South African Legislation imposes several obligations on employers in various industries to ensure the health and safety of, amongst others, workers in their employ. Often employers are under the impression that they are fully compliant with relevant health and safety legislation until the Regulators conduct routine inspections at their offices and/or operations or after the occurrence of a serious incident or accident.

Below are some of the key obligations imposed on employers by the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA“), and the Mine Health and Safety Act, No. 29 of 1996 (“MHSA“).

The OHSA and the application thereof

The purpose of the OHSA is to provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery and to provide for the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work. 

The OHSA specifically states that it does not apply to a mine, a mining area or works, as well as to ships, boats and cranes, and persons present thereon. As a result, it applies to all other workplaces, which includes, amongst others, workplaces at construction sites, solar plants, chemical plants, commercial offices etc., provided that such sites, plants and offices are not on a mine, mining area, boats etc., (section 1(3)).

Every employer must provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees. Some of the measures which employers must take in order to comply with its health and safety obligations in terms of the OHSA and the Regulations binding thereunder includes the following:

Hazard Identification and Risk Assessment	The employer must establish what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in its business, and it shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and it shall provide the necessary means to apply such precautionary measures i.e., the employer must conduct and prepare a baseline risk assessment (section 8(2)(d), read with section 8(2)(b)).
Training and Supervision	The employer must provide, amongst others, training and supervision to employees, in order to ensure that employees have the necessary information, knowledge and instructions to safeguard their health and safety (section 8(2)(e), read with section 8(2)(i)).
Supervision by Competent and Skilled Persons (and appointment of such persons in certain instances)	The employer must ensure that work is performed, and that plant and machinery is used, under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented (section 8(2)(i)).  In addition, and in certain instances, depending on the type of supervision, it might be required that such person(s) i.e., safety representative, person in charge of machinery etc., be appointed in writing.
Investigating and Reporting Incidents, Accidents and Diseases	The employer must report certain incidents to the health and safety inspectorate of the Department of Employment and Labour within the 7 days (section 24(1), read with regulation 8(1)(a) of the General Administrative regulations, 2003).  The aforementioned incidents refer to incidents which occur at work or arises out of or in connection with activities of persons at work, or in connection with the use of plant or machinery resulting in:  the death of a person, a person becoming unconscious, losing a limb or part of a limb, injury, a person becoming ill to such a degree that he/she is likely to die or suffer a physical defect or be unable to work for a period of at least 14 days; the occurrence of a major incident; or the health and safety of a person being endangered by the spillage of a dangerous substance, the uncontrolled release of any substance under pressure, failure of machinery or machinery running uncontrolled (section 24(1)). With regards to an occupational disease, the medical practitioner who treats a person for a disease as referred to in the Workman’s Compensation Act, No. 30 of 1941 (repealed and now the Compensation for Occupational Diseases Act, No. 130 of 1993), or any other diseases he/she believes arose out of that person’s employment, shall within 14 days of the examination or treatment, give notice of the occupational disease to the chief inspector and the employer (section 25, read with regulation 8(4) of the General Administrative regulations, 2003). An employer or user shall keep at a workplace or section of a workplace a record (in the prescribed form) for a period of at least 3 years, of all incidents which he/she is required to report in terms of section 24 and also of any other incident which resulted in the person concerned having had to receive medical treatment other than first aid. The incident shall also be investigated by the employer (or a representative of the employer i.e., a safety representative) within 7 days of the incident and its findings shall be recorded in the prescribed form (regulation 9 of the General Administrative Regulations, 2003).
Provision and Maintenance of Machinery and Equipment	The employer must provide and maintain systems of work, plant and machinery that are safe, as far as reasonably practicable, and which are without risks to health (section 8(2)(a)).
Additional Safety Measures in respect of Dangerous Articles or Substances	The employer must ensure that the production, processing, use, handling, storage or transportation of articles or substances are safe and absent of risks to health to employees. In addition, this obligation includes ensuring that dangerous articles and substances are adequately labelled and stored in rooms fitted with efficient intake and exhaust ventilation systems (section 8(2)(c), read with regulation 14B of the Regulations for Hazardous Chemical Agents, 2020 and regulation 4(3) of the General Safety Regulations, 1986).

Sanctions and Penalties

Non-compliance with certain provisions of the OHSA and the Regulations binding thereunder is an offence punishable by a fine or imprisonment (section 38). In addition to this, if an inspector is of the opinion that the employer is engaged in activities which poses a risk to the health and safety of employees and/or other persons, an inspector has the power to stop the employer’s operations or parts thereof (section 30).

The MHSA and the application thereof

The purpose of the MHSA is to, amongst others, provide for the protection of the health and safety of employees and other persons at mines, promote a culture of health and safety and regulate employers’ and employees’ duties to identify hazards and eliminate, control and minimise the risk to health and safety. 

The MHSA applies to any working place at a mine, which includes, amongst others, works and a mining area. The MHSA specifically states that the OHSA is not applicable to any matter in respect of which any provision of the MHSA is applicable (sections 102 and 103).

Every employer of every mine that is being worked must ensure, where reasonably practicable, that the mine is safe. The employer must ensure that certain safety measures are in place and are enforced. Some of these measures include the following:

Hazard Identification and Risk Assessment	As far as reasonably practicable, every employer must: provide and maintain a working environment that is safe and without risk to health and safety of employees; and identify the relevant hazards and asses the related risks to which persons who are not employees may be exposed and ensure that such persons are not exposed to any hazards (section 5). In addition, every employer must: identify the hazards to health or safety to which employees may be exposed while they are at work; assess the health or safety risks to which employees may be exposed while they are at work; record the significant hazards identified and risks assessed; and make those records available for inspection by employees (section 11(1)).
Training	The employer must, as far as reasonably practicable:  provide employees with information, instruction, training or supervision necessary to enable them to perform their work safely and without risk to health and 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; and ensure that every employee is properly trained: to deal with every risk to the employee’s health or safety that is associated with the work such employee has to perform and which has been recorded in terms of section 11; on the measures necessary to eliminate, control and minimise those risks to health or safety; on the procedures to be followed to perform that employee’s work; and on relevant emergency procedures (section 10).
Health and Safety Policy, Codes of Practice and Procedures	Every employer must prepare a health and safety policy (section 8). In addition, an 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. 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, which code of practice must comply with guidelines issued by the Chief Inspector of Mines (section 10). In some instances, the MHSA and the Regulations binding thereunder, specifically requires the employer to have certain operating procedures in place i.e., a procedure in respect of lifting equipment and lifting tackle (regulation 8.5(2) of the Mine Health and Safety Regulations, 1997).
Appointment of Competent, Skilled, Qualified and Experienced Personnel	As a starting point, the employer must appoint managers with the qualifications as may be prescribed to be responsible for the day-to-day management and operation of the mine (section 3(1)(a), read with sections 7(1)(e), 7(2) and 7(4)). It should be noted that the employer may delegate its power to appoint competent, skilled, qualified and experienced personnel to the aforementioned manager(s) i.e., the appointment of engineering personnel, safety personnel etc., (sections 7(2) and 7(4)).
Medical Surveillance	The employer must establish and maintain a system of medical surveillance of employees exposed to health hazards if required to do so by regulation or a notice in the Government Gazette; or if, after assessing risks in terms of section 11(1), it is necessary to do so (section 13, read with section 15).  Every employer who establishes or maintains a system of medical surveillance must engage the part-time or fulltime services of an occupational medical practitioner (section 13(3)(a)).
Safe Machinery and Equipment	The employer of every mine that is being worked must ensure, as far as reasonably practicable, that the mine is designed, constructed and equipped with, amongst others, electrical, mechanical and other equipment as necessary to achieve conditions for its safe operation and healthy working environment (section 2(1)). In addition, and specifically to machinery, the employer must take reasonably practicable measures to prevent person from being injured as a result of them, the clothes being worn by them, or any equipment being held by them coming into contact with or being drawn into any moving part of any machine (regulation 8.8(1) of the Mine Health and Safety Regulations, 1997).

Sanctions and Penalties

Non-compliance with the provisions of the MHSA and the Regulations binding thereunder is an offence and if convicted, punishable by a fine or imprisonment (section 92). In addition, if any owner of a mine is convicted as a result of, amongst others, negligence resulting in serious illness or injury its mining permit may be withdrawn or suspended (section 92(6)(a)). 

Author: Cindy-Lee Bekeer