“It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. Al least in this sense, then, the principle is implied within the terms of the ... Constitution."
This is the fundamental notion of legality as articulated by our highest court. Deconstructing this, we can conclude that the principle of legality applies equally to the Legislature as it does to the Executive and that this carries through to every sphere of the Executive.
The Mine Health and Safety Act (29 of 1996) (MHSA) is the primary legislation which governs safety in the mining industry. It establishes a mine health and safety institute as a body corporate headed by the Chief Inspector of Mines tasked to monitor and enforce compliance with the MHSA. The Minister has divided the country into regions for the effective administration of the Act, each of which is presided over by a Principal Inspector of Mines (PIoM).
But what powers does the PIoM have in his region? Does he have the power to give any instruction to improve health and safety, or is he bound by the limitations of the MHSA? More topically, why can’t the PIoM give any instruction which he deems appropriate to reduce accidents and fatalities? Does it really matter what the PIoM’s powers are or can the PIoM take a view of "all’s well that ends well" in pursuit of his laudable ideals?
The starting point of this debate is the MHSA. The powers of an Inspector of Mines (IoM) are contained in section 50 of the Act. These powers are conferred upon an IoM for purposes of monitoring compliance with the MHSA, as well as its enforcement. These powers include the power to:
- enter a mine, with or without notice;
- question any person at a mine; and
- request and take with him any document relevant to the mining operations.
In addition to sections 50, 54 and 55 confer further powers on IoMs. In terms of section 54 the IoM is given powers to deal with dangerous occurrences, practices or conditions and section 55 allows the Inspector to issue an instruction to an employer to remedy any non-compliance with the MHSA.
What these sections do not do is to confer upon an IoM a general power to issue instructions to employers to improve health and safety.
Apart from being the administrative functionary in charge of the region, the PIoM has no more power than any IoM when it comes to issuing instructions to employers to enforce the MHSA. Any instruction the PIoM may wish to give to employers must fall within the provisions of the empowering sections of the Act. Any instruction falling outside the ambit of these empowering sections is illegal because the instruction exceeds the powers of the PIoM (in common law referred to as being ultra vires).
The PIoM of the North West Region recently issued a general instruction to all employers in the region, which he contended at the time was necessary to improve health and safety. The instruction was premised on the basis that there had been an unacceptably high level of accidents that, in his view, were caused by, inter alia, poor supervision.
In order to curb the accident rate, the PIoM instructed all employers in his region to report to him every accident which resulted in an employee being unable to return to work the shift following the accident (a so-called lost time injury) and which fell within determined categories.
Over and above this reporting obligation, the PIoM also instructed employers to stop working immediately in places where these accidents occurred. Further, if more than one accident occurred in a section of the mine, then that section had to be stopped; and if four accidents occurred in a month at a given mine, then the entire mine under the control of the mine manager had to be stopped. In all cases, employers had to investigate the accident and then make a presentation to the PIoM before the accident scene, section or mine, as the case may be, could be re-opened.
The instruction came in two parts. The first was that these types of accidents had to be reported to the PIoM immediately. The second was that mining operations had to be halted until the employer’s presentation was successful.
Although the first part of the instruction (the reporting obligation) could be regarded as nothing more than a hassle, the PIoM had no power to insist on such reporting to him. The MHSA and its regulations stipulate how and when accidents must be reported to the DMR and the PIoM could not issue an instruction which, in effect, altered the statutory and regulatory reporting obligations.
However, compliance with the second part of the instruction (automatic halting of operations) would cause employers serious financial harm and significant disruption to the ebb and flow of the mining rhythm. In large mining operations, where thousands of employees are employed at any given time, it is a statistical certainty that four lost time injuries are very likely in any given month. The injuries could range from a sprained finger to the amputation of a limb. These large mining operations would accordingly be shut down with regularity (if not permanently) if the PIoM’s instruction were adhered to.
The only power an IoM, and for that matter the PIoM, has to order the halting of mining operations lies in section 54. This section allows an IoM to issue any instruction necessary to protect the health and safety of employees when a dangerous occurrence, practice or condition has been determined. However, for the section to apply, an IoM must first find objective facts establishing such a danger. Thereafter, the IoM must consider giving an instruction necessary to protect the health and safety of employees, which may include, but not necessarily be, an instruction to halt mining operations.
However, section 54 requires an objective determination of the danger and the instruction necessary to address it. What it does not permit is for an IoM (or in this case the PIoM) to identify a danger in a vacuum and then, as a matter of course, issue an instruction to halt operations. The instruction issued must be proportionate to the danger and the determination cannot be made from the comfort of an armchair in the PIoM’s office.
In an environment where the cause of accidents may range from a momentary lapse of concentration to a systemic and endemic disregard of safety systems, it could never have been reasonable for the PIoM to have issued an instruction that ipso facto requires halting of mining operations. Nevertheless, the PIoM’s instruction did exactly that. He applied certain assumptions and generalisations (perhaps with some limited measure of scientific analysis) and determined that automatic instructions to halt mining operations after lost time injuries were competent.
Although the end result of attempting to improve on safety performance was laudable, the instruction exceeded the powers of the PIoM and could never have survived judicial scrutiny.
Fortunately, just over a month after the instruction was issued, the PIoM temporarily withdrew the instruction, pending further discussions with the industry in his region.
Perhaps this was truly a case of "all’s well that ends well"?