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[2020] ZALCJHB 68
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Association of Mineworkers and Construction Union v Minister of Mineral Resources and Energy and Others (J427/2020) [2020] ZALCJHB 68; (2020) 41 ILJ 1705 (LC); [2020] 9 BLLR 929 (LC); [2020] HIPR 132 (LC) (4 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
JUDGMENT
Of interest to other
Judges
CASE NO: J 427/2020
In the matter between:
ASSOCIATION OF
MINEWORKERS
AND
CONSTRUCTION UNION
Applicant
and
MINISTER
OF MINERAL RESOURCES
AND
ENERGY
First
Respondent
CHIEF
INSPECTOR OF MINING
Second
Respondent
MINISTER
OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
Third Respondent
MINERALS
COUNCIL SOUTH AFRICA
Fourth
Respondent
MINING
AFFECTED COMMUNITIES IN ACTION
Amicus
Curiae
Heard:
29-30 April 2020
Judgment delivered:
The order recorded in paragraph 1 was issued by email on 1 May 2020.
These reasons were handed down electronically
by circulation to the
parties’ legal representatives and the registrar by email on 4
May 2020.
(by
email)
REASONS
FOR JUDGMENT
VAN NIEKERK J
Introduction
[1]
On 1 May 2020, I made the following order:
IT
IS ORDERED THAT:
1.
The Second Respondent’s decisions not
to:
1.1.
require employers to prepare and implement
a code of practice on the Covid-19 viral pandemic present and
spreading in South Africa
in terms of section 9(2) of the Mine Health
and Safety Act, 1996 (MHSA); and
1.2.
issue guidelines in terms section 9(3) of
the MHSA,
are reviewed and set
aside.
2.
The Second Respondent is directed by no
later than 18 May 2020 to publish a notice ("the Notice")
in the Government Gazette
–
2.1.
containing guidelines in terms of section
9(3) and 49(6) of the MHSA; and
2.2.
in terms of section 9(2) thereof requiring
employers (as defined in the MHSA) to prepare and implement a code or
codes of practice,
to mitigate the effect of the outbreak of Covid-19
on the health and safety of employees (as defined in the MHSA) and
persons who
may be directly affected by the disease at the mine.
3.
Before publishing the Notice in terms of
paragraph 2, the Second Respondent shall:
3.1.
consult with the Mine Health and Safety
Council, if constituted at the date of the order of this court;
3.2.
elicit and consider all available expert
advice, including but not limited to the expert opinions of
Professors Ehrlich, Murray,
Naidoo, Sonnenberg, and Rees contained in
the Applicant’s papers;
3.3.
meaningfully engage with the relevant trade
unions, including but not limited to the Applicant, relevant employer
organisations,
including but not limited to the Fourth Respondent,
Mining Affected Communities United in Action, and such other
interested persons
as the Second Respondent may determine regarding
the content of the guidelines;
3.4.
consider the directions issued by the First
Respondent on 29 April 2020 in terms of regulation 10(8) of the
regulations issued in
terms of section 27(2) of the Disaster
Management Act No. 57 of 2002 (“the Directions”); and
3.5.
after having completed the steps in
paragraphs 3.1 to 3.4, but no later than 11 May 2020, publish the
draft guidelines for public
comment.
4.
Pending the publication of the Notice and
the lodging of codes of practice with the Chief Inspector in terms of
section 9(5) of
the MHSA, and in addition to complying with any
regulations and directions issued under section 27(2) of the Disaster
Management
Act (“the Regulations”):–
4.1.
all employers as defined in the MHSA shall,
at a minimum, comply with the Standard Operating Procedures, a copy
of which is attached
hereto marked "A", to the extent that
it is not inconsistent with the Regulations, and as read with, but
not limited
by, -
4.1.1.
the Directives issued by the Second
Respondent to employers on 26 March 2020, a copy of which is attached
marked "B";
and
4.1.2.
paragraphs 1 and 3(a) to (d) of the
Directions, a copy of which is attached marked “C”;
4.2.
compliance with paragraph 4.1 will be
deemed to constitute compliance with paragraph 2 of the Directions.
5.
In order to publicise this order, the First
Respondent shall publish a copy of this order in the Government
Gazette within 5 days.
6.
Judgment
on the question of costs is reserved.
[1]
[2]
The order substantially reflects the terms of a draft order submitted
by the parties’
representatives after a hearing conducted by
video conference using the Zoom platform. I am indebted to all of the
parties and
their representatives for their perseverance in seeking
to narrow the issues in dispute. AMCU and the fourth respondent (the
Minerals
Council) reached consensus on paragraphs 1 to 5 of the
order, with the caveat that the Minerals Council took no position on
the
reviewability or otherwise of the chief inspector’s
decision (i.e. the subject of the ruling in paragraph 1). As
between
them, the issue of costs is irrelevant, since AMCU sought
costs only against the first respondent (the DMRE minister) and the
second
respondent (the chief inspector). The DMRE minister and chief
inspector disputed that the chief inspector’s decisions not
to
require employers to prepare and implement a code of practice and to
issue guidelines in terms of s 9 (3) of the MHSA are reviewable
(i.e.
they remained opposed to the granting of the relief reflected in
paragraph 1 of the order.) However, the DMRE minister and
the chief
inspector agreed that if the court finds otherwise, paragraphs 2 to 5
of the order constitute appropriate relief, but
they disavow any
liability for costs.
[3]
The terms of the draft order reduced the issues for determination to
first, whether the
chief inspector’s decisions are reviewable;
and secondly, an order for costs that accords with the requirements
of the law
and fairness, the touchstones established by s 162 of the
Labour Relations Act (LRA).
[4]
These are my reasons for the ruling reflected above, and my judgment
on the issue
of costs.
[5]
The factual background is not contested, but it is relevant
especially to the issue
of costs. It was not seriously disputed that
mineworkers are particularly vulnerable to Covid-19 for two reasons -
they operate
in confined spaces where social distancing is difficult
or impossible. Whether in moving between entrances or exits to
different
parts of a mine, in underground cages, in transport to and
from mines, or in mine dormitories, it is impossible for mineworkers
to avoid contact with others who may be infected. The experts’
report draws particular attention to the fact that mineworkers
are
widely affected by lung diseases, including the hidden pandemics of
pulmonary tuberculosis and pneumoconiosis. HIV/AIDS is
also more
prevalent amongst mineworkers than the general population. Both these
facts render mineworkers particularly vulnerable
to serious illness
or death from Covid-19.
[6]
The
amicus curiae
submitted argument in support of the
interests of mining affected communities. Again, it is not seriously
disputed that the vulnerability
of mineworkers in turn renders the
communities in which they live vulnerable to Covid-19. There are
almost half a million mineworkers
in South Africa. Any Covid-19
infection at a mine is likely to spread to the communities
surrounding the mine where the mineworkers
live. This risk is not new
– mineworkers have long brought tuberculosis and HIV/AIDS from
the mines back to their communities.
Mining communities are also
particularly vulnerable to Covid-19 because they too have a higher
burden of lung disease and HIV/AIDS,
precisely because they host
mineworkers. These communities are often in rural, underserved areas
of South Africa or neighbouring
countries with poorer access to
healthcare than other South Africans enjoy.
[7]
In so far as formal engagement between the parties is concerned, what
follows is a
brief recordal of events from mid-March to the date of
the hearing. On 15 March 2020, consequent on the Covid-19 global
pandemic,
a national state of disaster was declared in terms of the
Disaster Management Act, 27 of 2002
. A number of measures to limit
the spread of the Covid-19 virus were put in place by way of
regulations issued under the DMA, among
them a 21-day national
lockdown with effect from 26 March 2020 (later extended to 30 April
2020), during which only essential services
(including some mines)
were permitted to operate. Later amended DMA regulations, enacted on
16 April 2020, in effect exempted all
mines from lockdown
regulations, subject to certain conditions. These included a
requirement that all collieries that supply Eskom
must continue to
operate at full capacity, and that other mining operations operate at
a reduced 50% capacity during the lockdown,
subject to certain
conditions that relate to occupational health and safety. On 29 April
2020, a new DMA regulation was issued
in terms of
Regulation 10
(8)
of the Regulations issued in terms of
s 27
(2) of the DMA, repealing
the regulations referred to above, but in respect of the mining
industry preserving the concept of reduced
operations at a level of
no more than 50%, with the DMRE minister afforded the right to direct
that operations be conducted at
greater capacity. It is
estimated that some 250 000 employees will return to work (and to
communities adjoining the mines
in which they are employed) as mining
operations resume and return to full production.
[8]
On 29 April 2020, the DMRE minister issued directions on measures to
address, prevent
and combat the spread of Covid-19. The direction
reads as follows:
1.
In implementing
regulation 11K
of the
Regulations issued in terms of
section 27
(2) of the
Disaster
Management Act, and
published in Government Gazette 43232, Government
Notice No. 465 of 16 April 2020, every employer conducting mining
operations
and activities in connection therewith that in mind, must
implement appropriate measures to protect the health and safety of
workers
in respect of COVID19.
2.
The measures contemplated in paragraph 1
must be contained in a standard operating procedure which must be
developed in consultation
with organised labour or worker
representatives at the mine.
3.
In the development of the standard
operating procedure contemplated in paragraph 2, the following must
be applied:
(a)
Relevant guidelines issued by the World
Health Organisation;
(b)
Directions and guidelines issued by the
National Department of Health;
(c)
Guidance issued by the National Institute
of communicable diseases; and
(d)
the risk-based approach is embedded in the
guiding principles of prevention and management of COVID 19 in the
South African Mining
Industry issued by the Chief Inspector of Mines
of the Department of Mineral Resources and Energy on 26 March 2020.
[9]
Prior to the declaration of a national disaster, the Mining
Occupational Health and
Safety Committee (MHSC) met on 13 March 2020
to address the implications presented by Covid-19 for the mining
industry. The MHSC
resolved to prepare guiding principles, as well as
a guidance note through the mining occupational health advisory
committee (MOHAC).
The MHSC is a statutory body established in terms
of the MHSA, and comprises a tripartite board with the chief
inspector as chair.
The MHSC’s main purpose is to advise the
minister on occupational health and safety legislation and the
improvement in promotion
of occupational health and safety in the
mining industry. AMCU is a member of the MHSC and was represented at
the meeting on 13
March 2020. At the meeting, the MHSC appears to
have taken the position that Covid-19 is a public health rather than
an occupational
health issue as contemplated in the MHSA.
[10]
On 15 March 2020, the Minerals Council disseminated information to
its members and adopted what
subsequently became a 10-point plan to
manage the spread of the virus responsible for Covid-19. The Minerals
Council has supported
implementation of appropriate measures to
prevent and mitigate the spread of the virus, while at the same time
emphasising the
significant disruptive effects of a partial or full
closure of mining operations and the devastating economic impact that
it would
have. Indeed, the answering affidavit filed by the Minerals
Council in these proceedings was instrumental in laying the
foundations
for the consensus represented by the draft order.
[11]
On 17 March 2020, MOHAC met and began preparing the guiding
principles. A representative of AMCU
attended the meeting. A copy of
the draft guiding principles was sent to AMCU on 19 March 2020. AMCU
prepared a response and sent
its proposals to the department on 20
March 2020.
[12]
On 24 March 2020, AMCU attended a meeting with the DMRE minister. On
25 March 2020, the minister issued
remarks in preparation for the
lockdown. AMCU wrote to the minister on 26 March 2020 to express
concerns regarding the divergence
between the remarks and what had
been discussed and agreed at the engagement on 24 March 2020.
[13]
On 26 March 2020, the DMRE minister issued guiding principles to
employers in the industry. These
are reflected in annexure B to the
order, and set out the basis for a risk-based approach to limit the
spread of Covid-19.
AMCU states that it did not receive the
final guiding principles until 16 April 2020. Given that the guiding
principles had been
issued some three weeks prior to that date, this
is improbable. AMCU had commented on and the proposed guiding
principles and contributed
in writing to the formulation of the
draft, and I fail to appreciate why there was no follow-up to what
was obviously an important
development in the management of the risk
presented by Covid-19.
[14]
On 3 April 2020, the DMRE minister issued a statement in which he
addressed the DMRE’s
ongoing efforts to ensure adherence to the
regulations and the guiding principles and scheduled a further
meeting of stakeholders
in the industry, to be convened on 7 April
2020. AMCU was invited to the meeting. On 5 April 2020, AMCU’s
general secretary
wrote to the minister recording the union’s
disappointment in the department’s failure to respond
particularly to its
letter of 26 March 2020. The letter records that
AMCU had criticised the Department for unilaterally drafting a
document for public
consumption, without prior consultation with AMCU
and other stakeholders. AMCU noted further that a physical
meeting at the
department’s offices was highly irresponsible.
[15]
AMCU tendered to attend the meeting remotely to avoid the risks
associated with undertaking travel
and attending lodge meetings. This
was reiterated in a letter addressed to the Minister on 8 April 2020.
The meeting went ahead
without AMCU in attendance on 7 and 8 April
2020. On 8 April 2020, the department responded to AMCU’s
letter dated 5 April
2020 in which it motivated the partial reopening
of the industry, explained which categories of mines would be
eligible to reopen
and how inspectors would enforce the regulations
[16]
By 12 April 2020, matters became litigious. On that date, AMCU
instructed attorneys (not its attorneys
of record in the present
matter) regarding the lawfulness of exemptions to operate. On
13 April 2020, AMCU replied in detail
to the department’s
letter dated 8 April 2020 and amongst other things, complained that
the Minister had failed to take any
measures to stipulate or to make
any binding directions.
[17]
On 16 April 2020, letters were addressed to the Minister by AMCU’s
current attorneys of
record. There was no response to these letters.
However, on the same day, the Minister invited AMCU to attend a
physical meeting
on 17 April 2020. AMCU requested remote attendance
at the meeting, which was to include the minister, the
director-general, the
chief inspector, the representatives of the
Department of Labour and representatives of the Minerals Council and
other trade unions,
including NUM, UASA, NUMSA and Solidarity. The
chief inspector states in the answering affidavit that AMCU refused
to participate
in the meeting because it was unwilling to hold
discussions in the presence of other parties. AMCU disputes that it
refused to
attend the meeting and avers that it was unable to do so
because it did not have access to the platform on which the
video-conference
was conducted. This much was conveyed to the
department by way of a letter sent on 22 April 2020.
[18]
On 23 April 2020, and in response to the president’s
announcement on 23 April 2020 that
the country would move to a new
phase of lockdown with effect from 1 May 2020, the chief inspector
issued a communiqué for
distribution to all mines dealing with
health and safety issues arising from the restarting of operations
after the period of shutdown
generally, as well as measures to be
taken to prevent the spread of Covid-19.
[19]
AMCU relies on
s 6
of Promotion of Administrative Justice Act, 3 of
2000 (PAJA). to contend that the chief inspector’s decision not
to invoke
s 9 fails to meet the test of reasonableness standard
established by s 33 of the Constitution, as it finds expression in s
6 (2)
(h) of PAJA. That standard was given content in
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), at paragraph 44 of the judgment:
Even
if it may be thought that the language of s6(2)(h), if taken
literally, might set a standard such that a decision would rarely
if
ever be found unreasonable, that is not the proper constitutional
meaning which should be attached to the subsection. The subsection
must be construed consistently with the constitution and in
particular s 33 which requires administrative action to be
“reasonable”.
Section 6 (2) (h) should then be understood
to require a simple test, namely that an administrative decision will
be reviewable
if, in Lord Cooke’s words, it is one that a
reasonable decision-maker could not reach.
[2]
[20]
In the same judgment, at paragraph 45, the court listed the factors
that ought properly to be
taken into account in deciding whether a
decision is reasonable:
What will constitute a
reasonable decision will depend on the circumstances of each case,
much as what will constitute a fair procedure
will depend on the
circumstances of each case. Factors relevant in determining whether a
decision is reasonable or not will include
the nature of the
decision, the identity and expertise of the decision-maker, the range
of factors relevant to the decision, the
reasons given for the
decision, the nature of the competing interests involved and the
impact of the decision on the lives and
well-being of those affected.
[21]
Central to the present case is AMCU’s contention that despite
the raft of regulatory measures
at the disposal of the DMRE minister
and the chief inspector (including the declaration of a health hazard
under s 76 of the MHSA
and the formulation of a code of practice
under s 9 (3)), the measures that have been adopted and implemented
under the DMA (and
other voluntary measures), are inadequate to
ensure that mineworkers return to a safe working environment, and
that the communities
in which they reside are safe. AMCU does not
oppose the return to work, nor does it seek to disrupt it.
[22]
AMCU states that the purpose of bringing this application is to
establish a detailed, national
standard to protect the health and
safety of its members through binding obligations as opposed to the
existing broad regulatory
measures, supplemented by voluntary
measures adopted by discrete mining operations. AMCU does so by
seeking to review and set aside
the chief inspector’s decisions
not to enact guidelines in terms of s 9 (3) of that Act.
[23]
In the result, all parties agree that there is a need for urgent,
detailed, binding national
standards to guide employers and protect
mineworkers against the hazards presented by Covid-19 to return to
work in the mining
industry. AMCU and the DMRE minister and the chief
inspector disagree only about which statutory mechanism should be
employed to
achieve that purpose.
[24]
The parties do not seriously dispute that the chief inspector’s
decision not to act under s 9
of the MHSA constitutes administrative
action. What is at issue (at least between AMCU and the DMRE minister
and the chief inspector)
is the reasonableness of the decision not to
invoke s 9 of the MHSA; more specifically, whether the decision fails
to meet the
threshold for reasonableness that is set by s 6 (2) (h)
of PAJA.
[25]
The DMRE minister and the chief inspector raise two primary grounds
to oppose the relief sought.
First, they submit that the Covid-19
pandemic is a public health matter rather than an occupational health
issue; the fact that
Covid-19 poses a risk to mineworkers because it
is a communicable disease is not in itself sufficient to render it an
occupational
health issue. They contend the risk presented by
Covid-19 remains best controlled through regulatory measures under
the DMA. Secondly,
the DRME minister and the chief inspector contend
that AMCU has not established that unless the chief inspector compels
employers
in the mining industry to implement mandatory codes of
practice, employers will not protect the health of workers. Further,
it
is disputed that there is a need for a single detailed set of
national standards, and that AMCU’s claim to this effect is
undercut by its acknowledgement that necessary measures to be put in
place at individual mining operations ought to take into account
the
different circumstances that applied each mine and each mining
affected communities. Finally, they contend that even if AMCU’s
assertion that employers ought to be compelled to implement measures
under s 9 is correct, the DMRE minister has issued directions
requiring every employer carrying out activities a demand to
implement appropriate measures to protect the health and safety of
workers, which measures must be contained in a standard operating
procedure, developed in consultation with organised labour or
worker
representatives at the mine concerned. In other words, the existing
regulatory regime is both sufficient and adequate.
[3]
[26]
Section 9 (1) of the MHSA provides that any employer may
“
prepare and implement a code of practice
on any matter affecting the health or safety of employees and other
persons who may be
directly affected by activities at the mine
.”
Section 9 (2) obliges employers to prepare and implement a code of
good practice
“
if the Chief
Inspector of Mines requires it.
”
If
the chief inspector requires a code of good practice, that code
“
must
comply with guidelines issued by the Chief Inspector of Mines.
”
(See 9(3)).
[27]
The chief Inspector must consult with the Mine Health and Safety
Council before issuing the guidelines,
and must publish them in the
Government Gazette. In terms of s 91(1B) (c) of the MHSA, read with s
91(1C) and s 55, a contravention
of or failure to comply with any
standard in any code of practice prepared in terms of s 9 (2) also
renders the employer liable
to an administrative fine. The only time
non-compliance with a standard is not an offence is when the standard
exceeds the compulsory
standards set in the chief inspector’s
guidelines, and the employer did comply with the compulsory standard
in the guideline
(see s 91(1C)).
[28]
In my view, the distinction that the DMRE seeks to draw between
public health and occupational
health issues is a false dichotomy.
That there is no bright line between public health and occupational
health, especially in the
context of mining, is confirmed in the
further report of the experts. They expressly disagree with the
averments made by
the Chief Inspector. In particular, they state
there is “
a fundamental overlap
between
” public health and
occupational health. Public health concerns the entire population,
and occupational health a subset of
that population. Occupational
health includes “
concern with the
health of not only workers within their specific geographical
workplaces, but also persons or populations affected
directly or
indirectly by operations in a particular worksite or across a
particular industry.
” In terms of
s 9(2), the chief inspector can act with regard to “
any
matter
affecting the health or
safety of employees and other persons who may be directly affected by
activities at the mine
”. The
medical experts report makes clear that “
[t]here
is no clear or separating boundary between public health and
occupational health in regard to Covid-19.
”
In other words, the Covid-19 pandemic presents both a public health
concern and an occupational health concern. It is a
risk for the
entire nation. But it presents particular risks, and requires
particular responses in workplaces generally, and in
mines in
particular. It is the occupational health element of the pandemic
that AMCU seeks to compel the chief inspector to address.
The fact
that other responses are also required to address the other public
health aspects of the pandemic, does not exclude the
need for an
occupational health response to the position on mines.
[29]
Secondly, the argument is textually unsustainable. Section 9(2)
refers to “
any matter affecting the health or safety of
employees
”. The word “
any
” is, as Innes
CJ held in
R v Hugo
, “
upon the face of it, a word of
wide and unqualified generality. It may be restricted by the
subject-matter or the context, but prima
facie it is unlimited.
”
Without some indication to the contrary, “
any matter
affecting the health
” of mineworkers includes the Covid 19
pandemic. The context is provided by the further definitions.
“Health”
is defined as “
occupational health at
mines
”. Occupational health is defined as “
includes
occupational hygiene and occupational medicine
”.
Occupational hygiene is defined as “
the anticipation,
recognition, evaluation and control of conditions at the mine, that
may cause illness or adverse health effects
to persons
”.
And occupational medicine means: “
the prevention, diagnosis
and treatment of illness, injury and adverse health effects
associated with a particular type of work
”. The State
Respondents admit that the Covid-19 pandemic poses a particular
threat in the context of mining. They admit that
the pandemic
requires a response from the state and employers to prevent the
transmission of the disease in mines, and from mines
to mining
communities. They therefore admit that the response must
“
anticipat[e], recognis[e], evaluat[e] and control
conditions at mines that may cause illness to persons
”, and
must “
prevent, diagnos[e] and treat illness associated with
mining
”. That meets the definition of “
any matter
affecting the health
” of mineworkers. Section 9(2) applies.
[30]
Third, the DMRE’s stance is contrary to the purpose of the MHSA
generally and s 9 in particular.
Applying section 9(2) and (3)
to the circumstances of the Covid-19 epidemic is entirely consistent
with the purpose of the MHSA
generally and with the following
particular objects identified in section 1 of the MHSA:
“
(a)
to protect the health and safety of persons at mines;
(b)
to require employers and employees to identify hazards and eliminate,
control and minimize
the risks relating to health and safety at
mines;
(c)
to give effect to the public international law obligations of the
Republic that concern
health and safety at mines;
…
(e)
to provide for effective monitoring of health and safety conditions
at mines;
(f)
to provide for the enforcement of health and safety conditions at
mines;
…
(h)
to promote (i) a culture of health and safety in the mining industry;
(ii) training in health and safety in the mining industry;
and (iii)
co-operation and consultation in health and safety between the State,
employers, employees and their representatives.”
Not applying s 9(2) or
(3) (or s 76) will tend to defeat these objects of the MHSA.
[31]
The second argument raised by DRME minister and the chief inspector
is that AMCU has failed to
make out a case on the facts to show that
the health of workers is likely to be endangered if the chief
inspector does not immediately
act under s9 of the MHSA. In any
event, and which the DRME and chief inspector submit is dispositive
of AMCU’s claim, is
that the Minister has issued directions
under regulation 10(8) that would have precisely the effect that AMCU
contends will be
achieved through the chief inspector acting under
s9.
[32]
This submission must necessarily be evaluated by the facts as they
fall to be determined from
the papers, and the nature and status of
the DMRE minister’s directions. I deal first with the latter.
The directions, which
I have reproduced in paragraph [8] above, and
in contrast to the terms of the draft order, contemplates only the
development of
the standard operating procedure (SOP) by every
employer at a mine. There is no time limit for the implementation of
the required
SOP, and the direction does not establish a mechanism
for interim protection, nor is there any provision for review by the
chief
inspector or any compliance mechanism. In comparison, a code of
practice issued under s 9 will have the advantage of a single,
national standard in the form of guidelines issued by the chief
inspector, a standard that is set after consultation with
representatives
of employees and workers in the industry. Any code of
practice is furthermore subject to review by the chief inspector, who
may
instruct an employer to review any code of practice within a
specified period in the event that the code does not comply with a
guideline or is otherwise inadequate to protect the health and safety
of employees.
[33]
In other words, s 9 provides a flexible method enabling the chief
inspector to take measures
in the interests of the health and safety
of employees and other persons who may be directly affected by the
activities of mining
operations. It is self-evident that a code of
practice under s 9 and the enforcement measures established by the
MHSA provide an
appropriate mechanism to address COVID-19 hazards
effectively, with due deference to the position of particular mines
and with
appropriate degrees of flexibility. The parties did not
seriously dispute that the flexibility embodied in s 9 is wholly
appropriate
in dealing with a disease about which there are gaps in
scientific understanding, both as to its behavior and as to the most
appropriate
way to suppress its spread, and which is expected to
attenuate over time.
[34]
In summary: public health and occupational health are not discrete
categories. Covid-19 is both
a public health issue, and an
occupational health issue. It requires both a public health response,
and an occupational health
response in the specific context of mines.
That is what s 9 is designed to achieve. Textually and purposively,
it must apply to
the risks posed to mineworkers by Covid-19.
Fundamentally, administrative directions in the present circumstances
are not
meant to be a replacement for legislation and regulation.
[35]
Turning then to the factors relevant to deciding whether an
administrative decision is reasonable,
I should reiterate the
requirement that each case is circumstance dependent. There is no
dispute that the circumstances of the
present case are exceptional.
In the face of a global pandemic, the spread of the Covid-19 virus on
South Africa’s mines
has profound implications for the country,
neighboring countries and especially for mineworkers and
mining-affected communities.
The containment of the virus, especially
in the context of a return to work after lockdown, is a matter that
ought primarily to
be guided by medical opinion. In the present case,
the medical experts have made out a compelling case for measures that
extend
beyond those formulated and implemented by the DMRE. The fact
that the Minerals Council, representative of employers in the mining
industry, supports statutory intervention in the form of a code of
practice issued under s 9 is also significant. The reasons given
for
the decision not to invoke s 9, as I have found, are based on
premises that are unsustainable. The evidence discloses that
the
impact of the decision on the lives and well-being of those affected
by it is profound. To the extent that the chief inspector’s
decision not to invoke s 9 is premised on the belief that Covid-19 is
not an occupational health issue, that belief cannot be sustained.
Further, the guidance note issued by the DMRE and the minister’s
directives issued on 29 April 2020 are not in themselves
adequate to
meet the defined purposes of the MHSA, which include the protection
of the health and safety of patients at mines,
the obligation on
employers to identify hazards and to eliminate, control and minimise
risks relating to health and safety, to
provide for the effective
monitoring of health and safety conditions at mines and to provide
for the enforcement of health and
safety measures at mines. While I
appreciate that strategies for the management of the risk presented
by Covid-19 is necessarily
dynamic, the evidence overwhelmingly
indicates that a single, national and enforceable standard, with the
build-in flexibility
that s 9 permits, is necessary in the current
circumstances. Proper account ought to have been taken of that
evidence.
[36]
In my view, for the above reasons, the chief inspector’s
failure to appreciate the concurrence
of public and occupational
issues presented by Covid-19 in the mining industry, and his decision
not to invoke s 9 of the MHSA
in the face of the profound threat to
occupational health and safety and the inadequacy of the measures
designed to address it,
led to an unreasonable result or outcome, and
his decision thus stands to be reviewed and set aside.
[37]
The parties agreed that if the chief inspector’s decision is
found to fall short of the reasonableness
threshold established by s
6 of PAJA, the appropriate remedy is one of substitution, a remedy
ordinarily reserved for exceptional
circumstances (see PAJA s 8 (1)
(c) (ii) (aa)). They also agreed on the terms of the substitution,
those reflected in paragraphs
2 to 5 of the order. Again, the parties
are to be commended for their reaching agreement on an appropriate
remedy. As AMCU points
out, this relief combines the best of both
worlds. It provides immediate relief through an existing document
already being used
as a non-binding guide by many mines, and
introduces amendments to the existing document based on the advice of
five leading, internationally
recognised, experts in the relevant
fields. It allows full consultation and participation in developing a
final document without
sacrificing mineworkers’ rights, health,
safety and lives and those they live with. It is binding at a
national level and
based on the consensus of business and labour as
to an appropriate section to apply.
[38]
Finally, I should mention that the
amicus curiae
was also a
party to the draft order that was submitted after the hearing. Its
submission drew attention to the plight of mining
affected
communities, and the risks posed by the return of large numbers of
mineworkers. The
amicus curiae
recorded that it was satisfied
that its interests had been adequately addressed by the terms of the
draft order.
Costs
[39]
Judgment was reserved on the issue of costs. AMCU seeks an order for
costs against the DMRE minister
and the chief inspector, including
the costs of the experts who provided the opinions annexed to the
founding affidavit.
[40]
In terms of s 162 of the LRA, the court has a broad discretion to
make orders for costs according
to the requirements of the law and
fairness. That discretion must be exercised judicially, having regard
to all of the relevant
factors.
[41]
In
Zungu v Premier of the Province of
KwaZulu-Natal & others
(2018) 39
ILJ
523
(CC), the Constitutional Court said the following, at paragraph 22 of
the judgment:
…
The
correct approach in labour matters in terms of the LRA is that the
losing party is not as a norm ordered to pay the successful
party’s
costs.
In
Long v South African Breweries
2019
(5) BCLR 609
(CC), the Constitutional Court affirmed this approach:
[27]
It is well accepted that in labour matters, the general principle
that costs follow the result
does not apply…This principle is
based on section 162 of the LRA, which reads:
“
(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When deciding whether
or not to order the payment of costs, the Labour Court may take into
account—
(a) whether the matter
referred to the Court ought to have been referred to arbitration in
terms of this Act and, if so, the extra
costs incurred in referring
the matter to the Court; and
(b) the conduct of the
parties—
(i)
in proceeding with or defending the matter before the Court; and
(ii) during the
proceedings before the Court.”
[28]
The relationship between the general principle of costs and section
162 was considered and settled
by this Court in
Zungu
:
“
In
this matter, there is nothing on the record indicating why the Labour
Court and Labour Appeal Court awarded costs against the
applicant.
Neither court gave reasons for doing so. It seems that both
courts simply followed the rule that costs follow
the result.
This is not correct…”
[42] The
judgment in
Zungu
makes reference to
Member of the
Executive Council for Finance, KwaZulu-Natal & another v
Dorkin NO & another
(2008) 29
ILJ
1707 (LAC) in which
Zondo JP (as he then was) said the following:
The
rule of practice that costs follow the result does not govern the
making of orders for costs in this court. The relevant statutory
provision is to the effect that orders of costs in this court are to
be made in accordance with the requirements of the law and
fairness.
And the norm ought to be that costs orders are not made unless the
requirements are met. In making decisions on costs
orders this court
should seek to strike a fair balance between on the one hand, not
unduly discouraging workers, employers, unions
and employers
organisations from approaching the Labour Court and this court to
have their disputes dealt with, and, on the other,
allowing those
parties to bring to the Labour Court and this court frivolous cases
that should not be brought to court.
[43] In
short, the discretion to be exercised in relation to orders for costs
extends beyond the rule that costs follow
the result (a rule that
does not apply); the norm is that no order for costs should be made
unless an order for costs can be justified
by reference to the
requirements of the law and fairness. This is so regardless of the
particular statute under which the court
exercises jurisdiction.
Although s 162 is located in the LRA, the section concerned regulates
the powers and jurisdiction of this
court as an institution,
irrespective of the particular legislation in terms of which any
particular claim is brought. In so far
as a parties success in any
proceedings remains a relevant factor, AMCU has achieved partial
success in the present application,
on the basis of what amounted in
broad terms to a negotiated outcome.
[44] AMCU
relied in particular on the ‘Biowatch’ principle,
established by the Constitutional Court in
Biowatch Trust v
Registrar Genetic Resources and others
2009 (6) SA 232
(CC). In
terms of that principle, the general rule for an award of costs in
constitutional litigation between a private party and
the state is
that if the private party is successful, the state should pay its
costs, and if unsuccessful, each party should pay
its own costs.
[45] While it
is correct that the present case raised a constitutional issue (in
the form of the right to just administrative
action), the matters on
which the judgment ultimately turned did not directly invoke the
courts constitutional jurisdiction, which
in terms of s 157 (2) is a
concurrent jurisdiction enjoyed with the High Court in respect of any
alleged or threatened violation
of the fundamental right arising from
employment or labour relations and any executive or administrative
act or conduct by the
state in its capacity as an employer. Although
AMCU sought to invoke this court’s constitutional jurisdiction
in respect
of the constitutional validity of the regulations issued
under the DMA and the DMRE minister’s directions, the matter
ultimately
proceeded and was decided on the basis of the court’s
jurisdiction in terms of s 82 of the MWA, which confers exclusive
jurisdiction
of this court to determine any dispute about the
interpretation or application of any provision of the Act, except
where the Act
provides otherwise. That is not to say that the
Biowatch
principle is not relevant – rather, it is
subsumed under the general requirements relating to the law and
fairness as reflected
in s162 of the LRA.
[46]
To the extent that the relevant authorities suggest that an order for
costs is warranted primarily to cases where
a party has acted
frivolously or vexatiously in initiating or opposing proceedings in
this court, the DRME has done neither. The
case raises important
issues of principle in circumstances where the policy environment
continues to shift rapidly as more medical
evidence becomes
available. Indeed, in the present instance, it is not disputed that
as at mid-March 2020, representatives of all
of the social partners
in the mining industry supported regulation in the form of the
guiding principles issued on 26 March 2020,
after the DMRE had
consulted with them. While it is correct that AMCU was (and remains)
a proponent of measures with a higher degree
of enforceability, the
guidelines represented a position broadly common to employer and
worker representatives. To the extent that
AMCU suggests that at the
heart of its application is a contention that the DMRE has abdicated
its responsibility to ensure the
safety of mineworkers in the face of
the Covid-19 pandemic and that the DMRE minister and departmental
officials have acted only
in the interests of mining companies, this
is not an assertion that is borne out by the facts.
[47] To the
extent that AMCU’s complaint is that it has been excluded from
participating in these processes and
that its efforts have been
‘rebuffed or ignored’ this is not entirely correct. There
is no dispute on the papers that
the DMRE has been willing to engage
with AMCU on the same basis as any other union represented in the
industry. Regrettably, AMCU’s
position appears to be one in
which it has declined to attend meetings convened by the minister.
For example, in response to an
invitation to attend a meeting at the
DMRE on 7 April 2020, AMCU’s response was, as I have recorded
above, that ‘
we have no reason to believe that this will be
a genuine consultative engagement. Rather, we believe, it will be
another “rubber
stamp” and “tick box”
exercise by the DMRE to flout the rights of workers for the sake of
the profits of the
mining bosses’
. This conclusion must
necessarily be read in its context, one of increasing frustration at
a lack of response to AMCU’s demands,
but it indicates an
attitude that served to undermine the consensus-seeking process that
the DMRE has implemented, and the efforts
to reach consensus within a
tripartite structure. A further meeting was set up on 22 April 2020,
specifically to discuss AMCU’s
concerns. That meeting was
attended by all the other representatives of organised labour,
including the NUM, UASA, Solidarity and
NUMSA as well as
representatives of the Minerals Council, the Minister and senior
officials of the Department as well as the Department
of COGTA. AMCU
declined to participate in this meeting, legitimately, on account of
an insistence on a face to face meeting. But
AMCU (which appears to
be the only party not willing to attend a physical meeting) did
ensure that adequate arrangements were made
for its participation by
video-conference or some other suitable alternative. Indeed, as early
as 12 April 2020, four days after
the DMRE had responded to AMCU’s
letter dated 5 April 2020, lawyer’s letters became the
preferred means of communication.
By that stage, AMCU appears to have
elected to refuse to participate in collective, consensus seeking
efforts to address the threat
that Covid- 19 poses to the mining
industry and instead to pursue the option of litigation which by its
nature, is an adversarial
process.
[48]
None of these developments suggest that the DRME acted in an
exemplary fashion in the course
of its engagement with AMCU. The
failure to respond to correspondence addressed to the DMRE by AMCU
and its attorneys is inexplicable.
In that correspondence, AMCU
raised serious issues of concern, and was entitled to the courtesy of
a considered response. In short,
there were shortcomings on both
sides.
[49]
The factor that is perhaps more significant than any other in the
present instance is that expressed
as long ago as 1992, in
NUM v
East Rand Gold and Uranium Co Ltd
(1991) 12 ILJ 1221 (A), where
what was then the Appellate Division of the Supreme Court considered
the prejudice that an order
for costs might have on a relationship
between collective bargaining partners. The court held that an order
that each party pay
its own costs was appropriate. The court (per
Goldstone JA) said the following:
Frequently the parties
before the industrial court will have an on-going relationship that
will survive after the dispute has been
resolved by the court. A
costs order, especially where the dispute has been a bona fide one,
may damage that relationship and thereby
detrimentally affect
industrial peace and the conciliation process (at 1243).
[50]
Although the present case is not concerned with collective
bargaining, it is intimately concerned
with the tripartite
relationship that exists as between the state, employers and
organised labour in the mining industry. The concerns
expressed about
the effect that an adverse order for costs might have on an on-going
relationship between collective bargaining
partners is equally valid
to relationships between the social partners. This is particularly so
where the order granted in these
proceedings, but for the two issues
addressed in this judgment, is by and large the product of consensus.
The terms of that order
anticipate future and on-going engagement by
the DMRE with the social partners and the representatives of mining
affected communities.
The degree of co-operation (rather than
confrontation) that will be necessary to give effect to the order and
to the limit may
well be undermined should relationships between the
parties be soured by an order for costs.
Order
I make the following
order:
1.
Each party is to pay its own costs.
André van Niekerk
Judge
APPEARANCES
For the applicant: Adv. A
Dodson SC, with him Adv. C Bishop, instructed by Richard Spoor
For the first, second and
third respondents: Adv. MA Wesley, with him Adv. N Mabvungua and Adv.
J Chanza, instructed by the state
attorney.
For the fourth
respondent: Adv. CDA Loxton SC, with him Adv. JL Gildenhuys SC and
Adv. PJ Daniell, instructed by ENS Africa Inc.
For
the
amicus curiae
:
Adv. L Siyo, with him Adv L Phasha, instructed by Centre for Applied
Legal Studies
[1]
The
Annexures are not reflected here. They are attached to the signed
order issued on 1 May 2020.
[2]
Referring
to
R
v Chief Constable of Sussex, ex parte International Trader’s
Ferry Ltd
[1999] 1 All ER 129.
[3]
Paragraphs
26 to 30 draw liberally on the applicant’s heads of argument.