by Jaco Swartz, Legislative Compliance Specialists (Pty) Ltd
Part 1 of the above paper published in the November 2017 issue of Modern Quarrying discussed the reasons behind health and safety legislation, the relationship between the employer and the employee and important sections of the Mine Health and Safety Act. Part II in this issue takes the history of the development of mining health and safety legislation further.
In the Marais Commission of Enquiry into the Coalbrook disaster,xvi Justice JF Marais stated: ‘Mining is inherently dangerous both to life and health. Those who wish to extract anything from under the surface of the earth by digging a hole must be prepared to devote some of their resources to safety. It is an unnatural activity giving rise to unnatural conditions.
‘But safety measures invariably cost money and the employer must bear its expenditure. Thus, a perpetual conflict of interest arises between employer and employee as to the nature and extent of the safety measures that may be considered reasonably practical and reasonably necessary’.
The Coalbrook mining disaster took place on 21 January 1960, when 437 persons died underground at the Coalbrook North Colliery, approximately 22 km from Vereeniging, as a result of a roof fall in a section of the mine. This disaster ranks in the top 10 reported mining disasters in the world in terms of fatalities.
The quote by Justice Marais highlights the potentially antagonistic historic relationship between employer and employee. Traditionally, the employer’s major concern is profit, while the employee’s major concern is personal benefit (wages, secure employment) and personal wellbeing (health and safety). To balance these two traditionally opposing sets of interest, legislation is implemented to formally manage the relationship between employer and employee in terms of health and safety, though, for example, the Mine Health and Safety Act.
The Mine Health and Safety Act 29 of 1996 (MHSA) is a complex statute regulating health and safety in the mining industry, dealing amongst other issues, with the conveyor belt installations. It thus reflects the standards society expects when it comes to workplace health and safety, and is the primary source of legal rules that we are concerned with. It is, however, not a piece of legislation that developed overnight.
The current health and safety legislation is the culmination of more than 120 years of development. As we have already pointed, the development was influenced by many factors, ranging from workplace accidents to trade unionism as well as the political climate of the day. In addition, mining and the development and history of South Africa is closely intertwined, and mining and minerals have, to a large extent, formed the country as we know it today.
In order to understand and to be able to interpret the modern legislation, it is important to understand the development of not only the legislation itself, but also of the principles contained in it. As Judge Marais wrote, ‘(mining) … is an unnatural activity giving rise to unnatural conditions’. This has not changed over the past 120 years.
It is commonly accepted that industrialised mining in South Africa had its origins in the Kimberley diamond mines after 1867.
History of SA mining legislation
Small-scale mining took place throughout Southern Africa during the iron age, although it is commonly accepted that industrialised mining in South Africa had its origins in the Kimberley diamond mines after 1867.
Evidence of earlier organised mining does, however, exist. Copper and tin mining activities stretch back to at least 1544, when a Portuguese expedition to Delagoa Bay mentioned that rough refined copper was available for trade. What points to organised mining is the fact that the copper offered for sale in Delagoa originated in the Limpopo province.xvii
Mining and legislation prior to 1910
The discovery of the Kimberley diamond fields around the mid-1860s, brought with it changes which would have a large impact on the nature of South African mining. After the initial discovery, a flood of fortune seekers rushed to the diamond fields from all over the world.
Initially, traditional methods of alluvial mining were used which entailed the washing of diamond-carrying sand to extract diamonds. This method was unsophisticated and required very little specialist knowledge. Over time, the nature of mining started to change. The alluvial diggings became exhausted and mining of the Kimberlite pipes started. This required more skill and capital and slowly at first, the small claim holder was forced from the diggings.
At the same time a severe drought and several mud slides as a result of mining becoming deeper and deeper, forced most of the marginal claim holders to sell their claims. The last straw came when mining reached the water table and all mining stopped.xviii This meant that only capital-rich companies backed by wealthy financiers, were left able to mine. This was the start of the big mining corporations in South Africa.
It is important to understand the relationship between the big corporations and financiers and the government. The mining industry had a huge impact on the government of the day, and as a result a direct impact on mining legislation. This is illustrated by the fact that Cecil John Rhodes, who founded the De Beers Mining Company in 1880, was elected to the Cape Colony Government in April 1881 and eventually became Prime Minister in 1890.
It was during his time as a member of parliament for the colony that the Cape Colony Mining Act of 1883 was promulgated. The Act dealt almost exclusively with issues that were close to the mine owners’ interests and served to protect their investments. (As had been discussed, this gave rise to one of the first examples of industrial action). The legislation had no reference to health and safety.
The discovery of the world’s largest gold reserves in the Zuid Afrikaansche Republic’s Heidelberg district in 1886 closely followed the experience of the Cape Colony diamond fields. At first, gold-bearing rock was mined where outcrops were visible above the surface. As in the Cape Colony, a rush of prospectors to the Witwatersrand took place. Initially, winning the gold from the ore was relatively straightforward, using simple mechanical means.
Once the surface outcrops were depleted from around 1895, prospectors and small miners faced the same scenario as in the Cape diamond fields. Underground mining was capital intensive and specialist underground mining knowledge was required. This led to many of the smaller prospectors selling their claims, and began the process of consolidating the smaller operations into large gold mining operations.
The underground mining operations were also exceedingly dangerous, with the Standard and Diggers newspaper of 10 June 1899, reporting a 20% mortality rate per annum for underground labour in selected deep mines.xix
The final death knell for the independent miners was when underground workings started to strike pyritic quartz ore, sometimes as shallow as 120 feet below the surface. A sense of panic gripped the gold fields, as traditional mechanical methods were not able to free the gold from the hard rock, and the stock market crashed.xx
The only way to win the gold would be through a very expensive and complicated chlorination process. Unbeknown to other mining operations, a cyanide process was obtained by Wernher, Beit and Company (later to become Rand Mines) which solved the problem, but this was the final act in consolidating the gold industry in South Africa and left a huge amount of power in the hands of a few.
Other than in the Cape Colony, the mining houses in the Zuid Afrikaanshe Republiek (ZAR) did not have a direct means of impacting on government policy – in other words on mining legislation. In fact, there was deep mistrust between the government and the mining houses, as the ZAR saw the mines – owned and operated by foreigners – as a direct threat to its survival. In addition, the labour-intensive mining industry competed directly with the farming industry, traditionally the ZAR’s backbone, for labour. Because of the mistrust between the two factions, other than in the Cape, legislation was not drafted to protect the mine owners specifically. The first mining legislation in the ZAR was promulgated in 1870 but it and the laws that followed up to 1898, did not directly concern health and safety, and the mining houses saw these laws as acting against them.
To prove the point, the ZAR Gold Act of 1898 protected the rights of the owner of the land on which mineral rights were discovered. The fact that this right was often enforced at the cost of the foreign prospectors and miners, led to further distrust between mines and government.
The mining houses’ inability to protect their interests through influencing legislation is perhaps one of the core reasons for the outbreak of the Anglo Boer War in 1899.xxi
The position from 1902-1910
Following the British victory in the Anglo Boer War in 1902, one of the colonial administration’s prime objectives was to get gold production back to pre-war levels in order to pay for the war and reconstruct the country. To allow for this, several new pieces of legislation were drafted relating to mining, but the central theme of the new legislation was the advancement of mining interests. One example of this relates to the importation of Chinese labourers, who were willing to work for cheaper wages than local labour, in terms of the Labour Importation Ordinance of 1904 and the protection of jobs through implementing a formal colour bar.
Some of the mining legislation implemented in this period in the Transvaal colony includes:
- 1903: Mines, Works and Machinery Ordinance – replaced the ZAR Gold Act.
- 1906: Mining Regulations – prescribed the minimum daily dietary allowance for workers, etc.
As a whole, the years between 1902 and 1910 can be seen as a period where some of the elements found in the modern mining environment were established.
It can, however, also be seen as a period where legislation was severely influenced by capital and pure political needs, which meant that health and safety matters were not automatically at the forefront.
This block house on a hill guarded Prieska – a small town near the Gariep River during the Anglo Boer War.
Legislation after 1910
In the period between 1902 and 1910 there was no South Africa as we know it today. Instead, South Africa consisted of four separate colonies, being the Cape, Transvaal, Free State and Natal, each of which was a separate Crown colony under British control.
At the Peace of Vereeniging following the end of the Anglo Boer War, Britain gave the assurance that the ZAR and Free State would have some form of self-governance in the future. Although no time frame for this was stipulated, it coincided with a strong movement in the four colonies (the previous British colonies of the Cape and Natal, and the two new colonies being the Transvaal and the Free State) for some form of union between them. It thus came about that the four British colonies in South Africa were combined in the Union of South Africa on 31 May 1910.
This meant that the four colonies would in future have one government, and that for the first time, laws would be applicable to all four provinces. Following the Union of South Africa Act of 1910, the growth of mining legislation in the Transvaal following the end of the Anglo Boer War was extended to the other three provinces.
The first example of mine-specific legislation in terms of health and safety in this period was the adoption of the Mines and Works Act of 1911. This was based on a commission report drafted on a study of the Transvaal mining laws published in 1907. This report was almost exactly taken up in the Mines and Works Act, in other words, the post-war Transvaal legislation was extended to the rest of the country.xxii
The Mines and Works Act, 1911
The Mines and Works Act, as explained above, was based on the legal situation in, and work performed by the then Transvaal Colony. It was the first health and safety legislation which was applicable to the whole of the Union of South Africa.
Its importance cannot be underestimated, as the Act and its various amendments and regulations led to the Mine Health and Safety Act as it is in force today. It remained in force from 1911 to 1991, although some of the regulations made under it are still in place today. In if fact some of the topics that were addressed by the Act are considered, it is clear that many of the topics are covered by the modern MHSA.
Some of the key issues that were addressed included:
- Requirements for the appointment of mine managers, shift bosses, engineers, etc. The Act described the competence of the appointees, for example than an engineer as required by the Act had to be in possession of a Government Certificate of Competence (GCC). The first mining engineer (machinery) GCC was awarded on 2 February 1912.
- The Act specifically regulated hygiene and health in addition to safety. It went so far as to prescribe the minimum dietary requirements in terms of meat and vegetables that employees were to be given per day. In addition to this, the legislation contained 11 separate regulations on miners’ phthisis and ventilation, and by 1918 there were 63.
- It demanded that a competent person should be appointed to supervise all pressure vessels. The Act further held that all vessels were to be inspected every two years, while hydraulic tests were to be performed every four years.xxiii (The first recorded accident involving a pressure Bessel in the South African mining industry took place in 1986, when a boiler exploded in Langlaagte. It is not recorded how many fatalities this resulted in).
- It required the provision of ambulances and medical aid in case of an accident.xxiv
- The Mines and Works Act, 1911, called for government to appoint a Government Mining Engineer. The GME was directly responsible to the Governor General of the Union (comparable to the modern-day President of the Republic of South Africa, and was independent from the then Department of Mines).
- Where a trivial provision of either the Act or the regulations was breached by a miner, a fine of £5,00 was payable by the miner in his personal capacity. Miners were summarily tried in Inspector’s courts, chaired by an Inspector of Mines.xxv
- The regulations did not specifically deal with conveyor belt installations.
To further regulate matters which the Mines and Works Act had authority, regulations under the Act were promulgated in 1912. This was, however, a period of technical advancement, and it was often necessary to amend regulations with little notice, or apparently little thought. As early as 1925, a Mining Regulation Commission was established to investigate the regulations under the Mines and Works Act. It found, inter alia, that some of the regulations were vague and difficult to interpret. The commission’s report was duly noted, but no general amendment and simplification of the regulations was made.
So, the body of the regulations kept on growing in a haphazard fashion over the years in response to both changes in technology and mining methods, as well as in response to mining accidents. It is interesting to note that some of these regulations remain in power today, as even when the Act was ultimately repealed, the regulations remained in power.
A prime example of this is the Minerals Act Regulation 2.10.2, initially made under the 1911 Act. It places a duty on the mine manger to not ‘permit any incompetent or inexperienced workman to be employed on dangerous work, or work upon the proper performance of which the safety of a person depends’.
The 1925 Mining Regulation Commission found the regulation (then under the Mines and Works Act) to be too vague, as it did not describe what competent would be, and felt it left too much discretion to the manager. More than 84 years later, the Leon Commission of 1995 confirmed this; but to date, 92 years later, the regulation still stands.
The original Mines and Works Act was amended in 1926 and in 1956 replaced with a new Mines and Works Act. The regulations also developed over the same period. This was, however, not the end of the development of the Mines and Works Act.
Following the Coalbrook Mine disaster in 1960, the Governor General, CR Swart, called for a judicial commission to investigate health and safety in the mining industry. The commission was chaired by Justice JF Marais, and was tasked with investigating five key points. These specifically included establishing the efficient of the Mines and Works Act, as well as the efficiency of the Department of Mines (precursor to the DME and later the Department of Mineral Resources) in enforcing the Act and regulations.
The judicial commission submitted its report in 1963, the most important findings of which included:
- Efforts should be made to increase the confidence of the workforce in the Inspectorate.
- The powers of inspectors to close mines or sections of mines should be more detailed in the Act. As with the current Section 54 of the Mine Health and Safety Act, the Mines and Works Act allowed for inspectors to close workplaces, although no rules of practice had been implemented. As such, mine closures were extremely rare. During the Marais commission, the Chamber of Mines admitted that mine closures were sometimes necessary, but should not be implemented where this would affect production.
- The commission’s proposal was that an inspector would have the power of mine closure, and only where this would not have far reaching effects for the economy. Where a mine closure took place, an appeal by the mine would immediately suspend the order while the appeal was being heard, unless the inspector was of the opinion that suspending the closure would unnecessarily endanger people, in which case the GME would have to agree for the closure to come into effect. If the procedure for mine closure is taken into account, it is quite clear why mine closures were uncommon.
- The procedures regarding inquiries and investigations should be simplified.
- The salaries of inspectorate staff should be addressed to ensure the retention and sourcing of competent staff members, as there was direct competition with the mining industry for scarce skills.
It is important to note that some of the issues highlighted by the Marais commission remain valid to this day.
Impact of the Mine and Works Act on conveyor belt installations
The Mines and Works Act and Regulations, in neither its 1911 or 1956 guises, dealt with conveyor belt installations to the same extent as the Mine Health and Safety Act regulations do today.
Instead, an addition to the basic requirements for conveyors in Regulation 10, it also dealt with conveyor belt installations broadly, viewing it as machinery, implying that all prescriptions regarding machinery would also apply to individual conveyor belt installations in total but also with respect to individual components.
The Act, in Section 1viii defined machinery as:
‘any engine, boiler or appliance or combination of appliances which is used or intended to be used for the generating, developing, receiving, storing, converting or transforming any form of power or energy or conveying persons, material or mineral and which is situated at a mine or works’.
In addition, to the general regulations applicable to machinery, some specific issues were to be considered.
– Part III which will continue in MQ’s Quarter 2 2018 edition, looks at the impact of the Mine and Works Act on conveyor belt installations.
This paper entitled ‘The safe operation of belt conveyor systems in the mining industry: The development of legal prescriptions within the South African context’ was first presented at the Beltcon 19 conference held on 2-3 August 2017. It is being published in MQ with the kind permission of Beltcon.
