Con­ser­va­tive ap­proach to safety

Halt to min­ing op­er­a­tions an in­evitable out­come of use of DMR235 doc­u­ment

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - WES­SEL BADEN­HORST

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).

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