When tragedy strikes, follow due process – Mine health & safety

When tragedy strikes, follow due process – Mine health & safety
24 Jul 2019

Mining operations around the country strive to send home employees safely at the end of each shift, by implementing various stringent health and safety measures in their working places. Despite these measures and various safety drives to put health and safety of employees above all else, fatal accidents unfortunately continue to occur.

While no employer would like to contemplate the death of any employee on duty at any of its operations, employers must ensure that they follow due process, in the event of a fatal accident occurring.

On 10 May 2019, the Chief Inspector of Mines published, in terms of the Mine Health and Safety Act No 29 of 1996 (the “MHSA”), a Guidance Note on Medico-Legal Investigations of Mine Deaths. The guidance note originated from the need to provide clarity on the process that must be followed for deaths that require a medico-legal autopsy and to give guidance to all stakeholders regarding their roles and responsibilities in cases of natural, unnatural or uncertain mine deaths.

When a death occurs on the mine premises, the roles and responsibilities of the employer are detailed in Section 9 of the guidance note. While most of the required steps to be followed ordinarily form part of the emergency preparedness and response procedures followed by employers when a serious or fatal accident occurs at the mine, there are a few important additional requirements imposed on the employer in terms of the guidance note, which employers should take note of.

Clause 9.1(e) of the guidance note requires that the employer “should bring the death to the attention of the Occupational Medical Practitioner (“OMP”) or any medical practitioner, as soon as possible, who must certify the death.”

Clause 9.4.1 of the Guidance Note stipulates that: “In the event of a death, the employer is required to get an OMP/medical practitioner to certify the death. The OMP / medical practitioner should take into account the circumstances surrounding the death, as provided by the employer, as well as the occupational and medical history of the deceased in determining whether the death is due to natural, unnatural or uncertain causes. Should the OMP/ medical practitioner decide that death is due to unnatural causes, the OMP/medical practitioner must notify the SAPS who will open a docket and notify the Forensic Pathology Services.”

Our interpretation of the requirement, is that an ALSP or an ILSP who attends to an employee following an accident, can declare an employee deceased. The additional requirement is, however, that the mine’s OMP or any medical practitioner must subsequently certify the death as soon as possible after the employer had brought it to his/ her attention. In order for a death to be “certified”, the OMP or any medical practitioner must examine the body and indicate if the likely cause of death was due to natural or unnatural causes. It therefore does not appear to be an absolute requirement that it must be the mine’s OMP who must certify the death of the employee after an ALSP or ILSP had declared an employee deceased. It can be any medical practitioner who is registered as such in terms of the Health Professions Act No. 56 of 1974.

This will assist the employer in the event that the mine’s Occupational Practitioner is not available to attend to the certification of the death and any other medical practitioner can be dispatched to attend to the certification of the death. The OMP must, however, assist the medical practitioner who completes the death certificate with relevant information, for example medical surveillance data, the condition and the environment where the body was found etc., where required.

In accordance with the guidance note, the mine’s OMP is also now required to participate in the investigation conducted in terms of Section 11(5) of the MHSA.

There are various other requirements which are set out in the guidance note, which employers are required to take note of. Employers should consider implementing the provisions of the guidance note in their emergency preparedness and response procedures, to ensure that relevant employees who are involved in the process following any accident or occurrence at a mine that results in the death of a person, are aware of the provisions of the guidance note.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Eben van Zyl
Eben van Zyl

Eben is a senior associate in Eversheds Sutherland's mining group. He provides multi-disciplinary legal and related services, primarily to the mining and construction industries. Eben focuses on mining health and safety law, occupational health and safety law, litigation and criminal law. Eben has experience with regard to resolving mining disputes, together with preparing and reviewing documents and agreements related to the mining industry and conducting legal compliance audits of the Health and Safety systems implemented by various mining houses and operations. His recent experience includes: Conducting various health and safety legal compliance audits at various mining and smelter operations both locally and abroad; Representing employees of Hotazel Manganese Resources, Rustenburg Platinum Mines and Exxaro Coal Mpumalanga in criminal prosecution cases, resulting from fatal accidents at the mines; Representing Anglo Platinum Limited in relation to a civil claim by an ex-employee; Assisting and representing Glencore Operations South Africa Proprietary Limited in respect of mine accidents at its various operations; Representation of the management teams in relation to fatal accidents including administrative, civil and criminal aspects and the regulatory processes following mine accidents in relation to mining related incidents and accidents; Assisting and representing South32 Coal Holdings Proprietary Limited in a claim by an ex-coal mine worker for occupational lung disease; Assisting and representing Anglo Operations Proprietary Limited – Anglo Thermal Coal: Mine accidents at Greenside Colliery, Goedehoop Colliery, New Denmark Colliery. Representation of the three collieries (company and management team) in relation to fatal accidents including administrative, civil and criminal aspects, and the regulatory process following mine accidents. Eben has been recognised as a “Legal Influencer for Future of Legal Services- Africa and Middle East” in the 2018 Q4 Lexology Awards and has written articles on the mining industry for multiple publications.

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