Suspending Overbroad Safety Instructions that Halt Mining Operations

If an inspector has reason to believe that there is an occurrence, practice or condition on a mine that endangers any person, then section 54 of the Mine Health and Safety Act, No 29 of 1996 (MHSA) allows the inspector to issue any safety instruction necessary to protect the health and safety of persons at a mine.

These safety instructions can have severe consequences because inspectors are empowered to halt operations at the entire or part of the mine, halt any act or practice at the mine, or require the employer to take acts to rectify the occurrence, practice or condition (section 54(1)).

Unfortunately a practice developed where inspectors issued broad instructions going beyond what is needed to protect the health and safety of persons, often halting the operations of entire mines for very minor or isolated infractions.

This practice has now been scrutinised and severely criticised by the Labour Court in the case of Anglo Gold Ashanti Limited v Xolole Mbobambi and others, where the court granted an order to partly suspend the safety instructions pending an appeal. This order allowed the mine to restart operations after being closed for a time.

I hope that the court’s criticism will curb overbroad safety instructions and undue production stoppages, but even if it doesn’t, the decision clarifies the grounds that can be relied on to have the safety instructions suspended pending an appeal.

Facts of the Case

An inspector observed two safety infractions on a single level of the mine that employed 2% of the mine’s workforce. The infractions were:

    • 43 explosive charges had not been placed in an explosive box; and
    • 4 rail switches didn’t have rail switching devices.

The inspector issued a safety instruction that prohibited the use of explosives throughout the whole mine and halted all tramming operations. This effectively closed the entire mine.

The mine launched an urgent application to suspend safety instructions pending a full appeal. The mine argued that the safety instructions were erroneously issued, contending that:

    • the non-compliance connected with the explosive charges was an isolated incident;
    • no circumstances existed on 44 level that rendered the whole level unsafe;
    • no circumstances existed that rendered the entire mine unsafe; and
    • the absence of rail switches doesn’t constitute a danger.

The Court’s Decision to Set Aside the Safety Instructions

The court applied two separate, but connected, lines of questioning in its analysis.

First, did the inspector comply with the requirements of section 54(1) when he issued the safety instructions?

Secondly, was the safety instruction itself an administrative action regulated by the Promotion of Administrative Justice Act 3 of 2000 (PAJA)? If so, then did the safety instructions comply with the legal requirements of (i) lawfulness; (ii) reasonableness; and (ii) procedural fairness?

The court said that there are two requirements in section 54(1) for the issuing safety instructions:

    • an inspector must objectively to establish a state of affairs which would lead a reasonable person to believe that there is a danger to the health or safety of any person at the mine; and
    • the instruction must be limited to the extent that it is necessary to protect the health and safety (paragraph 24).

The standard applied in these enquiries is the standard of reasonable practicality required in section 2 of the MHSA.

The court considered the safety instruction issued because of the absence of rail switches, holding that the inspectors didn’t satisfy the legal requirements; there were no objective facts that would lead a reasonable person to believe that the absence of rail switches poses any danger to any person at the mine (paragraph 19 and 32).

The court’s enquiry into the safety instruction that prohibited the use of explosives went further. Here the court accepted that there were objective facts that could lead a reasonable person to believe that the safety infraction posed a danger to persons at the mine, but that was not the end of the enquiry.

The court confirmed that a safety instruction issued by an inspector is an administrative action, and as an administrative action must, in terms of PAJA, be exercised (i) lawfully; (ii) reasonably; and (ii) in a procedurally fair manner (paragraph 57).

The court emphasised the requirement of reasonableness and applied the principle of legal proportionality (paragraph 27 to 33). This principle holds that if an action is not proportional to what it seeks to achieve, then the action is unreasonable and subject to review under PAJA.

A court looks at three elements to determine if an action is proportional, and consequentially reasonable:

    • was the measure suitable for achieving the desired aim (the suitability element);
    • was the measure necessary, or was there a lesser measure that could achieve the same desired aim (the necessity element); and
    • does the measure place an excessive burden on the individual that is disproportionate to the public interest that is protected (the balance element); (see de Ville, JR. 2003. Judicial Review of Administrative Action in South Africa. Durban: LexisNexis Butterworths, at pg. 203).

Accordingly, all safety instructions must be proportional and reasonable based on the objective facts. If not, then the affected company can approach a court for appropriate relief.

The court held that the safety infraction involving the explosives was an isolated incident that occurred on a single level of the mine employing a small fraction of the workforce. There was no objective fact that could be relied on by the inspector to infer that the entire level, and further the entire mine, was unsafe (paragraph 16 and 33).

Applying the principle of legal proportionality, the court held that the safety instructions were not proportional to the issues that the inspector identified, and went further than was necessary to protect the health and safety of persons at the mine (paragraph 32 – 33).

The court accordingly suspended the safety instructions issued in terms of section 54, with the exception of level 44 where the infraction had occurred (paragraph 34).

The Court’s Criticism of the Safety Instructions and the Inspectors Conduct

The court criticised the inspectors belief that they are empowered to close entire mines based only on a safety infraction in a single section or level of the mine, where the objective facts do not show that these infractions will render the entire mine unsafe (paragraph 36).

The court went as far as warning the inspectors that it would have seriously considered holding them personally liable for the mines legal costs if the mine had asked (paragraph 37).

The courts criticism is a stern warning to inspectors to exercise their powers in terms of the MHSA lawfully, reasonably and fairly.

Conclusion

The take away from this judgement is that safety instructions issued by an inspector in terms of section 54 of the MHSA must be reasonable, proportional, and limited by the extent to which it is necessary to protect the health and safety of persons at the mine.

An inspector does not have the power to close entire mines or sections of mines unless the objective facts show that the entire mine is unsafe, and total closure is proportional and indeed necessary to protect the health and safety of people on the mine.

Companies should evaluate any instructions issued in terms of section 54 and determine if they are to broad or go further than necessary. If so, urgent action can be brought in court to suspend the operation of the instructions pending an appeal in terms of the MHSA.


This work by Clinton Pavlovic is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

The Right to Sue, or be Sued, after Death

On the 13th May 2016 the High Court of South Africa (Gauteng Local Division) handed down its judgement in the class action certification case of Nkala and Others v Harmony Gold Mining Company Limited and Others.

This case certified the classes that will participate in the class action law suit that will be brought against thirty two different mining companies.

In the intended class action the applicant representatives want to institute action on behalf of all current and former underground mine workers who have contracted silicosis or pulmonary tuberculosis (TB), and on behalf of the dependents of these mineworkers who have died of these diseases, after 12 March 1965 (paragraph 40). The court was told that the number of potential class members could be between 17,000 and 500,000 people (paragraph 7).

The claim is based on the mining companies’ alleged breach of duties that they owed to their employees (paragraph 58). These alleged duties include the common law duty to provide a safe and healthy work environment, the duty to comply with the Mine Works Act No 12 of 1911 and the Mine Health and Safety Act No 29 of 1996, and the breach of certain constitutional obligations and rights (paragraph 58).

The court’s judgement will allow the class action to proceed, provided that the judgment is not successfully appealed.

The potential effect of this judgment does, however, extend beyond class action suits and has the potential to impact other cases where damages are claimed in the future. This is because the court’s decision develops the South African common law on the transmissibility of claims for non-patrimonial (general) damages.

The Courts Development of the Common Law on the Transmissibility of claims for Non-Patrimonial (General) Damages

In its judgment the court took the opportunity to develop the South African common law that regulates the transmissibility of claims for non-patrimonial (general) damages. In other words, the court developed the right that the estate of a deceased person has to sue, or be sued, for non-patrimonial (general) damages after the death of the person who suffered or caused them.

This relevant paragraph of the court’s decision outlining the common law development is:

“In conclusion, we hold that the common law should be developed as follows:

A plaintiff who had commenced suing for general damages but who has died whether arising from harm caused by a wrongful act or omission of a person or otherwise, and whose claim has yet to reach the stage of litis contestatio, and who would but for his/her death be entitled to maintain the action and recover the general damages in respect thereof, will be entitled to continue with such action notwithstanding his/her death; and

The person who would have been liable for the general damages if the death of a plaintiff had not ensued remains liable for the said general damages notwithstanding the death of the plaintiff so harmed;

Such action shall be for the benefit of the estate of the person whose death had been so caused;

A defendant who dies while an action against him has commenced for general damages arising from harm caused by his wrongful act or omission and whose case has yet to reach the stage of litis contestatio remains liable for the said general damages notwithstanding his death, and the estate of the defendant shall continue to bear the liability despite the death of the defendant” (paragraph 220, own emphasis).

But what is the practical effect of this finding? To understand this, it is necessary to look at the distinction in that is drawn between patrimonial and non-patrimonial (general) damages in South African law.

The Distinction between Patrimonial and Non-Patrimonial Losses

A patrimonial loss is a loss that causes a reduction in the value of a person’s estate, often through the decrease in the value of an asset that is owned (Visser and Potgieter Damages Second Edition 45). One method that can be used to determine the size of a patrimonial loss is by comparing the current value of a person’s estate after a damage causing event, with the value of the person’s estate before the event. The difference in these values would be the patrimonial loss that was suffered.

An example of a patrimonial loss is the damage suffered when a motor car is involved in an accident. The size of this loss can generally be determined based on a comparison of the value of the car before and after the accident.

Non-patrimonial (general) damages on the other hand don’t necessarily directly impact the value of a person’s estate. Non-patrimonial loss includes claims for money that results from:

  • infringement of a person’s physical or mental interests, such as
    • physical and mental pain and suffering;
    • shock;
    • disfigurement;
    • loss of amenities of life; and
    • shortened life expectancy;
  • defamation; and
  • infringement of a person’s dignity (Visser and Potgieter 99 – 115).

Non-patrimonial losses are losses that are suffered that are highly personal in nature, and aren’t as easily quantifiable as patrimonial losses.

The two types of damages aren’t, however, mutually exclusive, and both types of damages can arise from the same action. For example, if a person is physically assaulted they might have to pay for medical attention (a patrimonial loss), but they might also suffer pain and suffering (a non-patrimonial loss). The person who was assaulted would be able to claim compensation for both of these losses that arose from the same action.

The Previous Common Law Legal Position on the Transmissibility of Claims

Previously the common law only allowed claims for patrimonial losses to be transmitted. This means that if a patrimonial loss is suffered by a person who later dies, that deceased person’s estate may institute action to recover the patrimonial damages.

The common law did not, however, generally allow the estate of a deceased person to sue a wrongdoer for non-patrimonial losses that was suffered by the deceased. The exception to this rule is that if the deceased had already commenced the required legal action, and if the legal action had reached a stage referred to as “litis contestatio” before death, then the claim is transmitted to the deceased persons estate and it can be pursued (paragraphs 187 to 188).

In a court case the stage of litis contestatio is usually reached when the court pleadings have closed, namely once the issues in dispute have been identified by the parties through the exchange of the required court documents.

The court stated that due to the various court procedures the time between commencing the legal action and the legal action reaching the stage of litis contestatio can be long. If the person commencing the claim for non-patrimonial (general) damages dies during this period, then the claim falls away on death and his estate can’t continue with the legal action. However, if the stage of litis contestatio is reached before death then the deceased person’s estate will be able to proceed with the claim and claim the non-patrimonial (general) damages.

The court considered various foreign legal positions, and held that the South African common law had failed to keep up pace with the procedural development in the law.

The court accordingly decided to develop and alter the South African common law as it applies to the transmissibility of claims for non-patrimonial (general) damages, altering the law to make it so that a claim for non-patrimonial (general) damages it transmissible to a deceased person’s estate provided that the deceased person had merely commenced with the legal action. The court therefore removed the requirement that the court proceedings must have reached a stage of “litis contestatio“.

 The Practical effect of this Development of the Common Law

The practical effect of this judgement is that claims for non-patrimonial (general) damages are now transmissible once legal action has been commenced.

This means that the estate of a deceased person can now continue with a claim non-patrimonial (general) damages that was suffered by the deceased, provided that the legal action has been instituted before death.

If a claimant dies after instituting legal action but before the issues in dispute have been fully identified by the parties through the exchange of the required court documents, otherwise known as the close of pleadings or litis contestatio, the claim is no longer extinguished and the claimants estate may proceed to recover both the patrimonial and non-patrimonial (general) damages that was suffered.

It must, however, be noted that the parties to this case have stated their intention to appeal the High Court’s judgment, so this might not be the final position on the transmissibility of claims.


This work by Clinton Pavlovic is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.