The Labour Court’s decision to set aside a Section 54 mine stoppage order that unjustifiably stopped operations at leading gold producer AngloGold Ashanti’s Kopanang mine, in the Free State, is pleasing, as it provides further legal precedent for the manner in which inspectors from the Department of Mineral Resources (DMR) are to exercise their powers in terms of the Mine Health and Safety Act (MHSA).

This is according to law firm Webber Wentzel partner: employment and employee benefits Kate Collier, who affirms that it is imperative that the powers bestowed on inspectors through the MHSA are enforced within the prescripts of fairness and rationality.

“Unfortunately, there have been several instances in recent years where this has not been the case and the blanket issuing of notices in terms of Section 54 has become commonplace.”

In June, Collier told Mining Weekly that, as a result of DMR inspectors having absolute discretion in the way in which inquiries were conducted, entirely different interpretations for different mining jurisdictions were the norm. Thus, she notes that the Labour Court’s November decision is significant, as “there is a further measuring stick against which to assess the actions of the inspectorate in enforcement of the MHSA”.

She adds that, based on her experience, and contrary to suggestions by some mining companies, inspectors who act beyond the bounds of the law when issuing instructions are not necessarily driven by their own agenda. Rather, their decisions are based “on . . . an excessive practice that is possibly influenced by a misunderstanding of [the] considerations . . . required by an inspector before an instruction is issued”.

Collier states that the negative impact of an unreasonable instruction or unnecessarily harsh enforcement cannot be overlooked, but, in the majority of cases, she believes that it would be fair to give the inspectors issuing the instruction the benefit of the doubt regarding their intentions.

She points out that it is unusual for an employer to appeal an instruction received in terms of Section 54. “The primary reason for this, in my view, is that employers are concerned about further punitive action from the DMR if the actions of inspectors are opposed, preferring to limit challenges in favour of engagement and seeking to preserve what is perceived as a positive relationship with the DMR.”

Commercial considerations are also taken into account and, Collier notes, there are cases where the most efficient option available to an employer is to have an instruction lifted within a few days of the instruction being received by trying to comply with an instruction, thus securing the operation of a mine rather than the risks (and costs) of approaching the courts for assistance. As a result, legal challenges have largely been reserved for extraordinary cases.

“While an appeal process does exist, this does not suspend the instruction unless the employer approaches the Labour Court for an order to this effect and there is no time in which the outcome of the appeal must be decided and communicated to the employer.”

The November decision was the second time in 2016 that the Labour Court criticised the actions of the mine inspectorate, the first being in February when Swiss miner Glencore challenged the DMR and the inspectorate.

However, Collier suggests that the judgments do not necessarily undermine the legitimacy of the inspectorate: “. . . the judgments provide guidance [for] inspectors and employers on how the MHSA should be applied and enforced. This can only be a positive development in the long run, as it leads to the development of a body of case law and precedent in terms of an important piece of legislation.”

She does caution that “what will undermine the legitimacy or effectiveness of the inspectorate is if the legal principles set out in these,and earlier, judgments are not applied in the future”.