“One ought not to use a sledgehammer to crack a nut”: The proportionality of instructions in terms of Section 54 of the MHSA

Written By Selvan Subroyen

(Natural Resources Department)

Visits by the Mine Health and Safety Inspectorate “(MHSI)” strikes fear and trepidation into the hearts of mining houses. This fear emanates from the fact that in relation to MHSI inspections, safety infractions in a small section of the mine often renders closure of the entire mine. A recent judgment considered the proportionality of instructions given by mining inspectors in terms of Section 54 of the Mine Health and Safety Act, 29 of 1996 (“MHSA”).

On 04^th November 2016 judgment was handed down in the AngloGold Ashanti Limited case whereby instructions issued by the MHSI in terms of Section 54 of the MHSA were found to be disproportionate to the harm it seeks to prevent.

The facts of the case are as follows:

• On 17^th October 2016 the MHSI conducted an inspection at the Kopanang Mine in the North West Province.
• On the same day the MHSI issued six instructions in terms of Section 54(1) of the MHSA.
• One of the key instructions prohibited the use of explosions and prohibited all underground tramming operations throughout the mine.
• The mine was closed with effect from 17 October 2016 and lost 9.5 million Rand per day.

The court held that whilst it is correct that the absence of rail switching devices does constitute a danger, the MHSI erred in believing that the transportation of persons by locomotives on the whole mine was unsafe.

The standard  for safety as prescribed under Section 2 of the MHSA is one that is “reasonably practicable.” Therefore provision of a reasonably safe working place is not an absolute standard. One is to make an objective assessment in determining whether a workplace is hazardous or not. The court held that inspectors must apply their minds to the principle of proportionality when issuing instructions.

Conditions at a very small portion of the mine may be unsafe but the inference should not be made that the whole mining operation is unsafe. In this instance, the instruction to prohibit explosives throughout the whole mine was out of proportion and should have been confined to a small portion that was not safe. The court crisply summarises the conduct of the inspectors in that they “are clearly under the impression that they are empowered to close entire mines on account of safety infractions in a single section or single level, without specific reference to objective facts and circumstances that render the whole operation unsafe.”

The judgement recognises that the MHSA’s purpose is to promote a culture of health and safety but enjoins those responsible for enforcing the Act to do so in a rational manner.

In other words, as Professor Hoexter observes in his book Administrative Law in South Africa (2012) that, “one ought not to use a sledgehammer to crack a nut.”