ENSafrica’s MOHS department recently represented AngloGold Ashanti Limited in a South African Labour Court case, which has culminated in a judgment that sets out important legal principles and requirements. These relate to the instructions issued by Inspectors of Mines in terms of section 54 of the Mine Health and Safety Act, 1996 (the “Act”). ENSafrica’s Willem le Roux was the lead attorney in obtaining the judgment, which was handed down by the Labour Court in Johannesburg on 4 November 2016.
The important legal principles and requirements stipulated by the court in this judgment are as follows:
· an inspector may only close an entire mine if he/she has objective reason to believe that occurrences and conditions that he/she has identified endangered, or may endanger, the health and safety of any person at the mine, and not only of a portion of the mine.
· in this particular case, the Inspector of Mines merely inspected a tiny portion of the mine, but issued instructions that had the effect that all mining operations on the entire mine came to a standstill. The judge concluded that no circumstances existed, on the particular level that was inspected, that could lead the inspector to infer that not only that level, but in fact the entire mine, was unsafe.
· an instruction issued in terms of section 54 or section 55 of the Act constitutes administrative action for purposes of the Promotion of Administrative Justice Act, 2000. Such an instruction must be proportional to the harm or potential harm that it intends to prevent. In this regard, the judge quoted an author on administrative law, who said that “one ought not to use a sledge hammer to crack a nut.”
· the judge remarked as follows about the approach followed by the Mine Health and Safety Inspectorate (“MHSI”): “[A]s this case illustrates, [the MHSI] 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 rendered 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 the health and safety of those employees employed in mining operations. That does not entitle those responsible for enforcing the Act to act outside the bounds of rationality.”