d)
deletes the word "and" at the end of subsection (5) (d) and
substitutes subsection (5) (e); paragraph (e) adds subsection (5) ( f ); and
paragraph ( f ) adds subsections (7) and (8).
5. Amends section 12 of the Minerals Act, No. 50 of 1991, by
adding subsection (2), the existing section becoming subsection (1). 6. Substitutes section 15 of the Minerals
Act, No. 50 of 1991. 7. Amends section
25 of the Minerals Act, No. 50 of 1991, by substituting subsection (2). 8. Repeals sections 26 to 27 of the Minerals
Act, No. 50 of 1991. 9. Amends section
39 (3) of the Minerals Act, No. 50 of 1991, by substituting the words following
paragraph (c). 10. Amends section 41 of
the Minerals Act, No. 50 of 1991, by substituting subsection (1).
11. Amends section 51 (2) of the Minerals Act, No. 50 of
1991, as follows:-paragraph (a) substitutes paragraph (b); and paragraph (b)
deletes paragraph (d). 12. Inserts
sections 53A, 53B, 53C and 53D in the Minerals Act, No. 50 of 1991. 13. Amends section 54 of the Minerals Act,
No. 50 of 1991, by substituting subsection (1).
14. Amends section 60 of the Minerals Act, No. 50 of 1991,
as follows:-paragraph (a) substitutes subsection (1); and paragraph (b)
substitutes subsection (2). 15. Amends
section 61 (1) of the Minerals Act, No. 50 of 1991, by deleting paragraphs (d),
(e) and ( f ).
16. Amends section 63 of the Minerals Act, No. 50 of 1991,
as follows:-paragraph (a) deletes subsection (1) (a), (b), (h) (iv) and (v),
(i), ( j), (k), (l), (n), (u), (v), (w) and (x); paragraph (b) substitutes
subsection (1) (m); paragraph (c) substitutes subsection (2); and paragraph (d)
deletes subsection (3).
17. Substitutes the expression "Director: Mineral
Development" for the expression "regional director", wherever it
occurs in the Minerals Act, No. 50 of 1991.
18. Substitutes the long title of the Minerals Act, No. 50
of 1991. B. REFERENCE TO GOVERNMENT
MINING ENGINEER IN CERTAIN ACTS Substitution
for Government Mining Engineer
The following Acts are hereby amended by the substitution
for the expression "Government Mining Engineer", wherever it occurs,
of the expression "Chief Inspector of Mines as contemplated in the Mine
Health and Safety Act, l996,":
Advertising on Roads and Ribbon Development Act, 1940 (Act No. 21 of
1940); Rand Water Board Statutes
(Private) Act, 1950 (Act No. 17 of 1950);
Mines and Works Act, 1956 (Act No. 27 of 1956); Atmospheric Pollution Act, 1965 (Act No. 45
of 1965); National Roads Act, 1971 (Act
No. 54 of l 971); Occupational Diseases
in Mines and Works Act, 1973 (Act No. 78 of 1973); National Building Regulations and Building
Standards Act, 1977 (Act No. 103 of 1977).
Schedule 4 TRANSITIONAL PROVISIONS [Schedule 4 amended by s. 46 of Act No. 72 of
1997 and by s. 32 of Act No. 74 of 2008.]
Wording of Sections (Editorial
Note: Please take note that s. 34 of Act No. 74 of 2008 substituted the
expression of "Minerals Act", with the expression "Mineral and
Petroleum Resources Development Act, 2002". We have carried out the
amendment as per the original Government Gazette instruction however it is
suggested that the expression referring to the "Minerals Act" should
have been retained in this Schedule.)
1. Any health and safety standard which, immediately prior
to the commencement of this Act, was incorporated under the provisions of the
Mineral and Petroleum Resources Development Act or the regulations made under
that Act is deemed to be a health and safety standard incorporated under this
item. 2. A certificate of fitness issued
under the provisions of the Occupational Diseases in Mines and Works Act, 1973
(Act No. 78 of 1973), which was valid immediately before the commencement of
this Act shall be deemed to be sufficient proof that the employee is fit to
perform work until the certificate is cancelled or expires. 3. A declaration in respect of any work which
has been declared under the Occupational Diseases in Mines and Works Act, 1973
(Act No. 78 of 1973), to be risk work at controlled mines is deemed to be a
declaration made under section 76 (1) of this Act and remains in force until
the declaration is withdrawn or superseded under this Act. 4. Any regulation made or deemed to be made
under the Mineral and Petroleum Resources Development Act that relates to
health and safety issues that can be regulated under this Act, may be amended
under this Act and remains in force until repealed under this Act. 5. To the extent that it grants exemptions
from the operation of a provision similar to a provision of this Act, an
exemption is deemed to have been granted under section 79 if- (a) it was granted under the provisions of
the Mineral and Petroleum Resources Development Act; and (b) it is still in force when this Act
commences. 6. Section 85 does not apply
to an employee employed at any mine immediately before the commencement of that
section. 7. The Mine Health and safety
Inspectorate continues to exist as a juristic person and the Chief Inspector of
Mines is its accounting authority.
Schedule 5 SUSPENSION
AND VARIATION OF APPLICATION OF OCCUPATIONAL DISEASES IN MINES AND WORKS ACT,
1973 (ACT NO. 78 OF 1973) [Schedule 5
added by Government Notice No. R.848 of 21 June 1997.] A. SUSPENSION OF APPLICATION OF ACT NO. 78 OF
1973 The application of the following
sections of the Occupational Diseases in Mines and Works Act, 1973 (in
this
Schedule referred to as the 1973 Act) is hereby
suspended: (a) Section 4 (2) (b). (b) Section 15. (c) Section 16 (1) (b) and (c). (d) Section 23. (e) Section 24. ( f ) Section 25. (g) Section 26. (h) Section 27 (2), (3), (4) and (5). (i) Section 28. ( j) Section 29. (k) Section 30. (l) Section 37 (2) (a). (m) Section 121 (1) (b), (h) and (i). (n) Section 124 (3) (g) and (h). (o) Section 125. (p) Section 126 (1), (2) (a) and (b) and (3)
(a) and (b) (i). B. VARIATION OF
APPLICATION OF ACT NO. 78 OF 1973 1. The
application of the following sections of the 1973 Act is hereby limited to
medical examinations for the purpose of determining benefits: (a) Section 4 (1) and (2) (a). (b) Section 5. (c) Section 31 (1). (d) Section 36, subject to item 3 (b). (e) Section 37 (1), (2) (b) and (3). 2. The application of section 27 (1) of the
1973 Act is hereby limited to instances where the director receives a
communication as contemplated in section 33 (1). 3. The application of the following sections
of the 1973 Act is hereby limited to persons employed at mines or works: (a) Section 31 (1). (b) Section 36 (1) (a).
Schedule 6
CONSTITUTION OF THE MINE HEALTH AND SAFETY COUNCIL [Schedule 6 added by Government Notice No.
R.1317 in Government Gazette 18352 of 10 October, 1997, amended by Government
Notice No. R.906 in Government Gazette 23585 of 2 July, 2002, corrected by
Government Notice No. R.1575 in Government Gazette 24168 of 13 December, 2002
(English only) and amended by s. 34 of Act No. 74 of 2008.]
[An italicised word or phrase is defined in section 102 of
the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), (this Act) and an
italicised word or phrase in bold is defined in item 24 of this Constitution.
In this Constitution all references to sections are references to sections in
this Act unless otherwise indicated.]
Wording of Sections
1. Establishment of Council and committees.-(1) The Council
and the 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- (a) 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;
(b) co-ordinate the activities of the committees; (c) consider the reports of the committees; (d) liaise with the Mining Qualifications
Authority on matters relating to health and safety; (e) liaise with any other statutory bodies
concerned with matters relating to health and safety; ( f ) promote a culture of health and safety
in the mining industry; (g) at least
once every two years arrange and co-ordiante a tripartite summit to review the
state of health and safety at mines; (h)
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
considerations; and
(i) perform every duty imposed upon the Council in terms of
this Act. [Section 43 (a) to ( f ) determine the duties of the Council.]
5. Functions of committees.-(1) The Mining Regulation
Advisory Committee must advise the Council on-
(a) proposed changes to legislation to improve health or safety at
mines; (b) proposals for changes to
legislation made by any committee; (c)
guidelines for codes of practice; and
(d) standards approved by the South African Bureau of Standards. [Section 44 (1) (a) to (d) determine the
duties of the MRAC.]
(2) The Mining Occupational Health Advisory Committee must
advise the Council on- (a) policy
relating to health; (b) standards,
systems and procedures for assessing, avoiding, eliminating, controlling and
minimising health risks; (c) regulations
on any aspect of health; (d) health
research; and (e) collecting, processing
and distributing health data in the mining industry. [Section 44 (2) (a) to (e)
determine the duties of the MOHAC.]
(3) The Safety in Mines Research Advisory Committee must
advise the Council on- (a) criteria for
determining the funding of health and safety research; [Section 98 (1) (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.]
(b) the need for research into health and safety at
mines; (c) research projects, including
priorities of projects, cost, assessment, ratification and execution; (d) communication and publication of research
results; and (e) 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 and safety research for the Council
to consider. The programme must include-
(a) a review of health and safety performance in the different mining
sectors; (b) an evaluation of the
research proposals made by the Council or any committee; (c) the focus of health and safety research
and priorities for the different sectors of mining; and (d) an estimate of the cost of the
programme. [The Council considers the
overall program 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)- (a) must be in writing; (b) 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 (c) 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 or assign any of its duties by or under this Act to committees.]
8. Composition of Council and committees.-(1) The Council
consists of- (a) five members
representing employers in the mining industry;
(b) five members representing employees in the mining industry; (c) four members representing departments of
State; and (d) the Chief Inspector of
Mines, who must chair the Council.
[Section 42 (1) prescribes the membership of the Council.]
(2) Every committee consists of- (a) five members representing employers in
the mining industry; (b) five members
representing employees in the mining industry;
(c) four members representing departments of State; and (d) 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 committees are nominated and appointed in accordance with the
regulations and members of any other committee are nominated an appointed in
accordance with this item. [Regulations
18.1 to 18.7 published by Government Notice No. R.93 in the Gazette of 15
January 1997.]
(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- (a) must appoint the members; and (b) 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 re-appointed. [Regulation 18.5 published by Government
Notice No. R.93 in the Gazette of 15 January 1997 determines the term of office
of members of the Council and its 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- (a) be nominated by the party that was
represented by the member; and (b) 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. [Mine Health and Safety
Regulation 18 (6) deals with the filling of casual vacancies of the Council and
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- (a) may appoint alternates for members of
subcommittees; and (b) must notify (i) the alternates of their appointment;
and (ii) the members of their respective
alternates. 10. Vacation of office.-(1)
A member vacates office- (a) on expiry
of the member's period of office; (b) if
such member- (i) 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; (ii) resigns as a
member; or (iii) is required to vacate
office by the party or the organisation which that member represents; (c) if such member was nominated by an
organisation and that organisation no longer meets the criteria allowing it to
nominate members; or (d) 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- (a) allow each party to appoint from among
its members a person to act as convenor or 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;
(b) cause meetings to be convened; and (c) 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 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- (a) the Council and every permanent and ad
hoc committee; and (b) any subcommittee
if the establishing authority so requires.
(2) If a secretary is not appointed for a sub-committee, 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 of which
the secretary is appointed- (a) prepare
the agenda for every meeting; (b)
prepare the minutes of every meeting;
(c) record every resolution of such meeting and if so requested by a
member, the views of that member; (d)
keep general records, records of members, minutes, document and files of the
Council or such committee; and (e) serve
every member with- (i) 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;
(ii) any reports or documentation to be considered at a meeting, a
reasonable period before the meeting; and
(iii) 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- (a) 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 meetings; and
(b) 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- (a) be heard on any matter considered at the
meeting; (b) take part in the resolution
of any matter before the meeting; and
(c) 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 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- (a) the different views of the
members on the matter so resolved; and
(b) 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.
(5) Despite sub item (1) to (3), if the members present and
voting at a meeting reach consensus on the matter, the Council may resolve that
any specific resolution of the Council may only be amended or revoked by a
special resolution of the Council may only be amended or revoked by a special
majority of, or the consensus of the Council.
18. Funds of Council.-(1) The funds of the Council consist of- (a) moneys appropriated by Parliament to
perform the functions of the Council;
(b) other moneys received in terms of this Act; (c) revenue obtained from investments; (d) fees or royalties obtained from
intellectual property of the Council;
(e) donations or contributions received from any person, body,
government or administration; and ( f )
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- (a) 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
(b) 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 subitems (1) (b), (c), (d) or ( f
) may be- (a) used as contemplated in
this Act; (b) 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 (c) 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-
(a) the first financial year, before the first meeting of the Council;
and (b) 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 of 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- (a) a balance sheet dealing with the state of
affairs of the Council; (b) a return of
income received and expenses incurred by the Council; and (c) 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, secretarial and other services.-(1) The
Council may employ employees to provide such administrative, secretarial or other
services to the Council and its committees as the Council may determine.
(2) Despite subitem (1), the Council, with approval of the
Minister, may contract any person, or arrange for officers of the Mine Health
and Safety Inspectorate, to provide such administrative, secretarial and other
services to the Council and its committees as the Council may determine.
21. Abolition of Council or committee.-(1) The Council and
the committees may be abolished by an Act of establishment of the
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 sub-committee established by that committee. [See item 1 for the establishment of the
Council and committees.]
22. Limitation of liability.-(1) A member or an employee of
the Council does not incur any civil liability only because of doing or failing
to do something which such member or employee may do or is required to do in
terms of this Act or this Constitution.
(2) The Council does not incur any civil liability only because a
member, or an employee of the Council, 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 functions, took an action or failed to take an action under or in
terms of this Act or this Constitution, and in taking or failing to take that
action acted without negligence and in good faith.
23. Amendment of constitution.-(1) (a) If the Minister wants
to amend the constitution, the Minster must furnish a proposal containing such
amendments to the chairperson of the Council, who must convene a meeting to
consider the proposal. (b) At such
meeting the Council must consider the proposal and resolve either to- (i) support the proposal as it is; (ii) support the proposal with certain
amendments; or (iii) oppose the
proposal. (c) The Council must submit
its resolutions to the Minister.
(d) 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) (a) If the Council wants the constitution to be amended,
the Council must submit a proposal regarding such amendment to the
Minister.
(b) Such proposal by the Council is deemed to be
consultation by the Minister with the Council as contemplated in section 97
(1).
(c) 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 committee or other committee; "consensus" means unanimous
agreement; "establishing authority"
means- (i) in the case of the Council
and a committee, Parliament by legislation;
(ii) in the case of an ad hoc committee, the Council; and (iii) in the case of a sub-committee, the
Council, or any permanent or ad hoc committee that establishes the sub-committee;
"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- (a) an ad hoc committee established for a
limited term to perform any function of the Council which is not a function of
any committee; and (b) a subcommittee
established by- (i) the Council to
perform any function of the Council which is not assigned by or under this Act
to a committee; and (ii) a permanent or
an ad hoc committee to perform any function of that committee; and "party" means employers, employees
or the State, as the case may be. [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
committee or request that a new committee be established by legislation to
perform the function.]
Schedule
7 CONSTITUTION OF MINING QUALIFICATION
AUTHORITY [Schedule 7 added
by Government Notice No. R.612 of 24 April, 1998 and amended by s. 34 of Act
No. 74 of 2008.]
ARRANGEMENT OF CONSTITUTION 1. Establishment of Authority
and committees 2. Legal status 3. Objects of Authority 4. Functions of
Authority 5. Functions of committees 6.
Functions of other committees 7.
Composition of Authority and committees
8. Nomination and appointment of members of committees 9. Vacation of
office 10. Appointment and functions of the executive officer 11. Delegation
and assignment of functions 12. Functions of the chairperson 13. Appointment and functions of secretary
14. Rights and obligations of members 15. Meetings 16. Quorum 17. Procedures at
meetings 18. Resolution of meeting 19. Funds of Authority 20. Accounting 21. Abolition of Authority and committees 22.
Limitation of Liability 23. Amendments to constitution 24. Interpretation CONSTITUTION OF THE MINING QUALIFICATIONS
AUTHORITY (MQA)
To provide for the constitution of the Mining Qualifications
Authority; for the promotion of the objectives of the National Qualifications
Framework in the mining industry; for advising the Minister on matters relating
to education and training standards and qualifications in the mining industry;
and for matters connected therewith. [In
this Constitution all references to sections are references to sections in this
Act, unless otherwise indicated.]
1. Establishment of Authority and committees.-(1) The
Authority is established by section 41 (3).
[An italicised word or phrase is defined in section 102 of the Mine Health
and Safety Act, 1996 (Act No. 29 of 1996) (this Act) and an italicised word or
phrase in bold is defined in item 24 of this Constitution.] Wording of Sections
(2) The Authority may establish permanent, ad hoc and
subcommittees for such periods as the Authority may consider necessary, to
achieve the objects or perform the functions of the Authority.
(3) Every permanent or ad hoc committee may, subject to such
conditions as the Authority may determine, establish subcommittees for such
periods as the committee may consider necessary to achieve the objects or
perform the functions of that committee.
[Section 46 (2) empowers the Authority to appoint permanent and ad hoc
committees, and subcommittees, for any period and on any conditions. 1 (3)- Ad
hoc and subcommittees are distinguished in the definition of "other
committees".]
(4) In the case of committees, the chairperson of the
Authority must inform the Minister of such establishment. 2. Legal status.-(1) The Authority 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 Authority.
(3) The Authority may authorise any person or persons to act
on behalf of the Authority 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 Authority. 3. Objects of
Authority.-(1) The objects of the Authority are to- (a) advise the Minister on-
(i) qualifications and learning achievements in the mining
industry to improve health and safety standards through proper training and
education; (ii) standards and competency
setting, assessment, examinations, quality assurance and accreditation in the
mining industry; and
(iii) proposals for the registration of education and
training standards and qualifications in the mining industry on the National
Qualifications Framework referred to in the South African Qualifications
Authority Act, 1995 (Act No. 58 of 1995); and
[Section 41 (3) prescribes the objects of the Authority.]
(b) promote the objectives of the National Qualifications
Framework in the mining industry, which are to-
(i) create an integrated national framework for learning
achievements; (ii) facilitate access to,
and mobility and progression within education, training and career paths; (iii) enhance the quality of education and
training; (iv) accelerate the redress of
past unfair discrimination in education, training and employment opportunities;
and thereby (v) contribute to the full
personal development of each learner and the social and economic development of
the nation at large. [Section 2 of the
SAQA Act determines the objectives of the National Qualifications Framework.]
(2) In order to promote its objects the Authority must
seek- (a) registration in terms of the
SAQA Act as a body responsible for generating education and training standards
and qualifications as contemplated in section 5 (1) (a) (ii) (aa) of that Act;
and (b) accreditation in terms of the
SAQA Act as a body responsible for monitoring and auditing achievements as
contemplated in section 5 (1) (a) (ii) (bb) of that Act; 4. Functions of Authority.-(1) The Authority
must (a) generate education and training
standards and qualifications in the mining industry; (b) propose education and training standards
and qualifications to bodies registered with the South African Qualifications
Authority and responsible for developing education and training standards; (c) monitor and audit achievements in terms
of those standards and qualifications;
(d) accredit providers, assessors and moderators of education and
training in the mining industry; (e)
analyse and prioritise education and training needs in the mining industry and
recommend on the provision of such education and training; ( f ) promote a culture of learning in the
mining industry; (g) assure the quality
of education and training in the mining industry, without itself being a provider
of education and training; (h)
facilitate strategic human resources development planning in the mining
industry; (i) liaise with the South
African Qualifications Authority, or other bodies, persons or institutions
concerned with or directly affected by education and training in the mining
industry; ( j) keep a record of learning
for people in the mining industry; (k)
perform any other function required by the South African Qualifications
Authority in terms of the Authority's registration or accreditation; and (l) perform any other function that must be
performed by the Authority in terms of this Act or any other applicable
law.
(2) The Authority may perform any other function that may be
performed by the Authority in terms of this Act or any other applicable
law. [Sections 46 (1) (c), (d) and (e)
determine the advisory functions of the Authority. Section 46 (5) requires
that, in performing its functions, the Authority must comply with the policies
and criteria formulated by the South African Qualifications Authority in terms
of section 5 (1) (a) (ii) of the SAQA Act.]
5. Functions of committees.-Every committee, at the relevant
levels of the National Qualifications Framework in the mining industry,
must-
(a) make recommendations to the Authority on- (i) the generation of education and training
standards and qualifications; (ii) the
assessment of education and training standards and qualifications; and (iii) the accreditation and moderation of
education and training providers and assessors;
(b) undertake activities necessary for the development and
implementation of the National Qualifications Framework; (c) co-ordinate the activities and consider
the reports of its subcommittees; and
(d) perform such other functions delegated or assigned to it by the
Authority.
6. Functions of other committees.-Other committees must
perform the functions assigned or delegated to them in terms of item 11. 7. Composition of Authority and
committees.-(1) The Authority consists of-
(a) five members representing employers in the mining industry; (b) five members representing employees in
the mining industry; (c) four members
representing departments of State; and
(d) the Chief Inspector of Mines who must chair the Authority. [Section 45 (1) prescribes the membership of
the Authority.]
(2) Every committee of the Authority consists of the
following members: (a) five members
representing employers in the mining industry;
(b) five members representing employees in the mining industry; (c) five members representing departments of
State; and (d) an employee of the
Authority 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.
8. Nomination and appointment of members of committees.-(1)
Members of the Authority are nominated and appointed in accordance with the
regulations and members of any committee are nominated and appointed in
accordance with this item. [Regulations
18.1 to 18.7 published by Government Notice No. R.93 in the Gazette of 15
January 1997.]
(2) Members of the relevant establishing authority may
nominate persons as members representing their party on any committee. (3) The relevant establishing authority- (a) must appoint the members; and (b) 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 the chairperson from
among their number.
(5) Members representing employees or employers on any
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 re-appointed. [Regulation 18.5 published by Government
Notice No. R.93 in the Gazette of 15 January 1997 determines the term of office
of members of the Authority and its committees.]
(6) If the office of a member of any 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- [Mine Health and Safety Regulation 18 (6)
deals with the filling of casual vacancies of the Authority.]
(a) be nominated by the party that was represented by the
member; and (b) 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.
(7) The appointment of any member of any committee is
subject to any condition that the relevant establishing authority may
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 Authority, a permanent or ad hoc committee and must notify the
chairperson of the Authority or the relevant permanent or ad hoc committee, as
the case may be, of such appointment.
(11) The relevant establishing authority- (a) may appoint alternates for members of
subcommittees; and (b) must notify- (i) the alternates of their appointment;
and (ii) the members of their respective
alternates. 9. Vacation of office.-(1) A
member vacates office- (a) on expiry of
the member's period of office; or (b) if
such member- (i) is absent from two
consecutive meetings of the Authority or committee for which such member is
appointed without notifying the chairperson before the meeting that the member
will be absent; (ii) resigns as a member;
or (iii) is required to vacate office by
the party or the organisation which that member represents; (c) if such member was nominated by an
organisation and that organisation no longer meets the criteria allowing it to
nominate members; or (d) if the
Authority 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.
10. Appointment and functions of the executive officer.-(1)
The Minister, after consulting the Authority, must appoint a person with
experience and expertise in matters relating to functions of the Authority as
executive officer of the Authority.
(2) The executive officer must perform such functions as may
be assigned to the executive officer by this Act or by the Authority. (3) The executive officer must attend all
meetings of the Authority.
(4) If the executive officer is absent or for any reason is
unable to perform the functions of the executive officer or if there is a vacancy
in the office of the executive officer, the chairperson of the Authority may
designate an employee of the Authority to act as executive officer until the
executive officer is able to resume the functions of executive officer or until
an executive officer is appointed in terms of subitem (1).
(5) The Authority may, subject to the provisions of item 19
(2) (b), appoint persons as employees of the Authority to assist in the
performance of the functions of the executive officer.
(6) The terms and conditions of service of persons appointed
under subitem (5) are determined by the Minister after consulting the
Authority.
11. Delegation and assignment of functions.-(1) The
Authority may delegate any of its powers or assign any of its functions by or
under this Act to any committee or the executive officer.
(2) Any permanent or ad hoc committee may delegate or assign
any of its functions to any of its subcommittees.
(3) The executive officer may delegate any power or assign
the performance of any function conferred or imposed upon the executive officer
to any employee of the Authority. (4) A
delegation or assignment under subitem (1), (2) or (3)-
(a) must be in writing;
(b) may be subject to such conditions and restrictions as determined by
the Authority, a permanent or an ad hoc committee or the executive officer, as
the case may be; and (c) does not
prevent the exercise of that power or performance of that function by the
Authority, a permanent or an ad hoc committee or the executive officer, as the
case may be. [Sections 46 (3) and (4)
enable the Authority to delegate any of its powers or assign any of its duties
by or under this Act in accordance with the constitution contemplated in
section 97 (4).] Wording of
Sections
12. Functions of the chairperson.-(1) Every chairperson
must, with regard to the Authority or committee which the person chairs- (a) 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; (b) cause meetings to be convened; and (c) ensure the orderly conduct of meetings
and that all resolutions are recorded.
(2) A chairperson may order any member to leave a meeting if
in the opinion of the chairperson the behaviour of such member is disruptive to
the orderly conduct of the meeting.
(3) If the chairperson of the Authority 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 17 (3).]
(4) If the chairperson of a committee is unable to attend a
meeting, the executive officer may designate another employee of the Authority
to chair the meeting. 13. Appointment
and functions of secretary.-(1) The executive officer must appoint a secretary
for- (a) the Authority and every permanent
and ad hoc committee; and (b) any
sub-committee if the establishing authority so requires.
(2) If a secretary is not appointed for a sub-committee, 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 Authority or committee for
which the secretary is appointed- (a)
prepare the agenda for every meeting;
(b) prepare the minutes of every meeting; (c) record every resolution of such meeting
and if so requested by a member, the views of that member; (d) keep general records, records of members,
minutes, documents and files of the Authority, or such committee; and (e) serve every member with- (i) 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; (ii) any reports or
documentation to be considered at a meeting, a reasonable period before the
meeting; and (iii) the minutes of every
meeting.
14. Rights and obligations of members.-(1) Any member who is
unable to attend a meeting of the Authority or any committee- (a) may designate any alternate of that
member's party on the Authority or that committee, as the case may be, to
represent the member at the meeting; and
(b) must before the meeting give notice of it to the chairperson.
(2) An alternate designated under subitem 1 (a), has the
rights and obligations of the member whom that alternate represents.
(3) Every member has the right to- (a) be heard on any matter considered at the
meeting; (b) take part in the resolution
of any matter before the meeting; and
(c) 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. 15. Meetings.-(1) The Authority
must meet at least once every three months.
(2) Every permanent and ad hoc committee must meet at least once every
two months.
(3) Subcommittees must meet at such intervals and frequency
as determined by their activities and the dates for the completion of their
tasks.
(4) An urgent meeting of the Authority 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 Authority may direct any committee to call an urgent
meeting to resolve any matter determined by the Authority.
(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.
16. Quorum.-(1) Eight members form a quorum for any meeting
of the Authority or a 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 Authority or any committee so agree, a smaller number may
constitute a quorum for an urgent meeting of the Authority 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.
17. 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 the
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.
18. Resolution of meeting.-(1) The Authority 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 Authority
or any committee, as the case may be.
(3) Any report or advice of the Authority or any committee
which reflects a resolution that was not reached by consensus, must reflect- (a) the different views of the members on the
matter so resolved; and (b) which
members supported each view.
(4) No resolution nor any act authorised by the Authority or
any committee is invalid merely because of a vacancy on the Authority 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.
(5) The chairperson of a committee has no voting right. 19. Funds of Authority.-(1) The funds of the
Authority consist of- (a) moneys
appropriated by Parliament to perform its functions; (b) moneys which accrue to the Authority in
terms of regulations made under this Act or in terms of any other applicable
law;
(c) revenue obtained from investments; (d) fees obtained from services provided by
the Authority; (e) donations received
from any person, body, government or administration; and ( f ) any other money received from any other
source. [In terms of Section 98 (3) (d)
the Minister, after consulting the Mining Qualifications Authority, by notice
in the Gazette, may make regulations to provide for the funding of the Mining
Qualifications Authority including the manner in which such funds may be
raised.]
(2) Moneys appropriated by Parliament must be used for- (a) 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;
(b) the payment of salaries, allowances, subsidies and other
benefits as approved by the Minister with the agreement of the Minister of
Finance to the executive officer and other employees of the Authority; and [The regulations under section 98 (3) (d)
require the agreement of the Minister of Finance for the provision of funds for
the administration of the Authority and its committees from public funds.]
(c) the payment for administrative functions of the
Authority. (3) Moneys referred to in
subitem (1) (b), (c), (d) or ( f ) may be-
(a) used as contemplated in this Act;
(b) 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 (c) used to register or utilise any
intellectual property of the Authority.
(4) Moneys referred to in subitem (1) (e) must be utilised
in accordance with the conditions, if any, imposed by the donor of such
moneys.
(5) The chairperson of the Authority 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-
(a) the first financial year, before the first meeting of the Authority;
and (b) every other financial year,
before the beginning of such financial year.
20. Accounting.-(1) The executive officer is the accounting officer of
the Authority. (2) The accounting
officer is responsible for all moneys received and payments made by the
Authority. (3) The financial year of the
Authority 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 Authority and to
explain the transactions and financial position of the Authority.
(5) Annual financial statements must be prepared in respect
of every financial year. The statement must consist of- (a) a balance sheet dealing with the state of
affairs of the Authority; (b) a return
of income received and expenses incurred by the Authority; and (c) a statement of cash flow
information.
(6) The books of account, statements of account and annual
financial statements of the Authority 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 Authority.
(7) The executive officer of the Authority must supply each
member of the Authority 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.
[Section 46 (2) (b) provides that the Mining Qualifications Authority
may administer and control its financial affairs.]
21. Abolition of Authority and committees.-(1) The Authority
may be abolished by an Act of Parliament.
(2) The Authority may at any time abolish any committee.
(3) A permanent or ad hoc committee may at any time abolish
any sub-committee established by that committee.
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 Authority does not incur any civil liability only
because a member or employee of the Authority 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 such person acted without negligence and in good faith.
23. Amendments to constitution.-(1) If the Minister or the
Authority wants to amend the constitution, the Minister or the Authority, as
the case may be, must serve 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 after consulting the
Authority must consider the proposal and resolve either
to-
(i) support the proposal as it is; or (ii) support the proposal with certain
amendments; or (iii) oppose the
proposal.
(3) The Council must submit its resolution and the comments
or the proposal of the Authority, as the case may be, 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. (5) If the Authority wants
the constitution to be amended- (a) the
proposal by the Authority is deemed to be consultation by the Council with the
Authority contemplated in subitem (2); and
(b) the resolution of the Council on the proposal by the Authority is
deemed to be consultation by the Minister with the Council as contemplated in
section 97 (1).
(6) 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 (4) of this Act authorises the Minister to
add to, change or replace this Constitution, after consultation with the
Council and the Mining Qualifications Authority, by publication in the
Gazette.]
24. Interpretation.-Unless the context indicates
otherwise- "alternate" means
any person appointed as an alternate to a member under item 8 (10); "Authority" means the Mining
Qualifications Authority established by section 41 (3); "chairperson" means any person who
chairs any meeting of the Authority or a committee; "clear day" means any day of the
week except Sundays and public holidays;
"committee" means any committee, ad hoc committee or sub-committee
of the Authority; "consensus"
means unanimous agreement;
"education and training standards" means
registered statements of desired education and training outcomes and their
associated assessment criteria as defined in section 1 of the SAQA Act; "establishing Authority" means- (i) in the case of the Authority, Parliament
by legislation; (ii) in the case of a
permanent or ad hoc committee, the Authority; and (iii) in the case of a sub-committee, the
Authority or any permanent or ad hoc committee that establishes the
sub-committee;
"executive officer" means the executive officer
appointed in terms of item 10 (1) of designated in terms of item 10 (4);
"learning" means a process by which a person gains
skills, knowledge and values;
"member" means any member of the Authority or any
committee and includes any alternate designated by such member to attend a
meeting of the Authority or any committee on behalf of such member;
"National Qualifications Framework" means the
National Qualifications Framework as defined in section 1 of the SAQA Act; "other committee" means- (a) an ad hoc committee established for a
limited term to perform any function of the Authority which is not a function
of any committee; and (b) a
sub-committee established by- (i) the
Authority to perform a function which is not assigned by or under this Act to a
committee; and (ii) a permanent or an ad
hoc committee to perform any function of that committee; [If a function of the Authority needs to be
performed on a permanent basis by a committee, the Authority may either
delegate or assign the function to a committee or establish a new committee to
perform the function.]
"party" means employers, employees, or the State,
as the case may be;
"qualification" means the formal recognition of
the achievement of the required number and range of credits and such other requirements
at specific levels of the National Qualifications Framework as may be proposed
by the Mining Qualifications Authority and determined by the South African
Qualifications Authority as defined in section 1 of the SAQA Act; and "SAQA Act" means the South African
Qualifications Authority Act, 1995 (Act No. 58 of 1995).
Schedule 8 Table
1 MAXIMUM FINES OR PERIOD OF
IMPRISONMENT THAT CAN BE IMPOSED FOR OFFENCES
[Schedule 8 added by s. 33 of Act No. 74 of 2008.] Column 1
Section under which convicted
Column 2 Maximum fine and term of
imprisonment 2 R1 000 000 or 5 yrs imprisonment 2A
R1 000 000 or 5 yrs imprisonment
3 R1 000 000 or 5 yrs
imprisonment 5 R1 000 000 or 5 yrs imprisonment 6 R1
000 000 or 5 yrs imprisonment 7 (1)
R1 000 000 or 5 yrs imprisonment
10 R1 000 000 or 5 yrs
imprisonment 11 R1 000 000 or 5 yrs imprisonment 15
R500 000 or five years imprisonment
16 R500 000 or five years
imprisonment 21 (1), (3) or (4) R500 000 or five years imprisonment 22
R200 000 or two years imprisonment
24 R500 000 or five years
imprisonment 52 R200 000 or two years imprisonment 53
R200 000 or two years imprisonment
62 R200 000 or two years
imprisonment 66 (3) R200 000 or two years imprisonment 70
R200 000 or two years imprisonment
71 R200 000 or two years
imprisonment 84 R200 000 or two years imprisonment
85
R200 000 or two years imprisonment
87, 88, 89, 90
R50 000 or six months imprisonment
88
R300 000 or three years imprisonment
Table 2
MAXIMUM FINES THAT CAN BE IMPOSED FOR CONTRAVENTIONS
CONTEMPLATED IN SECTION 55B The maximum fine that can be imposed in terms of
section 55B may not exceed an amount of R1 000 000.
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