About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 82
|
|
Thetha Mining Proprietary Limited and Another v Scarlet Sun 15 Proprietary Limited and Others (1285/2018) [2018] ZANCHC 82 (31 August 2018)
Reportable
Circulate
to Judges
Do
Not Circulate to Magistrates
Circulate
to Regional Magistrates
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE
NO: 1285/2018
In
the matter between:
THETA
MINING PROPRIETARY
LIMITED
First Applicant
LONRHO
MINING SA PROPRIETARY LIMITED
Second Applicant
and
SCARLET SUN 15 PROPRIETARY
LIMITED
First Respondent
THE SYDNEY ON VAAL COMMUNAL PROPERTY
ASSOCIATION
Second Respondent
DEREK
SOREN
CORNS
Third Respondent
HARRY
JAMES
LANGEVELD
Fourth Respondent
THOMAS
TOMMY SWARTZ
Fifth Respondent
ENRICHO
IRVIA
Sixth Respondent
And
In
the counter- application between:
SCARLET SUN 15 PROPRIETARY
LIMITIED
Applicant
And
THETA
MINING PROPRIETARY
LIMITED
First Respondent
LONRHO
MINING SA PROPRIETARY LIMITED
Second Respondent
MINISTER
OF MINERAL
RESOURCES
Third Respondent
REGIONAL
MANAGER, NORTH CAPE REGION
Fourth Respondent
PRINCIPAL
INSPECTOR OF
MINES,
Fifth Respondent
NORTH
CAPE REGION
JUDGMENT
O'BRIEN
AJ
1.
The
farm Droege Veldt is in the Barkley West region. On this farm, the
first applicant is a holder of a mining right to mine alluvial
diamonds. The first applicant appointed the second applicant as the
mining contractor to mine for alluvial diamonds on the farm.
2.
The
farms Than and Mozib adjoins Droege Veldt and are under the control
of the first and second respondents. The first respondent
is a holder
of a mining right over both Than and Mozib. The second respondent is
a communal property association. The directors
of the first
respondent are the third to fifth respondents. The sixth respondent
acts as the general manager of the first respondent.
These farms are
owned by the National Government and are held in trust pending
transfer of those farms to the second respondent
under a successful
land claim.
3.
In order for the applicants to exploit
their mining right on the farm, they have to make use of a road that
travels across Than
farm. This, they have been doing since 2009.
4.
On
01 September 2016, the first and second respondents denied the
applicants access to the roads traversing Than farm. The consequence
of this prevention compelled the applicants to launch urgent
proceedings to obtain access to Droege Veldt through a road on Than
farm.
5.
The applicants were successful. On 09
February 2018 Lever AJ made an order ("the access order")the
relevant parts of which
reads as follows:
"(a)
subject to compliance with the sixth respondent's reasonable and
necessary health
and safety requirements, the applicants and their
employees, contractors, invitees and guests are entitled to traverse
the Than
farm by making use of the road marked B-A-D, traversing the
Than farm as described on Annexure
"NM1"
to the
Notice of Motion in this matter, for the purpose of accessing the
public road R311 ("the public road') from Droogeve/dt
farm
identified on Annexure
"NM1"
of the Notice of Motion
and for the purpose of accessing Droogeveldt farm from the said
public road.
(b)
save for the reasonable and necessary health and safety requirements
referred
to above, the first and sixth respondents are interdicted
and restrained from taking any steps to prevent or hinder the
applicants
and their employees, contractors, guests and invitees from
making use of the road marked 8-A-D on the locality plan annexed to
the Notice of Motion marked
"NM1
". "
6.
Not
satisfied with this outcome, the respondents applied for leave to
appeal, which application for leave to appeal was dismissed
with
costs on 18 May 2018. Bearing in mind that the order granted by Lever
AJ, although final in effect, was an interim order.
It seems the
respondents were advised not to file a petition to the Supreme Court
of Appeal.
7.
Under
the court order, the applicants attempted to gain access to Droege
Veldt but were prevented by the first respondent. The first
respondent, not happy with the court order cited mine, health and
safety requirements to be adhered to before granting the applicants
access. In order to avoid unnecessary litigation, the applicants
tendered to comply with all the health and safety requirements
of the
respondents. Furthermore, they gave an indemnification to the first
respondent accepting responsibility for accidents caused
other than
through the first respondent's negligence. Stated differently, the
employees of the first respondent, should they be
injured as a result
of a breach of the mine, health and safety regulations the applicant
would indemnify them.
8.
Not
satisfied with this, the respondents had another string to their bow.
The fourth respondent wrote a letter to the principal
inspector of
the Department of Mineral Resources ("the DMR") to solicit
his support in an attempt to avoid complying
with the access order.
The principal inspector of the DMR indicated to the first respondent
that it could not exempt the first
respondent from compliance with
the Mine Health and Safety Act 29 of 1996 (''the MHS Act").
9.
On
30 May 2018, the court order was served on the respondents. On 01
June 2018, the applicants launched the current proceedings
against
the respondents. They sought orders that each of the respondents are
in contempt of the access order; declaring their proposed
health and
safety requirements and indemnification given to the respondents as
complete and adequate, and giving the respondents
time to purge the
content of the access order. From 01 to 06 June 2018, the
respondents, however, revisited their mine, health
and safety
requirements by insisting that it not only applies to the applicants'
employees but also extending it to the applicants'
contractors,
guests and invitees who may visit Drooge Veldt.
10.
On 08 June 2018, the respondents filed a
counter-application. In that application, the current applicants are
the first and second
respondents. The third, fourth and fifth
respondents were also cited as parties to the application. The third
to fourth respondents
in the counter-application took no further part
in these proceedings.
11.
For convenience sake, I shall refer to
the parties as described in the main application. In its
counter-application, the first respondent,
on an urgent basis,
requested an order that the reference to reasonable and necessary
health and safety requirements in the court
order dated 09 February
2018 includes the granting of an exception in terms of s79 of the MHS
Act; that the first respondent be
exempted from liability in terms of
s79 of the MHS Act; their health and safety requirements apply to any
vehicle and/or persons
including contractees and invitees of the
applicants traversing the road; that the reasonable and necessary
health and safety requirements
referred to in the court order dated
09 February 2018 be included in that order as set out in Annexure "A"
to the counter-application
and, that the execution of the court order
be stayed pending the granting of an application to the first
respondent in terms of
s79 of the MHS Act. Annexure "A" to
the counter-application refers to the reasonable and necessary health
and safety
requirements for any person who traverses on road 8-A-D.
12.
Before
dealing with the merits of the main application and the counter
application, it would be apt to set out the subsequent
events that
ensued pursuant to the granting of the order on 09 February 2018.
13.
After the access order, the parties
entered into various correspondence. I do not intend to deal with
every letter written by the
legal representatives of the respective
parties. Suffice to say, from the correspondence it appears, as will
become apparent later,
that the first respondent has applied
obfuscatory and dilatory tactics in order to circumvent the access
order.
14.
As
early as 13 February 2018, the applicants' manager attempted to
contact the sixth respondent in order to access the roads as
per the
access order. Instead of doing that, the first respondent's attorneys
addressed a letter to the applicants setting out
what is regarded as
the minimum requirements in terms of the MHS Act.
15.
On 19 April 2018, the applicants what
they believe are reasonable and necessary health and safety
requirements tendered specific
health and safety measures for the
acceptance by the first respondent. On top of that, the applicants
tendered an indemnity in
favour of the respondents. On 25 April 2018,
the respondents' attorneys noted that they will take instructions
from their client
and will revert. However, on the same day, the
fourth respondent addressed a letter to the principal inspector of
mines stating
that the access order is in breach of the conventions
of the MHS Act and solicited the intervention the DMR to explain to
the applicants
all the responsibilities and accountabilities in terms
of the MHS Act. In response to that letter, the DMR on 26 April 2018
wrote
to the first respondent informing it that an exemption cannot
be granted unless an application is made in terms of s79 of the MHS
Act and the Minister grants permission.
16.
In answer, the first respondent
indicated that it intends to apply for an exemption in terms of s79
of the MHS Act. In its view,
the access order cannot impose an
obligation on them unless an exemption for traversing the road is
granted.
17.
On 21 May 2018, the applicants addressed
a letter to the respondents informing them about non-committal of the
tendered measures
and that s79 of the MHS Act is irrelevant. The
respondents were warned that should they fail to respond to the
tendered measures
contempt proceedings would be launched. On 22 May
2018, the applicants again failed compliance with the access order.
18.
On
23 May 2018, the respondents' attorneys repeated their call that s79
should be incorporated as a reasonable and necessary health
and
safety requirement failing which, they would be entitled to refuse to
comply with the access order.
19.
On
24 May 2018, the applicants requested compliance with the access
order again. Notwithstanding this request, the respondents'
attorneys
indicated that access would be refused and persisted with their
argument that an s79 application should be dealt with
under
reasonable and necessary safety requirements.
20.
On
01 June 2018, the applicants filed this application seeking
declaratory relief based upon the tendered measures. First, the
respondents is in contempt of court. Second, if the Court should find
that the respondents had not acted willfully or mala
fide
a declarator be issued setting out
the proposed health and safety requirements. However, between the
period 01 to 06 June 2018,
the respondents have changed tack and made
revisions to its various health and safety protocols.
21.
On
02 June 2018, the respondents filed their s79 exemption application.
22.
On
09 June 2018, when delivering their replying affidavit in the
counter application, the applicants proposed further revised
tendered measures. This the respondents did not accept. Furthermore,
on that day the respondents visited the access road together
with the
DMR in an attempt to obtain an exemption concerning s79 of the MHS
Act. However, this was denied by the
DMR.
23.
After
the respondents filed their counter-application, they included their
revised mine, health and safety requirements contained
in a lever
arch file to which the applicants had not had sight of nor access to.
Despite asking for inspection of the file, the
respondents
consistently refused until a formal notice forced them in terms of
rule 35(12) calling for the lever arch file.
24.
On 25 June 2018, based on the revised
safety requirements of the respondents, the applicants tendered
further measures in an attempt
to comply with the farmer's revised
requirements. On 28 June 2018, the respondents rejected the
applicants' revised tendered measures.
25.
On 26 June 2018, the respondents in no
uncertain terms stated that they would not accept the applicants'
revised tendered measures.
This was after the applicants agreed with
most of the respondents' safety requirements.
The
legislative framework:
26.
The MHS Act was introduced on 15 January
1997. The objects of the MHS Act is, in essence, to provide for the
health and safety of
persons at mines; to require employers and
employees to identify hazards and eliminate, control and minimise the
risks relating
to health and safety at mines; to give effect to the
public international law obligations of the republic that concern
health and
safety at mines; to provide for employee participation in
matters of health and safety through health and safety
representatives
and the health and safety committee at mines; to
provide for effective monitoring of health and safety conditions at
mines; to
provide for enforcement of health and safety measures at
mines and to provide for investigations and enquiries to improve
health
and safety at mines. Moreover, the MHS Act seeks to promote a
culture of health and safety in the mining industry; the training
in
health and safety in the mining industry and cooperation and
consultation on health and safety between the State, employers,
employees and their representatives.
27.
What is readily apparent from the
objects of the MHS Act is the emphasis on health and safety.
Self-evidently, a high premium is
to be applied on health and safety
at mines. There can be no doubt that the mining industry deals with
large machinery and dangerous
working conditions. As such, health and
safety are given the highest priority.
28.
Section 2(1)(b) of the MHS Act reads as
follows:
"(1) the employer of every
mine that is being worked must-
(a)
(b) ensure, as far
as reasonably practicable, that the mine is commissioned, operated,
maintained and decommissioned
in such a way that employees can
perform their work without endangering the health and safety of
themselves or any other person;
...
"
29.
The MHS Act makes provision for a chief
executive officer who must make sure that reasonable steps are taken
to ensure that the
functions of the employer as contemplated in the
MHS Act are correctly performed (s2A).
30.
In terms of s5 of the Act, an employer
must maintain a healthy and safe mine environment. Employers must
identify the relevant health
hazards and assess the related risks to
which persons who are not employees may be exposed and must ensure
that persons who are
not employees but who may be directly affected
by the activities at the mine are not exposed to any hazards to their
health and
safety.
31.
In sum, the MHS Act provides for a whole
range of safety measures, safety equipment, safety policies, codes of
practice and the
provision for safety training. It also clearly
stipulates what safety and health measures must be taken when
assessing risks, the
medical surveillance of employees and the
submission of medical reports and exit certificates.
32.
Regarding the duties of manufacturers
and suppliers who are not employees, the MHS Act is obvious what must
be done about health
and safety (s21).
33.
Notwithstanding the stringent health and
safety requirements, the MHS Act does contain an exemption in s79. It
reads as follows:
"(1) The employer of
a
mine may request an exemption from
the Minister, and if satisfied that the employer has consulted
appropriately with the affected
employees or their representatives,
the Minister may exempt the employer from any or all the provisions
of this Act or from
a
notice
or instruction issued under this Act. An exemption may be
-
(a)
General or particular;
(b)
For any period; and
(c)
On
any conditions that provide the same overall protection which would
result from the full application of this Act.
(2)
When
an exemption is granted under sub-section (1), the Minister must
issue
a
certificate
of exemption to the employer, specifying the scope, period and
conditions of the exemption.
(3)
The
Minister may amend or withdraw
a
certificate of exemption at any time.
(4)
The
employer must prominently and conspicuously display any exemption
granted, or deemed to have been granted, under this section
to the
employees to read."
34.
Against this background must be
determined whether the respondents were in contempt of the access
order.
Contempt
of Court:
35.
For purposes of this judgment, it is not
necessary to deal with the distinction between criminal contempt and
civil contempt. In
Pheko v Ekurhuleni
City
2015 (5) SA 600
(CC) at para 28
the
Court stated that the purpose of contempt proceedings is to impose a
penalty to restore the court's honour and dignity when
a previous
order was granted.
36.
Court orders are meant to be obeyed. The
compliance with court orders is fundamental to the effective
administration of justice
which should jealously be protected. To
denigrate court orders would be counter-productive and severely
impact the court's ability
to fulfil its constitutional obligations.
37.
An applicant in contempt proceedings
must prove:
(a)
the existence of a court order;
(b)
service of that order;
(c)
non-compliance with the order; and
(d)
the non-compliance must have been
willful or mala
fide.
(Pheko
(supra)
endorsing
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)).
38.
It is common ground that requirements
(a), (b) and (c) have been proven. The only issue is whether the
respondents willfully or
ma/a
fide
failed to comply with the access
order. Although the respondents in their counter-application sought
various relief, their argument
stripped to the bone was in essence
that they did not act willfully when they failed to comply with the
access order. Secondly,
they submit that the s79 application should
be part of the reasonable and necessary safety mechanisms to be
complied with before
they would allow the applicants to continue
mining. I now turn to these issues.
39.
After
the access order was granted, the respondents through their
attorneys, in correspondence set out what they regarded as reasonable
and necessary safety measures. When the applicants wanted to comply
with the access order and showed their willingness to comply
with any
reasonable and necessary safety demand of the respondents, the latter
change tact and between 01 to 06 June 2018 started
to revise its
existing mine, health and safety requirements. In my view, this was
an attempt to thwart compliance with the access
order.
40.
When
the respondents lodged their counter-application, reference was made
to
"one lever arch file"
which contained various protocols
and policies which must be complied with as part of their stipulated
mine, health and safety requirements.
This was the first time that
reference was made to the various protocols and policies of the
respondents. One can only ask why
at such a late stage the
respondents sought to present their protocols and policies. Since the
granting of the access order, there
was much correspondence between
the parties regarding what the reasonable and necessary safety
requirements of the respondents
were. At no stage during these
negotiations, did the respondents refer to the lever arch lever file
containing the protocols and
policies. What is also striking, the
applicants had to apply to the Court in terms of Rule 35 to gain
access to the file.
41.
What
is noteworthy, the respondents made changes to their protocols on
policies. Notwithstanding this obstructionist conduct, apparently
attempting to stifle the applicants, the latter tendered revised
measures and proposed a draft consent order containing its revised
tendered measures and clarifying their position concerning the
indemnity. The respondents rejected this. What this shows, is that
the applicants have acted reasonably and at all relevant times
attempted to fulfil the safety requirements of the respondents.
This
notwithstanding, the respondents allow community members to collect
wood from the farm, hunt and fish without applying mine,
health and
safety requirements. The first respondent applies double standards in
the execution of their mine, health and safety
requirements
42.
The
respondents' opposition to the revised tendered measures of the
applicants is that their mine, health and safety requirements
which
apply to all employees should also apply to the applicants'
employees, contractors, guests and invitees. They contend that
the
tendered measures of the applicants are incomplete and inadequate.
Furthermore, the indemnity was not conclusive.
43.
The
context and objectives of the MHS Act clearly distinguish between the
health and safety of employees and persons at mines. In
s2(b) of the
MHS Act a distinction is drawn between the situation where employees
can perform their work without endangering the
health and safety of
themselves or any other person. Section 5 of the MHS Act also makes
the distinction between employees and
persons who are not employees
at the mines about maintaining a healthy and safety mine environment.
In s8(c) an employee must establish
a policy concerning the
protection of persons who are not employees but who may be directly
affected by the activities at the mine.
The codes of practice again
refer to employees and other persons who may be affected by
activities at the mine, and there is an
obligation on an employer to
prepare and implement a code of practice on any matter affecting the
health or safety of employees
and other persons. There is a duty on
every employee at a mine to take reasonable care to protect the
health and safety of other
persons who may be affected by any act or
omission of an employee. These provisions clearly show a distinction
between employees
at a mine and persons who visit there. One can
think of suppliers, manufacturers and guests attending the mine. In
these circumstances,
the employer must have separate safety policies
and protocols concerning persons who are not employees of the mine.
44.
The
respondents contend that everyone (applicants' employees,
contractees, invitees) using the mine should be regarded as the
employees
of the first respondent. This interpretation offends the
provisions of the MHS Act. In my judgment, having regard to the
provisions
set out in this paragraph, where reference is made to
persons it means persons other than employees.
45.
The applicants have provided an annexure
which is annexed to the notice of motion which refers to the policies
contained in the
lever arch file of the respondents. Furthermore,
they have set out conditions when and how the employees of the
applicants should
access the road in question. These tendered
measures, in my view, are reasonable and necessary that will protect
not only the applicants
but also the respondents.
46.
Did
the respondents act wilfully or ma/a
fide
when not complying with the access
order? In my opinion, the respondents were within their rights to get
clarification as to the
meaning of reasonable and necessary safety
measures. This they did, and to which the applicants responded and
eventually exceeded
but for a few exceptions. Regrettably, the access
order did not state what reasonable and necessary safety measures
entail. It
was therefore incumbent on the parties to clarify those
terms.
47.
The
respondents' reliance on s79 of the MHS Act is misplaced. As counsel
for the applicants puts it:
it is the
antithesis of reasonable and necessary safety requirements.
It
is noteworthy that no reference was made during the access
application to a s79 exemption. Furthermore, it was only at a late
stage when the respondents grasped at the s79 extension. The
reasonable and safety measures cannot work in unanimity with s79
because they exclude each other. The purpose of s79 is to allow a
mine to be excused from specific health and safety measures. In
my
judgment, the reliance on a s79 application was an afterthought.
Incidentally, the DMR when attending the farm on 09 July 2018
reported it would not grant a s79 exemption.
48.
The
applicants have provided the Court with the reasonable and necessary
health and safety requirements which are mirrored upon
that of the
respondents. The indemnification is complete and adequate. In that
regard, they ask a declaratory
order.(Matjhabeng
Local Municipality v Eskom Holdings Limited and Others 2018 (1) SA1
(CC)
at para 54) The reliance on s79
cannot be upheld. Accordingly, the counter-application must be
dismissed with costs.
I
grant the following order:
1.
It
is declared that the reasonable and necessary health and safety
requirements as referred to in and for purposes of paragraphs
1(a)
and (b) of the order annexed as "FA3" to the founding
affidavit are those contained in Annexure "A" to
this
order, inclusive of the manuscript additions, deletions and
amendments, save that:
1.1
paragraph 2.18 is included in Annexure
"A" that provides "the COPS, SOPS and Policies in the
lever file dated and
filed 20 July 2018 will apply;"
1.2
those persons who are traversing the
Route 8-A-D on no more than two occasions per month
and
who do not drive or use their own transport:
1.2.1
may access the Route when transported by
an authorised employee of the applicants;
1.2.2
may not utilise their own transport to
access the Route;
1.2.3
other than being obliged to comply with
paragraph 1.1, 1.3, 1.5, 2.2(4) and 2.14 of Annexure "A"
and filling out a medical
form upon entering the Route 8-A-D
outlining their current medical conditions, need not comply with
Annexure "A".
2.
It
is declared for purposes of implementing the order, the indemnity in
paragraph 77 of the founding affidavit is sufficient save
that the
reference to
"the tendered
measures"
is a reference to the
health and safety requirements described in the preceding paragraph.
3.
The
relief sought in prayers 2 and 4 of the applicants' notice of motion
in the main application is postponed
sine
die.
4.
The
applicants are granted leave to again set down the main application
on an urgent basis if the respondents do not comply with
the order.
5.
The
respondents are to pay the costs of the main application, jointly and
severally, the one paying the others to be absolved.
6.
The
counter-application is dismissed with costs.
S
C O’BRIEN AJ
Date
of hearing:
08 August 2018
Date
of Judgment:
31 August 2018
Obo
Applicant:
Adv B.M Gillbert
Instructed
by:
Duncan and Rothman Inc.
Obo
Respondent:
Adv C.N Van Heerden
Instructed
by:
Van Der Wall Inc.