Private prosecutions following mine fatalities – Legal appointees beware

Private prosecutions following mine fatalities – Legal appointees beware
16 Jan 2020

Carrying a statutory legal appointment in terms of the provisions of the Mine Health and Safety Act No. 29 of 1996 (“MHSA”) carries a certain level of prestige in the mining industry, however statutory legal appointees are not always aware of the potential consequences which could attach to them by virtue of their appointments, should a fatal accident occur within their area of responsibility.

An inquiry must be conducted in terms of Section 65 of the MHSA into any accident or occurrence at a mine that results in the death of any person (“the Inquiry”). Such an Inquiry does not limit any other law regulating the holding of an inquest or other inquiry into the death of a person.

The main purpose of the inquiry, from the perspective of the Department of Mineral Resources (“DMR”) is to establish how the accident occurred and how a similar accident can be prevented from occurring in the future.

Family members of the deceased are becoming increasingly involved in the Inquiry process and have started appointing attorneys and advocates to represent them during the Inquiry proceedings, seemingly with the main objective, from the family of the deceased’s perspective, to “find fault” on the part of mine management and supervisors (who carry legal appointments in terms of the MHSA).

Section 72 of the MHSA provides that the presiding officer of the inquiry, who is usually a senior inspector from the DMR, must prepare a written report of his / her findings, recommendations and remedial steps, following the conclusion of the inquiry (“the Report”). In the Report, the presiding officer will indicate whether or not any person(s) failed to perform their duties and functions in accordance with the provisions of the MHSA and usually makes a recommendation on whether or not, in the view of the presiding officer, certain persons and / or legal appointees should be prosecuted in relation to the death of a mine employee. The DMR subsequently submits the Report, together with the record of the Inquiry and the bundles of evidence, to the investigate officer at the South African Police Service (“SAPS”) tasked with investigating the accident, as well as the office of the Director of Public Prosecutions (“DPP”) of the relevant region where the mine fatality occurred.

It is important to note, however that Section 179(2) of the Constitution of the Republic of South Africa provides that the National Prosecuting Authority (“NPA”) has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. It is therefore in the sole discretion of the National Prosecuting Authority to determine whether or not it will proceed to institute criminal proceedings against any person and the recommendation made by the presiding officer of the Inquiry that any member of mine management, supervisors or any other legal appointee or person should be prosecuted, only serves an advisory function, for consideration by the DPP. The view of the presiding officer of the Inquiry, as a subject matter expert in mining matters, does however, ordinarily carry a lot of weight in the decision making process by the DPP to determine whether or not to institute a prosecution.

Should the DPP, after considering the facts of the matter, decline to prosecute any person in relation to the accident, it does not mean that mine management, supervisors, other legal appointees or any other persons involved in the fatal accident, are “off the hook” just yet.

The family members of the deceased employee can elect to institute a private prosecution in accordance with the provisions of the Criminal Procedure Act No. 51 of 1977 (“the Criminal Procedure Act”). Section 7(1)(c) of the Criminal Procedure Act provides that in any case where the DPP declines to prosecute for an alleged offence, the wife or child (or any of the next of kin where there is no wife or child) of any deceased person, may either in person or by a legal representative, institute and conduct a prosecution, if the death of their family member was alleged to have been caused by an offence.

Section 8 of the Criminal Procedure Act provides that natural persons and public bodies may prosecute privately. Companies and other legal persons do not have this right, unless this right is expressly conferred by law. The accused, however, can be a company or other legal person.

In order to institute a private prosecution, the private prosecutor must demonstrate that he/ she has a personal interest in the result of the prosecution and must put up security for the cost of the accused. The private prosecutor can appear personally or through a legal representative. The private prosecutor must obtain a certificate “nolle prosequi” from the relevant DPP. The certificate nolle prosequi, is a certificate issued by the DPP of the region, to the effect that the DPP has considered the matter and declines to prosecute on behalf of the state.

The certificate nolle prosequi lapses after three months if proceedings in respect of the alleged offence are not instituted. Once the certificate has lapsed, the DPP ordinarily will not issue another certificate nolle prosequi, unless there are exceptional and compelling circumstances which can be raised by the private prosecutor as to why proceedings were not instituted within the required three month period.

Once private prosecution proceedings have been instituted, the NPA still retains the right to intervene at any point during the proceedings and take over the prosecution from the private prosecutor.

Mine Management, supervisors and legal appointees should therefore ensure that they are fully conversant with all of the relevant provisions of the MHSA applicable to them in their areas of responsibility and that they exercise diligence and due care in their working places, at all times. Should an employee pass away as a result of a mine accident which occurred within their area of responsibility, they could either be criminally or privately prosecuted, depending of the facts of the matter.

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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