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[2019] ZALCJHB 48
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Assmang (Pty) Ltd v Chief Inspector of Mines (J764/15) [2019] ZALCJHB 48 (22 February 2019)
In
the labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no:
J
764/15
In
the matter between:
ASSMANG
(PTY)
LTD
Appellant
and
THE
CHIEF INSPECTOR OF
MINES
Respondent
Heard
:
18 February 2019
Delivered
:
22 February 2019
Summary:
A statutory appeal – interpretation of the section giving
the right to appeal. Where a Chief Inspector entertains an appeal
and
emerges with an outcome – such amounts to a decision within the
contemplation of section 58 of the Mine Health and Safety
Act (MHSA).
Such a decision is appealable in terms of the section. Held: (1) The
respondent’s point
in limine
is dismissed
(2) The costs are costs in the appeal.
JUDGMENT
MOSHOANA
J
Introduction
[1]
This is an
appeal, brought to this Court in terms of the provisions of section
58 (1)
[1]
of the Mine Health and
Safety Act
[2]
(MHSA). In terms
of section 58 (2), the appeal must be lodged within sixty days of the
date that the Chief Inspector’s decision
was given. The appeal
in casu
was lodged outside the sixty days’ period. The appellant had
sought condonation for the late lodgement of the appeal. The
condonation application stands unopposed. However, that application
was not before me yet, when I entertained the point
in
limine
,
details of which would be set out later in this judgment. Mr Myburg
SC, appearing for the appellant urged me to consider it and
make a
ruling on it. I avoided doing so before I resolve the point
in
limine
.
The matter was allocated to me from the trial roll as the parties had
already agreed that the appeal would be entertained as a
rehearing
and evidence would be received by a trial judge. The appeal itself is
opposed by the respondent.
The
point
in limine
[2]
The appeal was lodged through a notice filed with the Registrar of
this
Court on 20 April 2015. On 19 February 2016, the parties held a
pre-trial conference and filed a minute thereof on 12 May 2017.
At
paragraph 12 of the said minute, it is recorded that the parties do
not envisage that a preliminary point would be raised. I
pause to
mention that had the parties recorded that the point now raised, was
to be raised, this point would have been heard in
a motion court in
terms of the provisions of the Practice Manual. On 11 February 2019,
barely seven days before the hearing of
the re-hearing appeal, the
parties held a further pre-trial meeting. It was in this meeting that
the respondent intimated, for
the first time, that it intended to
raise a preliminary point to the effect that the decision maker’s
decision is not appealable.
Parties recorded the terms of the
preliminary point in a supplementary minute. They also agreed that
the appeal rehearing would
be postponed to be entertained after the
determination of the preliminary point.
Background
facts
[3]
In light of the fact that the merits of
this appeal may still be entertained by this Court at a later stage,
it is unnecessary for
the purposes of this judgment to punctiliously
set out the facts of the appeal. A brief narrative of the facts will
suffice.
[4]
On or about 13 June 2014 an incident
happened where a pedestrian was fatally struck by a truck. Following
that, a call was placed
by an official of Dwarsrivier Mine to the
Inspector of Mines at the Limpopo Department of Mineral Resources
(DMR). An inspection
was conducted by an official of the DMR.
Following an inspection, a section 54 instruction was issued.
Consequently, the appellant
took a view that the incident had been
erroneously classified as having occurred at a mine as defined in the
MHSA. On 7 July 2014,
the appellant escalated the matter to the
Principal Inspector.
[5]
Later on, the Principal Inspector issued a
section 65 inquiry notice. The Principal Inspector invoked the
provisions of section
65 because he was of the view that the incident
occurred at the Mine. Aggrieved by this view (“decision”),
the appellant
exercised its right of appeal within the contemplation
of section 57 of MHSA. On 19 December 2014, the respondent wrote to
the
applicant and advised that he considered the appeal and concluded
that the appellant cannot state with certainty that the accident
did
not occur at the appellant’s mine. The appellant sought reasons
for the outcome. One of the legal grounds exposed by
the respondent
was that the plant’s access road where the accident happened is
a mine as per the definition of a mine in
section 102, item (a) (ii)
of the definition. The appellant was aggrieved by this outcome and
sought to exercise its right in terms
of section 58 (1) of MHSA.
Evaluation
[6]
The
quibble between the parties is not that some decision was made, which
is capable of aggrieving the appellant, but that a decision
within
the contemplation of section 58 (1) did not arise, thus, this Court
cannot exercise its appeal powers. The respondent contends
that no
decision adversely affecting the appellant was made. On the other
hand, the appellant contends that such a decision was
made. The MHSA
does not define what a “decision” is as employed in the
Act. The dictionary
[3]
meaning
of the word decision is the action of deciding a contest, dispute,
etc.; settlement, a final (formal) judgment or verdict.
[7]
There is no doubt in my mind that the parties
before me had, at a point, a contest. One of the hotly contested
issues was whether
the fatal accident happened at the Mine or on a
public road. If the accident happened at a place, which is not a mine
as defined,
the provisions of the MHSA cannot be invoked. Differently
put, a section 65 inquiry is only reserved for incidents that
occurred
at the Mine. The respondent’s counsel correctly
conceded that if the accident did not happen at the Mine, then, the
provisions
of the MHSA cannot be invoked.
[8]
This
contest, that the accident did not happen at the Mine, gravitated
through a number of stages. In the first instance, when the
accident
landed in the hands of the Principal Inspector, he formed a belief
that the accident happened at the Mine, hence his invocation
of the
powers in terms of section 54. It may well be so that the Principal
Inspector, only formed a belief and did not take any
decision,
however for the purpose of this judgment, this issue is a red
herring. It is clear to me though, that the respondent,
the Chief
Inspector, treated such as a decision, hence he accepted and
considered an appeal in terms of section 57
[4]
.
[9]
It must follow that what the respondent
entertained on appeal was the decision of an inspector, otherwise, he
ought to have refused
to exercise his appeal powers in terms of the
section. He can only entertain on appeal, decisions of an inspector
and nothing more.
Although a submission was belatedly made that a
decision contemplated in subsection (3) was not taken, it is common
cause between
the parties that on 20 January 2015, the Chief
Inspector sent a letter to the appellant stating that the appeal had
been considered
and that it had been decided that an inquiry in terms
of section 65 of the MHSA should be initiated.
[10]
It is also common cause that that amounted to the
Chief Inspector’s dismissal of the appeal (and confirmation of
the Principal
Inspector’s decision that the incident occurred
at the mine). I am unable to agree with the respondent’s
representative
that this is tantamount to a wrong legal concession.
To that extent, it was submitted, that this Court is not bound by
such a concession.
I do not see this as a legal concession, but as an
admission of fact. The question whether the appeal was decided upon,
is a question
of fact and not of law.
[11]
I was actually astonished to hear a submission
that a decision in terms of section 57 (3) was not made in the
circumstances where
there is a letter which records that: “
I
have considered both your appeal and the Principal Inspector of
Mines’ representations.”
Further a letter signed by the respondent recording thus: “
My
decision of 19 December 2014 regarding the above-mentioned appeal is
based on the following grounds.”
The Chief Inspector further recorded that he perused certain
documents during his consideration of the appeal. For these reasons,
I remain unpersuaded that the respondent did not take a decision in
terms of subsection 3. On the admitted facts, the Chief Inspector
confirmed the decision of the Principal Inspector, thus taking action
in terms of subsection (3) (a) of the MHSA.
[12]
One understands why the
volte
face
. A concession that the respondent
exercised powers in terms of subsection 3 would have instantaneously
thrown the argument that
the decision is not appealable into the
dungeon. Section 58 (1) anticipates two types of decisions that may
be brought on appeal
before this Court. The first is where there is a
decision in terms of section 57 (3). The second is where an exercise
of any power
has happened. There is no doubt in my mind that the
first instance has occurred. In fact, it is common cause and the
prevarication
does not help the respondent’s case.
[13]
Having happened factually, it is completely
unnecessary for the Court of appeal to determine whether the decision
taken is one contemplated
in terms of the section. The issue whether
the decision adversely affects the appellant is beyond question. As
proof that the appellant
was adversely affected, it lodged an appeal
in terms of section 57. I have no doubt in my mind that the decision
of the Chief Inspector
has legal effect. One of its obvious legal
effect is the invocation of the MHSA, in particular undergoing an
inquiry in terms of
section 65.
[14]
The phrase adversely affected simply means being
aggrieved, hurt, ill-treated, impaired, injured or wronged. It can
never be seriously
argued that the appellant was not hurt by the
classification that the accident happened at the Mine, thus an
inquiry must ensue.
When the Chief Inspector considered the appeal
under section 57, no issue was raised by him that the appellant could
not have been
adversely affected by the decision of the Principal
Inspector, thus the decision of the Principal Inspector was not
appealable.
As correctly submitted by the appellant’s
representative, the legislature designed a bespoken appeal process.
The stages
it follows are (a) the decisions of inspector are
appealable to the Chief Inspector, (b) should a party fail to
overturn the decision
of the Chief Inspector, the next tier is the
Labour Court.
[15]
The respondent relied heavily on decisions dealing
with the phrase
direct and external
legal effect
. I am unable to agree with
a submission that the classification of the incident as a mine
accident has no direct and external legal
effect. This classification
to my mind has direct and immediate consequences for the appellant.
Absent this classification, a section
65 inquiry cannot ensue. There
is no doubt in my mind that during the inquiry, the appellant would
be behooved to prove amongst
others that it did not contravene or
fail to comply with the provisions of the MHSA, something it may not
be behooved to do if
the accident is found to have happened outside
the mine as defined.
[16]
I
also do not agree with a submission that the classification of the
accident being a mine accident is a preliminary step towards
a
decision. It is a decision that serves as a trigger for the exercise
of the powers contemplated in section 65. It is a jurisdictional
requirement for the application of the section. It is a separate and
independent decision, and if made, it has direct and immediate
effect
on a party. The three authorities
[5]
relied upon by the respondent’s counsel becomes obsolete in
this regard. It is unnecessary, in my view, to entertain any
argument
as to whether those authorities are distinguishable or not. There is
no dispute that on 19 December 2014, the Chief Inspector
did
something about the contest of the appellant, therefore, section 57
(3) (a) was definitely invoked. The Chief Inspector sourced
his
powers to consider an appeal, as he factually states he did, from
section 57 of the MHSA. There is no other place that he can
source
such powers and it has not been alleged in the papers before me, nor
argued, that he sourced the powers elsewhere.
[17]
Even if I were to assume, which assumption I am
not making, that what happened was not an exercise of power in terms
of subsection
3, I still do not require to traverse the path towards
establishing that the decision is one as contemplated in section 58
(1)
or not. I did not hear the respondent’s counsel to argue
that the Chief Inspector did not exercise any power contemplated
in
the MHSA. For instance, section 49 (1) (a) – (k) sets out an
array of the functions of the Chief Inspector. Whichever
way one
looks at it, by writing to Mr Mtshengu of the appellant, the Chief
Inspector was performing a function in terms of the
MHSA. In so
doing, he made a conclusion that there was no certainty that the
accident did not happen at the mine and most importantly
invoked the
provisions of section 65. Using its supervisory appeal powers, this
court can keep the Chief Inspector in check in
so far as the exercise
of the functions is concerned.
[18]
In terms of section 65, the Chief Inspector is
empowered to instruct an inspector to conduct an inquiry into any
accident that occurred
at a mine that results in the death of any
person. Again, this exercise of power is subject to an appeal by the
Labour Court. Once
the power is exercised, the exercise itself
attracts the Court’s appeal powers. It is not required for the
inquiry to be
concluded before an aggrieved party lodges an appeal.
The doctrine of ripeness does not find application in this bespoken
appeal
process. If the
C
ourt adopts this
view, it again becomes unnecessary to peep into the pith of the power
so exercised with a view to determine whether
it is or is not a
suitable decision to attract the appeal powers of this Court.
[19]
I may mention that the inquiry contemplated in
section 65 moves from a premise that an incident happened at the
mine. It is not
envisaged in section 65 that an inspector can inquire
into whether an incident happened at the mine or not. By so doing, he
or
she might be putting his or her own jurisdictional power into
question. Section 65(1) clearly and expressly states that the inquiry
is into the incident itself and not whether the jurisdictional facts
to conduct an inquiry exist or not. Such an inquiry would
be like
putting the cart before the horse. The cart must be pulled by the
horse and not the other way round. To enable the investigations,
the
incident must have happened at the mine as defined.
[20]
On
this basis also, I would have found that an appeal lies on the
actions of the Chief Inspector. The Chief Inspector has certainly
made a final decision on the issue whether the accident happened at
the Mine or elsewhere. As to the attributes of a final decision,
I
can do no better than to refer to the judgment of
Zweni
v Minister of Law and Order
[6]
.
In there, Harms AJA had the following to say:
A ‘judgment or
order’ is a decision which, as a general principle has three
attributes, first the decision must be final
in effect and not
susceptible of alteration by the Court of first instance; second it
must be definitive of the rights of the parties;
and, third, it must
have the effect of disposing of at least a substantial portion of the
relief claimed in the main proceedings
[7]
.
[21]
There
is no doubt in my mind that the decision of the Chief Inspector has
all of the three attributes. The question whether the
accident
happened at the Mine is central to a number of considerations. Chief
amongst them is whether any of the provisions of
the MHSA may be
invoked, particularly the ones aimed at holding an inquiry into the
incident. A determination by an appeal court
that the accident
happened at the Mine would open the way for the inquiry to happen.
Put differently, confirm the decision by the
Chief Inspector to
instruct the holding of an inquiry. Conversely, a decision that the
accident did not happen at the Mine would
nip in the bud, as it were,
an unnecessary inquiry into the accident using the procedures
contemplated in the MHSA. This would
dispose of at least a
substantial portion of the relief claimed – being the accident
did not happen at the mine therefore
section 65 inquiry is
unnecessary. Therefore, the decision of the Chief Inspector has final
jurisdictional effect, and is thus
appealable
[8]
.
[22]
In summary, it is my view that an appeal lies in
this matter. The respondent has exercised powers in terms of section
57 (3). Also,
the respondent has exercised powers in terms of the
MHSA and such an exercise is subject to the appeal powers of this
Court. The
decision of the Chief Inspector has final jurisdictional
and legal effect. Accordingly, the preliminary point is bound to
fail.
Further
conduct of this appeal
[23]
Had this preliminary point not been belatedly
sprung into the mix, this court would have dealt with this matter, as
a trial matter,
in the week of 18-22 February 2019. Strictly
speaking, the matter is not partly heard before me. Given the fact
that this matter
commenced almost four years ago, I indicated to the
parties that the Registrar may be approached to give the parties a
preferential
date to deal with the appeal. Such may imply that one of
my brothers or sisters may be seized with this appeal in a year or so
to come. However, I am prepared to consider this matter as being
partly heard before me and as such hear it during the last week
of
this term or next term. However, if there is any objection from any
of the parties for me to hear the matter, then the Registrar
would
enroll it in the normal roll before any of my brothers and sisters.
[24]
In the results, I make the following order.
Order
1.
The preliminary point is hereby dismissed.
2.
The costs are costs in the appeal.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv T F Mathibedi SC
appearing with Adv M J Ramaepadi (who made all
the submissions in court) and Adv S B Nhlapo.
Instructed
by:
State Attorney, Johannesburg.
For
the Respondents: Adv A
Myburg SC appearing with Adv R Itzkin
Instructed
by:
ENS Africa, Sandton.
[1]
(1) Any person adversely affected by a decision of the Chief
Inspector, either in terms of section 57 (3) or in the exercise
of
any power under this Act, may appeal against the decision to the
Labour Court. (3) The Labour Court
must
consider
the appeal and confirm, set aside or vary the decision.
[2]
Act 29 of 1996.
[3]
Shorter Oxford English dictionary Volume 1
[4]
(1) Any person adversely affected
by
a decision
of an inspector, or at whose instance a decision of an inspector was
taken, may appeal against
that
decision
to the Chief Inspector.
[5]
Nedbank
Ltd v Master of the High Court, WLD and others
2009 (3) SA 403
(W);
Strauss
and others v The Master and others N.O
2001 (1) SA 649
(T) and
Council
for Medical Schemes and Another v Bonitas Medical Fund
2015 (5) SA 577 (GP)
[6]
1993 (1) SA 523 (A)
[7]
This approach was warmly received by the Constitutional Court in
Cloete and Another v S; Sekgala v Nedbank Ltd
[2018] ZACC 6
delivered on 19 February 2019.
[8]
See Jacobs v Baumann No
2009 (5) SA 432
at 436G.