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[2012] ZAGPPHC 11
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Bert's Bricks (Pty) Ltd and Another v Inspector of Mines, North West Region and Others (15347/2011) [2012] ZAGPPHC 11 (9 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Date:
2012-02-09
Case
Number: 15347/2011
In
the matter between:
BERT'S
BRICKS (PTY)
LTD
.................................................................................
.
First
Applicant
EXPLO-CLAY
(PTY)
LTD
.................................................................................
Second
Applicant
and
THE
INSPECTOR OF MINES, NORTH WEST REGION
…........................
First Respondent
THE
PRINCIPAL INSPECTOR OF MINES, NORTH
WEST
REGION
...........................................................................................
Second
Respondent
THE
CHIEF INSPECTOR OF
MINES
...........................................................
Third
Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF
MINERAL
RESOURCES
...............................................................................................
Fourth
Respondent
THE
MINISTER OF MINERAL
RESOURCES
..............................................
Fifth
Respondent
JUDGMENT
SOUTHWOOD
J
[1]
The applicants seek an order declaring that the provisions of the
Mine, Health and Safety Act 29 of 1996 ('MHSA') do not apply
to the
second applicant's brick making activities and operations conducted
on Portion 100 (a Portion of Portion 98) of the Farm
Harpington 461,
IQ North West Province ('Portion 100').
In
their notice of motion the applicants also sought orders reviewing
and setting aside in terms of the Promotion of Administrative
Justice
Act 3 of 2000 (PAJA) certain actions taken by the first and third
respondents, but at the hearing the applicants did not
persist in
seeking this relief. The principal reason for this was that the
notice issued in terms of section 54(1) of the MHSA
is no longer in
force.
[2]
Despite delivering notices of intention to oppose on 26 April 2010
and again on 5 May 2010 the respondents have not filed answering
affidavits and the applicants, as they are entitled to do under our
practice rules, enrolled the matter for hearing in the unopposed
motion court. The respondents did not file practice notes or heads of
argument and were not represented at the hearing. In a supplementary
affidavit made by their attorney, Mr. Jacobs, the applicants record
that on 23 January 2012 the respondents' attorneys sought a
postponement of the hearing on 31 January 2012 so that the
respondents could file answering affidavits and informed Mr. Jacobs
that if the applicants would not agree to a postponement the
respondents would apply for such a postponement. After Mr. Jacobs
informed the respondents that the applicants did not agree to a
postponement and that the respondents should file a substantive
application none was forthcoming.
[3]
In the applicants' notice of motion the applicants seek the
declarator in terms of PAJA but this could have been sought in the
ordinary course in terms of section 19(1)(a)(iii) of the Supreme
Court Act. The declarator is sought in respect of a dispute that
has
been simmering between the parties for some time despite the fact
that it appears to have been resolved in favour of the second
applicant by a judgment (unreported) in Terra Bricks and Another v
Regional Manager, Limpopo Region Department of Minerals and
Energy
and Others (TPD Case Number 5246/05 delivered 14 April 2007) ('the
Terra Bricks judgment').
[4]
The relevant facts may be summarised as follows:
(1)
The first applicant is a company which conducts clay mining
operations on three properties near Potchefstroom owned by Tredkor
Beleggings (Pty) Ltd: Portion 100 which is approximately 34,87
hectares in extent; Portion 472 (a Portion of Portion 235 of the
Farm
Town and Townlands of Potchefstroom 435 IQ (Portion 472)) and Portion
548 (a Portion of Portion 235) of the Farm Town and
Townlands of
Potchefstroom 435 IQ (Portion 548);
(2)
Prior to 2009 the first applicant and its predecessor, a family
business, conducted clay mining operations on Portions 100,
472 and
458 for about 60 years. The first applicant and its predecessor also
manufactured bricks on Portion 100 using clay mined
from the three
portions;
(3)
In 2009 the first applicant's business was restructured. The clay
mining and brick making operations were separated. The first
applicant would continue to conduct clay mining operations and the
second applicant would own and conduct the brick manufacturing
operations. The first applicant mines the clay in two quarries
situated on Portion 100 (as well as in quarries situated on Portions
478 and 548) and the second applicant conducts its brick
manufacturing operations on a Portion of Portion 100, 3.791 hectares
in extent, in respect of which no mining permit in terms of the
Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA)
has been issued. When the first applicant converted its mining right
in accordance with the MPRDA it excluded that part of Portion
100
from the permit it sought:
(4)
The first applicant wins the clay from the earth by means of a
diesel-powered hydraulic excavator. The excavator removes the
clay
from the soil and loads it onto dump trucks which transport it to the
brick yard operated by the second applicant;
(5)
The second applicant manufactures a variety of bricks using the clay
mined by the first applicant. These brick mining activities
involve
the following steps:
(i)
The clay is mixed with other types of clay sourced elsewhere, coal or
other material purchased, depending on the requirements
of the
particular product concerned;
(ii)
The mixture is then crushed by means of a hammer mill, screened and
transported by conveyer belts to the brick making machine;
(iii)
In the brick making machine water is added to the mixture and air is
extracted;
(iv)
After proper mixing in this machine it is extruded through a mould
into a column which is cut into the required sizes and shapes
for the
bricks;
(v)
The bricks at this stage are known as 'wet green' and are then
removed and stacked to be dried before they are fired (baked)
in a
clamp kiln;
(vi)
After they have cooled down, the bricks are hand sorted for quality,
stored and then loaded and delivered to the customer;
(6)
The clay mining and brick manufacturing operations are completely
separate and are conducted about 450 metres from each other.
The
first applicant mines the clay in the quarries and sells it to the
second applicant for its brick manufacturing operations;
(7)
On a number of occasions after the business was restructured and
prior to 17 May 2010, inspectors from the Department of Mineral
Resources have conducted inspections at the brick yard conducted by
the second applicant and have issued instructions to the first
applicant in terms of section 54 of the MHSA. The first applicant and
its attorney have addressed letters to the third respondent
in which
they have pointed out that a brick yard is not a mine to which the
provisions of the MHSA apply. The applicants' attorney
also furnished
the third respondent with a copy of the Terra Bricks judgment and
pointed out that the court held that the provisions
of the MHSA do
not apply to a brick yard because it is not a mine. Notwithstanding
this correspondence and receipt of the Terra
Bricks judgment the
third respondent maintains that the MHSA applies to the brick yard
and continues to carry out inspections there.
Pursuant to one such
instruction issued on 21 July 2009 the brick yard was closed for
about 2 days which resulted in a loss to
the second applicant of R453
292. Clearly there is a dispute between the parties as to whether the
MHSA applies to the second applicant's
brick factory. It appears that
the third respondent has not taken steps to investigate the
correctness of the applicants' contentions
because the third
respondent's views are not recorded in his correspondence;
(8)
At about 12h44 on 17 May 2010 Mr. Ngwenya, the Principal Inspector of
the Department of Mineral Resources, North West Region,
and Mr.
Gabuse, an Inspector of the Department of Mineral Resources, North
West Region, went to the second applicant's brick yard
on Portion 100
and summoned Mr. Gerald van der Merwe and Mr. Zack van der Merwe who
are both directors of the applicants to the
entrance. In the presence
of the two Van der Merwes Messrs. Ngwenya and Gabuse conducted an
inspection of a forklift owned and
operated by the second applicant.
During this inspection the inspectors pointed out damage to the tread
of one of the forklift's
three tyres. Mr. Zack van der Merwe advised
the two inspectors that the first applicant did not use the forklift
for mining activities,
that the second applicant owned the forklift
and that the second applicant used the forklift in its brick making
activities. Mr.
Van der Merwe also referred the inspectors to the
Terra Bricks judgment which had been furnished to the second and
third respondent
on a number of occasions which Mr. Gabuse dismissed
as 'the mere opinion of one judge'. The inspectors then left Portion
100;
(9)
At approximately 15h45 on 17 May 2010 Inspector Gabuse telephoned
Zack van der Merwe and advised him that the first applicant
had one
hour to make representations as to why an order suspending all
trackless mobile machinery should not be issued. That afternoon,
Mr.
Van der Merwe faxed a letter to the second respondent in which he
pointed out that the inspectors had found that the tread
of the
forklift was damaged; that the second applicant owns the forklift and
uses it in its brick making operations; that the first
applicant does
not own the vehicle which does not enter the mining area and is not
used for mining; that the suspension of use
of all trackless mobile
machines on the premises would result in the immediate stoppage of
all manufacturing activities (about
300 employees would stand idle)
and have a catastrophic effect on the second applicant's
manufacturing operations. It is clear
from the letter that only
damage to the tread of one tyre of the forklift was found during the
inspection and that the tyre had
already been replaced;
(10)
On 18 May 2010 the first applicant received a notice in terms of
section 54(1) signed by the first respondent, Inspector Gabuse.
The
notice purports to be issued in terms of section 54(1 )(a) and 54(1
)(b) of the MHSA and is directed to ('Manager') Zack van
der Merwe of
('Mine') Bert's Bricks. It states that it took effect at 16h30 on 17
May 2010. The following orders and instructions
are given in terms of
section 54(1) of the MHSA:
'You
are hereby instructed to stop all your trackless mobile machines at
all the operations due to the following.
(i)
Conditions of the machines not satisfactory, e.g.excessive oil leaks
and worn-out tyres.
(ii)
Operator not filling in the pre-start checklists.
You
are further instructed to audit all the trackless machines and
establish why the conditions mentioned existed and the reason
for
failing to fill the checklist by the operator.
Until
such time that the audit has been conducted and representations made
to the Principal Inspector of Mines, no trackless mobile
machines
will operate at Bert's Bricks.'
The
applicants immediately complied with the notice. The applicants
replaced the tyre of the forklift, carried out an audit of all
their
trackless mobile vehicles and instructed the operators of these
vehicles in tyre safety;
(11)
On 17 May 2010 Zack van der Merwe requested Lektratek Water
Technology (Pty) Ltd to inspect the forklift.The report issued
by
Letkratek's professional engineering technologist, Cornelius
Theodorus van Schalkwyk, on 20 May 2010 shows that he had carried
out
a comprehensive and careful inspection of the forklift and that he
found that the machine was well maintained and that there
was no
excessive oil and fluid leakage or spillage. According to Mr. Van
Schalkwyk the small volume of hydraulic fluid contained
in the belly
of the vehicle poses no significant risk to the health and safety of
the operation and employees. The effect of containment
of the oil
prevents any spillage on the ground and poses no environmental risk.
On 20 May 2010 Zack van der Merwe requested a tyre
expert, Freek
Smit, to examine the tyre with the damaged tread. According to Mr.
Smit the ply rating of the tyre is very high and
is used extensively
for military vehicles that encounter tough off-road conditions. He
found that the tyre was inflated and that
the damage to the tyre had
not existed for any length of time. His opinion was that the damage
to the tyre was of a purely cosmetic
nature and had no effect on the
integrity of the tyre and that the tyre posed no safety risk
whatsoever in the specific application
for which it was used, namely,
a low speed Bell rough terrain forklift;
(12)
In addition, on 18 May 2010 the first applicant conducted an audit of
all trackless vehicles on Portion 100 and replaced or
repaired all
worn or damaged tyres and on 19 May 2010 gave the operators written
instructions regarding tyre safety and the necessity
for conducting a
daily pre-start check of the vehicle, completing the pre-start
checklist and not operating the vehicle if it is
unsafe;
(13)
On 20 May 2010 the applicants' attorney, Mr. Jordaan, made
representations to the second, third and fourth respondents. In
these
representations Mr. Jordaan again pointed out that the provisions of
the MHSA do not apply to the second applicant's brick
making
operations as they do not constitute a mine and that the inspectors'
factual findings were incorrect. The applicants requested
the third
respondent to set aside the order issued in terms of section 54(1).
The third respondent did not respond to this request;
(14)
As a result of the first respondent's order the second applicant's
brick yard was closed for about four days. The second applicant
calculates its loss for that period at R913 360,73;
(15)
The applicants accept (correctly in my view) that the order made in
terms of section 54(1) of the MHSA is no longer in force
because the
applicants complied with the conditions stated in the notice.
The
provisions of the MHSA apply to mines as defined in the Act but an
inspector may enter 'any other place' after obtaining the
necessary
warrant in terms of section 50(7). In terms of that subsection a
magistrate may issue such a warrant only on written
application by an
inspector setting out under oath or affirmation the need to enter a
place other than a mine to monitor or enforce
compliance with the
Act. This situation does not apply in the present case and requires
no further consideration.
The
MHSA contains an extended definition of the word 'mine'. Unless the
context otherwise indicates 'mine' when used as a noun means
-
'(i)
any borehole, or excavation, in any tailings or in the earth,
including the portion of the earth that is under the sea or other
water, made for the purpose of searching for or winning a mineral,
whether it is being worked or not; or
(ii)
any other place where a mineral deposit is being exploited, including
the mining area and all buildings, structures, machinery,
mine dumps,
access roads or objects situated on or in that area that are used or
intended to be used in connection with searching,
winning, exploiting
or processing of a mineral, or for health and safety purposes. But,
if two or more excavations, boreholes or
places are being worked in
conjunction with one another, they are deemed to comprise one mine,
unless the Chief Inspector of Mines
notifies their employer in
writing that those excavations, boreholes or places comprise two or
more mines; or
(iii)
a works.' The definition of 'mineral' in the MHSA includes clay.
'Mining
area' is defined to mean:
'A
prospecting area, mining area, retention area, exploration area and
production area as defined in section 1 read with section
65(2)(b) of
the Petroleum and Mineral Resources Development Act, 2002 (Act No 28
of 2002).'
Only
the definition of 'mining area' in the MPRDA could be relevant.
(There is no section 65(2)(b) in that Act). It means, unless
the
context indicates otherwise -
'(i)
In relation to a mining right or a mining permit, means the area for
which that right or permit is granted;
(ii)
In relation to any environmental, health, social and labour matter
and any latent or other impact thereto, includes -
(a)
any adjacent or non-adjacent surface of land on which the extraction
of any mineral and petroleum has not been authorised in
terms of this
Act but upon which related or incidental operations are being
undertaken and, including -
(i)
any area connected to such an area by means of any road, railway
line, power line,
pipeline, cable way or conveyer belt; and
(ii)
any surface of land on which such road, railway line, power line,
pipeline or cable way is located; and
(b)
all buildings, structures, machinery, mine dumps or objects situated
on or in that area which are used for the purpose of mining
on the
land in question.
[7]
The second applicant's brick making operation is clearly not a
borehole or excavation made for the purpose of searching for
or
winning clay; a place where a mineral deposit is being exploited or a
'works' (as defined in the MHSA). Even if the extended
meaning of
'mining area' in the MPSDA is applied, the brick yard is not an area
in respect of which a mining right or permit has
been granted or a
surface of land on which operations related or incidental to the
extraction of clay are being undertaken. I therefore
cannot disagree
with the reasoning and conclusion of the court in the Terra Bricks
judgment.
[8]
The area where the second applicant conducts its brick making
operations is therefore not a mine in terms of the MHSA and the
applicants are entitled to the declarator which they seek.
[9]
The issue of the section 54(1) notice will be briefly considered as
there appears to have been an egregious failure by the first
and
second respondents to act in accordance with the provisions of
section 54(1) (even if they were applicable).
[10]
Section 54(1 )(a) and (b) provides:
'(1)
If an inspector has reason to believe that any occurrence, practice
or condition at a mine endangers or may endanger the health
or safety
of any person at the mine, the inspector may give any instruction
necessary to protect the health or safety of persons
at the mine,
including but not limited to an instruction that -
(a)op
erations at the mine or a part of the mine be halted;
(b)
the performance of any act or practice at the mine or a part of the
mine be suspended or halted, and may place conditions on
the
performance of that act or practice;'
This
clearly means that -
(1)
objectively a state of affairs must exist which would lead a
reasonable man to believe that it may endanger the health or safety
of any person at the mine;
(2)
the inspector may only give an instruction which is necessary to
protect the health or safety of that person.
[11]
The first and second respondents obviously did not make use of their
powers in terms of section 50 of the MHSA. Apart from
not asking for
any documents to establish that it was not the first applicant which
conducted the brick making operations and accordingly
that a notice
in terms of section 54(1) should not be directed at the first
applicant, they did not inspect more than one trackless
mobile
vehicle and they did not establish that the damage to the tread of
the tyre of that vehicle would endanger the health or
safety of any
person at the mine. There were therefore no objective facts which
would lead a reasonable person to believe that
the damage to the
tread would endanger the health or safety of any person at the mine.
There were also no objective facts to justify
the first and/or second
respondents suspending the operation of the forklift let alone all
the trackless mobile vehicles on portion
100. If only the one
forklift was involved it was not necessary to suspend the operation
of all the other trackless mobile vehicles.
The order/direction was
clearly out of all proportion to what the two respondents found.
[12]
It seems that not one of the officials properly applied his mind to
the operation of the MHSA and that there was a gross abuse
of the
provisions of the Act. This is most disturbing. This litigation has
resulted in a waste of the state's funds (taxpayers'
money) and a
waste of the court's time. It is striking that throughout these
proceedings the Department's officials have failed
to give proper
consideration to the applicants' complaints and that they have not
deemed it necessary to dispute the applicants'
factual allegations.
In such a case the court should order that the responsible officials
must bear the costs of the litigation.
However the applicants have
not sought such an order and it requires no further consideration.
[13]
The following order is made:
I)
It is declared that the provisions of the
Mine, Health and Safety
Act 29 of 1996
do not apply to the second applicant's brick making
activities and operations conducted on Portion 100 (a Portion of
Portion 98)
of the Farm Harpington 461 IQ, North West Province;
II)
The respondents, jointly and severally, are ordered to pay the costs
of this application, including the wasted costs of 8 December
2011.
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
CASE
NO: 15347/11
HEARD
ON: 31 January 2012
FOR
THE APPLICANTS: ADV. D.B. DU PREEZ SC
ADV.
A. HIGGS
INSTRUCTED
BY: Ross & Jacobsz Inc
DATE
OF JUDGMENT: 9 February 2012