By: Wessel Badenhorst
Section 54 of the Mine Health and Safety Act of 1996 (MHSA) empowers an inspector of mines to give instructions, which, in the extreme, may be to halt mining operations.
The section has been the subject of heated debate within the industry. While there is agreement on the section being a necessary tool in the regulation of safe mining, not everyone agrees on its application or the methods adopted to impose instructions to halt mining operations in response to a danger.
Regardless of these debates, Section 54 has become the spearhead of the Department of Mineral Resources’ (DMR’s) campaign to reduce mining fatalities – and why not? The section is a powerful tool which addresses health and safety concerns instantly and allows the mine to improve its safety systems for the benefit of those who work there.
A recent improvement in the process of issuing Section 54 instructions is that inspectors afford the mine an opportunity to make representations before the instruction is issued. These representations are tabulated as part of the instruction and are aimed at abiding by the principles of fair administrative action. Some cynics say that these representations rarely dissuade the inspector from issuing the instruction. However, regardless of the efficiency of the representations as a step in the process, they provide essential checks and balances in the exercise of the inspector’s powers.
What does one do when an unwarranted instruction is issued?
As a first step, the DMR requires the mine to make a presentation to the principal inspector for the region where the instruction was issued to lift the instruction. This should be done. This is not only a requirement imposed by the DMR, but is also an opportunity for the mine to engage with the principal inspector to demonstrate the mine’s commitment to the improvement of its safety systems. These presentations often take place within a few days of the issue of the instruction and are still the quickest way of securing the lifting of the instruction.
As an alternative to such a presentation, some mines have approached the Labour Court by means of an urgent application to seek interim orders to lift the instructions. Although urgent applications may be appropriate in certain extreme cases, ad hoc approaches to the Labour Court cannot form part of a concerted business strategy. Instructions to halt operations have, by their regularity and frequency, become a business reality and mines must adopt a practical and consistent response to dealing with unwarranted instructions. A knee-jerk-reaction approach makes no business sense.
Section 59 of the MHSA provides that any person who is affected by a decision of an inspector may appeal to the chief inspector of mines. On appeal, the chief inspector of mines may confirm, vary or set aside the decision, but can one appeal against an unwarranted instruction after it has been lifted by the principal inspector? Until the DMR adopted the pro forma document for the issuing of Section 54 instructions (the DMR235 form) the answer to this question was ‘probably not’, since there was no longer a decision to confirm, vary or set aside on appeal.
Badenhorst is a director of law firm Routledge Modise.
This is no longer the position. The DMR235 form requires an inspector to take into account any ‘transgressions’ during the preceding 12 months in deciding whether to impose the instruction to halt operations. A previous unwarranted Section 54 is regarded as a past transgression. If it is not removed from the record books, it will come to haunt the mine during the next inspection.
The appeal, thus, serves the purpose of clearing the mine’s record. This will not only protect against such past unwarranted instructions adding to the score given to justify future instructions, but will also ensure that these unwarranted instructions are not regarded in considering the mine’s safety record overall or in the imposition of administrative fines or in the approval or revoking of mining rights.
Should an appeal form part of the mine’s strategy to deal with unwarranted Section 54 instructions?
The DMR has publicly and privately criticised ad hoc urgent applications to the Labour Court to interdict Section 54 instructions. Understandably, these applica- tions are viewed as attempts to prevent the DMR from meeting its primary health and safety aim. Further, they are, at best, reserved for extreme cases.
However, appeals are seen in a different light. They are internal processes sanctioned by the MHSA and supported by the DMR. Principal inspectors have publicly advocated invoking appeals when a mine is aggrieved by an unwarranted Section 54 inspection. This makes sense. We all accept appeals as part of the process in cases of momentous consequences – be it in the application of discipline or against administrative decisions. When one considers the financial effect of an unwarranted Section 54 instruction, would the failure to at least consider an appeal, which, if successful, would in part reduce the risk of future instructions, not amount to dereliction of corporate managerial duty?
Lodging an appeal is not to say that one is opposed to the improvement of safety or the DMR’s role in achieving that laudable ideal. Appeals have the power to correct mistakes, to improve the quality of future instructions and to give guidance to the industry as a whole. Appeal decisions are made by the chief inspector of mines as the person tasked with the implementation of the MHSA. In every appeal, the chief inspector of mines is informed of concerns regarding the imposition of instructions and such concerns. Even if the grounds for appeal are insufficient to justify the overturning of the particular Section 54 instruction, they will form part of a body of knowledge which can be drawn on to improve the inspection of the industry. If the appeal right is not used, this opportunity for improvement remains lost.
During a visit to South Africa in June 1966, US senator Robert Kennedy said: “Few will have the greatness to bend history itself, but each of us can work to change a small portion of events and in the total of all those acts will be written the history of this generation.”
In the context of unwarranted Section 54 instructions, mines can elect to privately and passively bemoan their fate or, per- haps, in invoking an appeal where this is warranted, every mine has the power to change a small portion of events.