'Corporate homicide' Bill causes tremors

Mining chief executives may face prison sentences for homicide if the controversial Mine Health and Safety Amendment Bill becomes law.

At least 870 miners have died from work-related injuries since 2004 and the Department of Minerals and
Energy feels that tougher legislation is long overdue. But the Bill has raised debate—as well as tempers—within the mining sector.

The new legislation marks a shift from the preventative approach of the current Mine Health and Safety Act (MHSA). It gives the department substantially increased regulatory powers allowing it to:

  • Increase non-compliance fines from a maximum of R200 000 to R1-million;

  • Enforce deadlines for mine authorities to produce accident reports;

  • Grant and revoke health and safety permits;

  • Close down accident sites until the department’s safety standards are met.

Most controversially, the Bill introduces the concept of “corporate homicide” which means that mine bosses could spend five years behind bars if they are found guilty of negligence.

The department and the National Union of Mineworkers (NUM) agree that mining deaths decreased in 2008, but the Presidential Mine Health and Safety Report, released last month, paints a depressing picture of the state of South Africa’s mines.

The report finds that the general safety compliance rate is only 66%, with many mines lacking adequate emergency evacuation exits, proper equipment maintenance systems, and qualified machine operators.

But when it comes to safety and accountability, mining companies are only one element in a complex spider web of interdependent role players. Other key players are the department itself, which investigates and regulates mine-related issues, and the National Prosecuting Authority (NPA), the responsibility of which is to prosecute companies for fatal negligence.

“The DME is not doing its job,” said advocate Hendrik Schmidt, the Democratic Alliance spokesperson for minerals and energy.

“They are under-funded and under-staffed.”

Schmidt feels that lack of capacity within the department leads to irregular and delayed inspections and to inspectors spending more than 50% of their time on administrative duties.

“It’s a Catch-22,” he says. “[Finance Minister Trevor] Manuel says he will provide more money if the department shows it can spend it properly, but if they don’t have money, they can’t get inspectors to do the job.”

Lance Greyling, the Independent Democrats spokesperson for Minerals and Energy, feels that the department needs to be more accountable.

“Perhaps government should receive penalties too,” he said. When it comes to inefficiency, fingers are not pointed only at the DME. Of the 223 negligence-related cases referred to the NPA since 2004, only three have been concluded. One mining company was found guilty; two have been fined R5 000 and R2 500. The remaining 220 cases are still “awaiting response”.

Tlali Tlali, spokesperson for the NPA, said he had not seen the presidential report and was unable to explain the backlog of cases. “We cannot say why 200 cases are still awaiting an outcome, because it will take weeks for us to be able to track down these cases and tell you who was responsible,” he said.

Professor May Hermanus, director of the Centre for Sustainability in Mining and Industry at Wits, said the new legislation—however tough—will not be enough to transform the lives of South Africa’s miners. Hermanus said it is vital to engage with deeper issues, like individual disempowerment and income discrepancy.

“In this industry we are still caught up in the legacy of the past,” she said. “There is a major lack of communication between employers and labourers because of language differences.”

Her view is shared by Chamber of Mines Chief Executive Sipho Nkosi. He said the threat of high fines and imprisonment will inevitably chase skilled managers and supervisors away from the mining sector to less pressured jobs.

The Mine Health and Safety Amendment Bill has been awaiting President Kgalema Motlanthe’s signature for nearly six months. Meanwhile, the debates are still causing tremors within the mining sector.

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