OPINION PIECE: TMM Regulation 8.10 compliance – Is the MOSH CPS Blueprint only valid if mandated by the “DMRE”?!

Hypothesis: If the MOSH CPS blueprint is not mandated by the DMRE (DMRP) it is not valid as a requirement for Regulation 8.10 compliance.

Background:

The issue of the validity of the MOSH CPS blueprint as a set of requirements for CPS products used in the SAMI is an emotive one, and understandably so. To give sufficient context will take a lot of time. To labour through this context will not add much value in my opinion, and therefore I will provide an overview of the context but focus on the validity challenge.

With the objective of preventing Trackless Mobile Machinery (TMM) collisions, with each other and with pedestrians, on South African mines, TMM regulations 8.10.1, 8.10.2 and their sub clauses were promulgated in 2015. Sub clauses 8.10.1.2 (b) and 8.10.2.1 (b) were suspended due to non-availability of technology to provide the functionalities that are required to automatically and safely slow down and stop TMMs.

The expectation was that CPS product suppliers and in particular TMM OEMs would immediately (2015) initiate fast tracked product developments that would enable mines to comply with the regulations.

By 2019 the Mining Regulations Advisory Committee (MRAC) of the Mine Health and Safety Council (MHSC), the organisation responsible for facilitation of regulation development, assembled a team of experts to advise it on the maturity and readiness of CPS products. This with a view to uplift the suspended clauses of the TMM regulations at a soonest future date. (2020)

The task team determined that the CPS products available at that time were not sufficiently developed to support the upliftment of the regulations. The team identified several significant challenges related to the product functionality and highlighted the need of and means to verify the requirements. Interoperability and verification testing were particularly emphasised as key areas of concern. It was already four years since the promulgation, and the DMRE (now DMRP) was interpreting the slow pace of development as an unwillingness of the SAMI to introduce the technology. The Minerals Council South Africa, the mining industry representative body, took notice of the DMRPs frustration and in response to the report from the task team, the Minerals Council South Africa initiated a special project to assist its members (mines) by facilitating the development of a CPS blueprint, with requirements for products, technology development and the associated ecosystem (Life Cycle System).

The MOSH CPS Blueprint

The MOSH CPS Blueprint is a set of “supplementary information” pertaining to CPS as required by Regulation 8.10.1 and 8.10.2. It comprises several technical documents that provide a common reference, definitions, context, user and functional requirements. It includes analysis reports, test instructions, a requirements verification regime and other relevant information all aimed at facilitating soonest compliance with the regulations.

MOSH CPS Blueprint Challenge

Some CPS product suppliers do not recognize the MOSH CPS blueprint as a legitimate specification for product conformance and development, nor that it is necessary for South African mines to comply with subclauses 8.10.1.2 a and b, and 8.10.2.1 a, and b. There could well be many mines that also hold this position. There appears to be a belief that, without formal endorsement (signature) from the DMRP, the blueprint is not mandated and is merely a guideline, allowing CPS product suppliers to selectively choose what their products must conform to, if any, provided that the product can automatically slow down and stop a TMM. The resulting inertia in the development of CPS products is evident from the reality that in the middle of 2025 no mine could independently verify the conformance of its CPS products such that it will enable the mine to comply with the regulations. It is already 10 years since the promulgation of the regulations and 2 and a half years since the upliftment of the suspended clauses and there is still no national agreement with regards the detail functionality of CPS products.

Context

The existence of the MOSH CPS blueprint must be viewed in the context of

South Africa being the only country in the world that has regulated automatic slow down and stop functionality for mining TMMs. There is no centre of excellence for CPS anywhere in the world and the technology is novel, despite the use of some commercial components being used in the products.

It is important to note that for regulatory compliance purposes CPS products are there to deal with abnormal operating conditions, where a TMM operator(s) or a pedestrian(s) has been incapacitated for whatever reason and a potential collision is imminent, thus putting the operator or pedestrian at risk of injury. Therefore, a CPS that fails to perform its intended purpose and results in an injury to operators or pedestrians, can have very significant legal consequences and liabilities not only to the mine but also the product suppliers. Furthermore, automatic slow down and stopping of TMMs, if not executed safely can also have unintended consequences for the health and safety of TMM operators. Add to this the reality that CPS products, are novel, very complex and with advanced technological requirements, and it should be clear that, figuratively speaking, this is an animal not to be taken on without gloves. Indeed, from my own experience it is by far the most challenging regulation that I am aware of that mines have dealt with in several years.

Regulatory Requirements

At the heart of the challenge are the requirements of the regulations. For ease of reference, the relevant portions of Regulations 8.10.1 and 8.10.2 are repeated here. For Surface Mines the regulation states that: (Mine Health and Safety Act, 1996 (Act No. 29 of 1996) and Regulations page 186 – 187)

At any opencast or open pit mine, where there is a significant risk of such collisions (collisions wherein persons can be injured as a result of TMM collisions) such measures must include:

8.10.2.1 Every diesel powered trackless mobile machine must be provided with means to automatically detect the presence of any other diesel powered trackless mobile machine within its vicinity and,

8.10.2.1 (a) upon detecting the presence of another diesel powered trackless mobile machine, the operators of both diesel powered trackless mobile machines shall be warned of each other’s presence by means of an effective warning;

8.10.2.1 (b) in the event where no action is taken to prevent a potential collision, further means shall be provided to retard the diesel powered trackless mobile machine to a safe speed where after the brakes of the diesel powered trackless mobile machine are automatically applied. The system on the diesel powered trackless mobile machine must “fail to safe” without human intervention.

For Underground mines the regulation states that:

8.10.1.2 All underground diesel powered trackless mobile machines must be provided with means:

8.10.1.2.(a) To automatically detect the presence of a pedestrian within its vicinity. Upon detecting the presence of a pedestrian, the operator of the diesel-powered trackless machine and the pedestrian shall be warned of each other’s presence by means of an effective warning;

That is, it, the sum total of the specific regulatory clauses.

Sufficiency and unambiguity of information in the regulations

The immediate question that arises is whether the above clauses are sufficient and unambiguous in order to develop products that will enable mines to comply with the law.

A simple and practical test for unambiguity is, whether, after reading the regulatory text, a significant proportion (90% +) of all readers will arrive at exactly the same understanding, definition and criteria of every single term/requirement in the regulations.

A positive response to the following questions will conclude that indeed the regulations are sufficient and unambiguous:

Does the regulatory text provide clarity on product structure(s)?
- Is the regulation unambiguous with regards to what the CPS product structure should be,
  - Is it to be a single product fully integrated into the TMM, by the OEM or
  - Can/must it consist of multiple products?
Since there are multiple types and brands of TMMs used on mines, if it is a single integrated product, what inter-CPS communication protocol must be used by TMM OEMs so that multiple TMM brands and types can function seamlessly together on a mine?
If it is not a single integrated product, who is legally liable for collisions between different types and brands of TMM on the same mine?
What are the requirements for an “effective warning”?
- Why is the term effective used and not simply warning?
- What is the intended meaning of effective in this case?
- What are the acceptance criteria of an effective warning, and
- Who decides that the warning is effective?
What is the maximum speed from which an auto-slow down and stop intervention must be possible? 10km/h or 40km/h or ?
Considering: “Every diesel powered trackless mobile machine must be provided with means to automatically detect the presence of any other diesel powered trackless mobile machine within its vicinity”,
- What is the definition and criteria for vicinity? Is it 30 meters or 50 meters, or?
- Why did the lawmakers specifically use the term vicinity, is there a foundational intent that is not explicitly stated?

In the absence of any further information, a CPS product supplier with a product with a detection radius of any distance can claim “compliance” to the requirement. When a TMM collision happens as a result of TMMs detecting each other when 10m apart but driving at a speed that requires a 20m stopping distance, the supplier of such product can simply state that “operational conditions” were outside of the product’s capability. It therefore can readily be assumed that there must be something specific to the use of the term “vicinity”.

Although there are many more questions that can be asked, answers to the questions above should suffice to make the case for ambiguity or not.

I am convinced that objective consideration of the above questions will conclude that the text of the regulations is incomplete and ambiguous to define and design a CPS.

The rest of this opinion piece is based on that conclusion. Since the regulatory text is incomplete and ambiguous, it therefore follows that there is a need for supplementary information to the regulatory text in order to completely and unambiguously define a CPS.

An immediate question as to why the regulations are so ambiguous and incomplete will not be inappropriate. An answer to this question is critical to the case presented herein and is the 1^st aspect to be clarified.

Understanding the foundation of the MHSAct and regulations will explain why the act is not detailed and prescriptive. This will help answering the question.

RSA MHSAct Legislative Framework

Prior to the enactment of the Constitution of the Republic of South Africa [No. 108 of 1996] the RSA Mine Health & Safety legislation was detailed and prescriptive.

The change in South Africa’s political regime, to a democracy, and the enactment of the Constitution had a profound impact on mine health and safety legislation. The Leon Commission of Enquiry into Safety & Health in the Mining Industry (1995) found that the old legislative framework governing mine health and safety was inadequate, and that the law had not been adequately enforced by government. The Mine Health and Safety Inspectorate (MHSI) was under-resourced, and a mine’s only duty was to comply with the letter of the MHSAct. This reality implied that the act was directly determining the level of health and safety of every employee working on a mine. The commission’s report highlighted that the old framework had several flaws. The most significant was probably that it did not place a specific duty on a mine to protect the health and safety of its employees. The legal duty to determine risk and to sustain the health and safety of mine workers resided directly with the government. The weaker the act, the more exposed the workers. As can be expected, such a legal framework was unsustainable. Unlike other industries that are governed by the Occupational Health and Safety Act (OHSAct), the MHSAct works in conjunction with legislation to compensate mineworkers to counter for the failure to prevent occupational injury & disease. To understand the ambiguity and incompleteness of the regulations it is important to consider the current MHSAct in more detail.

Objectives of the MHSAct

The MHSAct itself states its objectives as:

(a) to protect the health and safety of persons at mines.

(b) to require employers and employees to identify hazards and eliminate, control and minimise the risks relating to health and safety at mines.

(c) to give effect to the public international legal obligations of the Republic that concern health and safety at mines.

(d) to provide for employee participation in matters of health and safety through health and safety representatives and the health and safety committees at mines.

(e) to provide for effective monitoring of health and safety conditions at mines.

(f) to provide for enforcement of health and safety measures at mines.

(g) to provide for investigations and inquiries to improve health and safety at mines; and

(h) to promote-

a culture of health and safety in the mining industry;
training in health and safety in the mining industry; and
co-operation and consultation on health and safety between the state, employers, employees and their representatives.

From a study of the objectives, it is significant that it is not the objective of the MHSAct to:

Define the hazards that a mine must address.
Define the controls (measures) that a mine must employ to control the risk.
Specify the products that a mine must employ to control risk.

Foundation of the MHSAct

The current MHSAct brings together the three major stakeholders in the mining industry: industry employers, labour (= unions + employees) and the government.

Unlike the previous prescriptive and detailed act, the current act sets out the respective rights and duties of each stakeholder. These are:

Employers have a duty and responsibility to protect the health and safety of employees that are exposed to occupational health and safety hazards and risks.
The state has the duty and responsibility to effectively regulate health and safety conditions at workplaces on the mines.
The employee has the right to refuse to work in an environment that may endanger his/her health or safety.

The MHSAct established the Mine Health and Safety Inspectorate (MHSI) commonly known as the DMRE (now DMPR), headed up by the Chief Inspector of Mines. The Chief Inspector (appointed by the Minister) is required to implement the MHSAct and administer the inspectorate.

It is noteworthy that neither the MHSI nor the DMPR establishes or approves the MHSAct. This reality is a fundamental consideration related to the “mandating of the MOSH CPS blueprint.

The MHSI plays a proactive role in the promotion of health and safety, and it has the powers to enforce compliance with the MHSAct.

If neither the DMPR nor the inspectorate writes the act, or mandates it, who does?

The role of the Mine Health and Safety Council (MHSC)

The framework for the development, approval and promulgation of the MHSAct and Regulations is defined in Chapter 4 of the MHSAct. Below is a verbatim extract of relevant parts of the act.

CHAPTER 4: TRIPARTITE INSTITUTIONS – Section 41. Establishment of tripartite institutions

A Mine Health and Safety Council is hereby established to advise the Minister on health and safety at mines.
A committee, ad hoc committee or subcommittee may when necessary be established, which committee may include –
- the Mining Regulation Advisory Committee (MRAC);

The MHSC is chaired by the Chief Inspector of Mines (CIM) and is made up of representatives from the employers, employees and the state. Mining Legislation (the MHSAct) in South Africa is developed by the tripartite stakeholders, facilitated by the MHSC, approved by the MHSC board and recommended to the Minister for promulgation/enactment. The schematic below shows the structure.

A credible conclusion from unpacking the current MHSAct thus far, is that it is not the objective of the act to provide detailed and prescriptive requirements to mines, but to legislate the duty of mines to protect the health and safety of its employees. The reason for the ambiguous and incomplete state of Regulation 8.10.1 and 8.10.2 is clear and rational.

Having demonstrated the need for supplementary information, an expectation that such “supplementary information” (MOSH CPS blueprint) is only valid if included in the regulation itself or mandated/approved by the DMRE, is clearly not rational.

Hypothesis: If the MOSH CPS blueprint is not mandated by the DMPR it is not valid as a requirement for Regulation 8.10 compliance. This hypothesis must be rejected.

Whilst this is a critical conclusion in terms of the MOSH CPS blueprint challenge understanding the legal duties of the 2.13.1 and CPS product suppliers with regards the MOSH CPS blueprint is also important. In future opinion pieces, I will share my position on that.

Note from the writer: My attempt here is to convey information to support a position. The constructs and logic of the information shared are more important to me than the way in which the message is packaged.

Hypothesis for the next opinion piece: The 2.13.1 legal appointee has the legal duty to develop the supplementary information for Reg 8.10.1 and 8.10.2 such that her/his mine can comply with the regulations.