Mismatch Between Mine Prosecution Rates in Terms of the Mine Health and Safety Act and Recommended Prosecution Outcomes of Mine Fatality Inquiries

Abstract

Occupational Health and Safety (OHS) in South African mines has vastly improved from the early 1900 towards democracy and post-democracy. In the decade between 1984 and 1994, a total of 7400 employees lost their lives in mine accidents. Whilst in the latter decade between 2012 and 2022, 844 fatalities were reported, showing a reduction of 88.6%. The landmark accident of the Vaal Reefs Mine Disaster in 1995, where 104 employees lost their lives in the line of duty became a catalyst to investigate the status quo of OHS at mines. There was a commission of inquiry appointed by the former state president Nelson Mandela and the most crucial recommendation that came out of that inquiry was the promulgation of the Mine Health and Safety Act, Act No. 29 of 1996 (MHSA). The overarching aim of the MHSA is to protect the health and safety of employees and other persons at the mines. This is supported by several objectives, one of which seeks to provide for effective monitoring systems and inspections, investigations and inquiries to improve health and safety. The MHSA makes provision for mine fatal inquiries to be conducted and if gross negligent behaviour is found, sections 91(1) and 86(1) of the MHSA make provision to recommend prosecution. Despite MHSA provisions, mine prosecutions have been low. The study aim was to establish reasons for the low prosecution rate and understand aspects that need to be considered to achieve successful mine prosecutions. The study was conducted using a combination of different research methods for data collection and analysis. Qualitative methods comprised of surveys, interviews, and document review. Key informant interviews were conducted with several key stakeholders including government, industry, trade unions and others. The quantitative data involved the collection of health and safety statistics and prosecution data. This data was used to establish OHS performance and identify trends in mine prosecutions. The findings on OHS performance revealed that there were repeat mine fatal accidents, and the leading causes were falls of ground, transport and machinery, fires and general types of accidents. The key findings on prosecutions indicated that between the period 2016 to 2020, there were no successful mine prosecutions meted out. This has been attributed to several factors including shortcomings of the existing legal framework and procedural practices, lack of resources and capacity from the mine’s inspectorate and national prosecuting authority, the quality of inquiry reports and limitations thereof, poor collaboration between state institutions as well as political interference. The areas of improvement raised in the study include the need for legislation to become more detailed with prescribed minimum standards. There is also a need for training to build the capacity of the inspectorate and national prosecuting authority. The return of mining courts or a tribunal was also recommended to improve prosecution outcomes and to ensure that a better relationship is established between state and other key institutions.