Enforcement actions of inspectors in the mining industry: when are such actions lawful and proportional?
By Willem le Roux, Pieter Colyn and Celeste Coles
On Tuesday 27 August 2019, the Mine and Occupational Health and Safety (MOHS) Department of ENSafrica hosted a Mine Health and Safety breakfast presentation which was attended by various stakeholders from the mining industry. Willem le Roux (Executive Consultant) and Pieter Colyn (Director and Head of the MOHS Department) presented on investigations in terms of section 11(5) of the Mine Health and Safety Act, 29 of 1996 (“MHSA”) and the powers of inspectors from the Mine Health and Safety Inspectorate (“MHSI”) of the Department of Mineral Resources (“DMR”) to issue instructions in terms of sections 54 and 55 of the MHSA.
During his presentation, Willem addressed the circumstances in which an employer is obligated to conduct an investigation and compile a report in terms of section 11(5) of the MHSA. In terms of section 11(5)(aA) of the MHSA, employers must commence an investigation within 10 days of an accident, serious illness or health threatening occurrence. Section 11(5)(d) and (e) provides that subsequent to any of these events, the employer is required to prepare a report and deliver a copy of this report within 30 days to the Principal Inspector of Mines and the Health and Safety Committee. Willem’s presentation also addressed the obligation of an employer to report particular accidents or occurrences at a mine in terms of section 11(5B) of the MHSA that result in the serious injury, illness or death of any person.
Willem made reference to recent developments in the mining industry, in terms of which inspectors from the MHSI have instructed employers that the section 11(5) investigation, required in terms of the MHSA, must be conducted by independent legal experts or practitioners. According to Willem, such a stipulation (which is ordinarily included in a closure order issued in terms of section 54 of the MHSA, following the occurrence of a fatal accident) exceeds the powers of the DMR, as it is specifically provided in the MHSA that the employer (being the owner, as defined, of the mine) must conduct the investigation, and compile a report. The employer may appoint a person with appropriate expertise to conduct the investigation on its behalf.
Willem also referred to another development, where an employer is instructed to compile and submit its section 11(5) report to the DMR before a presentation may be made to uplift an instruction in terms of section 54 of the MHSA. Such an instruction, which compels an employer to complete its investigation in terms of section 11(5) of the MHSA, before an instruction in terms of section 54 of the MHSA will be uplifted, compromises the employer's right to be afforded a reasonable opportunity to properly investigate an accident, serious illness or health-threatening occurrence. Such an instruction of the DMR has the effect of undermining the objectives of the MHSA to, amongst others, promote a culture of health and safety and protect the health and safety of persons at mines. Such an instruction will also compromise the purpose of an investigation in terms of section 11(5) of the MHSA.
Pieter, in his presentation, dealt with the distinction between instructions in terms of sections 54 and 55 of the MHSA. Section 54 instructions may be issued, only if an inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, whereas a section 55 instruction may be given if an inspector has reason to believe that an employer has failed to comply with any provision of the MHSA. Pieter reiterated that, because these powers are intrusive and far-reaching, and inspectors are afforded a very general scope within which to invoke such powers, it is important that restrictions are placed on the exercise of such powers. He pointed out that one such restriction is the right to fair administrative action in terms of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”). As the issuing of such instructions constitutes "administrative action", the principles set out in PAJA must be complied with.
Importantly, the “belief” of an inspector, which formed the basis of his/her decision to issue an instruction must be assessed on an objective basis. This means that reasonable cause, based on objective facts, must exist before an instruction may be issued. In addition, the action taken by an inspector must be based on relevant considerations and it must be rationally connected to the purpose for which it is taken.
Pieter also discussed the important judgment in the matter of AngloGold Ashanti Limited v X Mbonambi and Others, in which Willem was the lead attorney. Reference was made to the following extract from the judgment:
"Further, as this case illustrates, the respondents (the Mine Health and Safety Inspectorate) are clearly under the impression that they are empowered to close entire mines on account of safety infractions in a single section or on a single level, without specific reference to objective facts and circumstances that render the whole mining operation unsafe. The MHSA has as its commendable purpose the promotion of a culture of health and safety and the protection of health and safety of those employees employed in mining operations. But that does not entitle those responsible for enforcing the Act to act outside the bounds of rationality."
Both Willem and Pieter discussed the positive repercussions from the above matter, which have seen inspectors acting more conservatively when electing to exercise a power in terms of sections 54 or 55 of the MHSA. Remedies available to employers (such as appeals, reviews and urgent court orders to suspend instructions) were also discussed.
The presentations were presented on an interactive and informative platform which facilitated discussion. By approaching the presentations in such a manner, the attendees were encouraged to take new learnings and practical applications back with them to their various places of work.
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