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[2020] ZALAC 57
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Chief Inspector of Mines v Assmang (Pty) Ltd (JA 42/19) [2020] ZALAC 57; (2021) 42 ILJ 753 (LAC) (12 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no:JA 42/19
In the matter between:
CHIEF INSPECTOR OF
MINES
Appellant
and
ASSMANG
(PTY) LTD
Respondent
Heard (via ZOOM):12
November 2020
Delivered: By email to
the parties
CORAM: DAVIS JA,
COPPIN JA et MURPHY AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal with the
necessary leave against the judgment of the Labour Court (Moshoana
J)
in which the appellant’s point
in
limine
in
an appeal to that court brought in terms of s 58(1) of the Mine
Health and Safety Act
[1]
(“MHSA”)
to the effect that a conclusion by the appellant that a certain
incident occurred at a “mine” was
not an appealable
decision, was dismissed.
Background
facts
[2]
On Friday 13 June 2014, a security guard, Mr C Ngobeni, employed by a
contractor of
the respondent, was fatally injured when a heavy-duty
truck collided with him at the intersection of the R577, a public
provincial
road, and a road leading to the respondent’s mining
operation at Dwarsrivier, in the vicinity of Steelpoort and Lydenburg
in the Limpopo Province (” the accident”).
[3]
The following day, Mr. L.E. Morogorwane, an inspector of the Mine
Health and Safety
Inspectorate of the Department Mineral Resources,
Limpopo Province (”the Inspectorate”), who visited the
site of the
accident, formed the view that the incident was a “mine
accident” and issued a report on the matter together with an
instruction as envisaged in section 54(1) of the MHSA, ostensibly, to
protect the health and safety of persons at the “mine”,
i.e. referring to the respondent’s premises.
[4]
Section 54(1) empowers such an inspector, if he has reason to believe
that any occurrence,
practice, or condition at a mine endangers, or
may endanger, the health and safety of any person at the mine, to
give any instruction
necessary to protect the health and safety of
those persons. This includes, but is not limited to an instruction
that operations
at the mine be halted (s54(1)(a)), that the
performance of any act or practice at the mine be suspended, or be
performed subject
to specified conditions (s54(1)(b)), or that the
employer takes specified steps to rectify the occurrence, practice or
condition
(s54(1)(c)).
[5]
The respondent took exception to this, being of the view that the
inspector had erroneously
concluded that the accident had occurred at
a “mine” as defined in section 102 of the MHSA and in the
Mine Health and Safety Regulations
(“the regulations”).
On 7 July the respondent escalated its complaint to the principal
inspector, Mr SH Jivhuho, who,
effectively confirming the view that
the accident occurred at a “mine” as defined in the MHSA
and regulations, issued
a notice to the effect that the Inspectorate
intended to conduct an inquiry as envisaged in
section 65
of the MHSA
into the accident, but provided no reasons for the decision.
[6]
Section 65
of the MHSA, inter alia, empowers the appellant to direct
an Inspector “to conduct an inquiry
into any accident or
occurrence at a mine
that results
in the death of any person.” (Emphasis added)
[7]
The respondent appealed to the appellant in terms of
section 57
of
the MHSA against the decision of the principal inspector, Mr Jivhuho,
to conduct the intended inquiry.
[8]
Section 57
provides, inter alia, hat “any person adversely
affected by a decision” of an inspector may appeal against that
decision
to the Chief Inspector of Mines (i.e. the appellant). In
terms of subsection (3), after having considered the grounds of the
appeal
and the inspector’s reasons for the decision, the Chief
Inspector of Mines is required to (as soon as practicable) to: (a)
confirm, set aside, or vary the inspector’s decision; or (b)
substitute any other decision for the decision of the Inspector.
[9]
On 12 December 2014, Mr. Morogorwane filed a further report setting
out his reasons
for concluding that the accident was a “mine
accident”, and that decision formed the basis for the
inspectors’
conclusion that an inquiry in terms of
section 65
of the MHSA should be instituted.
[10]
In a letter dated 20 January 2015 the Chief Inspector (i.e. the
appellant) informed the respondent
that its appeal had been
considered and that it had been decided that the
section 65
inquiry
should proceed. In response to a request from the respondent for
reasons for his decision, the appellant provided written
reasons in a
letter dated 18 February 2015.
[11]
The portion of the letter relevant for these proceedings reads as
follows: “… My
decision of 19 December 2014 regarding
the above-mentioned appeal is based on the following grounds
:
1.
Factual grounds
1.1 The deceased was
working on the shift at Dwarsrivier mine during the time of his
death;
1.2 The accident happened
on the Dwarsrivier mine’s plant access road, approximately 8 m
away from the R577 public road; and
1.3 The deceased was
killed in an accident that involved a truck which was being used at
Dwarsrivier mine.
2.
Legal grounds
2.1 The deceased was an
employee of Dwarsrivier mine as per the definition of an “employee”
in
section 102
of the MHSA;
2.2 The plant’s
access road where the accident happened is a mine as per the
definition of a “mine” in
section 102
, item (A) (ii] of
the definition;
2.3
Section 65
(1)(a) of
the MHSA requires that an inquiry be conducted into any accident or
occurrence at a mine that results in the death of
any person.…”
[12]
On 20 April 2015, the respondent, relying on
section 58
of the MHSA,
instituted appeal proceedings in the Labour Court against the
decision of the appellant.
[13]
Section 58
(1) of the MHSA provides that: “any person adversely
affected by a decision of the Chief Inspector of Mines, either in
terms
of
section 57(3)
or in the exercise of any power under this
Act, may appeal against the decision to the Labour Court.” In
terms of subsection
(3) the Labour Court must consider the appeal and
has the power to confirm, vary or set aside the Chief Inspector’s
decision.
[14]
Shortly before the hearing was to commence in the Labour Court, the
appellant raised a point
that the decision, which is the subject of
the appeal, was not appealable. Having heard argument on this
preliminary point on 18
February 2019 the Labour Court dismissed it
in the judgment which is the subject of this appeal.
[15]
It was submitted in that court on behalf of the appellant that there
was no “decision”
as contemplated in
section 58(1)
of the
MHSA. According to the argument, to be appealable it must be shown
that the decision of the appellant adversely affected
a person’s
rights, and that the respondent has not shown that to have been the
case in this instance.
[16]
In rejecting that argument, the Labour Court held that the decision
in question was appealable.
It held that the inspector “had
formed a belief that the accident happened on a mine, hence his
invocation of the powers
in terms of
section 54
” and that the
appellant treated that belief as a decision because he accepted and
considered the appeal brought by the respondent
in terms of
section
57
of the MHSA. The Labour Court reasoned that that must have been
the case otherwise the appellant would not have exercised his appeal
powers in terms of
section 57.
The Labour Court also referred to the
letter of the appellant of 20 January 2015, in which he had informed
the respondent that
its appeal had been considered and that it had
been decided that an inquiry in terms of
section 65
of the MHSA
should proceed.
[17]
The Labour Court held that the classification of the accident as a
“mine accident”
was not merely a preliminary step in
coming to a decision, but was in fact a decision that served as “a
trigger for the exercise
of the powers contemplated in
section 65
”
and was “a jurisdictional requirement for the application of
the section.”
[18]
That Court also held that such a decision had a “direct and
immediate effect” on
the respondent and that it was appealable
for all the aforementioned reasons. It commented that a contrary
conclusion, namely,
that the accident did not in occur at a mine,
would be advantageous as it would obviate the holding of the inquiry
envisaged in
section 65.
[19]
In this Court, the appellant’s counsel did not strongly persist
with the contention that
the determination by the Principal
Inspector, confirmed and reinforced by the appellant, that the
accident occurred at a mine,
was not a decision as contemplated in
section 58(1)
, but he argued in essence, that even if it was a
decision, it was not (practically) appealable before the conclusion
of the inquiry,
because it was tentative and the
section 65
inquiry
could still have as one of its objects determining whether the
accident in fact occurred at a mine.
[20]
This argument that the determination that the accident occurred at
the mine was not a decision
as contemplated in
s 58(1)
of the MHSA,
clearly has no merit. The fact that the issue could still have been
inquired into, does not detract from the fact
that it was an
effective decision.
Section 58(1)
provides that a decision of the
appellant, either in terms of
section 57(3)
, or in the exercise of
any power under the MHSA, may be appealed against the Labour Court.
In this instance, there was clearly
a decision by the appellant in
terms of
section 57(3)
, or one made in terms of the exercise of the
appellant’s powers in terms of the MHSA, inter alia, to direct
that the inquiry
in terms of
section 65
be conducted into the
accident.
[21]
Part of the reason, at least, why the appellant initially appeared to
wrestle with this aspect,
seemingly, emanates from the adoption of an
approach that conflated the concepts of appealability and standing,
that are distinctly
discernible from
section 58
(1) of the MHSA.
[22]
In respect of standing, the section provides that “any person
adversely affected”
by a decision of the appellant, as
contemplated in that section, may appeal against the decision to the
Labour Court.
[23]
Counsel for the appellant argued, essentially, that the respondent
was not “adversely affected”
as contemplated in that
section, because it had not shown that its rights had been affected.
According to this argument, even though
the section does not
expressly refer to rights, it must be interpreted as referring only
to rights that had been affected. Counsel
went as far as arguing that
the word “rights” had to be read into the section.
[24]
This argument also does not bear scrutiny. The wording of
section
58(1)
is clear and unambiguous. It does not confine the adverse
effects to rights, and does not exclude, but clearly contemplates
that
such adverse effects may also relate to interests, falling short
of rights.
[25]
No rational basis was suggested why the section only gives persons
whose rights were adversely
affected by the decisions contemplated
there, the necessary standing. Generally, standing has never been
confined only to those
whose rights had been adversely affected, but
is also extended to those who have a sufficient or substantial
interest in the remedy
sought. For present purposes reference to
section 38 of the Constitution of the Republic of South Africa, 1996,
which deals with
enforcement of rights in the Bill of Rights,
suffices as an example.
[26]
In insisting that the “adverse effects” were to be
limited to rights, the appellant’s
argument was apparently
drawing from the definition of “administrative action” in
section 1(i) of the Promotion of
Administrative Justice Act 3 of 2000
(“PAJA”), which refers to a decision taken by an organ of
state, as contemplated
there, which “adversely affects the
rights of any person.” But that definition is not applicable
here. The issue for
determination in this matter does not require
establishing whether the “decision” contemplated in
section 58(1) of
the MHSA is “administrative action” as
defined in the PAJA, nor does it involve the application of the PAJA.
Further,
section 58(1) of the MHSA does not provide either expressly,
or impliedly, that only decisions that meet the definitional
requirements
of “administrative action” in the PAJA are
appealable.
[27]
In support of the appellant’s argument on the issue of
appealability, counsel referred
to the decisions of the Supreme Court
of Appeal (SCA) in
Grey’s
Marine
[2]
and
Bonitas,
[3]
both
of which are distinguishable
.
In
the former, the SCA was dealing with administrative action as defined
in PAJA and as contemplated in s 33 of the Constitution.
In
Bonitas,
the SCA was dealing with the question whether the decision of the
Registrar of Medical Schemes in terms of
s4
of the
Medical Schemes
Act 131 of 1998
was appealable in terms of
s49(1)
of that Act to
order an inspection, and held that it was not appealable as an appeal
would undermine the very nature and object
of the investigation
contemplated in s4, because the investigation contemplated there
required swift action and the element of
surprise was vital to its
effectiveness. However, the SCA, perhaps paradoxically, also
expressed the view that the decision could
be reviewed on the grounds
of legality, because it may be arbitrary or irrational. But would a
legality review of that decision
also then not undermine its
effectiveness?
[28]
Even though
Bonitas
at first blush seems applicable, it is not. The provisions of the
Medical Schemes Act under
consideration there differ materially, both
substantially and in wording, from the provisions of the MHSA under
consideration here.
There is also a marked difference between the
order to investigate considered there and the decision to conduct a
section 65
inquiry dealt with in this instance. It is apparent from
Bonitas
that the nature of the investigation contemplated there was
decisive.
[4]
[29]
In the MHSA the inquiry contemplated in
section 65
is distinguished
from an investigation in terms of that Act. It may be combined with
an investigation, since an investigation may
be converted into an
inquiry (s66(1) of the MHSA) and it may even be held after an
investigation has been completed (s 66(4)).
It is an extensive formal
process that, significantly, does not rely on the element of surprise
for its effectiveness. The inquiry
is to be held in public (s 68),
and any of the persons listed in section 69 of the MHSA may
participate in it (s69). A record of
the evidence given at the
inquiry is to be kept (s72(a)) and upon its conclusion the person
presiding must prepare a report of
the findings, recommendations and
any remedial steps (s72(b)).
[30]
Section 58(1) (like section 57(1) of the MHSA) does not confine the
decisions contemplated there
only to those that adversely affect the
rights of persons, but is broad, and, albeit impliedly, also includes
those decisions of
the appellant made in terms of section 57(3) and
those made by him in the exercise of any power under the MHSA, that
adversely
affects interests, and perhaps even legitimate
expectations.
[31]
As the Labour Court also observed, perhaps in a slightly different
context, sections 57(1) and
58(1) employ the same wording. The
appellant apparently accepted, when dealing with the respondent’s
appeal to him (which
effectively was about the very decision to
conduct a section 65 enquiry), that the respondent was “adversely
affected”
by that decision, as contemplated in section 57(1).
He never stated otherwise on that point and entertained the appeal.
To now
raise a contrary argument in an appeal to the Labour Court, in
terms of section 58(1) which employs the same words, is curious.
[32]
It is also significant that the word “decision” is not
defined in the MHSA, unlike
in the PAJA where the word
“decision“(contemplated in the PAJA) is defined. The word
bears its ordinary dictionary
meaning in section 58(1) of the MHSA,
namely, to determine an issue, or to conclude regarding an issue. It
was necessary for the
appellant to conclude on whether the accident
occurred at a mine before he could resolve that the section 65
inquiry should proceed.
And he could only do all of this in the
exercise (or purported exercise) of his powers under the MHSA. This
is also apparent from
the appellant’s letter of 20 January
2015, where he furnishes reasons for his decision. It is further
clear from the letter
that he took into account facts and the law in
coming to the conclusion that the accident occurred at a mine. That
is clearly a
decision as contemplated in section 58(1) of the MHSA.
In any event, the respondent is appealing against the appellant’s
decision which was rendered in terms of section 57(3) of the MHSA,
and section 58(1) specifically provides that such decisions are
appealable.
[33]
It is apparent from section 65 and the related provisions in the MHSA
that the holding of the
inquiry envisaged in section 65 in respect of
the accident would of necessity involve the respondent in a lengthy
and invasive
process. In terms of section 70, for example, the person
presiding at such an inquiry has extensive powers of summoning
persons
to appear as witnesses at the inquiry and/or to produce books
and documents, and to question persons under oath or affirmation.
The
inquiry may also have the effect of laying the necessary foundation
for other possible decisions concerning mine health and
safety that
could affect the respondent adversely (sections 65-72).
[34]
As was held in the Labour Court, the decision that the accident
occurred at a mine, as defined
in the MHSA, is a key jurisdictional
fact. Unless the accident occurred at a mine, the appellant would
have no power in terms of
the MHSA to order that an inquiry as
envisaged in section 65 be instituted. It is also unquestionable that
a successful appeal
against that decision could be advantageous for
the State and all involved as it would obviate the holding of an
inquiry that could
be invasive and costly.
[35]
To summarise, properly and purposively constructed, section 58(1) of
MHSA deals with the aspects
of appealability and standing,
distinctly. It gives standing to any person adversely affected by the
kind of decision of the appellant
that is contemplated in that
section. The respondent is undoubtedly a person that is so affected.
The decision the respondent
is appealing against is clearly
appealable to the Labour Court in terms of that section.
[36]
In the appellant’s heads of argument counsel purported to
raise, for the first time, for
decision by this Court, an issue
relating the form that the appeal envisaged in section 57(3) of the
MHSA should take. However,
counsel correctly seems to have abandoned
those submissions and did not raise or refer to them in his oral
argument as it was not
an issue in the Labour Court. According to the
record in the Labour Court the parties had agreed to the form of
proceedings in
that forum.
[37]
In the result, the appeal is dismissed with costs, such costs are to
include the cost of two
counsel, where two counsel were
employed.
___________________________
P Coppin
Judge of the Labour
Appeal Court
Davis JA and Murphy AJA
concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT:
Mr. MJ Ramaepadi
SC
Instructed by the State
Attorney (Johannesburg)
FOR THE
RESPONDENT:
Mr R Itzkin
(Heads of argument having
been drawn by Mr A Myburgh SC and Mr R Itzkin)
Instructed
by Edward Nathan Sonnenberg Attorneys
[1]
Act
66 of 1995.
[2]
Grey’s
Marine Hout Bay(Pty)Ltd and others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) particularly para 23.
[3]
Bonitas
Medical Fund v Counsel for Medical Schemes and Another
[2016] 4 ALL SA 648
(SCA)(“
Bonitas”
).
[4]
See
Bonitas
(above) paras 9 and 10.