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.
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.