Proposed Mine Health and Safety Act changes would impose a costly system on mines - law firm

Proposed changes to the Mine Health and Safety Act include the introduction of a mandatory “missing person locating system”, which the law firm Webber Wentzel says will come with ­“prohibitive” costs.

The Mine Health and Safety Council has suggested amendments to the Mine Health and Safety Act and comments are due by 12 May. This comes against the backdrop of a steady improvement in mine safety in South Africa’s deep and dangerous mines.

Last year, 49 mine workers died on the job in South Africa, a record low in a calendar year since industrial-scale mining began more than a century ago.

A spokesperson for the Minerals Council SA, the main industry body, said: “The Minerals Council notes the draft amendments and will make submissions.”

In a commentary, Webber Wentzel said the draft amendments, “if published in their current form are likely to have significant implications for mine owners”.

“In our view, the most significant change proposed pertains to the introduction of missing person locating systems. The changes propose that all underground mines and surface mines with a significant risk of slope failure must provide their workers with an intrinsically safe device that can locate them if they go missing while working or during an emergency.”

“Slope failure” refers to a number of hazards including rockfalls or falls of ground, once the leading cause of death in South Africa’s mines.

This is an area in which the sector has made huge progress in recent years. According to data compiled by the Minerals Council SA, there were six fall-of-ground deaths in 2022 compared with 131 in 2003. This has been achieved with the roll-out of safety netting and a range of other initiatives.

A “missing person locating system” certainly seems to be a welcome development to maintain improvements in safety, because miners do go missing during disasters underground. But the proposal is not rock-solid on some fronts.

“The term ‘significant risk’ is not defined in the draft regulation... In the absence of a clear definition or parameters, this will be for each mine to assess on its own,” Webber Wentzel notes.

That will be tricky. Does a mine have a “significant risk” of slope failure? And if management believes it does not but then the mine has one that causes injury or death because a missing miner could not be found quickly enough, what would its legal risks be? It’s a scenario that can only benefit ambulance chasers. The way that the system is supposed to work seems straightforward and would certainly be a potential lifesaver.

“The device must be able to locate persons that go missing and allow for two-way communication between the wearer and the controller. The device should have a power supply of at least 24 hours and provide real-time tracking for the last known location in the case of system damage or failure,” Webber Wentzel said in its commentary.

“The system must be able to detect the missing employee within 10 metres in an unobstructed environment, and the mine must have at least two scanners capable of detecting a missing or trapped employee through 30 metres of solid rock.

“Employers should consider the cost implications of a sophisticated system of this nature; in our view, such costs may well be prohibitive,” it said.

Such a system would obviously not come cheap. But there are companies providing such services in South Africa, such as the A&R Group. “Upon activation, the comprehensive system allows instant real-time visualisation of the missing person’s location. In the event of major infrastructure damage, the system retains offline capabilities providing rescuers with a last-known directional location,” the company says on its website.

To return to costs: all safety measures that the mining industry has introduced over the years have come with costs. Among those still in testing, Anglo American Platinum is considering hand-held radars that can detect a fall of ground in advance — a system the National Union of Mineworkers has urged the company to adopt.

But marginal operations may find it tough to absorb the additional costs that will come with hand-held radar or missing person locator systems.

Though all initiatives to improve safety are welcome, one wonders why there is a push now to amend the Mine Health and Safety Act in the context of a safety record that has displayed admirable progress. Deaths in the mining sector are falling, not rising, and the industry’s own campaigns are clearly bearing fruit.  

This is an issue that has undivided attention in the boardroom in an age when ESG — environmental, social and governance — is all the rage in the corporate world.

This does not mean that regulations cannot be fine-tuned periodically. The goal of zero harm, while noble, remains elusive.

But regulations that are vague and may introduce costs that are “prohibitive” need to be carefully considered. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R25.