Conservative approach to safety
Halt to mining operations an inevitable outcome of use of DMR235 document
UNDER section 54(1) of the Mine Health and Safety Act, 1996, inspectors of mines have wide powers to issue instructions to protect the health and safety of mining employees where dangerous occurrences, practices or conditions at mines warrant this.
These powers include the immediate halting of mining operations.
A decision such as which instruction to give in response to danger, should involve a fine balancing act by an inspector to ensure that instructions are given which are proportionate to the risks identified and which do not unfairly disrupt mining operations. An infinite list of instructions short of halting mining operations are available to inspectors and should be considered before operations are halted.
A pro forma document (DMR235) now used by inspectors in issuing instructions under section 54(1) will almost always result in the halting of mining operations when a dangerous occurrence, practice or condition is identified. In using DMR235 as a pro forma document to issue instructions, it is unlikely that any instruction short of halting mining operations will be considered, let alone given.
Any mining executive faced with DMR235 may perhaps be forgiven for feeling like Pavlov’s dog. Ivan Pavlov was a Russian psychologist who first introduced the world to the consequences of classical conditioning in the first half of the last century. In his now famous experiment, Pavlov used to ring a bell for his dogs at feeding times. The dogs would associate the ringing bell with food and once conditioned, Pavlov needed only to ring the bell for his dogs to start salivating.
The question is whether DMR235 can be compared to Pavlov’s bell. Does it suggest to us that the outcome of any inspection will be an instruction to halt mining operations? I think so.
DMR235 requires an inspector to answer four questions and to ascribe a predetermined score for an affirmative answer to each question.
The first question is whether the transgression observed by the inspector is considered dangerous to the health and safety of persons. If yes, a score of five points is allocated. The second, third and fourth questions are whether there had been a similar transgression, or a related injury, or a fatality at the mine in the past 12 months. If any question is answered in the affirmative, a score of three points each is given.
The net result of the scoring is that if the mine achieves an overall score of more than three points, but less than six, operations at that section of the mine are halted — and if the score exceeds seven points, then all operations at the mine are halted.
As the scoring on the first question (where there is a danger) already exceeds the threshold beyond which an inspector must issue an instruction for partial halting of mining operations, all that is needed is an affirmative answer to automatically results in the partial halting of mining operations.
And from there it can only get worse for the mine.
Section 54(1) provides that where an inspector has reason to believe that any occurrence, practice or condition at a mine poses a danger to the health and safety of persons, he may give any instruction to protect the health and safety of persons, which instruction may include, but is not limited to, an instruction to halt mining operations at the mine or part thereof.
Clearly halting mining operations is a sanction of last resort. The inspector is granted an open discretion to give any instruction he deems necessary. Why then does DMR235 only prescribe an instruction to halt mining operations totally or in part? Has the true intention of section 54(1) been lost in the slavish application of this mechanical scorecard?
Every statutory provision must be construed and applied in a manner that gives proper effect to the provisions of our constitution. Of consequence to us are property rights and rights to lawful administrative action.
The holder of a mining right enjoys a limited real right in respect of the mineral and land to which it relates and furthermore has the exclusive right to mine for its own account the minerals on that land. Such mining right is therefore property for purposes of section 25 of the constitution.
Limitations of these rights are subject to section 36 of the constitution, which requires any limitation to be reasonable and justifiable, taking into account all relevant factors, including the nature of the right, the importance of the purpose of the limitation, and its nature and extent, the relation between the limitation and its purpose and the existence of less restrictive means to achieve that purpose.
Under section 33(1) of the constitution everyone has the right to administrative action that is fair, lawful and reasonable. This includes expect- ing administrative action to be proportionate to the goal contemplated by the enactment under which the power is conferred and, in particular, not to be arbitrary. It encapsulates our common law rule requiring a decision maker to exercise his discretion rationally in a manner that is not arbitrarily or improperly fettered by the prescripts and guidelines imposed by others. But DMR235 does just that:
It mandates and prescribes an improper application of a fettered discretion when the Mine Health and Safety Act requires an open discretion;
It arbitrarily dictates, without more, the halting of mining operations or part thereof upon the identification of a danger or potential danger; and
It fails to properly weigh the relevant factors, including the nature and extent of the limitation and less restrictive means to achieve the purpose.
The first question in DMR235, whether there is a danger, is only the threshold for the application of section 54(1). It cannot be the end of the enquiry, but seems to be. No room is left for an inspector to consider any instructions short of halting mining operations. What is more, the other questions all introduce historical data or events. Section 54(1) does not expressly or by implication permit historical data or events to be taken into account.
Past events no longer pose a danger or a potential danger and therefore cannot trigger the application of section 54(1).
So what is a mine to do when faced with an instruction issued in the form of DMR235?
As a first port of call a presentation should be made to the principal inspector to lift the instruction as soon as possible so that mining operations may be resumed. Instructions to halt mining operations cost mines millions of rand in loss of production per day.
Thereafter, consider an appeal. Section 57 of the MHSA allows for an appeal to the Chief Inspector of Mines within 30 calendar days from the issuing of the instruction (and not the lifting thereof by the principal inspector). The grounds of appeal would include that the instruction issued in the form of DMR235 was improper and should be set aside.
However, an appeal does not suspend the underlying instruction. Although the instruction would have been lifted by the time of noting the appeal, the continued use of DMR235 is not suspended pending the appeal. Therefore, I suggest considering applying to the Labour Court in terms of section 59(2) of the Mine Health and Safety Act to suspend the use of DMR235 pending the appeal.
This will prevent the continued violation of constitutional rights by the application of DMR235.
In a constitutional democracy such as ours, mines should be allowed to follow their rights of appeal without fear. In doing so, the automatic imposition of instructions to halt mining operations upon the identification of a danger will be curbed. Maybe this will result in the classic conditioning being broken and for instructions short of halting mining operations again to be considered in the proper application of an inspector’s wide discretion under section 54(1).