Will the Mine Health and Safety Act or Occupational Health and Safety Act apply to vehicle accidents?
Problem statement:
Company A has built, and maintains, a 15 kilometer stretch of road linking two of its operations. The road was primarily constructed to enable company employees and vehicles to travel between the two operations (mining and smelter) as well as to transport mineral from the mining operation to the smelter. Over time, members of the public have started making use of the road as it greatly reduces travelling time. An accident, resulting in two fatalities, takes place between a horse and trailer (transporting ore to the smelter) and a private vehicle. The road itself is within the confines of the mine’s mining rights authorization area.
Another example would be where a loaded truck leaves a warehouse and travels towards a weighbridge inside the company premises. While travelling, an accident occurs where a pedestrian is killed.
The above scenarios are two examples of many where vehicle accidents pose a problem. Is this reportable to the Department of Labour/Department of Mineral Resources, or should it be treated as a vehicle accident on a public road? (thus reportable to the SAPS or traffic enforcement agencies).
In short, the question is straight forward. In an accident involving vehicles (either between two or more vehicles or a vehicle and pedestrians), the question is whether the National Road Traffic Act applies. If the National Road Traffic Act applies, it would not be reportable to the DoL or DMR Inspectorates.
In order to determine whether the National Road Traffic Act would apply, it needs to be established whether the accident took place on a public road.
Some debate has historically existed regarding the classification of roads as being public roads or not where the roads in question are not administered by Government. (being either National, Provincial or Local Government) The National Road Traffic Act, 93 of 1996, in Section 1 defines a public road as: (Our emphasis added)
public road means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes-
(a) the verge of any such road, street or thoroughfare;
(b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and
(c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare;
The important aspect to consider as contained in the definition is the fact that two types of scenario are identified where a road will be classified as a public road. The first is where a road is commonly used by the public while the second is where the public has a right of access. This implies that roads may be classified as a public road even where the public does not have a right to make use of that road and that ownership of the road or the question of who performs maintenance is immaterial. It is important to note that not only is this the situation in terms of the National Road Traffic Act 1996, but that this was the situation under the previous Provincial Traffic Acts (between 1988 and 1996) and under the 1966 Road Traffic Ordinance before that.
This issue of whether ownership of a road plays any role in whether a road is public or not, has specifically and definitively been dealt with in our Courts.
Some recent examples include The Langebaan Ratepayers’ Association v. Dormell Properties 391 (Pty.) Ltd. And Others (2012 Western Cape High Court Judgment) and Ethekwini Municipality v. R E Brooks And Others (2010 Supreme Court of Appeal Judgment), which confirmed that the public does not need to have a right to access a road, but that the fact that a road is used by the public is enough to classify a road as being public.
A public road then is a road where the public has access whether it is a private (i.e. built by a company for its own use) or a provincial, local or national road.
This implies then that the National Road Traffic Act would apply to such a road, and must then be complied with. An example of the duties in the NRTA would include Section 61, which specifically deals with the obligation to report accidents on public roads. This means that an accident on a public road is reportable in terms of the National Road Traffic Act and not Chapter 23 of the Mine Health and Safety Act Regulations or Section 11(5) of the Mine Health and Safety Act or Section 24 and General Administrative Regulations 8 and 9 of the Occupational Health and Safety Act.
Conclusion
Where the accident takes place on the road between the smelter and mine, the National Road Traffic Act would apply (as it is a public road, i.e. the public makes use of it), while the accident between the warehouse and weighbridge would fall under the OHSA/MHSA.
Jaco Swartz