Table of Contents +Sources

INTRODUCTION
The Mining industry is marred with a dark history which was characterized by
exploitative mining practices, poor working conditions and environmental
degradation. Although the industry is famed for lucrative bottom lines the
reality of its history is inseparable to its success, which was and still is the pillar
of the South African economy. Following the transition from apartheid to
democracy the mining industry has been met with radical changes in its
working culture. Two concepts emerge from industry itself and international
obligations; namely zero harm in relation to mine health and safety and the
internationally recognized “polluter must pay” principle in relation to the
environment. These mantras have been pivotal in the strides thus far taken by
different stakeholders in transforming the industry. Within our legal
framework the concept of zero harm is not present, this makes sense
considering its source. Following severe mine fatalities and poor working
conditions the industry adopted this mantra as a health and safety standard to
work towards. As the motto implies, the industry aspires to reach a point
where there is zero loss of life and zero occupational diseases contracted
during shifts.
I have purposely chosen to engage in this research to rigorously test the
mechanisms which are meant to effect the desired changes. The final
constitution makes it clear that what the law has is a spirit purpose and
objective however the Law has no military wing or a means by which it can
implement itself outside of human interference. This leaves us with the
responsibility to be the laws implementation wing and that means testing
every mechanism which has been put in place for the purpose of promoting
the spirit purpose and objectives of the Constitution. If they are failing, they
need to be amended so that they radically align with this spirit of
Constitutionalism which we believe reflects the will of the people. The law has
so often been viewed as piles of abstract text which have no meaningful
recourse for the ordinary person. The complex language which represents an
encrypted form of oppression and the ever so exorbitant legal fees have all
contributed to this view of law being a playroom for intellectual scholarship
which cannot by any means hasten the change that needs to be seen in South
Africa today. Through this essay I intend to show that through the best suited
legal mechanisms change is possible, namely in Industries such as mining
where a minority have always been sole benefactors.
I intend on achieving this through absolute neutrality if possible. To succeed in
being impartial credit must be given where it is due. Hence, I will not adopt the
former sentiments of a biased sceptic concerning the law. My intended
approach is simple, to identify the mechanisms in question, trace their
respective successes and failures and if on a proportional scale the one
outweighs the other such a conclusion will penultimately be my conclusion on
whether the current legal mechanisms are sufficient or alternatively that they
require a complete overhaul.
CONTEXT
history of the mining industry

understanding the MHSC and its functions

the 1994 Leon commission

employees and communities

the Mining petroleum development resources act (MPRDA)

the polluter pays principle

National environmental management act No 107 of 1998

Rio declaration on environment and development

National water Act No 36 of 1998

in 2016 at Lily mine

On one hand Industry touts zero harm as its self-imposed goal in health and safety, on the other
hand the MHSA uses the common law duty of care as the safety standard. Furthermore, the MHSA
assesses the employers conduct in the form of an omission or commission on the merits, using
‘reasonably practicable measures’ as the test if harm occurs

A strict liability approach to MHS

The Section 30 of the National Nuclear Regulator Act imposes strict liability towards the holder of
a nuclear installation licence

. Yet with dignity as a foundational right the implication is that our constitution is not utilitarian

SUBSTANCE
Why does transformation Matter

What is the polluter pays Principle?

What is Zero Harm?

What Are the mechanisms?

What is the Actual Law?

Have they been fruitful in anyway? Are they falling short?

Are the mechanisms in place giving satisfactory effect to the purpose of this principle?

Has the Law given effect to this initiative in one way or another?

What is being done right?

What needs reconsideration?

CONCLUSION