Chief executive officers and managing directors of mining companies cannot escape criminal liability for workplace safety failures simply by delegating health and safety responsibilities to subordinates, with legal expert Zeka Alberto warning that while operational duties may be assigned, accountability under the law remains with an organisation’s leadership.
Addressing delegates at the inaugural Chamber of Mines Health and Safety Conference, Alberto, legal counsel for the Rössing Uranium Life of Mine Extension Project, said legal compliance in the mining industry extends far beyond obtaining licences and permits, requiring leaders to demonstrate through their actions that every reasonable step has been taken to protect employees.
His presentation on legal compliance, accountability and leadership formed part of the conference programme under the theme “Safety for a Resilient Tomorrow,” where delegates examined the legal obligations placed on mine operators, and the role leadership plays in preventing workplace incidents.
Alberto said mining companies operate within a comprehensive legal framework that includes the Constitution, the Labour Act, the Minerals (Prospecting and Mining) Act, common law, environmental legislation and mine health and safety regulations.
He stressed that many people mistakenly view company safety rules as internal policies when, in reality, they are legal requirements that carry significant consequences if breached.
He said the mining industry has also moved beyond simply obtaining operating licences.
“We are past ticking the box and saying we have the licence, we have the permits, let’s start operating. We have crossed that bridge where we now say we need to establish our social licence to operate. And that social licence to operate is to comply to each and every aspect to ensure that all our employees go home safely.”
Alberto warned that a single workplace incident can expose both companies and individuals to multiple forms of legal action.
He explained that a single incident may trigger criminal prosecution, civil claims, labour disputes, environmental liability, regulatory action, and professional disciplinary proceedings simultaneously, making health and safety one of the most significant legal responsibilities facing mine leadership.
However, he said one of the biggest misconceptions among company leaders is that assigning health and safety responsibilities to managers, supervisors or safety officers transfers legal accountability.
“The Labour Act places also some sort of strict liability on certain actions. The managers of a mine, the managers of any operations, the mere fact that you have assigned someone and delegated your functions does not relieve you of the legal liability. It does not.
“So we have to go beyond delegation of rights, delegation of authority. We have to see how do we pre-empt this and mitigate by taking positive action to eliminate any potential harm and to ensure that all the people that you appoint are fully trained and that they can ensure the safety of others.”
Alberto said the Labour Act allows operational duties to be delegated, but not legal liability.
“Within the corporate structure, who is at risk of criminal liability? It’s the leadership team. Now, just to look at the Labour Act which applies across all sectors, for example, it places the CEO or the MD as the person that’s answerable in case of a criminal offence. Irrespective of whether you delegate under Regulation Number Five, the CEO can delegate his duties to other people. But he will still remain answerable. The liability part he cannot delegate.”
He devoted considerable attention to Section 132 of the Labour Act, explaining that employers seeking to rely on the section as a defence must do far more than issue written instructions or appoint competent employees.
Alberto said employers must be able to demonstrate that they identified workplace hazards, implemented preventative measures, ensured employees received appropriate training and maintained records proving those actions were taken. He said inspectors and investigators will expect employers to produce evidence showing that employees were properly trained, instructed and supervised, rather than merely relying on company policies or verbal instructions.
“The employer must go beyond that in order to demonstrate and rely on Section 132 as a defence and to assure that you don’t attract liability.”
He said documentation therefore becomes a critical part of legal compliance because employers may later be required to prove that they fulfilled their statutory obligations and actively managed workplace safety.
Alberto also warned that legal consequences are not confined to companies alone. Depending on the circumstances, engineers, lawyers and other registered professionals involved in mining operations may also face disciplinary proceedings before their professional bodies where negligence contributes to workplace incidents.
Concluding his presentation, Alberto said legal compliance ultimately depends on leadership creating organisations where safety is embedded as a value rather than treated as a regulatory obligation.
“Culture is adopting. This is what we have adopted in the mining industry, not only as a culture, but safety as a value system. Behind every culture, you need leaders that have to demonstrate those leadership qualities.”
