Explosives Bill (B43-2002): Summary of written submissions Five submissions were received on the Explosives Bill (B43-2002) from the following:
Department of Labour
Department of Minerals and Energy (DME)
Chamber of Mines
Technical Production Services Association (TPSA)
Denel
A number of meetings were held to discuss the Explosives Bill between the South African Police Service (SAPS) and the Department of Minerals and Energy, the Department of Labour and the Chamber of Mines. In these meetings, certain principles and amendments to the Bill were discussed and agreed upon. The three submissions by the Department of Minerals and Energy, the Department of Labour and the Chamber of Mines are therefore similar in content.
Department of Labour
Health and safety in terms of the current Explosives Act is regulated by the
Department of Labour through the Occupational Health and Safety Act (No.85 of
1993).
The Department of Labour submits that the SAPS is responsible for security issues regarding explosives but not for issues around health and safety. While the Department acknowledges that there may be overlap in these three areas (i.e. health, safety and security) this could be addressed by closer cooperation between SAPS, the Department of Labour and other departments such as the Department of Minerals and Energy.
The Department of Labour suggests that:
The unqualified use of the word 'safety' in the Explosives Bill causes overlap between the Explosives Bill and the Occupational Health and Safety Act.
The SAPS should be responsible for security matters regarding explosives and the Departments of Labour and Minerals and Energy should be responsible for health and safety issues.
In order to address overlap in the areas of health, safety and security, a multi-disciplinary committee should be established to advice the Minister of Safety and Security in this regard.
The submission by the Department of Labour includes specific amendments to the Explosives Bill to give effect to these concerns.
Department of Minerals and Energy (Mine Health and Safety Inspectorate)
In terms of the Mine Health and Safety Act (No.29 of 1996), the Mine Health and Safety Inspectorate of the Department of Minerals and Energy (DME) is responsible for all aspects of explosives at mines, which relate to health and safety.
In addition, the current Explosives Act (with the exception of section 8A) does not apply to the transfer, transport, use, storage and distribution of explosives in so far as these activities are governed by regulations made under the Mines and Works Act. The current Explosives Act therefore has very little application to the mining industry. For practical purposes the current Explosives Act only applies to surface magazines at mines and the transport of explosive to these magazines.
For these reasons the DME submits that:
Health and safety issues regarding explosives at mines must be dealt with in terms of the Mine Health and Safety Act. In order to avoid duplication, the Explosives Bill should be amended to exclude from its ambit all activities regarding explosives insofar as these activities relate to health and safety and are governed by the MHSA. The South African Police Services (SAPS) should only be responsible for security issues regarding explosives.
While the Explosives Bill has the intention to regulate security issues relating to explosives at mines (and other work places), the Bill should not cover the underground manufacturing, use, storage etc of explosives at mines.
In order to address areas where security, health and safety of explosives overlap, a multi-disciplinary committee should be established to advise the Minister of Safety and Security on these matters.
The submission by the DME includes specific amendments to the Explosives Act, which give effect to these concerns.
Chamber of Mines
The content of the Chamber of Mines submission is exactly the same as that of the Department of Minerals and Energy but includes the following additions:
According to the Explosives Bill, permits for the use, storage and dealing in explosives may only be issued to 'suitable persons' (clause 1 5). The definition limits 'suitable persons' to natural persons and not legal entities. In addition, such a person must either be a South African citizen or the holder of a permanent South African residence permit. The implications of this is that mining companies (which are legal entities) will not be able to apply for permits and will have to identify employees to do so on their behalf. This will hamper promotion, transfer and termination of services of the concerned employees. It will also cause the employer to halt operations until a new employee has been granted a permit, should the current holder of the permit resign or retire. In addition, the Chamber of Mines notes that more than 27% of personnel employed by mines are from outside South Africa. This provision therefore excludes these persons from obtaining permits and means that they would need to work under the constant supervision of a 'suitable person'. The Chamber therefore proposes that:
The definition of 'suitable person' in Clause 1 is broadened to include holders of valid work permits.
Cause 32 is amended to allow for legal entities (in addition to natural persons) to be defined as a 'suitable person'.
Additional comments include:
Clause 8(3) which places liability on the owner for damage suffered by a third party as a result of destruction of explosives is unfair if the owner has no control over where, when and how these explosives were destructed. The wording of Clause 22 should be changed as while it makes it an offence for a person to intentionally detonate explosives to damage or destroy any place this may also apply to the lawful demolition of a building.
The presumptions is Chapter 6, particularly clause 24 are too onerous.
Technical Production Services Association (TPSA)
The TPSA makes the following comments:
The existing definition of explosives in the Explosives Act should be retained.
The Bill does not distinguish between consumer fireworks and those that are used in professional displays.
Many of the provisions of the Bill that apply to pyrotechnics may be better suited in a code of practice.
The Bill is unclear regarding the transport of hazardous substances, which is covered by the Road Safety Act and the transport of fireworks and explosives.
The Bill should make allowances for the use of forms of pyrotechnics and explosives in the entertainment field, which are not designed for such use.
The on-site mixing of chemicals is commonplace in the pyrotechnic industry. In reference to clause 14(3)(c) and 14(4)(b), the TPSA questions whether applications in this regard would be granted to companies on a once-off basis or whether at each event they would need to reapply for a new permit.
Clause 33(1) states that the Minister of Safety and Security may restrict the sale or use of fireworks to certain periods or days. The TPSA submits that this would be disastrous for the pyrotechnic industry and will not ensure increased safety. If restrictions are needed these should be targeted at the size of the shells that are used, the level of noise made and the location of the display.
Denel
Denel submits that the Department of Labour is responsible for explosive safety and the SAPS is responsible for explosives security. The Bill does not recognise this separation of responsibilities and certain provisions of the Explosive Bill deal with explosives safety instead of security.
Denel makes the following specific comments:
Definitions: Ensure that the definitions used in the Explosives Bill are aligned with those used in the Organisational Health and Safety Regulations. Specific reference is made to the definition of 'explosives manufacturing workplace in the Bill versus the definition of 'explosives workplace' used in the OHSA regulations.
Some provisions of the Explosives Bill are not practical. These include the taking of samples from completed products such as rocket motors, missiles or bombs as these products include explosives of several types, which cannot be separated.
There should be flexibility regarding marking requirements as these may be in conflict with the marking requirements of clients.
Clause 7 places too much of the onus of proof on the manufacturer.
Clause 8(1) is unclear in terms of identification of the control authority.
Clause 9(1) may not be practical and it is suggested that the approval of the Explosive Manager for the use of machinery or equipment should suffice.
Clause 9(3) that deals with the taking of bodily samples should include the necessity of obtaining a court order.
In reference to clause 10(1 )(a), 12(1), 12(2)(a) it is unclear whether the permit is required in addition to the licenses issued by the Department of Labour and the OHSA Act.
Clause 15(a) should make provision for delegation of the supervisory responsibilities of the license holder.