Inspector’s power to deal with dangerous conditions
In this article, we discuss the judgment by the Labour Court of Johannesburg in the matter of Anglogold Ashanti Ltd vs Xolile Mbonambi and Others. Of importance is the Court’s view that the MHSA requires an inspector to objectively establish if the state of affairs at the Mine would lead a reasonable person to believe that such conditions may endanger the health and safety of its employees, and issue an instruction that is proportionate to the infraction and the risk that it poses to the employee’s health and safety.
On 4 November 2016, the Labour Court of South Africa, Johannesburg (per Judge André van Niekerk) handed down a very important judgment on the question when it is justifiable for an Inspector to issue a notice in terms of Section 54 of the MHSA to shut down an entire mining operation.
On 17 October 2016, an inspection was conducted at, level 44 of section 12, a small area of the Anglogold Ashanti’s Kopanang Mine, situated in the district of Orkney in the North-West province. The inspection revealed that unused explosive cartridges had not been returned to the Explosives Box and that more than four rail switches were observed without rail switching devices.
The inspection resulted in six instructions being issued in terms of section 54(1) of the MHSA that prohibited the use of explosives at the Mine and the underground tramming throughout the entire mine, the effect of which was to shut down the entire Mine with effect from 17 October 2016 at a loss to the Anglogold Ashanti Ltd of some R9.5 million per day.
Anglogold Ashanti Ltd made representations to the Inspector of Mines, which were disregarded and on 18 October 2016, three additional instructions were issued.
An appeal was lodged on 19 October 2016 against the Inspector’s Instructions along with an urgent application that followed on 21 October 2016.
Legislation considered by the Labour Court
1. Mine Health and Safety Act 29 of 1996 (MHSA)
Section 2 – Employer to Ensure Safety
Section 2 of the MHSA is a standard of reasonable practicality. This is a standard that is consistent with an employer’s common law obligation to provide a reasonably safe working place. “Reasonable practicable” by definition is not an absolute standard, its nature and scope requires an objective assessment of the work concerned and the hazards associated with it.
Section 54 – Inspector’s power to deal with dangerous conditions
Section 54 of the MHSA regulates an inspector’s powers to deal with dangerous conditions at a mine and requires such inspector to establish objectively if a state of affairs would lead a reasonable person to believe that it may endanger the health and safety of any person at the mine and considers an instruction that is limited by the extent to which it is necessary to protect the health and safety of persons at the mine.
2. Promotion of Administrative Justice Act 3 of 2000 (PAJA)
“Administrative action” is defined in the Act as any decision taken, or any failure to take a decision, by an organ of state when exercising a power in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation, which adversely affects the rights of any person and which has a direct, external legal effect.
A decision made in terms of Section 54 of the MHSA falls within the bounds of an administrative action for purposes of Section 6 of the PAJA. One of the elements of the right to reasonable administrative action, is proportionality (i.e. the use of lawful and appropriate means based on balance, necessity and suitability, to establish the administrator’s objective.) This means that an Inspector, in considering an order that works cease at a mine (whether in whole or in part), must apply a sanction that is proportional to the offence.
In this instance proportionality was found lacking and the court ruled that an objective state of affairs did not exist that would lead a reasonable person to believe that the health and safety of any person at the mine was in jeopardy.
The attitude of the Inspectorate that it is entitled to shut down Mines because of minor safety violations in a single area of the mine, without specific reference to objective facts and circumstances that render the entire mining operation unsafe, is incorrect and constitutes an abuse of administrative power.
Judge van Niekerk ruled that the DMR officials had ignored the notion of “proportionality” when it issued a Section 54 notice to shut the AngloGold Ashanti’s Kopanang Mine down. It was held that the DMR including the acting Chief Inspector of Mines, Xolile Mbonambi, had acted wrongly in shutting down the entire mine when transgressions of the MHSA had only occurred on level 44 employing only 2% of Kopanang’s entire staff. The instructions should have been confined, at worst, to level 44.
Anglogold Ashanti’s interdict against the Section 54 order was subsequently granted with costs, effectively reopening the Mine.