Glencore Operations South Africa Proprietary Limited Coal Division v Minister of Mineral Resources and Others (JR 91/2014) [2016] ZALCJHB 31; (2016) 37 ILJ 966 (LC) (3 February 2016)

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[2016] ZALCJHB 31
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Glencore Operations South Africa Proprietary Limited Coal Division v Minister of Mineral Resources and Others (JR 91/2014) [2016] ZALCJHB 31; (2016) 37 ILJ 966 (LC) (3 February 2016)

THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
91/2014
DATE: 03 FEBRUARY
2016
Reportable
GLENCORE
OPERATIONS SOUTH AFRICA
PROPRIETARY
LIMITED COAL
DIVISION
.....................................................................
Applicant
And
MINISTER OF
MINERAL
RESOURCES
................................................................
First
Respondent
THE MINE HEALTH
AND SAFETY INSPECTORATE
....................................
Second
Respondent
LJA BEZUIDENHOUT,
N.O
.....................................................................................
Third
Respondent
A B NKOSI,
N.O
.......................................................................................................
Fourth
Respondent
Heard:5 January
2016
Delivered: 3
February 2016
Summary:
Review-Section 6 of PAJA-Recommendation - Section 55A of
MHSA-Decision-Section 55B-Imposition of fine-Recommendation and

Decision-Administrative action in terms of PAJA-Decision making
process flawed-principal inspector of mines deciding administrative

fine will be imposed-principal inspector of mines requested inspector
to make a recommendation-principal inspector of mines decided
to
impose administrative fine-bias as to subject matter and
prejudice-concepts of impartiality, independence and bias
considered-test
for bias-considered Sections 55A and 55B of
MHSA-principal inspector of mines prejudged-Decision to impose a fine
a fait accompli.
JUDGMENT
VENTER,
AJ
Introduction:
[1]
This
is an application for the review and setting aside of a
recommendation ("the Recommendation") and subsequent
decision
("the Decision") of the third and fourth
respondents, taken pursuant to the provisions of the Mine, Health and
Safety
Act
[1]
("the
MHSA") to impose an administrative fine upon the applicant.
[2]
The
applicant seeks the review and setting aside of the Recommendation
and Decision in terms of the Promotion of Administrative
Justice
Act
[2]
("PAJA")
on the basis that the Recommendation and Decision amount to unlawful
administrative action. Alternatively, the
applicant seeks the review
and setting aside of the Decision and Recommendation on the basis
that the Decision and Recommendation
violate the rule of law and the
doctrine of legality in terms of section 1(c) of the Constitution of
the Republic of South Africa
[3]
("the
Constitution").
[3]
In addition and should the Court review and
set aside the Decision, the applicant seeks an order that the first
or second respondents
repay to it the amount of R500 000.00 together
with interest at a rate of 15.5% per annum to be calculated from 2
August 2013 to
date of payment.
[4]
Despite
filing a notice of opposition,
[4]
the
first, second, third and fourth respondents failed to deliver an
answering affidavit.
Background facts:
[5]
The
applicant is the owner of a coal mine, South Witbank Colliery ("SWC")
and conducts mining operations in terms of a
mining right issued to
it pursuant to section 23 of the Mineral and Petroleum Resources
Development Act.
[5]
[6]
The applicant is responsible for the health
and safety of all the persons within the mining area of the SWC and
is the employer
for purposes of the MHSA.
[7]
On 2 October 2012, an employee of M&S
Projects (Pty) Ltd, Mr Barry Paxton ("Paxton"), was fatally
injured in an accident
underground while a crew was welding brackets
onto equipment.
[8]
Following the incident, an enquiry in terms
of section 65 of the MHSA ("the Section 65 Enquiry") was
convened. The third
respondent, Louis Bezuidenhout ("Bezuidenhout"),
who at the time was employed by the second respondent in the capacity

of principal inspector of mines, presided over the Section 65
Enquiry. The Section 65 Enquiry was conducted on 11 and 12 December

2012.
[9]
On
13 January 2013, Bezuidenhout, in his capacity as presiding officer
of the Section 65 Enquiry, issued a written report in terms
of
section 72 of the MHSA detailing his findings, recommendations and
remedial steps ("the Section 72 Report").
[6]
[10]
In
the Section 72 Report, Bezuidenhout found that:
[7]
'Although no person
can be held directly responsible for the death of Mr. Barry Grant
Paxton, the lack of the proper level of supervision
during
underground cutting and welding operations certainly contributed to
the contravention of various regulations and safety
measures that led
to the death of Mr. Paxton.
The prescribed
safety measures of the underground cutting and welding permission
have been grossly violated and will form part of
an administrative
penalty or alternatively a permanent stoppage of the practice in
terms of section 54 of the Mine Health and Safety
Act as disregard
for these safety measures can have catastrophic consequences.'
[11]
The
Section 72 Report was posted to the applicant, the South African
Police Services, the Chief Inspector of Mines, Mrs Paxton and
the
Senior Public Prosecutor under cover of letters dated 13 February
2013.
[8]
[12]
The applicant did not receive the Section
72 Report.
[13]
On
18 February 2013, the fourth respondent, AB Nkosi ("Nkosi"),
employed at the time by the second respondent in the capacity
of
inspector submitted the Recommendation to Bezuidenhout in terms of
section 55A of the MHSA.
[9]
At
the time of making the Recommendation, Nkosi was acting under the
empowering provision of section 55A(1) of the MHSA.
[14]
Nkosi, in the introductory paragraph of the
Recommendation, states as follows:
'I recommend that a
fine be imposed on, the employer at South Witbank, who has
contravened or failed to comply with the provisions
as contemplated
in section 91(1B) of the Mine Health and Safety Act, 1996 (Act 29 of
1996) as amended. Actions taken during the
underground welding on 2
October 2012 were contraventions of a Code of Practice implemented in
terms of
Section 9(2)
of the
Mine Health and Safety Act.'
[15]
In
the Recommendation, Nkosi lists nine contraventions of "a Code
of Practice implemented in terms of section 9(2) of the Mine,
Health
and Safety Act".
[10]
[16]
Nkosi's
reference to the "Code of Practice implemented in terms of
section 9(2) of the Mine, Health and Safety Act" is
reference to
the applicant's Hot Work Underground Procedures EP7
[11]
("Hot
Work Procedure"). Nkosi refers to various paragraphs in the Hot
Work Procedure and then sets out the particular
contravention thereof
in the Recommendation.
[17]
In
addition to these nine contraventions, Nkosi found that regulation
10.1(2)(b) of the MHSA and regulations 21.3.1, 21.7.3 and
21.14.3 of
schedule 4 of the MHSA were also contravened by the applicant.
[12]
[18]
Under
the heading 'Reasons for the Recommendation',
[13]
Nkosi
stated that:
'The contravention
of the requirements of the Procedures for Cutting, Welding and
Grinding Underground, Exhibit H3 of the fatal
accident inquiry, is
seen in very serious light as it could have catastrophic
consequences. The Kinross Mine disaster was initiated
by underground
flame cutting and it led to the death of 187 employees. Various coal
mine fires and explosions of flammable gas
in South Africa killed a
large number of employees.'
[19]
Reference to Exhibit H3 of the Section 65
Enquiry is reference to the Hot Work Procedure.
[20]
In
correspondence dated 28 February 2013 received by the applicant on 2
April 2013, Nkosi informed the applicant that "an Inspector
of
Mines has recommended to the Principal Inspector of Mines to impose
an administrative fine to the employer at South Witbank

Colliery".
[14]
The
reference to inspector of mines is Nkosi himself and the reference to
the principal inspector of mines is to Bezuidenhout.
[21]
Nkosi invited the applicant to make written
representations to Bezuidenhout, in his capacity as principal
inspector of mines, within
30 days from date of receipt of the
invitation.
[22]
The
applicant submitted its written representations ("the
Representations") to Bezuidenhout (in his capacity as principal

inspector of mines) on 6 May 2013.
[15]
[23]
The Representations were detailed. The
applicant responded to each of the nine contraventions of the Code of
Practice referred to
by Nkosi in the Recommendation as well as
Nkosi's findings as to the contraventions of regulation 10.1(2)(b)
and regulations 21.3.1,
21.7.3 and 21.14.3.
[24]
In essence, the applicant's submissions
were that:
1.
There were no contraventions of the Hot
Work Procedure.
2.
In the event that there was a breach, the
Hot Work Procedure is not a Code of Practice as contemplated in
section 9(2) of the MHSA
and breach thereof does not fall within
section 91(1B) of the MHSA and it is accordingly not possible to
impose an administrative
fine for breach thereof.
3.
Regulation 10.1(2)(b) has been repealed.
4.
There were no contraventions of regulations
21.3.1 and 21.7.3.
5.
Regulation
21.14.3 was not complied with, however, it would be inappropriate to
impose an administrative fine as it would not be
consistent with the
hierarchy of enforcement as contemplated in the Enforcement Guideline
("the Guideline")
[16]
.
[25]
On 28 June 2013, Bezuidenhout, in his
capacity as principal inspector of mines, took the Decision.
[26]
The
Decision was communicated to the applicant in correspondence dated 28
June 2013.
[17]
[27]
In the first paragraph of the
correspondence, Bezuidenhout stated as follows:
'Under section
55D(2) of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996),
after considering the recommendation of the
Inspector of Mines on
form DMR 198, dated 2013-06-28, I have decided to impose an
administrative fine for R500 000-00 (Five Hundred
Thousand Rand).'
[28]
Bezuidenhout did not give any reasons for
the Decision.
[29]
The
correspondence communicating the Decision was received by the
applicant on 19 July 2013 and on 2 August 2013 the applicant made

payment of the administrative fine in the amount of R500, 000.00
without prejudice to its rights.
[18]
[30]
On 17 January 2014 and within the 180 days
prescribed by section 7(1)(b) of PAJA, the applicant launched the
application for the
review and setting aside of the Decision of
Bezuidenhout and the review and setting aside of the Recommendation
of Nkosi, to the
extent necessary.
Relevant
Provisions of the MHSA
[31]
For purposes of this judgment, I feel it
necessary to set out the relevant sections of the MHSA that applied
to Bezuidenhout's and
Nkosi's exercise of their powers granted to
them by the MHSA and which are relevant to the adjudication of the
applicant's grounds
of review.
[32]
A primary objective of the MHSA is to
ensure that mines carry on operations in a manner that is healthy and
safe for employees and
members of the public.
[33]
In
order to protect the health and safety of persons on mines and to
ensure compliance with the provisions of the MHSA and its Regulations

by employers, the MHSA provides a number of enforcement mechanisms.
The second respondent and its inspectors are the custodians
of the
MHSA and are tasked in terms of various empowering provisions with
the enforcement of the MHSA. Inspectors are given wide
ranging powers
to monitor and enforce compliance with the MHSA.
[19]
[34]
In
the enforcement of the MHSA, inspectors have the power to recommend
the imposition of punitive enforcement mechanisms.
[20]
The
relevant empowering provision is the following:
'
55A
Inspector's powers to recommend a fine
(1)
An inspector may make a recommendation in writing to the Principal
Inspector of Mines
that a fine be imposed on an employer who has
failed to comply with any provision contemplated in section 91(1B).
(2)
….
(3)
The inspector concerned must serve a copy of the recommendation on-
(a)
the employer;
(b)
the health and safety committee, or if there is no health and safety
committee,
to any health and safety representative responsible for
the working place in question; and
(c)
the representative trade union, or if there is no representative
trade union, to every
registered trade union with members at the
mine.
(4)
The employer may make written representations to the Principal
Inspector of Mines
within 30 days of the recommendation.
(5)
A representation made in terms of this section may not be used
against the employer
in any criminal or civil proceedings in respect
of the same set of facts.'
[35]
The principal inspector of mines, in the
enforcement of the provisions of the MHSA, is given the power to
impose an administrative
fine on an employer. The relevant empowering
provision is the following:
'
55B
Principal Inspector of Mines impose fines
(1)
The Principal Inspector of Mines, after considering the
recommendation and any representations
made in accordance with
section 55A, may-
(a)
disregard the recommendation;
(b)
impose a fine not exceeding the maximum amount mentioned in Table 2
of Schedule 8;
or
(c)
refer the matter to the prosecuting authority for a decision as to
whether the employer
should be charged with an offence.
(2)
The Principal Inspector of Mines must notify the employer, committee,
representative
and trade union contemplated in section 55A(3), as the
case may be, of any decision made in terms of subsection (1).
(3)
An employer must pay any fine imposed in terms of this section within
30 days of the
imposition of the fine.
(4)
If the employer fails to pay the fine within the specified period,
the Chief Inspector
of Mines may apply to the Labour Court for the
fine to be made an order of that court.'
[36]
For purposes of the MHSA, particularly
sections 55A and 55B, an inspector and the principal inspector of
mines are defined as follows:
'"
Inspector
"
means an officer appointed in terms of section 49(1)(c), a Medical
Inspector and any Principal Inspector of Mines.
"
Principal
Inspector of Mines
" means the officer appointed by the Chief
Inspector of Mines to be in charge of health and safety in any region
established
in terms of section 47(2).'
[37]
The empowering provision under which Nkosi
as inspector made the Recommendation was section 55A of the MHSA.
[38]
The empowering provision under which
Bezuidenhout as the principal inspector of mines made the Decision
was section 55B of the MHSA.
Has the applicant
exhausted internal remedies?
[39]
The applicant seeks the review and setting
aside of the Decision and Recommendation in terms of PAJA. Section
7(2)(a) of PAJA provides
that a court or tribunal may not review an
administrative action unless any internal remedy provided for in any
other law has first
been exhausted.
[40]
The MHSA does not provide for internal
remedies where the principal inspector of mines has exercised his
powers in terms of section
55B of the MHSA. An internal remedy is in
fact expressly excluded by the MHSA.
[41]
Section 57(1) of the MHSA provides as
follows:
'Right
to appeal inspectors
’
decisions
(1)
Any person
adversely affected by a decision of an inspector,
except
a decision contemplated in section 55B
,
may appeal against that decision to the Chief Inspector of Mines.'
[42]
As no internal remedy is provided, the
applicant is entitled to approach this court and seek the review and
setting aside of the
administrative action in terms of PAJA.
Does PAJA apply
to the Recommendation and Decision?
[43]
Before considering the applicant's grounds
of review, the question to be determined is whether the
Recommendation and Decision constitute
administrative action falling
within the provisions of PAJA. Section 6 of PAJA will only come into
play if the action taken by
Nkosi and Bezuidenhout falls within the
definition of administration action in terms of section 1 of PAJA.
[44]
The
definition of administrative action in section 1 of PAJA
[21]
has seven main elements, namely a decision, by an organ of state,
exercising a public power or performing a public function, in
terms
of any legislation, that adversely affects rights, that has a direct
external effect and does not fall under any of the listed
exclusions.
[22]
[45]
The term decision is defined by PAJA as:
'Any decision of an
administrative nature made, proposed to be made, or required to be
made, as the case may be, under an empowering
provision, including a
decision relating to-
(a)
making, suspending, revoking or
refusing to make an order, award or determination;
(b)
giving, suspending, revoking or
refusing to give a certificate, direction, approval, consent
or
permission;
(c)
issuing, suspending, revoking or
refusing to issue a licence, authority or other instrument;
(d)
imposing a condition or
restriction;
(e)
making a declaration, demand or requirement;
(f)
retaining, or refusing to deliver up, an article; or
(g)
doing or refusing to do any other act or thing of an administrative
nature, and a reference to a failure to take a decision
must be
construed accordingly.'
[46]
The term empowering provision is defined
as:
'A
law, a rule of common law, customary law, or an agreement, instrument
or other document in terms of which administrative action
was
purportedly taken.'
[23]
[47]
The Decision of Bezuidenhout made in terms
of section 55B of the MHSA, is a decision of an administrative nature
made under an empowering
provision which adversely affected the
rights of the applicant and had a direct, external legal effect. The
Decision, accordingly,
falls within the definition of administrative
action.
[48]
The question as to whether the
Recommendation of Nkosi made in terms of section 55A of the MHSA
constitutes administrative action
for purposes of PAJA requires more
attention.
[49]
In
this regard, I refer to the
dicta
in
Greys
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
:
[24]
:
'While PAJA’s
definition purports to restrict administrative action to decisions
that, as a fact, ‘adversely affect
the rights of any person’,
I do not think that literal meaning could have been intended. For
administrative action to be
characterised by its effect in particular
cases (either beneficial or adverse) seems to me to be paradoxical
and also finds no
support from the construction that has until now
been placed on s 33 of the Constitution. Moreover, that literal
construction would
be inconsonant with s 3(1), which envisages that
administrative action might or might not affect rights adversely. The
qualification,
particularly when seen in conjunction with the
requirement that it must have a ‘direct and external legal
effect’,
was probably intended rather to convey that
administrative action is action that has the capacity to affect legal
rights, the two
qualifications in tandem serving to emphasise that
administrative action impacts directly and immediately on
individuals.'
[50]
PAJA
gives effect to section 33 of the Constitution.
[25]
The
definition of administrative action in section 1 of PAJA must be
construed consistently with section 33 of the Constitution.
Section
33 of the Constitution must also not be narrowly construed in view of
its purpose being a coherent and overarching system
for the review
and setting aside of administrative action.
[26]
[51]
In terms of section 55A, an inspector may
make a recommendation to the principal inspector of mines to impose a
fine on an employer
who has failed to comply with any provision of
the MHSA contemplated in section 91(1B).
[52]
Before a recommendation can be made in
terms of section 55A of the MHSA, there must be a failure by the
employer to comply with
the provisions contemplated in section
91(1)(B).
[53]
In terms of section 55B, the principal
inspector of mines, after considering of the recommendation and the
employer's representations,
has three options. The principal
inspector of mines can disregard the recommendation, impose an
administrative fine on the employer
or refer the matter to the
prosecuting authority for a decision on criminal prosecution.
[54]
It is clear from sections 55A and 55B that
a decision by the principal inspector of mines to impose an
administrative fine can only
be taken after the inspector has made
the recommendation and only after the principal inspector of mines
has considered the inspector's
recommendation and the employer's
representations.
[55]
In
determining whether the Recommendation is administrative action as
defined by PAJA, the Constitutional Court's approach in
Minister
of Health and Another v New Clicks SA (Pty) Ltd and Others
[27]
is
noteworthy.
[56]
The
New
Clicks
judgment dealt with the regulation making process. The Constitutional
Court had to consider whether PAJA applied to the recommendations
of
the Pricing Committee and the subsequent making of Regulations by the
Minister.
[28]
[57]
The regulation making process involved a
two stage process being a recommendation by the Pricing Committee and
a decision by the
Minister on whether to accept the recommendation.
[58]
In considering the question, the
Constitutional Court regarded the regulation making process
holistically.
[59]
Chaskalson,
CJ held that
[29]
:
'In the
circumstances of the present case, to view the two stages of the
process as unrelated, separate and independent decisions,
each on its
own having to be subject to PAJA, would be to put form above
substance.'
[60]
Ngcobo, J (as he then was) held that:
'The process
conducted by the Pricing Committee and the making of the regulations
based on the recommendation of the Pricing Committee
are interlinked.
The one is incomplete without the other. Once the process is
complete, in the sense that the regulations are made,
they become
inseparable. Thus the recommendation of the Pricing Committee
represents part of the process of regulation-making.
The process of
making regulations on the specific matters set out in section
22G(2)(a)-(c) must therefore be seen as a single process
involving
the recommendation of the Pricing Committee and the making of
regulations by the Minister based on that recommendation.
If the
process followed by the Pricing Committee is flawed, the ensuing
recommendation is similarly flawed, so are the regulations
based on
such recommendation. It is this process that we are concerned with in
these proceedings. And the question is whether PAJA
applies to this
process.'
[61]
Sachs,
J held that:
[30]
'As
did the Chief Justice and Ngcobo J, I consider the making of
regulations under section 22G(2)(b) one continuous process involving

at different times the Pricing Committee and the Minister up to the
point of promulgation.'
[62]
In
Oosthuizen's
Transport (Pty) Ltd and Others v MEC, Road Traffic Matters Mpumalanga
and Others
,
[31]
the
Transvaal Provincial Division of the High Court of South Africa had
to consider the question of whether a recommendation made
to the MEC
by an investigation team in terms of section 50 of the National Road
Traffic Act ("the NRTA")
[32]
constituted
administrative action. Any decision of the MEC in terms of section 50
of the NRTA could only be taken on the basis of
a recommendation by
the investigating team.
[63]
The MEC argued that as the recommendation
is only a preliminary step, has no finality or direct external legal
effect and is only
a pre-requisite that has to be present before the
MEC can make his decision, the recommendation is not administrative
action.
[64]
In
deciding whether the recommendation was administrative action in
terms of PAJA, Fabricius, AJ held as follows:
[33]
'Inasmuch as s 6 of
PAJA refers to 'administrative action', and inasmuch as the
definition of 'administrative action' requires a
decision, and
inasmuch as a decision must 'adversely affect the rights of any
person and which has a direct, external legal effect,
the argument is
that the so-called impact threshold requirement in most instances
requires a decision that is final, in the sense
that it has direct
external legal effect which adversely affects the rights of a person.
I have no problem with that interpretation
if this is subject to the
very important qualification that it does not follow as a matter of
logical reasoning or statutory interpretation
that a recommendation
does as a matter of law, not have a direct external legal effect
which adversely affects the rights of a
person. If that is
respondent's contention, as it seems to be, I do not agree.
Even a preliminary
decision can have serious consequences especially where it lays 'the
necessary foundation for a possible decision'
which may have grave
results. See
Van Wyk NO and Another v Van Der Merwe
1957 (1)
SA (A) at 188B - 189A.'
[65]
A recommendation made by an inspector in
terms of section 55A of the MHSA is a preliminary decision, a
jurisdictional fact and prerequisite
for the exercise by the
principal inspector of mines of his power in terms of section 55B.
The principal inspector of mines cannot
impose an administrative fine
without a recommendation by an inspector. The recommendation together
with the employer's representations
forms the basis of the decision
of the principal inspector of mines to impose the administrative
fine. The recommendation lays
the foundation for the decision. As
such, the recommendation may have serious consequences for the
employer and "has the capacity
to affect legal rights".
[66]
In
Oosthuizen
Transport
,
Fabricius, AJ held that the recommendation of the investigation team
was a decision in terms of PAJA.
[34]
[67]
In
coming to this conclusion, Fabricius, AJ considered the view
expressed in
Greys
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
(
supra
)
that administrative action is action that has the capacity to effect
legal rights. Fabricius, AJ held that:
[35]
'It is clear
therefrom that according to the German definition the administrative
act need not to have direct legal external consequences.
It is
sufficient if such administrative act is 'aimed at' such consequences
(
gerichtet ist
). When I say 'aimed at' I mean a decision that
is addressed at or trained at a certain consequence and not one that
will
have those consequences. That is how I understand the
German authorities, and that is why I presume the learned judge of
appeal
used the phrase 'capacity to affect legal rights'. This
interpretation in my view would accord with s 33 of the Constitution
and
also the common law.
I therefore hold
that the decision of the investigating team to recommend suspension
was 'administrative action' as defined in s
1 of PAJA.'
[68]
Nkosi recommended that an administrative
fine be imposed on the applicant. The Recommendation had the capacity
to affect the legal
rights of the applicant as it would and did form
the basis upon which Bezuidenhout made the Decision.
[69]
A recommendation in terms of section 55A of
the MHSA and a decision in terms of section 55B of the MHSA form part
of one continuous
process. If the recommendation is flawed, so is the
decision and if the decision is flawed, so is the recommendation.
[70]
The Recommendation of Nkosi was a decision
and constitutes an administrative act for purposes of PAJA.
[71]
It is worth mentioning that the first and
second respondents regard the action by its inspectors when enforcing
the provisions of
the MHSA as administrative action in terms of PAJA.
[72]
The
second respondent's Enforcement Guideline of 1 April 2011
[36]
provides
that:
'Due
process
:
The principles of administrative justice must be observed and
enforcement carried out within the powers and processes of the
legislation. The principles of administrative (sic) are addressed by
the
Promotion of Administrative Justice Act, 2000
; Note Section 33 of
the Constitution of South Africa provides that everyone has the right
to administrative action that is lawful,
reasonable and procedurally
fair and that everyone whose rights have been affected by an
administrative action has the right to
be given written reasons.'
[37]
[73]
Having found that both the Decision and
Recommendation are administrative action for purposes of PAJA, I now
turn to consider the
applicant's grounds of review.
Grounds of
review:
[74]
The
applicant, in its founding affidavit, sets out eleven grounds of
review in respect of the Decision and nine grounds of review
in
respect of the Recommendation.
[38]
[75]
The
applicant submits that in respect of both the Decision and the
Recommendation, Bezuidenhout and Nkosi, respectively, were not

empowered to make the Decision and Recommendation,
[39]
the
Decision and Recommendation were materially influenced by errors of
law,
[40]
were
made because irrelevant considerations were taken into account or
relevant considerations were not considered,
[41]
were
arbitrary and capricious,
[42]
and
were procedurally unfair in that the Section 72 Report was not
furnished to the applicant.
[43]
[76]
In
respect of the Decision only, the applicant has raised a further
ground of review that Bezuidenhout was bias or reasonably suspected

of bias
[44]
. The submission in
this regard is essentially that as Bezuidenhout had already made a
finding against the applicant in the Section
72 Report in his
capacity as presiding officer, he did not consider the Recommendation
in his capacity as principal inspector of
mines, in an impartial and
unbiased manner.
[45]
[77]
The
last ground of review is that the Decision is not rationally
connected to the reasons given for it as no reasons were given.
[46]
Merits of Grounds
of Review
[78]
I do not intend to deal with all eleven
grounds of review in respect of the Decision and all nine grounds of
review in respect of
the Recommendation as I am of the view that this
application can be decided solely on the ground of review in terms of
section
6(2)(a)(iii) of PAJA.
[79]
When
evaluating administrative action in terms of the grounds of review in
PAJA, the following passage in
Schoonbee
and Others v MEC for Education, Mpumalanga and Another
[47]
the
then Transvaal Provincial Division of the High Court of South Africa
is instructive:
'Now the litmus test
for evaluating administrative actions is well settled in our law. It
has been the subject of judicial pronouncements
over several decades.
More lately the Legislature saw fit to bring into being the
Promotion
of Administrative Justice Act 3 of 2000
. The Act contains in great
part what one may regard as partial codification of administrative
law with specific reference to administrative
actions, I do not
propose to set out each of these tests to be found in the Act. Where
appropriate, I will refer to specific test
as I evaluate particular
conduct on the part of the second respondent.
Suffice to say that
an administrative action should not be taken on account of bias or a
reasonable suspicion of bias. The action
has to fall within the
parameters of the law, in other words, where there is a material
procedure or condition which the law prescribes,
the wielder of power
is obliged to have regard to that. Administrative action has to be
procedurally fair and it should not be
undermined by an error of law
or, put otherwise, an error of understanding or application of the
law. For this purpose, lastly,
it is quite settled law that the
official who takes the administrative action should not be persuaded
by matters other than those
which are relevant for purposes of the
decision before it; he or she should not have regard to or be
persuaded or moved by some
ulterior purpose or motive or make
considerations which are irrelevant. He or she must act honestly, he
or she cannot act arbitrary,
or capriciously. He or she must act
rationally.'
[80]
When
exercising the powers of review, this court must have regard to the
words of O'Regan, J in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[48]
that:
'In treating the
decisions of administrative agencies with the appropriate respect, a
court is recognising the proper role of the
executive within the
Constitution. In doing so a court should be careful not to attribute
to itself superior wisdom in relation
to matters entrusted to other
branches of government. A Court should thus give due weight to
findings of fact and policy decisions
made by those with special
expertise and experience in the field. The extent to which a Court
should give weight to these considerations
will depend upon the
character of the decision itself, as well as on the identity of the
decision-maker. A decision that requires
an equilibrium to be struck
between a range of competing interests or considerations and which is
to be taken by a person or institution
with specific expertise in
that area must be shown respect by the Courts. Often a power will
identify a goal to be achieved, but
will not dictate which route
should be followed to achieve that goal. In such circumstances a
Court should pay due respect to the
route selected by the
decision-maker. This does not mean, however, that where the decision
is one which will not reasonably result
in the achievement of the
goal, or which is not reasonably supported on the facts or not
reasonable in the light of the reasons
given for it, a Court may not
review that decision. A Court should not rubber-stamp an unreasonable
decision simply because of
the complexity of the decision or the
identity of the decision-maker.'
Bias
or Reasonable Suspicion of Bias
[81]
Section 6(2)(a)(iii) of PAJA provides that
a court or tribunal has the power to judicially review an
administrative action if the
administrator who took it was bias or
reasonably suspected of bias.
[82]
The
applicant's submissions in support of this ground of review are that
there was an uncomfortable conflation of offices by Bezuidenhout
in
that he rubberstamped his own initial finding and as a result the
decision was
a
fait
accompli
.
[49]
[83]
Mr Martin, who appeared on behalf of the
applicant, submitted that Bezuidenhout, by presiding over the Section
65 Enquiry, put himself
in an untenable position. Bezuidenhout wore
two hats and when making the Decision merely rubberstamped his
initial decision. Mr
Martin argued that Bezuidenhout, in concluding
as he did in the Section 72 Report i.e. that the violations "will"
be
the subject of an administrative fine, went too far. When
Bezuidenhout typed the section 72 Report, he knew that it would form
the basis of the Recommendation. Bezuidenhout was at that stage
already of mind that the decision could only go one way. I agree
with
these submissions for the reasons set out below.
[84]
In scrutinising the Recommendation and
Decision in determining whether Bezuidenhout was bias or reasonably
suspected of bias, I
regard the Recommendation and Decision as one
continuous decision making process, for the reasons set out above.
[85]
The
requirement that administrative action must be free from bias is part
of the common law rule against bias namely
nemo
iudex in sua causa.
[50]
[86]
The rule against bias flows from the
principles that no one should be a judge of his own case and justice
should not only be done
but also seen to be done.
[87]
Bias
is defined in the Oxford Dictionary as "an indication, a
propensity, a predisposition; (towards) prejudice”.
[51]
[88]
A presiding officer should therefore not
only be impartial and independent but should also be in a position to
objectively apply
his mind to the issue before him/her. A presiding
officer who has prejudged the case before him is unable to
objectively and impartially
apply his mind when exercising his powers
and making a decision.
[89]
In
Liebenberg
and Others v Brakpan Liquor Licensing Board and Another,
[52]
Solomon,
J held that:
'Every
person who undertakes to administer justice, whether he is a legal
official or is only for the occasion engaged in the work
of deciding
the rights of others, is disqualified if he has a bias which
interferes with his impartiality; or if there are circumstances

affecting him that might reasonably create a suspicion that he is not
impartial (
Law v Chartered Institute of
Patent Agents
(1919, 2 Ch. 276)
.
The very idea of adjudication connotes
impartiality, for the integrity of justice is threatened as soon as
self-interest, actual
or probable, in the mind of the person
adjudicating is tolerated. So strict are the Courts that, even where
justice would seem
to have been done by persons unaffected by bias,
yet the mere presence at their consultation of a non-impartial
official will vitiate
the proceedings.
'
[90]
Solomon,
J quoted with approval the words of Lord Hewart, CJ in
Rex
v Sussex Justices
[53]
that:
'… it is not
merely of some importance but is of fundamental importance that
justice should not only be done, but should
manifestly and
undoubtedly be seen to be done.'
[91]
In
De
Lange v Smuts NO and Others,
[54]
the
Constitutional Court in considering the concepts of independence and
impartiality considered the Canadian jurisprudence and
quoted with
approval the judgment of the Canadian Supreme Court of Appeal in
R
v Valente
[55]
.
The Constitutional Court held as follows:
'In Valente the
fundamental distinction between the concepts of independence and
impartiality, which is particularly relevant in
the present case, was
emphasised in the following two passages in the Court's judgment:
"Although there
is obviously a close relationship between independence and
impartiality, they are nevertheless separate and
distinct values or
requirements.  Impartiality refers to a state of mind or
attitude of the tribunal in relation to the issues
and the parties in
a particular case. The word ‘impartial’ . . . connotes
absence of bias, actual or perceived. The
word ‘independent’
in s. 11(d) reflects or embodies the traditional constitutional value
of judicial independence.
As such, it connotes not merely a state of
mind or attitude in the actual exercise of judicial functions, but a
status or relationship
to others, particularly the Executive Branch
of government, that rests on objective conditions or guarantees."
Although judicial
independence is a status or relationship resting on objective
conditions or guarantees, as well as a state of
mind or attitude in
the actual exercise of judicial functions, it is sound, I think, that
the test for independence for purposes
of s. 11(d) of the Charter
should be, as for impartiality, whether the tribunal may be
reasonably perceived as independent. Both
independence and
impartiality are fundamental not only to the capacity to do justice
in a particular case but also to individual
and public confidence in
the administration of justice. Without that confidence the system
cannot command the respect and acceptance
that are essential to its
effective operation. It is, therefore, important that a tribunal
should be perceived as independent,
as well as impartial, and that
the test for independence should include that perception. The
perception must, however, as I have
suggested, be a perception of
whether the tribunal enjoys the essential objective conditions or
guarantees of judicial independence,
and not a perception of how it
will in fact act, regardless of whether it enjoys such conditions or
guarantees".'
[92]
The
then Appellate Division considered the definition of bias in
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers Union and Another
[56]
and
held as follows:
'For present
purposes there may be adopted the definition of 'bias' stated in the
House of Lords by Lord Thankerton in
Franklin v Minister of Town
and Country Planning
[1948] AC 87
(HL) at 103. It was there said
that the proper significance of the word
"… is to
denote a departure from the standard of even-handed justice which the
law requires from those who occupy judicial
office or those who are
commonly regarded as holding a quasi-judicial office."'
[93]
Biasness
comes in many forms. The applicant has submitted that the biasness of
Bezuidenhout has its source in bias in relation to
the subject
matter.
[57]
This
source of bias is also known as prejudice. Prejudice arises if the
decision maker has (or is perceived to have) associated
him/herself
with one side of the dispute.
[94]
Baxter
describes prejudice as follows:
[58]
'Real or apparent
prejudgment of the issues to be decided by the decision-maker gives
rise to disqualification on grounds of bias.
Prejudice usually arises
as a result of the decision-maker's past activities, past
relationship with the affected individual, current
external
commitments, or his manner of conduct during the decision-making
process. The most obvious form of prejudice is that which
arises when
someone is both prosecutor and judge in the same case.
On a more general
level, past activities may well reveal an official to have so
identified himself with a particular view, directly
relevant to the
subject-matter of the administrative decision, that there is a
reasonable apprehension that he cannot remain impartial.'
[95]
In
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and Others,
[59]
the Cape Provincial Division stated as follows with regard to
prejudice:
'It
is our view that it is not bias
per
se
to hold certain tentative views about a matter. It is human nature to
have certain
prima
facie
views on any subject. A line must be drawn, however, between mere
predispositions or attitudes, on the one hand, and pre-judgment
of
the issues to be decided, on the other hand. Bias or partiality
occurs when the tribunal approaches a case not with its mind
open to
persuasion nor conceding that exceptions could be made to its
attitudes or opinions, but when it shuts its mind to any
submissions
made or evidence in support of the case as it has to decide. No one
can fairly decide a case before him if he has already
prejudged it.
Thus pre-judgment of the issues to be decided which is in a sense
prejudice constitutes bias. The entire proceedings
become tainted
with bias. (See
De
Lille and Another v Speaker of the National Assembly
1998
(3) SA 430
(C) at 444 - 5 and the authorities there cited;
Loggenberg
and Others v Robberts and Others
1992
(1) SA 393
(C) at 405 - 6;
Anglo
American Farms t/a Boschendal Restaurant v  Konjwayo
(1992)
13
ILJ
573 (LAC) at 587;
Council
of Review, South African Defence Force, and Others v Monnig and
Others
1992
(3) SA 482
(A) at 490.)
'
[60]
[96]
Impartiality is an inherent quality of any
tribunal or officer tasked with exercising a power entrusted to them
and making a decision
which could affect the rights of others.
[97]
The
Constitutional Court in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd (Seafood's Division Fish Processing
)
[61]
defined
impartiality as follows:
'Impartiality is
that quality of open-minded readiness to persuasion - without
unfitting adherence to either party, or to the judge's
own
predilections, preconceptions and personal views - that is the
keystone of a civilized system of adjudication. Impartiality
requires
in short 'a mind open to persuasion by the evidence and the
submissions of counsel'; and, in contrast to neutrality, this
is an
absolute requirement in every judicial proceeding. The reason is
that:
"A cornerstone
of any fair and just legal system is the impartial adjudication of
disputes which come before courts and other
tribunals… Nothing
is more likely to impair confidence in such proceedings, whether on
the part of litigants or the general
public, than actual bias or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes."'
[98]
In
SA
Commercial Catering and Allied Workers Union and others v President,
Industrial Tribunal and Another,
[62]
the
Supreme Court of Appeal held that:
'It is beyond
question that members of the tribunal had to act impartially. It is,
moreover, not only actual bias, but the outward
appearance of bias
that may vitiate the decision of a body such as the tribunal as
justice must be seen to be done.'
Was Bezuidenhout
bias?
[99]
In determining whether Bezuidenhout was
bias in making the Decision, the manner in which the decision making
process was conducted
by Nkosi and Bezuidenhout in terms of the
empowering provisions is to be scrutinised.
[100]
Bezuidenhout, in his capacity as presiding
officer, conducted the Section 65 enquiry, listened to the evidence
of the witnesses,
questioned the witnesses, assessed the evidence,
made credibility findings and issued the Section 72 Report. In the
Section 72
Report, Bezuidenhout concluded that there were gross
violations which would be subject to an administrative fine or
permanent stoppage
of the practice.
[101]
Bezuidenhout, in the Section 72 Report,
identifies himself with a particular view being that of gross
violations of the prescribed
safety measures and also the imposition
of an administrative fine on the applicant.
[102]
Bezuidenhout, after issuing of the Section
72 Report and having identified himself with the imposition of an
administrative fine,
then requested Nkosi, a subordinate to
Bezuidenhout and inspector who played no role in the Section 65
Enquiry, to recommend to
him (as the principal inspector of mines)
the imposition of an administrative fine on the applicant. It is
unclear in what capacity
Bezuidenhout requested Nkosi to draft the
Recommendation (that of presiding officer or that of principal
inspector of mines).
[103]
Whilst I appreciate that Nkosi could
compile the Recommendation by simply reading the record of the
Section 65 Enquiry and the Section
72 Report, there are a number of
difficulties with the process followed by Bezuidenhout which in my
view raises serious causes
of concern and evidences a flawed decision
making process.
[104]
Nkosi is a subordinate to Bezuidenhout
which raises the question of whether Nkosi, as a decision maker and
person exercising the
power in terms of section 55A(1) of the MHSA,
was in a position to, independently and without influence from
Bezuidenhout, consider
the evidence led at the Section 65 Enquiry,
consider the Section 72 Report and make the Recommendation.
[105]
In
considering the concepts of independence and impartiality, the Cape
Provincial Division of the High Court of South Africa in
Ruyobeza
and Another v Minister of Home Affairs and Others
[63]
stated
as follows:
'To revert for a
moment to the dictionary definition of 'independent' which I have
quoted above, the servant in that position seems
to me to have not a
single one of the qualities essential to independence in this
context: for he is dependent upon the authority
of another (his
master); he is in a position of subordination (to his master); he is
subject to external control or rule (by his
master); and he is
neither self-governing nor free as regards work: he is obliged to
work, and to do the work in the manner and
at the time and place
directed by his master.'
[106]
The High Court further stated that:
‘…
by
its very nature, the relationship of servant to master has inherent
in it the subservience, in matters of work to be done, of
the servant
to the wishes and directions of the master.’
[64]
[107]
Independence
is defined in the Oxford Dictionary
[65]
as
'not depending upon the authority of another, not in a position of
subordination, not subject to external control or rule,
self-governing,
free’.
[108]
In my view and in light of Bezuidenhout's
findings in the Section 72 Report and the position of subordination
of Nkosi to Bezuidenhout,
Nkosi's ability to independently and
impartially assess the facts and to make the Recommendation was
severely curtailed. Could
Nkosi, as a subordinate to Bezuidenhout,
independently and impartially, without influence from Bezuidenhout,
assess the evidence
and make the Recommendation? I do not think so.
[109]
Another difficulty that I have is that from
a reading of the Section 72 Report and the Recommendation, it is
apparent that the authors
being Bezuidenhout and Nkosi have used the
same language and have committed the same error of law.
[110]
In
the Section 72 Report,
[66]
Bezuidenhout
uses the words "catastrophic consequences". Nkosi uses the
same words in the Recommendation.
[67]
In
the Section 72 Report, Bezuidenhout makes reference to Regulation
10.1(2)(b) which was repealed on 2 July 2002.
[68]
Nkosi
makes the same error in the Recommendation by referring to the same
repealed Regulation 10.1 (2)(b).
[69]
[111]
The use of the same words "catastrophic
consequences" could be a coincidence, however, the reference by
both Bezuidenhout
and Nkosi to a repealed regulation creates the
perception that Bezuidenhout (in his capacity as presiding officer of
the Section
65 Enquiry and author of the Section 72 Report) had input
in the compilation of the Recommendation, or that Nkosi was
influenced
by Bezuidenhout when making the Recommendation or that
Nkosi failed to independently apply his mind to the facts and merely
followed
the direction of Bezuidenhout, his master, when making the
Recommendation.
[112]
Nkosi's ability to make an independent and
impartial recommendation in light of Bezuidenhout's unequivocal
finding in the Section
72 Report and Nkosi's subservient position to
Bezuidenhout is questionable.
[113]
It
is unfortunate that the first and second respondents, Bezuidenhout
and Nkosi, chose not file an answering affidavit in which
an
explanation is given for Bezuidenhout having requested a subordinate
(who played no role in the Section 65 Enquiry)
[70]
to
make a recommendation to impose a fine where he had already decided
that an administrative fine would be imposed.
[114]
As no explanation has been forthcoming from
Bezuidenhout or Nkosi, the Court is left with having to guess why
Bezuidenhout would
have acted in this manner. A possible explanation
could be that in order for justice to be seen to be done and in order
to circumvent
the provisions of sections 55A and 55B of the MHSA in
that Bezuidenhout as principal inspector of mines could not be seen
to be
considering his own recommendation to impose a fine,
Bezuidenhout had Nkosi make the Recommendation in order to allow him
(Bezuidenhout)
to approve same in terms of section 55B of the MHSA. I
discuss this issue further below.
[115]
After Nkosi made the Recommendation, the
applicant made comprehensive Representations.
[116]
The purpose of representations contemplated
by section 55A(4) of the MHSA is to persuade the principal inspector
of mines, who will
ultimately make the decision whether to impose the
fine, not to impose an administrative fine. The representations of
the employer
made in terms of section 55A(4) of the MHSA is the
employer's opportunity to state its case and to influence the
principal inspector
of mines when making the decision. Section 55A(4)
of the MHSA gives effect to one of the rules of natural justice,
namely,
audi alteram partem
or "listen to the other side".
[117]
The
importance of the employer's representations contemplated in section
55A(4) of the MHSA cannot be overstated. The MHSA, in section
55B(5),
elevates the representations to privileged or without prejudice
statements.
[71]
[118]
The purpose of section 55B(5) of the MHSA
could only be to encourage employers to make comprehensive
representations without the
fear that its acceptance of blame or
responsibility in the written representations will be used against it
in future proceedings
which could be instituted against it. An
employer is encouraged by section 55B(5) to be honest and transparent
in the representations
and to fully disclose all facts despite those
facts possibly being incriminating.
[119]
On receipt of the Representations and in
terms of section 55B, Bezuidenhout in his capacity as the principal
inspector of mines,
was required to apply his mind to the
Recommendation and the Representations and without prejudice and
objectively arrive at a
decision, to disregard the Recommendation or
to impose an administrative fine or to refer the matter to the
prosecuting authority.
[120]
In my view, given Bezuidenhout's manifest
attitude towards the applicant as reflected in the Section 72 Report
and his perceived
input into the Recommendation or influence over
Nkosi when drafting the Recommendation, Bezuidenhout was in no
position to impartially
and objectively consider the Representations.
[121]
I agree with the applicant that in making
the definitive finding in the Section 72 Report that the gross
violations would be the
subject of an administrative fine, the
Decision was
a fait accompli
.
[122]
Having come to the finding in the Section
72 Report (as presiding officer), Bezuidenhout in his capacity as the
principal inspector
of mines, tasked with making a decision in terms
of section 55B of the MHSA, was not open to influence or persuasion.
Bezuidenhout
could not be persuaded any other way as he had made up
his mind, he had pre-judged, his mind was closed. Having presided
over the
Section 65 Enquiry and having pre-judged the matter as
evident from the Section 72 Report, Bezuidenhout was disqualified on
the
grounds of bias, from exercising his power as the principal
inspector of mines in terms of section 55B of the MHSA.
[123]
The
Decision, as contained in the correspondence of 28 June 2013,
[72]
in
my view, evidences not only a closed mind or pre-judgment but also a
failure to apply an objective and impartial mind to the

Representations.
[124]
Bezuidenhout,
in his capacity as the principal inspector of mines, in communicating
the Decision to the applicant, refers to a repealed
section of the
MHSA as the empowering provision.
[73]
Bezuidenhout
states that he has considered the Recommendation and makes absolutely
no mention of the Representations. No reasons,
whatsoever, are given
by Bezuidenhout for the Decision.
[125]
Again it is unfortunate that Bezuidenhout
did not provide an explanation in an affidavit before this Court for
his conduct. The
first and second respondents and Bezuidenhout
elected not to provide this Court with any explanation for the manner
in which Bezuidenhout
conducted the decision making process and the
matter in which he came to the Decision.
[126]
The Court is left guessing as to whether
Bezuidenhout gave any consideration to the Representations. It would
appear from the correspondence
that Bezuidenhout failed to do so and
did not apply his mind to the Representations.
[127]
The manner in which Bezuidenhout conducted
himself in the decision making process from the issue of the Section
72 Report to the
making of the Decision, evidences a pre-judgment.
Having come to the finding in the Section 72 Report that an
administrative fine
will be imposed, Bezuidenhout had made up his
mind. Bezuidenhout had associated himself with a decision to impose
an administrative
fine. When tasked with the consideration of the
Recommendation and Representations and making of the Decision; he had
already pre-judged
the issues; he was not open to influence or
persuasion; he could not bring an objective and impartial mind to
bear on the decision
making process. He was the prosecutor and the
judge.
[128]
In my view, the entire decision making
process was tainted with prejudice to the extent that the applicant
was denied a fair hearing
prior to the Decision being taken. Justice
was not seen to be done and was not done. The applicant's right to
fair administrative
action was infringed.
[129]
The Decision and Recommendation constitute
unlawful administrative action.
The test for bias
[130]
It
is worth mentioning that the test for bias is the existence of a
reasonable suspicion of bias.
[74]
[131]
In
BTR
Industries
[75]
the
then Appellate Division in considering the test for bias held as
follows:
'
It
is the right of the public to have their cases decided by persons who
are free not only from fear but also from favour. In the
end the only
guarantee of impartiality on the part of the courts is conspicuous
impartiality. To insist upon the appearance of
a real likelihood of
bias would, I think, cut at the very root of the principle, deeply
embedded in our law, that justice must
be seen to be done. It would
impede rather than advance the due administration of justice. It is a
hallowed maxim that if a judicial
officer has any interest in the
outcome of the matter before him (save an interest so clearly trivial
in nature as to be disregarded
under the
de
minimis principle
) he is
disqualified, no matter how small the interest may be. See in this
regard the remarks of Lush J in
Sergeant
and Others v Dale
(1877) QBD 558
at
567. The law does not seek, in such a case, to measure the amount of
his interest. I venture to suggest that the matter stands
no
differently with regard to the apprehension of bias by a lay
litigant. Provided the suspicion of partiality is one which might

reasonably be entertained by a lay litigant a reviewing court cannot,
so I consider, be called upon to measure in a nice balance
the
precise extent of the apparent risk. If suspicion is reasonably
apprehended then that is an end to the matter. I find myself
in
complete agreement with what was forcibly stated by Edmund Davies LJ
in the
Metropolitan Properties
case (
supra
)
at 314 C-D:-
"With
profound respect to those who have propounded the 'real likelihood'
test, I take the view that the requirement that justice
must
manifestly be done operates with undiminished force in cases where
bias is alleged, and that any development which appears
to emasculate
that requirement should be strongly resisted.”'
[132]
In
S
v Roberts
,
[76]
the
Supreme Court of Appeal set out the four requirements of the
reasonable suspicion test as follows:
1.
There must be a suspicion that the officer might, not would be
biased.
2.
The suspicion must be that of a reasonable person in the position of
the litigant.
3.
The suspicion must be based on reasonable grounds.
4.
The suspicion is one which the reasonable person referred to would,
not might, have.
[133]
Applying the reasonable bias test to the
facts of this case, there is no doubt in my mind that Bezuidenhout's
finding in the Section
72 Report that the violations would be the
subject of an administrative fine, his perceived input into the
Recommendation or perceived
influence over Nkosi in making the
Recommendation, his failure to apply his mind to the Representations
and the lack of reasons
given for the Decision, would have provided
the reasonable person in the applicant's position with reasonable
grounds to suspect
that Bezuidenhout might be bias.
[134]
Accordingly, if I am incorrect in finding
that there was actual bias, on application of the test for bias,
there is no doubt that
the manner in which Bezuidenhout made the
Decision gave rise to a reasonable suspicion of bias.
Sections 55A and
55B of MHSA
[135]
Before dealing with the appropriate remedy,
I wish to raise a concern I have with regards to the application and
interpretation
of sections 55A and 55B of the MHSA as highlighted by
the facts of this case.
[136]
In terms of section 55A of the MHSA, an
inspector (which includes by definition the principal inspector of
mines) may make a recommendation
to the principal inspector of mines
(as defined) to impose a fine.
[137]
In terms of section 55B of the MHSA, only a
principal inspector of mines can, after consideration of the
recommendation of the inspector
and representations of the employer,
impose an administrative fine.
[138]
Section 55A read with the definition of
inspector in section 102 of the MHSA envisages a situation where the
principal inspector
of mines can recommend to himself to impose an
administrative fine on an employer.
[139]
Section 55B read with the definition of
inspector in section 102 of the MHSA envisages that after
recommending to himself to impose
an administrative fine, the
principal inspector of mines may after consideration of his own
recommendation and representations
from the employer, make a decision
to impose an administrative fine.
[140]
This, in effect, means that the principal
inspector of mines can not only recommend to himself the imposition
of an administrative
fine on an employer but can also ratify his own
recommendation to impose an administrative fine.
[141]
This could have not have been the intention
of the legislature as is clearly illustrated by the facts of this
matter. This is contrary
to fair administrative action.
[142]
Inspectors are given wide powers when
enforcing the provisions of the MHSA. This is understandable given
the importance of the health
and safety of persons on mines and the
severe consequences such as loss of life and limb of contraventions
by employers of the
provisions of the MHSA and its regulations.
[143]
Checks and balances are required in order
to ensure that when exercising these wide powers, inspectors do not
exceed their powers
and at all times act in a fair and lawful manner.
[144]
In my view, section 55B of the MHSA is one
such check and balance provided for in the MHSA. The power to impose
an administrative
fine is reserved for the principal inspector of
mines only. In terms of section 55B of the MHSA, only the principal
inspector of
mines can impose an administrative fine on an employer
and only after he has objectively, impartially and independently
considered
the recommendation of the inspector (his subordinate) and
the representations of the employer. I have extensively set out the
principal
inspector of mine's duties above when exercising this power
and in giving effect to the
audi alteram
partem
principle. The purpose of
section 55B, as a check and balance, is to ensure that the inspector
who makes the recommendation does
not also impose the fine.
[145]
An inspector would wield too much power
over an employer if he was permitted to preside at the Section 65
Enquiry, issue the Section
72 Report, make a recommendation and
ultimately take the decision to impose the administrative fine on the
employer. This would
undermine fair administrative action, contravene
section 33 of the Constitution, and give rise to a flawed decision
making process
for the reasons as illustrated by this case.
[146]
If sections 55A and 55B of the MHSA are
regarded as a check and balance provided in the MHSA limiting the
wide powers of the inspectors,
two objective, impartial and
independent minds would be involved in the decision making process,
the inspector and the principal
inspector of mines. If sections 55A
and 55B of the MHSA are interpreted as a check and balance, the
prosecutor will not also be
the judge and the decision making process
will not be open to scrutiny and challenge by the employer on the
basis that the decision
making process was tainted with actual bias
or perceived bias.
[147]
In my view, section 55A of the MHSA should
be read to exclude the principal inspector of mines from the
definition of inspector
for the reasons mentioned above. The
principal inspector of mines should not have the power to recommend
the imposition of an administrative
fine and to, based on his own
recommendation, make a decision to impose an administrative fine on
the employer.
Appropriate
Remedy
[148]
In terms of section 8(1) of PAJA, this
Court may grant an order that is just and equitable which includes
the setting aside of the
administrative action.
[149]
In
Sasol
Intrachem v Sefafe and Others,
[77]
the Labour Appeal Court stated that:
'To summarise, in
cases where it was held that the presiding officer ought to have
recused himself or herself at the outset, but
failed to do so, the
entire proceedings before the arbitrator or presiding officer are a
nullity. In cases where it is found that
the arbitrator or presiding
officer did not have to recuse himself or herself despite bias, the
appeal court generally has a discretion
to cure any defect which in
turn will depend on the facts and circumstances of every particular
case. Bias may nevertheless be
so severe and pervasive that it cannot
be cured other than by a complete re-hearing of the matter, or the
facts may be of the kind
encountered in
Rondalia
and
Rall
where the court of appeal or review, depending on its powers, may
cure the irregularity or perceived irregularity. The guiding
principle
is that a litigant has a constitutional right to a fair
hearing from the outset to its conclusion. The hearing must not only
be
fair, but must also be seen to be fair. Anything less than that
would not suffice. The remedy employed must cure the irregularity;
it
must restore the right. Generally, nothing less than a complete
rehearing would be required.'
[150]
The
Sasol
Infrachem
(
supra
)
judgment dealt with the apprehension of bias where an arbitrator
failed to disclose a close relationship with one of the parties
in
the dispute. The principle that a party is entitled to fair hearing
and nothing less is, however, in my view equally applicable
to
prejudice by a presiding officer.
[151]
The applicant must be granted a remedy that
restores its right to a fair hearing and fair administrative action.
[152]
The applicant does not seek to impugn the
conduct of Bezuidenhout in the Section 65 Enquiry and the Section 72
Report. The applicant
seeks to only impugn the Recommendation and
Decision.
[153]
The pre-judgment by Bezuidenhout is
evidenced for the first time in the Section 72 Report where he
identifies himself with the imposition
of an administrative fine. As
a result of this pre-judgment and the tainted decision making process
that followed which ultimately
led to the Decision, the applicant was
denied its right to a fair hearing prior to the Decision being taken.
[154]
Bezuidenhout's prejudice in the decision
making process was severe and pervasive. The question to be
considered is whether the reviewing
and setting aside of both the
Decision and Recommendation is necessary to restore the applicant's
right to a fair hearing.
[155]
The source or origin of the pre-judgment by
Bezuidenhout is the Section 72 Report. Bezuidenhout's prejudice which
manifested in
the Section 72 Report set the tone for and is a
noticeable feature throughout the entire decision making process
thereafter. The
Section 72 Report formed the basis of the
Recommendation to impose the fine and, accordingly, the applicant's
right to a fair hearing
will, in my view, not be restored should only
the Decision be reviewed and set aside as the Recommendation will
still stand.
[156]
In my view, in order to restore the
applicant's right to a fair hearing, it would be just and equitable
to review and set aside
both the Recommendation and Decision, being
one continuous decision making process.
Costs
[157]
As I have indicated in the judgment, it is
a pity that the respondents decided not to furnish the court with an
explanation for
the decision making process or at least attempt to
defend same.
[158]
The applicant had no other remedy available
to it to challenge the decision making process and the Recommendation
and Decision made
during such process other than to seek the review
and setting aside thereof in terms of PAJA.
[159]
I see no reason why the applicant, being
successful in its application, should not be awarded the costs of the
application. Costs
should follow the result.
Order:
[160]
The following order is made:
(a)
The decision of the third respondent made
in terms of
section 55A
of the
Mine Health and Safety Act to
impose
an administrative fine on the applicant conveyed in a letter
addressed from the third respondent to the applicant dated
28 June
2013, stamped 19 July 2013 and received by the applicant on 19 July
2013 is reviewed and set aside on the ground that it
constituted
unlawful administrative action and is invalid.
(b)
The recommendation of the fourth respondent
dated 18 February 2013 to impose an administrative fine upon the
applicant is reviewed
and set aside on the ground that it constituted
invalid administrative action and is invalid.
(c)
The first, alternatively the second
respondent is directed to repay the amount of R500 000.00 (five
hundred thousand rand) paid
by the applicant pursuant to the invalid
decision, together with interest to be calculated at 15.5% per annum
from 2 August 2013
to date of payment.
(d)
Payment of the amount of R500 000.00
together with interest at a rate of 15.5% per annum is to be made to
the applicant within a
period of thirty (30) days from date of this
judgment.
(e)
The first and second respondents are
ordered to pay the applicant's costs on an unopposed scale.
Venter, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
applicant: Advocate H Martin
Instructed
by: Hogan Lovells South Africa
[1]
Act
29 of 1996, as amended.
[2]
Act
3 of 2000.
[3]
Act
108 of 1996.
[4]
Pages
845 - 846 of the record.
[5]
Act
28 of 2002.
[6]
Page
901 of the record.
[7]
Pages
903 and 904, paras 7.1 and 7.2 of the record.
[8]
Pages
896 - 900 of the record.
[9]
Pages
890 - 895 of the record.
[10]
Pages
890 - 894 of the record.
[11]
Pages
613 - 616 of the record.
[12]
Page
894 of the record.
[13]
Page
895 of the record.
[14]
Page
888 of the record.
[15]
Pages
864 - 881 of the record.
[16]
Pages
617 - 635 of the record.
[17]
Page
858 of the record.
[18]
Page
825 of the record.
[19]
Sections
50 to 55 of the MHSA.
[20]
Sections
55A and 55B of the MHSA.
[21]
Administrative
action is defined as '
any
decision taken, or any failure to take a decision, (a) by an organ
of state, when - exercising a power in terms of the Constitution
or
provincial constitution; (ii) or exercising a public power or
performing a public function in terms of any legislation; or
(b) a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function
in terms
of an empowering provision, which adversely affects the rights of
any person and which has a direct, external legal
effect, but does
not include-
(aa)
the
executive
powers or functions of the National Executive, including the powers
or functions referred to in sections 79(1) and (4),
84(2)(a), (b),
(c), (d), (f), (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e),
91(2), (3), (4) and (5), 92(3), 93, 97, 98,
99 and 100 of the
Constitution; (bb) the executive powers or functions of the
Provincial Executive, including the powers or functions
referred to
in sections 121(1) and (2), 125(2)(d), (e) and (f), 126, 127(2),
132(2), 133(3)(b), 137, 138, 139 and 145(1) of the
Constitution;
(cc) the executive powers or functions of a municipal council;
(dd)
the
legislative functions of Parliament, a provincial legislature or a
municipal council; (ee) the judicial functions of a judicial
officer
of a court referred to in section 166 of the Constitution or of a
Special Tribunal established under section 2 of the
Special
Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of
1996), and the judicial functions of a traditional
leader under
customary law or any other law; (ff) a decision to institute or
continue a prosecution; (gg) a decision relating
to any aspect
regarding the nomination, selection or appointment of a judicial
officer or any other person, by the Judicial Service
Commission in
terms of any law; (hh) any decision taken, or failure to take a
decision, in terms of any provision of the
Promotion of Access to
Information Act, 2000
; or (ii)
any
decision
taken, or failure to take a decision, in terms of
section 4(1).
[22]
Section
1(i)(aa)
- (hh) of PAJA.
[23]
Section
1(vi)
of PAJA.
[24]
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) at para 23.
[25]
Section
33
provides that: "Everyone has the right to administrative
action that is lawful, reasonable and procedurally fair. (2)
Everyone
whose rights have been adversely affected by administrative
action has the right to be given reasons.'
[26]
See
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 25 and
Oosthuizen
Transport (Pty) Ltd and Others v MEC, Road Traffic Matters,
Mpumalanga & others
2008
(2) SA 570
(T) at paras 18 and 19.
[27]
2006
(2) SA 311 (CC).
[28]
The
Constitutional Court was divided on whether regulation making
constituted administrative action. The view of the majority
of the
Court was that regulation making was not administrative action.
[29]
New
Clicks
decision (
supra
)
at
para 137.
[30]
Ibid
at
para 672.
[31]
2008
(2) SA 570
(T)
.
[32]
Act
No.
93
of 1996
[33]
Oosthuizen's
Transport (supra)
at
paras 24 and 25.
[34]
Oosthuizen
Transport
(
supra
)
at
paras 27 and 30.
[35]
Oosthuizen
Transport (supra)
at
paras 29 and 30.
[36]
At
pages 617 - 635 of the record.
[37]
At
page 619. The Enforcement Guideline was set aside by this court for
non-compliance with section 49(6) of the MHSA as it was
not
published in the Government Gazette. See
International
Ferro Metals (SA) (Pty) Ltd v Minister of Mineral Resources and
Others
(J1673/13)
[2015] ZALCJHB 9 (21 January 2015).
[38]
Pages
53 - 69 of the record.
[39]
Section
6(2)(a)(i) of PAJA.
[40]
Section
6(2)(d) of PAJA.
[41]
Section
6(2)(e)(iii) of PAJA.
[42]
Section
6(2)(e)(vi) of PAJA.
[43]
Section
6(2)(c) of PAJA.
[44]
Section
6(2)(a)(iii) of PAJA.
[45]
Pages
54 - 55 of the record.
[46]
Section
6(2)(f)(ii)(dd) of PAJA.
[47]
2002
(4) SA 877
(T).
[48]
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 48.
[49]
Pages
26 - 30 of applicant's heads of argument.
[50]
"No
one may be a judge of his or her own cause".
[51]
The
Shorter Oxford English Dictionary, volume 6, 2007.
[52]
1944
WLD 52
at page 55.
[53]
1924
1 K. B. 256
at page 259.
[54]
[1998] ZACC 6
;
1998
(7) BCLR 779
(CC) at para 71.
[55]
1985
2 S.C.R. 673.
[56]
(1992)
13 ILJ 803 (A) at page 817.
[57]
Page
29 para 74 of the applicant's heads of argument.
[58]
Baxter
Administrative
Law
(1984)
at pages 564 and 565.
[59]
2000
(4) SA 621
(C) at para 67.
[60]
See
also
De
Lille and Another v Speaker of National Assembly
1998 (3) SA 430 (C).
[61]
[2000] ZACC 10
;
2000
(3) SA 705
(CC) at para 13.
[62]
(2001)
22
ILJ
1311 (SCA) at para 10.
[63]
2003
(5) SA 51
(C) at 61G-H.
[64]
At
p
age
59.
[65]
The
Shorter Oxford English Dictionary, volume 6, 2007.
[66]
Page
904 of the record.
[67]
Page
895 of the record.
[68]
2
July 2002 Government Gazette number GNR 904/2002. At
page
903.
[69]
Page
894.
[70]
See
pages 83 and 84 of the record.
[71]
Section
55A(5) provides that 'a representation made in terms of this section
may not be used against the employer in any criminal
or civil
proceedings in respect of the same set of facts'.
[72]
Page
858 of the record.
[73]
Section
55D(2) was repealed by section 20 of Act 74 of 2008 which came into
effect on 30 May 2009.
[74]
See
BTR
Industries
(
supra
)
at page 693.
[75]
Ibid
at
pages 694 and 695.
[76]
1999
(4) SA 915
(SCA) at paras 32, 33 and 34.
[77]
2015
36 ILJ 655 (LAC) at para 54.