Inspector’s Everyday Enforcement of the Mine Health & Safety Act

Written by Gerrit Augustyn

The question of fair and just administrative action in inspectors enforcement of the Mine Health & Safety Act was in the forefront in the recent case of Glencore Operations South Africa (Pty) Limited – Coal Division v Minister of Mineral Resources and Others (unreported, case number JR91/2014).

Judgement was handed down on Wednesday 3 February 2016 in the Labour Court emphasizing the duty of inspectors exercising their enforcement powers to do so with due regard to the principles of fair administrative justice.

The case dealt specifically with the imposition of an administrative fine in terms of section 55B of the MHSA: “Principal Inspector of Mines impose fines” on recommendation of the Inspector in terms of section 55A of the MHSA: “Inspector’s powers to recommend fine”.

The facts of the case in summary are the following:
1. On 2 October 2012, an employee of M&S Projects (Pty) Ltd, Mr Barry Paxton (“Paxton”), was fatally injured in an accident underground while a crew was welding brackets onto equipment.

2. Following the incident, an enquiry in terms of section 65 of the MHSA (“the Section 65 Enquiry”) was convened. The third respondent, Louis Bezuidenhout (“Bezuidenhout”), who at the time was employed by the second respondent in the capacity of principal inspector of mines, presided over the Section 65 Enquiry. The Section 65 Enquiry was conducted on 11 and 12 December 2012.

3. On 13 January 2013, Bezuidenhout, in his capacity as presiding officer of the Section 65 Enquiry, issued a written report in terms of section 72 of the MHSA detailing his findings, recommendations and remedial steps (“the Section 72 Report”).

4. In the Section 72 Report, Bezuidenhout found that:
‘Although no person can be held directly responsible for the death of Mr. Barry Grant Paxton, the lack of the proper level of supervision during underground cutting and welding operations certainly contributed to the contravention of various regulations and safety measures that led to the death of Mr. Paxton.
The prescribed safety measures of the underground cutting and welding permission have been grossly violated and will form part of an administrative penalty or alternatively a permanent stoppage of the practice in terms of section 54 of the Mine Health and Safety Act as disregard for these safety measures can have catastrophic consequences.

5. On 18 February 2013, the fourth respondent, AB Nkosi (“Nkosi”), employed at the time by the second respondent in the capacity of inspector submitted the Recommendation to Bezuidenhout in terms of section 55A of the MHSA. At the time of making the Recommendation, Nkosi was acting under the empowering provision of section 55A(1) of the MHSA.

6. In correspondence dated 28 February 2013 received by the applicant on 2 April 2013, Nkosi informed the applicant that “an Inspector of Mines has recommended to the Principal Inspector of Mines to impose an administrative fine to the employer at South Witbank Colliery”. The reference to inspector of mines is Nkosi himself and the reference to the principal inspector of mines is to Bezuidenhout.

7. Nkosi invited the applicant to make written representations to Bezuidenhout, in his capacity as principal inspector of mines, within 30 days from date of receipt of the invitation.

8. The applicant submitted its written representations (“the Representations”) to Bezuidenhout (in his capacity as principal inspector of mines) on 6 May 2013. These representations were detailed and responded to each of the nine contraventions referred to by Nkosi in his recommendations.

9. On 28 June 2013, Bezuidenhout, in his capacity as principal inspector of mines, took the Decision to impose an administrative fine. No reason for the decision was given.

10. The applicant filed an application with the Labour Court for the review and setting aside of the recommendation and decision of the Nkosi and Bezuidenhout.

On the question of whether PAJA (Promotion of Administrative Justice Act) applies to recommendations and decisions Venter AJ held:
“The Decision of Bezuidenhout made in terms of section 55B of the MHSA, is a decision of an administrative nature made under an empowering provision which adversely affected the rights of the applicant and had a direct, external legal effect. The Decision, accordingly, falls within the definition of administrative action”. Venter AJ further held that “The Recommendation of Nkosi was a decision and constitutes an administrative act for purposes of PAJA”.

In summary Venter AJ held:
1. The inspector of mines in exercising their duties must give effect to the audi alteram partem principle.
2. There should be a clear separation of powers in exercising the rights in terms of section 55A and 55B.
3. A principal inspector of mines must apply his mind to a recommendation and representations objectively and without prejudice in arriving at a decision.

The judgement will also find application in the other actions of inspectors:
• An inspector visiting the scene of an accident on a mine, conducting and inspection, questioning witnesses and issuing a section 54 instruction.
• The inspector that visited the scene and conducted the investigation, questioned witnesses and issued the section 54 instruction then being charged to preside over an inquiry and come to a fair and objective finding after consideration of the evidence presented.
• The conduct of inspectors and principal inspector in terms of section 54 instructions and section 65 inquiries.

This decision will certainly, in my opinion, apply to all actions of inspectors and the principal inspector exercising their functions in terms of chapter 5 of the MHSA in requiring them to be fair and just.