Department Of Mineral Resources Guidelines

Instructions by the Department of Mineral Resources (The DMR) in terms of Section 54 to suspend managerial and other persons

Introduction
A practice has arisen whereby inspectors from the DMR have instructed certain mining companies to immediately withdraw the legal appointments of certain managerial and other persons, pending the completion of certain remedial steps, such as the retraining of the suspended individual(s).

Such instructions are purportedly issued in terms of Section 54 of the Mine Health and Safety Act, 1996 (“the MHSA”). This practice raises a myriad of potential issues, certain of which are dealt with in this article.

Empowering legislation
Inspectors are so-called “creatures of statute”, meaning that they can only take actions that they are empowered to take by legislation (including regulations). Accordingly, the first issue that must be dealt with is whether the empowering legislation justifies the types of instructions given by inspectors of the DMR.

The wording of Section 54 caters for dangerous occurrences, practices and conditions, and the steps that inspectors can take to deal with such occurrences, practices and conditions. Only in exceptional circumstances, as indicated hereinbelow, will an inspector be justified to instruct an employer to suspend a manager in terms of Section 54.

In contrast, Chapter 29 of the Minerals Act Regulations, which remain in force in terms of Item 4 of Schedule 4 to the MHSA, clearly and expressly deals with the suspension and cancellation of certain certificates of competency. This Chapter provides for, amongst others, the following:

who the functionaries are that can suspend or cancel certain certificates;
which certificates can be suspended or cancelled; and
under what circumstances the certificates can be suspended or cancelled.

Chapter 29 is constructed in such a manner that it is able to directly govern the relationship between the DMR and certain accountable individuals who work in the mining industry. This can again be contrasted with instructions to employers in terms of Section 54, whereby the DMR is telling the employer to treat certain of its employees in certain manner, which may have certain unintended consequences.
In view of the above, the reliance by the DMR on Section 54 as the justification for the relevant instructions is misplaced and it would be more appropriate for the DMR to rely on the powers given to certain functionaries by Chapter 29 to deal with the suspension of persons at mines. Nevertheless, the DMR has chosen to circumvent Chapter 29 and it is therefore necessary to consider what requirements must be met in order for a Section 54 instruction to be legally valid.

Requirements of Section 54
In order for a Section 54 instruction to be legally valid (lawful), the following requirements must, amongst others, be satisfied:

objectively, a state of affairs must exist that would lead the reasonable inspector (in the position of the relevant inspector), to believe that a particular occurrence, practice or condition endangers the health or safety of persons at the mine in question; and
the instruction must be necessary to protect the health and safety of persons at the mine.

The above requirements were confirmed by the High Court in the case of Bert’s Bricks (Pty) Ltd and Another v The Inspector of Mines, North West Region and 4 Others (Case No. 15347/2011 dated 9 February 2012).

The effect of these requirements in the present context is that objectively a situation must exist that would lead a reasonable inspector to believe that the appointment of the relevant person endangers the health or safety of persons at the mine in question and that it is necessary to suspend such person in order to protect the health and safety of persons at the mine.

In order for the appointment of a person to endanger other persons, it is submitted that extraordinary circumstances would have to exist. Such circumstances may entail a gross dereliction of duty on the part of the person.

Alternatively, the circumstances may entail gross negligence and/or gross misconduct on the part of the person.

In addition to the above requirements, any instruction issued in terms of Section 54 is an administrative action for purposes of the Promotion of Administrative Justice Act, 2000 (“PAJA”). This has been confirmed by the DMR in its enforcement guideline that came into effect in April 2011.

Accordingly, when an inspector issues an instruction in terms of Section 54, he/she must comply with the relevant provisions of PAJA, which generally require administrative action to be lawful, reasonable and procedurally fair.

For a detailed discussion on Section 54, see WP Le Roux, Mine Health and Safety Law, Vol 1 (loose leaf publication of LexisNexis) at COM 139 – 144.

Potential conflict with the Labour Relations Act, 1995 (“the LRA”)
The question remains open whether the DMR may in fact dictate when an employee should be suspended, as this may encroach on the employer/employee relationship that is governed by the LRA.

In this regard, the LRA is the supreme legislation dealing with all matters relating to the employer/employee relationship (see Section 210 of the LRA). Furthermore, Section 185 of the LRA provides that every employee has the right not to be subjected to an unfair labour practice, which is defined in Section 186(2) as including, amongst others, the unfair suspension of an employee.

In view thereof, employers who receive such instructions from the DMR should carefully consider the merits of such instructions and should endeavour to avoid unfairly treating their employees.

Remedies
Various remedies are available to mining companies and individuals who are materially affected by Section 54 instructions that are issued in an unlawful, unreasonable and procedurally unfair manner. Such instructions can be appealed against to the Chief Inspector of Mines (see Section 57 of the MHSA), and ultimately to the Labour Court (see Section 82 of the MHSA), and/or taken on review to the Labour Court. The Labour Court can also be approached on an urgent basis with a request that an instruction issued be immediately suspended, pending the outcome of an appeal to the Chief Inspector or the Labour Court.