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  SAFETY: MINE HEALTH AND SAFETY ACT (NO. 29 OF 1996) (“MHSA”)

On 19 October 2021, the Director (Mine Safety) in the Department of Mineral Resources and Energy (“DMRE”), published instructions issued in terms of section 50(3) of the MHSA in so far as it relates to the certification and approval of industrial safety helmets (hard hats), controlled blasting systems, shot exploders, circuit testers, gas sensors, diesel engines (hazardous locations), body-worn self-contained self-rescuers, cap lamps and diesel engines (non-hazardous locations).

The instructions appear to seek to standardize industrial safety helmets (hard hats), controlled blasting systems, shot exploders, circuit testers, gas sensors, diesel engines (hazardous locations), body-worn self-contained self-rescuers, cap lamps and diesel engines (non-hazardous locations) in underground mines by providing that items must go through certain required checks and tests, and in some instances, trial periods, before they are approved by the DMRE for use in any underground mine.

What it means for you:

(a) The instructions have far-reaching effects in underground mines. Machinery and equipment, as outlined in the instruction, must have undergone specific tests, checks and trials before it is approved for use by the DMRE in underground mines.  The failure to follow the instruction may result in consequences to the employer. However, further clarity in relation to the instruction may be anticipated as mines implement the instruction in their underground mines.

HEALTH: DISASTER MANAGEMENT ACT (NO. 57 OF 2002) – CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS

As a result of the ongoing COVID-19 pandemic South Africa has remained under a “national state of disaster”, as extended by the Minister of Co-operative Governance and Traditional Affairs (“the COGTA Minister”).

On 30 September 2021, the COGTA Minister gazetted new Regulations, under the Disaster Management Act, in terms of which South Africa has been placed into “Adjusted Alert Level 1” from 1 October 2021.

The Adjusted Alert Level 1 Regulations were further amended on 11 October 2021 and 30 December 2021.

The notable features of the Adjusted Alert Level 1 Regulations included:

(a) A lifting of the national curfew, allowing for no restrictions on the hours of movements of people;

(b) An increase in the number of persons allowed at gatherings, being no more than 1000 people for indoor venues, and 2000 people for outdoor venues.

In the event that the venue is not big enough to accommodate the prescribed number of persons, not more than 50 percent of the capacity of the venue may be used, subject to strict health protocols and social distancing measures.

What this means for you:

(a) Whilst government has relaxed the restrictions on persons and the economy, generally, the country remains in a “national state of disaster” until, at the very least, 15 February 2022.

ENVIRONMENT: NATIONAL WATER ACT, NO. 36 OF 1998

In November 2021 the Supreme Court of Appeal (“SCA”) handed down judgment in the case of Lotter NO and Others v Minister of Water and Sanitation and Others regarding the interpretation of section 25 of the National Water Act (“NWA”).

Section 25 of the NWA relates to the “Transfer of water use authorizations”.

In the matter, Doornkraal Trust concluded an agreement with Britzkraal in terms of which Doornkraal purchased 30 hectares of Britzkraal’s water use entitlement.

Britzkraal duly surrendered its water use entitlement under the auspices of s25(2) of the NWA, and Doornkraal applied for a licence in respect of that water use entitlement in terms of section 41 of the NWA.

The Director General of the Department of Water and Sanitation refused Doornkraal’s application on the basis that s25(2) of the NWA “does not make provision for the transfer of a water use entitlement from one person to another. A person who holds an entitlement may only surrender part or all of his/her entitlement to facilitate a water use licence application to use water from the same resource in respect of other land that belongs to that person. The NWA does not make provision for the trading or transferring of water use entitlements between two separate legal entities”.

The Parties challenged this position, and the matter ultimately ended up in the SCA which ultimately found, amongst other things, that a person holding an entitlement to use water from a water resource in respect of any land may surrender that entitlement in whole, or in part.

What this means for you:

(a) The judgment has been instrumental in providing holders of water use licenses with clarity on the provisions of section 25 of the NWA. The decision affirms a relatively grey area of law, and will assist holders of water use licenses in similar situations going forward.

THE “SHELL” CHALLENGE

In a judgment which bore huge public scrutiny, the well documented challenge by various communities and non-profit organizations around the proposed seismic blasting by Shell along the Wild Coast afforded our courts with an opportunity to decide on, and certainly touch on, issues which have the potential to have far reaching implications into the mining and mineral resource industry.

One of the primary challenges brought against Shell was that the proposed seismic blasting needs both the Mineral and Petroleum Resources Development Act, No. 28 of 2002 (“MPRDA”) and the National Environmental Management Act (“NEMA”) approvals.

The challenge further relates to the contents of the Environmental Management Plan, submitted by Shell. The applicants argued that, amongst other things, the EMP submitted by Shell was wholly insufficient and did not satisfy the requirements under the MPRDA.  Amongst other things, the Applicants argued that there was no consultation process with the communities who rely on the Wild Coast for survival.

The judgment, written by Bloem J, delved into the well-known consultation process, under the MPRDA. Citing the Constitutional Court decision of Bengwenyama Minerals and Others v Genorah Resources and Others, Bloem J found that the consultation process undertaken by Shell in their environmental management plan was substantially flawed and thus the subsequent exploration right was unlawful and invalid.

Without delving into too much detail of the judgment, two examples of the flawed consultation process include:

(a) Shell’s failure to consult with all of the communities who would [potentially] be affected by its proposed activities meant that the consultation process had not effectively been carried out, and was thus fundamentally flawed; and

(b) the methods used by Shell to identify and inform potentially affected communities of the proposed activities were flawed. A simple example, as identified in the judgment, is that Shell placed advertisements in four newspapers in both English and Afrikaans. The Court found that the failure to publish these advertisements in isiZulu or isiXhosa, being the languages spoken by the communities in question, meant those communities were automatically excluded in the process. This also meant that only literate communities were privy to the advertisements.

As the judgment was for an interim interdict, a secondary hearing will be set down to touch on further relief sought by the Applicants, including whether Shell was required to have environmental authorization under NEMA. Whilst Bloem J found that the Applicants have prospects of success in this regard, it was ruled that this matter be decided when the further relief sought by the Applicants is heard at a later date.

What this means for you:

(a) The judgment outlines the critical consultation process, as defined in the MPRDA, and the obligation that it places on those seeking exploration rights under the MPRDA to properly consult with all potentially affected communities in an effective and meaningful manner.

(b) Due to the public scrutiny, and position taken by government in relation to Shell’s activities, this matter will likely be elevated to the higher courts when the argument further relief sought, is heard, and judgment handed down. This means that many processes as provided for in terms of the MPRDA and NEMA will bear the scrutiny of our courts and lay clear boundaries for organisations to follow going forward.

PROTECTION OF PERSONAL INFORMATION ACT, 4 OF 2013 (“POPIA”), CYBER CRIMES ACT, 19 OF 2020 AND PROMOTION OF ACCESS TO INFORMATION ACT, NO. 2 OF 2002 (“PAIA”)

During 2021, there were several developments in the data privacy and protection sphere.

The most significant development from a POPIA perspective is that the one-year grace period within which all Responsible Parties had to comply with the provisions of POPIA expired on 30 June 2021. The Information Regulator is now empowered to impose penalties and fines in the event of non-compliance.

The Information Regulator also issued a series of guidelines aimed at promoting an understanding of the requirements of POPIA, including the Guidance Note to Develop Codes of Conduct; Guidance Note on the Registration and Duties of Information Officers; Guidance Note on the processing of Special Personal Information; notice on the procedure for the Notification of Security Compromises etc.

On 13 December 2021, the Information Regulator proposed draft amended Regulations that amend the Regulations issued in terms of section 112(2) of POPIA (“the Amended Regulations”).

(a) The Information Regulator invited public comment on the Amended Regulations to be submitted by 15 November 2021.

(b) The Amended Regulations set out: the manner in which to object to the processing of personal information; the manner in which to request the correction or deletion of personal information; the duties and responsibilities of Information Officers; how to apply for a Code of Conduct; lodging of complaints as well as the powers of the Information Regulator when conducting an investigation.

The Cyber Crimes Act was signed into Law on 26 May 2021 and certain limited provisions of the Act came into operation on 1 December 2021.

(a) The Cyber Crimes Act codifies and imposes penalties in respect of cybercrime e.g. offences relating to personal information (as defined in POPIA); the illegal interception of data and the unlawful access of a computer or device.

On 12 October 2021, the Information Regulator published its guide on how to use PAIA. The guide replaced the guide issued by the South African Human Rights Commission.  Significantly, private companies which had previously been exempted from having to publish an Information Manual had to do so by 31 December 2021.

What this means for you:

(a) Companies must be aware of their obligations to report an actual or suspected security compromises. This obligation highlights the need to have comprehensive security incident reporting and management systems and policies in place.

(b) On the assumption that Companies have complied with their obligations in terms of POPIA and PAIA, we suggest that ongoing training be given to staff in order to build capacity and awareness of the provisions of POPIA and the Cyber Crimes Act.

EMPLOYMENT EQUITY AMENDMENT BILL

On 21 July 2020, the Employment Equity Amendment Bill (“the Bill”) was tabled at the National Assembly. The Bill proposed a number of changes to the Employment Equity Act, including granting the Minister of Employment and Labour the power to determine sectoral numerical targets. The Bill was open for public comment until 5 March 2021.

THE CONSOLIDATED DIRECTIONS ON MANDATORY VACCINATIONS IN THE WORKPLACE – JUNE 2021

On 11 June 2021, the Minister of Employment and Labour published the Consolidated Directions (“the Directions”) on Occupational Health and Safety Measures in Certain Workplaces which, amongst other things, provided a legal framework for Employers to assess and determine the necessity for mandatory vaccination policies within their organisations.

In terms of the Directions, Employers are required to take into account the specific requirements of the workplace, as well as the requirements of the Occupational Health and Safety Regulations, when considering implementing a mandatory vaccination programme.

Importantly, the Directions do not apply to a workplace which is excluded in terms of section 1(3) of the OHSA, which includes mines, mining areas or works as defined by the Minerals Act, No. 50 of 1991, and cranes, ships or boats as defined by the Merchant Shipping Act, No. 57 of 1951.

What this means for you:

(a) Should the organisation intend on implementing a mandatory vaccination programme, there are a number of steps which must be carried out by the organisation prior to the implementation of the programme:

(i) The organisation must, firstly, conduct a risk assessment to identify which employees are at risk of high transmission, due to the nature of their job, as well as identify employees who are at risk for severe COVID-19 disease or death due to the employee’s age or comorbidities;

(ii) A vaccination plan should be drafted (or amended, where appropriate);

(iii) Consultations with recognized trade unions within the organization should be carried out, allowing the trade unions to comment on the details of the plan and its intended implementation within the organisation;

(iv) Employees should be provided with vaccination information, as well as be provided with the necessary means to register for the vaccination.  Employees must further be allowed time off to be vaccinated; and

(v) Employees who have been identified for the mandatory vaccination must be notified of their obligation to be vaccinated, as well as their rights of refusal based on medical and constitutional grounds.

(b) Whilst the Directions provide the overarching legislative framework for the implementation of a mandatory vaccination plan, any mandatory vaccination programme will be sector specific, as well as based on the risk assessment conducted by the organisation.

On 6 January 2022, the National Black Consumer Council launched an urgent application in the Constitutional Court for a declarator whether the Directions is ultra vires and infringes upon non-derogable rights (being the constitutional rights to human dignity and bodily integrity). It remains to be seen whether the Constitutional Court will entertain the application as it does not sit as a court of first instance.

MINE HEALTH AND SAFETY ACT, NO.29 OF 1996 – Proposed Chapter 2 Appointments

The Department of Mineral Resources and Energy, Mine Health and Safety Council and various stakeholders have, for some time, been working toward the amendment of the MHSA to specifically include “Chapter 2″ of the MHSA Regulations, which will contain the health and safety appointments and various duties as contemplated under the MHSA.

The proposed amendments come as a result of, amongst other things, increasing number of fatalities in the industry (by the end of 2021, there were 72 fatalities in the mining industry, as compared to 52 in 2019, with the majority of the fatalities as a result of falls of ground, trackless mobile machines and conveyor belts), as well a need to streamline the statutory appointment process in the mining industry.

There are a variety of proposals contained in the proposed “Chapter 2” amendment, including:

(a) definitions of the various appointments within mining areas;

(b) classification of mines according to their aggregate risk rating;

(c) responsibilities and duties of various appointees; and

(d) qualifications prescribed for positions (appointments).

What this means for you:

(a) The proposed amendments to the MHSA Regulations in “Chapter 2” will undoubtedly cause confusion within the industry and all current appointment structures, letters of appointment and qualifications of incumbents will need to be audited and reviewed in order to facilitate and ensure compliance with Chapter 2, once implemented.

b) There has not yet been a formal indication regarding whether there will be a grace period for implementation of the new appointment structure and what steps mines will have to take in order to be compliant.

(c) It is likely, however, that the “Chapter 2” amendments will be implemented at some stage during the course of 2022.

Please note that the above is not intended as legal advice.  Should you require any more information on the subject, please contact our CEO, Warren Beech at warren@bv-inc.co.za , employment law partner Melanie Hart at melanie@bv-inc.co.za or Bryan White, associate designate at bryan@bv-inc.co.za.