The 2010 calendar year produced the lowest number of fatalities in South Africa’s mining industry in recent years.
At 128, the number was down 24% from the previous year’s total of 168.
Although the credit for this significant improvement must surely go to the collective effort of all stakeholders, one has yet to hear chief executives being publicly applauded for their efforts.
On the contrary, Department of Mineral Resources (DMR) spokesperson Zingaphi Jakuja said in a recent news article that not only would the Mine Health and Safety Act (MHSA) be reviewed to strengthen enforcement provisions, but the administrative system of issuing fines would also be simplified and penalties reinforced, resulting in prosecutions.
To chief executives and mine managers, the only consolation that can be offered is the immortal words of Sir Winston Churchill: “We will not be judged by the criticisms of our opponents, but by the consequences of our actions.”
These words cannot be more valid today than when applied to the health and safety (H&S) arena. Mining chief executives should take ownership of H&S obligations at every level of their organisation, and act proactively to ensure their systems remain current and effective. In so doing, they will be achieving organisational H&S goals and limit their risk of prosecution if fatalities occur.
Champion of employer’s duties
The MHSA decrees that every chief executive must take reasonable steps to ensure the functions of the mine owner (referred to in the MHSA as the ‘employer’) are properly performed.
Speaking broadly, the duties of the employer are to ensure the mine is commissioned, operated and maintained, and then decommissioned in such a way that employees can perform their work without endangering anyone. In discharging these obligations, the chief executive is entitled to entrust any function contemplated in the MHSA to another person who is under his or her control.
In turn, further appointments are required at operational level to ensure responsibility for H&S.
The de facto chief executive no longer has to discharge, simply by virtue of his/her office, the duties of the employer.
The functions of the chief executive may be performed by a member of the board of directors so designated for that purpose. This gives the employer more flexibility in the appointment of the chief executive under the MHSA, but presupposes that whoever is designated to hold this position will do so with the full appreciation of the heavy burden entrusted to him or her.
In such a position, at the pinnacle of the organisation, the chief executive is the primary champion of the employer’s H&S duties.
Standard of care
The chief executive must take reasonable steps to ensure the employer’s functions are performed properly. This requires them to be neither superhuman nor to take any steps that are not reasonably required considering the character of the operation.
South African law has, for time immemorial, accepted the concept of the reasonable person when gauging conduct where a duty of care is required. The MHSA echoes this sentiment, but sets a higher standard of care.
The question of reasonableness will depend on the circumstances of each instance.
Factors that will play a role in determining reasonableness and thus culpability in the mining environment include, at the very least, the availability of technology; the simplicity or complexity of the establishment of health and safety systems; and the relative costs thereof.
The chief executive’s conduct must also meet the common law test: would a reasonable person in the position of the chief executive have foreseen harm and acted to avoid it? The executive who falls short of the reasonable person test is considered negligent and could be prosecuted for culpable homicide in the case of a fatality.
The reasonable person test encompasses two components, both of which must be present. The first is the ability to foresee harm and the second is whether reasonable steps should have been taken to avoid such harm. Liability does not arise if one of these components is missing.
Failing the test
Any contravention of the MHSA that causes serious injury, harm or death to a person is a criminal offence. To establish the criminal liability of a chief executive, the MHSA sets a higher standard of care than that of the ordinary, reasonable person test. This is because instructions alone will be insufficient proof that all reasonable steps were taken to prevent an act or omission.
The MHSA expects more than this – safety systems, preventative measures and overinspection are required at the very least.
The chief executive is not permitted to rely on the defence of ignorance or
He/she is required to have systems in place whereby unsafe acts are reported to him/her so that proper action can be taken to prevent injury, harm or death.
This is particularly so in cases of falls of ground where it is suggested that all significant incidents should be reported to the chief executive, as and when they occur. The fact that the act or omission that caused the injury, harm or death was within someone else’s scope of authority is irrelevant as this defence is also excluded under the MHSA.
Protection from prosecution
Mining chief executives need to be able to say confidently that all significant falls of ground that occur at their mines are reported to them. If so, they also need to be ready to explain the decisions taken, or not taken, to implement remedial steps to prevent such falls of ground in future.
Similar questions can and will be asked about other unsafe practices. However, falls of ground should be highlighted as they remain the largest category of mine accidents and the chief executive’s ignorance of them will no longer be an available defence against prosecution.
There is never a better time than the present to review reporting systems to ensure that appropriate information comes to the attention of the chief executive so that action can be taken to eradicate unsafe practices, and to implement continuous improvements to H&S systems.
Taking responsibility
Adopting the ‘buck stops here’ attitude will most certainly create a culture of ownership of H&S obligations within an organisation. It is only when true ownership of these obligations is established at every level within the organisation that behaviour will change and positive results ensue.
Although the threat of prosecution always looms, this is merely the stick with which H&S is enforced by the MHSA. The risk of prosecution is truly limited when chief executives take ownership of their responsibilities, and act proactively to ensure their systems remain effective and current.