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[2015] ZALCJHB 9
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International Ferro Metals (SA) (Proprietary) Limited v Minister of Mineral Resources and Others (J1673/13) [2015] ZALCJHB 9 (21 January 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No.J1673/13
DATE: 21 JANUARY 2015
Not Reportable
In the matter between:
INTERNATIONAL FERRO METALS
(SA)
................................................................
Applicant
(PROPRIETORY) LIMITED
And
THE MINISTER OF MINERAL
RESOURCES
...............................................
First
Respondent
THE HONOURABLE MS S SHABANGU N.O.
THE MINE HEALTH AND SAFETY
INSPECTORATE,
.............................
Second
Respondent
THE CHIEF INSPECTOR OF MINES, MR D
MSISA N.O
...........................
Third
Respondent
THE PRINCIPAL INSPECTOR, NORTH WEST
REGION,
........................
Fourth
Respondent
MR M.H. MOTHIBA N.O.
THE INSPECTOR OF MINES, MR O TLHAPI
N.O
.....................................
Fifth
Respondent
THE NATIONAL UNION OF MINE
WORKERS
..........................................
Sixth
Respondent
THE NATIONAL UNION OF METAL WORKERS
OF SOUTH
AFRICA
.................................................................................
Seventh
Respondent
Heard: 25 June 2014
Delivered: 21 January 2015
JUDGEMENT
SHAI AJ
Introduction
[1] This is an application by the
Applicant in terms of which it seeks the following order:
“Part A
‘(1) That the rules relating to
forms of and services as required in accordance with the provisions
of Rule 7 of the Rules
of conduct of proceedings in the Labour Court
be dispensed with and that the matter be heard as one of urgency,
(2) Suspending the operation of the
Fifth Respondent’s instruction dated 26 July 2013 in terms of
Section 54(1)(a) of the
mine Health and Safety Act No.29 of 1996
(“the MHSA”)(the Section 54 instruction)(a copy of which
is attached to the
founding affidavit marked “FA1”-
2.1. Pending the final determination of
an appeal against the section 54 instruction to the third respondent
as contemplated in
section 57 (1) of the MHSA; and
2.2. Pending the final determination of
the relief sought in Part B hereof;
(3) In the alternative to prayer 2
above, suspending the operation of the Section 54 instruction (a copy
of which is attached to
the founding affidavit marked “FA1”
and-
3.1. Declaring that the relief set out
herein will operate with immediate effect as a rule nisi pending the
return thereof;
3.2. Directing that any of the
respondents who wish to oppose the rule nisi may anticipate its
return date on at least 48 hours’
notice to other parties to
this participation;
3.3. Calling upon the respondents to
show cause on or before a date to be determined by the Registrar as
to why-
3.3.1. The rule nisi should not be
confirmed; and
3.3.2. Such respondents who oppose the
relief sought in Part A hereto should not be ordered to pay the costs
of this portion of
the application, jointly and severally, the one
paying the others to be absolved;
(4) Costs of suit against such
respondents who oppose the relief sought in Part A hereto, jointly
and severally, the one paying
the others to be absolved;
PART B
(5) Declaring the second respondent’s
enforcement guideline issued by the third respondent (“the
Guideline”) as
is required in terms of section 49 (6) of the
MHSA and as a consequence-
5.1. Setting aside the Guideline; and
5.2. Interdicting the respondents
forthwith from relying on the Guideline in the enforcement of the
provisions of the MHSA and in
particular, the issuing of any
instructions pursuant to section 54(1) of the MHSA;
(6) In the alternative to prayer 5
above-
6.1. Declaring paragraph 7.4. of the
Guideline dealing with the purpose of halting mining operations (the
“directive”)
to be unlawful in that-
6.1.1. It is inconsistent with and
ultra vires the provisions of section 54(1) of the MHSA; and/or
6.1.2. It unfairly and unlawfully
limits the discretion of an inspector of mines as contemplated in
section 54(1);
6.2. Declaring annexure 1 to the
Guideline, which document is incorporated by reference in the
directive and which is in practice
used by the respondents as DMR235
(“DMR235”) to issue instructions contemplated in section
54(1) of the MHSA, to be
unlawful in that-
6.2.1. It is inconsistent with the
provisions of section 54(1) of the MHSA; and
6.2.2. It unfairly and unlawfully
limits the discretion of an inspector of mines as contemplated in
section 54(1);
6.3. Interdicting the respondents
forthwith from using form DMR235, or any other document, in the
exercise of an inspector of mines’
discretion to issue any
instruction as contemplated in section 54(1) of the MHSA, which-
6.3.1. Prescribes partial or total
halting of mining operation upon an inspector of mines having reason
to believe that any occurrence,
practice or condition poses an actual
or potential danger to the health and safety of any person working at
such mining operations;
and
6.3.2. Prescribes the weighing of
historical data by an inspector of mines in either determining the
actual or potential danger,
or the determination of an appropriate
instruction to address such actual or potential danger within the
meaning of section 54(1)
of the MHSA;
6.4. Directing the third respondent-
6.4.1. To amend the Guideline to remove
any reference to the directive and DMR235;
6.4.2. To publish the amended Guideline
in the Gazette as contemplated in section 49(6) of the MHSA within 30
days from date of
such order, alternatively, within such time period
as this Honourable Court may direct; and
6.4.3. To communicate such amendment to
the Guideline in writing to all officers, administrators and
inspectors of mines appointed
by and/or employed within the second
respondent upon the amended Guideline being gazetted;
(7) Directing that an instruction
partially and completely halt any mining operations within the
contemplation of section 54(1)
of the MHSA should not be imposed
unless an inspector of mines-
7.1. Has considered imposing less
invasive and appropriate instructions in the circumstances to address
the actual or potential
danger;
7.2. Has in the circumstances
determined such less invasive instructions to be inappropriate or
ineffective to address such actual
or potential danger; and
7.3. Has communicated his reasons for
rejecting such less invasive instructions in writing to the person(s)
appointed by the applicant
as the employer representative in terms of
section 4(1), alternatively, the manager appointed in terms of
section 3(1)(a) of the
MHSA and who is responsible for the particular
mining operations to be affected by the instruction;
(8) Directing the third respondent to
communicate the terms of this order in writing to all officers,
administrators and inspectors
of mines appointed by and/or employed
within the second respondent within 7 days from such order,
alternatively, within such tie
period as this Honourable Court may
direct;
(9) costs of suit against such
respondents who oppose this application, jointly and severally, the
one paying the others to be absolved;
(10) Further and/or alternative
relief.”
[2] Only Second, Third, Fourth, and
Fifth Respondents oppose the application.
[3] Part A was settled by parties and
same made an order of court.
[4] What remain to be determined are
issues pertaining to Part B.
[5] Further that, at the beginning of
the proceedings the Applicant abandoned prayers 6.3-7.3.
The Facts
[6] The Applicant is a company duly
incorporated in terms of the laws of the Republic of South Africa
with its principal place of
business at Buffelsfontein, 465 J4, in
the district of Mooinooi.
[7] The Applicants operate a chrome
mine with a ferrochrome smelter within its mining operations.
[8] The Applicant is a holder of a
mining licence under Mining Licence number ML88/2003 to mine chrome
seams and platinum group
of metals on certain portions of the farm
Buffelsfontein 465 J4(“the Mining Right”). The Mining
Right was issued on
the 22 December 2003 to Transvaal Ferro-Chrome SA
Limited under the (now repeated) Minerals Act. Transvaal
Ferro-Chrome SA Limited
was the predecessor of the Applicant and its
name was changed to that of the Applicant. The company was also
converted from a
public company to a private company.
[9] The Applicant has applied to the
Department of Minerals Resources (“DMR”) for the
conversion of the Mining Right
to a new order right as contemplated
in Mineral and Petroleum Resources Development Act No.28 of 2002
(“the MPRDA”),
which conversion has been granted, but not
yet executed as a new order right. The execution of the said right
is imminent.
[10] The Applicant is therefore the
owner and the employer within the meaning ascribed thereto in terms
of the MHSA and bears the
responsibility for health and safety of all
persons working at its mining operations as circumscribed in Section
2 of the MHSA
and has made the necessary requisite statutory,
regulatory and discretionary appointments of responsible persons as
contemplated
in MHSA.
[11] The Fifth Respondent issued an
instruction to the Applicant on 26 July 2013 within the meaning of
Section 54(1)(a) of the MHSA.
[12] The Applicant contended that the
said Section 54 instruction required the Applicant to halt its
operations at its Ferrochrome
smelter which took effect at 16h00 on
the 26 July 2013, with a limited indulgence by the Fourth Respondent
for the Applicant’s
furnaces to be shut down by 20h00 on 26
July 2013.
[13] On the other hand it was contended
for the Respondent that it is not correct that the instruction
required the Applicant to
halt its operations at its Ferrochrome
smelter but that the instruction required the Applicant to review the
carbon monoxide gas
procedure which was incorrectly set at above
legal limits to the detriment of the employees’ health and
well-being and that
until that is done, the applicant should withdraw
employees who are employed at the CO designated areas, including
employees working
at sinter screens and the bunker tunnel. The said
instruction was lawful, so it was argued for the Respondents.
[14] The Applicant contended further
that Section 54 should not have been issued for reasons that will
follow below, hence the relief
sought under paragraph 1 above. On
the other hand it was contended for the Respondents that it is
incorrect that Section 54 should
not have been issued, the only
instance when Section 54 instruction ought not to be issued is when
there is compliance with the
provisions of MHSA. Further that since
the Applicant admitted that it had not complied and acceded to taking
remedial steps it
is not understandable why Section 54 ought not to
have been issued. The Respondents’ view is that the Applicant
should have
applied to the Chief Inspector.
[15] It must be noted that Part A was
sought as an urgent relief whereas Part B was not sought urgently as
it takes the form of
a review of the conduct of the Respondents. As
I have indicated above part A has been sorted between parties.
The nature of Section 54 instruction
[16] With regard to Section 54
Instructions the Fifth Respondent found the following transgressions:
16.1.”Inadequate Carbon Monoxide
gas procedures (alarm levels set at above 100pm and evacuation at
200ppm; MHSA schedule 22
0 EL’S’’ (the first
transgression).
16.2. Poor training of employees on CO
alarm levels and evacuation procedure (MHSA sec 10(1) ) (“the
second transgression”)
16.3. “Excessive dust observed at
screen plant and the banker tunnel (CV 604) MHSA SECS (1) (“the
third transgression”).
16.4. “No monitoring
programme/annual texting of self-contained self-rescuers MHSA Reg
16.4.(1) (the fourth transgression”).
[17] In response to these transections
the Fifth Respondent gave the following instructions.
17.1.In respect of the first
transection, the Applicant was instructed to review the CO Gas
Procedure and occupational exposure
limits;
17.2. In respect of the second and
third transgression, the applicant was instructed to withdraw all
employees working at the sinter
screen and the bunker tunnel and then
to retrain these employees in respect of the revised carbon monoxide
procedure, and that
such training must involve an accredited
independent trainer;
17.3. In respect of the fourth
transection, the Applicant was instructed to comply with MHSA
Regulation 16.4.(1) which requires
the Applicant to annually test its
self-contained self-rescuers.
[18] Further that, the Applicant
contended that the removal of employees in compliance with the
Section 54 instruction from carbon
monoxide designated areas as
outlined above had the effect that none of the areas designated as
carbon monoxide risk areas as carbon
monoxide risk areas can be
operated e.g. furnace building and casting bay had to be shut down on
withdrawal of the employees.
[19] It was contended that the
Applicant operated two submerged area furnaces which operated on a
continuous basis and the section
54 instruction had the effect of or
resulted with the complete cessation of the operations at the
Applicant’s ferro-chrome
smelter.
[20] On the other hand the Respondents
contended that as long as the Applicant had not complied with the
instruction as outlined,
the Applicant remain in breach and
Respondents are entitled to have the employees withdrawn from the
said areas.
The guideline
[21] The said Section 54 instruction
was issued on or contained in a DMR 235 which a pro forma form being
an annexure to enforcement
guideline issued by the Acting Chief
inspector of mines Mr D. Mziza, Third Respondent.
[22] The said guideline appears to have
been issued in terms of Section 49(6) of the MHSA. Section 49 (6) of
MHSA requires that
such guideline be gazetted. It is common cause
between the parties that the said guideline was not gazetted as
required.
[23] The Applicant prays that the said
guideline be set aside due to the failure by the Respondent to
gazette the said guideline
since the Respondent relied in the main on
the guideline in effecting the Section 54 instruction.
Further that, it was contended for the
Applicant that the said guideline and annexure DMR 235 introduces
the consideration of historical
data in determining the Section 54
instruction thereby taking away the inspector’s discretion in
deciding whether to halt
the operation or not.
On the other hand it was contended for
Respondents that the guideline neither prescribes nor uses the
historical data in determining
the actual or potential danger.
Further that, that the inspectors do not rely on the guideline as
such and could deviate therefrom.
[24] Section 49(6) no 29 of
Mine Health
and Safety Act 1996
provides as follows:
“The Chief Inspector of Mines
‘must’ issue guidelines by notice in the Gazette”.
It is common cause between
parties that the relevant guidelines were
not gazetted as prescribed above.
[25] Section 54 of the Mine and Safety
Act 29
Mine Health and Safety Act 1996
provides as follows:
“(1) If an inspector has a 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) Operations 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;
c) The employer must take the steps set
out in the instruction, within the specified period, to rectify the
occurrence, practice
or condition; or
d) All affected persons, other than
those who are required to assist in taking steps referred to in
paragraph (c), be moved to safety.
(2) An instruction under subsection (1)
must be given to the employer or a person designated by the employer
or, in their absence,
the most senior employee available at the mine
to when the instructions can be issued.
(3)……………….”
[26] The objective of the guideline is
stated as follows:
“The objective of this document
is to provide guidance for inspectors, industry and public on the
enforcement measures used
by the department to enforce the
legislation, particularly the principle according to which the
inspector’s powers to deal
with dangerous conditions and
ensuring compliance should be exercised.”
[27] The purpose of the guideline is
stated as follows:
“This document outlines the
guidelines upon which enforcement decisions are made and aims to
achieve the following:
- Appropriate and timely enforcement
interventions
- Consistency in the enforcement of the
MHSA by Regional offices of the inspectorate;
- A structured frame work for decisions
concerning the levels of enforcement.”
[28] The guideline promotes the
following enforcement principles:
“consistency, impartiality and
non-discriminatory: enforcement action must be fair, impartial,
consistency and equitable,
taking into account the attitude, towards
health and safety and actions of alleged offender and any history of
previous incidents
and breaches of the MHSA. Enforcement actions
should result in similar outcomes in similar circumstance.”
[29] Attached to the Guideline is DMR
235 which records the “factors to consider” as follows:
- Does the transgressions endanger or
may endanger health or safety of persons.
- Any similar or related transgression
detected in the past 12 months.
- How many injury/ accidents related to
this transgression were reported in the past 12 months.
- How many fatal accidents related to
this transgression were reported in the past 12 months.
If the answer is yes to the question,
the risk is rated 5 and if the answer is yes to question 2, 3, and
for the risk is rated at
3.
[30] What is clear is that questions
2, 3 and 4 require historical data to be taken into account before
scoring the transaction
and deciding on an instruction to halt the
operations.
[31] I indicated above that it is
common cause between the parties that the Guideline was not gazetted.
What is also clear is that
the guideline does not comply with
Section 49
(6) of Act 29 of 1996 as amended in so far as publication
is concerned.
[32] The Respondent contended that
Guideline neither binds nor takes away the discretion of the
inspectors when they issue section
54 instruction.
[33] I have shown above the objectives,
purpose and principles promoted by the Guidelines and the usage of
the annexure thereto,
DMR 235. It is clear from this that the usage
of the Guideline affects the rights and interests of those these
measures are taken
against. I see no reason why the Respondents
contend that the said Guideline is not binding and may be deviated
from. If one
looks at the wording and the application thereof by the
Respondents this militates against the above contention. Since its
application
affects the interests and rights as aforesaid it is
critical that the said Guideline be compliant with the law, namely
Section
49 (6) with regard to publication. The wording of the said
section suggests that it is peremptory that the guideline be
gazetted.
This has not been done.
[34] In the premise I make the
following order:
a) The Guideline as contained at page
111 of index-Volume 2 marked “FA 13” is set aside.
b) The Respondents are forthwith
interdicted from relying on the Guideline in the enforcement of the
provisions of the MHSA and
in particular, the issuing of any
instructions pursuant to Section 54(1) of the MHSA.
c) Second to Fifth Respondents are
ordered to pay the costs of suit jointly and severally, the one
paying the others to be absolved.
Shai AJ
Judge of the Labour Court of South
Africa
Appearances
For the Applicant: Advocate A J
Eyles
Instructed by: Hogan Lovells SA
For the Respondent: Advocate Mokhari
SC
Instructed by: The State Attorney