On 13 April 2023, the Mine Health and Safety Council (Council) circulated draft amendments, for comment, to regulation Chapter 16 of the regulations to the Mine Health and Safety Act (MHSA) which if published in their current form are likely to have significant implications for mine owners.

The draft regulations address missing person locator systems, emergency preparedness and response, first aid, and rescue procedures. The draft regulations both propose amendments to existing obligations and propose some entirely new obligations to be discharged by employers. The proposed amendments, in their current form, contain several provisions which will require mines to adopt new systems and technology.

Employers are encouraged to consider the draft regulations and submit comments that may be taken into account in the formulation and finalisation of the draft regulations. Comments are due by 12 May 2023. Webber Wentzel's occupational health and safety team is assisting clients wishing to submit comments.

Missing Person Locating System 

In our view, the most significant change proposed pertains to the introduction of missing person locating systems. The changes propose that all underground mines and surface mines with a significant risk of slope failure must provide their workers with an intrinsically safe device that can locate them if they go missing while working or during an emergency. The term "significant risk" is not defined in the draft regulation, in the absence of a clear definition or parameters, this will be for each mine to assess on its own.

The device must be able to locate persons that go missing and allow for two-way communication between the wearer and the "controller". The device should have a power supply of at least 24 hours and provide real-time tracking for the last known location in the case of system damage or failure.

The system must be able to detect the missing employee within 10 metres in an unobstructed environment, and the mine must have at least two scanners capable of detecting a missing or trapped employee through 30 metres of solid rock. Employers should consider the cost implications of a sophisticated system of this nature; in our view such costs may well be prohibitive. Where the cost implications are overcome, employers must equally consider and manage privacy considerations and the storage of personal data. This terrain will need to be traversed carefully.

Reporting on emergency preparedness and response capabilities

Regulation 16.1 sets out the obligations on employers carrying out mining operations in respect of reporting emergency preparedness. Currently, regulation 16.1 is limited to escape and rescue procedures relating to explosions, fires and flooding. In terms of the proposed changes, employers will be required to ensure that someone with the prescribed knowledge and skills reports on the mine's emergency preparedness and response capabilities to manage various other types of emergencies. Such emergencies include chemical or biological releases, gassing, engineering emergencies, and mining. The changes introduce a distinction between underground and surface emergencies which naturally require different response strategies. Reporting requirements will also extend to an evaluation of the mine's medical preparedness and response capabilities, including first aid.

The draft regulations propose requirements relating to reporting on emergency preparedness and response capabilities. In respect of underground fire and explosion risks, a competent person must hold a Mine Environmental Control Certificate of Competency or equivalent qualification, while competent persons in respect of surface fire and explosions must hold Intermediate Certificates of Competency in Mine Environmental Control, issued by the Minerals Council of South Africa or equivalent qualification, or a certificate in Mine Environmental Control together with an advanced fire prevention certificate.

Issuing and deployment of portable oxygen sources

The prevailing regulation 16.2 distinguishes between coal mines and all other mines in regulating the provision of portable oxygen sources, otherwise referred to as self-contained self-rescuers. The proposed changes do away with this distinction and instead differentiate underground and surface mines. Under the proposed regulations no person may go underground, at any mine, without a body-worn self-contained self-rescuer (BWSCSR). If a risk assessment indicates that employees may be exposed to irrespirable atmospheres at surface operations these obligations will apply at those operations too.

The proposed regulations provide more detail on the type of training that employers must provide to employees in the use of self-contained self-rescuers, notably these obligations go beyond technical information and 'how-to' guidance in that employers will be required to train employees in such a manner that employees understand any potential physical and psychological symptoms that may occur while using the apparatus. To achieve this, training must incorporate information on physical, cognitive, psychological and behavioural aspects of using self-contained self-rescuers.

The proposed regulations would also regulate long duration self-contained self-rescuer (LDSCSR) which may be used during an emergency. LDSCSRs are breathing apparatus that provide oxygen for at least 60 minutes at a rate of 35 litres per minute. The LDSCSR would be required to provide oxygen instantly when activated, either through a chemical reaction or compressed air starters.

Monitoring self-contained self-rescuer apparatus

Employers will be required to ensure that representative samples of both BWSCSRs and LDSCSRs are tested by an accredited organisation for structural integrity and functional performance. The mine's rescue service providers will be obligated to ensure that the LDSCSR apparatus are tested if kept in reserve. The employer and the mine's rescue service provider must keep records of LDSCSR information for the past 24 months, including the total number and makes in use, purchased, and withdrawn from use, the type of defects found, the number of LDSCSRs repaired/refurbished, and the number of LDSCSRs tested much like the prevailing requirements that govern self-contained self-rescuers generally.

Emergency preparedness in respect of underground mines 

Mine rescue team 

Employers at underground mines are required to maintain mine rescue teams. Significant changes are proposed regarding the number of teams required on each mine (this is determined by referring to the maximum number of people who could be underground at any one time), as well as the composition of and certifications held by personnel on such teams.

Proposed changes to the number of mine rescue teams required at underground mines is considered in the table below:

In addition, each mine rescue team will increase from a minimum of five rescue team members to eight members trained at the mine. A minimum of six rescue team members will be required to be readily available at the mine to respond to an emergency. At least two of the responding rescue team members must hold a blasting certificate for the specific scheduled mine when called to any emergency. The rescue teams must have a minimum of two rescue team members with an advanced Mines Rescue Member Certificate of Competency, who can captain and/or vice-captain the rescue team during deployment. Employers of underground mines will still be required to conclude contracts with a mines rescue service provider for coordination, facilitation and other services relating to an emergency.

Fresh air base & emergency control room

The draft regulations introduce the need for a fresh air base and incorporate the standards on emergency control rooms (currently largely set out in the Mandatory Code of Practice for Emergency Preparedness (MCOP)) into regulation.  Mine rescue service providers will be required to train and certify rescue team members to the required competency level and certify persons to manage the control room in case of an emergency when mine rescue teams are deployed.

At each mine, a suitable location will need to be identified that can be used as an emergency control room.  The recommendations set out in the MCOP will become the minimum requirements, such as having the Mine Ventilation and Rescue Plan available, a communication system, a scribe appointed to record all sequence of events, and all relevant mine personnel available for consultation if required. During an emergency, the person in charge of the emergency control room is to be advised of the names of the mine rescue team members.

Aside from some typographical errors which we expect will be corrected which cross-reference duties placed on various personnel, a MHSA section 12(1) appointee may expect additional statutory duties in an emergency and on a contextual reading of the proposed amendments, there is also an implied obligation on the survey team to be directly involved in the emergency response including ensuring that any necessary plans are drawn up to clearly indicate the full route from the shaft entrance to the scene of the emergency and possible secondary escapes. Such plans must be available in the control room and provided to each mine rescue team member before commencing rescue operations. In addition, a written list of all known and anticipated hazards and risks to be expected in and around the area where an emergency may occur will be required.

Emergency preparedness for open cast mines, works, or mineral exploitation other than underground mining

Surface fire responder team

It is anticipated that a surface fire responder team comprising of seven members trained at the mine and equipped with emergency equipment should be available at all times during all shifts worked. A minimum of five members will be required to be available to respond to any emergency. Employers will be required to have practical measures to ensure that the team is deployed for training when required to do so.

Mine rescue service providers will need to maintain a register of all competent surface fire responder team members, implement a system to issue licenses to practice, and have access to rescue equipment and training facilities. The team members should pass the surface fire responder workload test, which should be conducted initially and then at intervals not exceeding 13 months. The breathing apparatus used by the surface fire responder team members should comply with the relevant standards. The provider must monitor compliance with the requirements and suspend or revoke any license if necessary.

Medical emergencies 

Based on the outcomes following a mine's risk assessment, employers will be required to take reasonably practicable measures to manage medical emergencies. They must identify what level of medical emergency care is required and ensure that the necessary competencies are in place to perform such medical care. This includes providing emergency medical care to employees and having a clear outline of first aid requirements, such as the number of trained employees per shift and required equipment. Paramedics must also be part of mine rescue teams to provide coverage during emergencies. When emergency medical care is provided to employees, an appointed occupational medical practitioner must compile a report to the employer.

The proposed regulations are clearly aimed at improving the safety of workers in the mining industry in South Africa and have been informed by lessons from previous accidents and catastrophes. It remains to be seen how these laudable proposals will be balanced against what is practically implementable at various operations, considering that many operations may already have systems that they believe are appropriate for the risk profile of that operation, the availability of the new technology and the lead time required for a safe and controlled roll out of new systems.

Employers that will be affected by the proposed amendments to Chapter 16 regulations have been invited to provide comments on the proposed draft via email by Friday, 12 May 2023. If you require any assistance with preparation of comments or advice on any of the proposed regulations, please reach out to our occupational health and safety lawyers, or your usual Webber Wentzel contact.

Written by Kate Collier, Partner, Kenneth Coster, Partner & Mbali Nkosi, Senior Associate at Webber Wentzel