Health and safety instructions must be procedurally compliant

© Ahmad Ghazali Ahmad Tajuddin – 123RF.com

Briefly, International Ferro Metals (SA) (Pty) Ltd has chrome operations situated in Buffelsfontein and operates a ferro-chrome smelter. Ferro is the employer, quà owner, in terms of the Mine Health and Safety Act, No 29 of 1996 (MHSA) and bears responsibility for the health and safety of persons at its mining operations.

The inspector issued an instruction in terms of s54(1)(a) of the MHSA that operations at the ferro-chrome smelter had to be halted by a specified deadline. The instruction required the employer to withdraw all employees from designated areas which allegedly had high carbon monoxide levels until such time as those were brought below the legal limit.

Validity of guidelines

Ferro contended that the instruction should not have been issued because there was no breach of its obligations. Ferro approached the Labour Court to challenge the issuance of the notice and to challenge the validity of the guidelines issued by the inspector which had to be adhered to when an inspector sought to exercise his powers when issuing s54 notices.

In dealing with this issue, the court considered the nature of the s54 instruction. The inspector instructed Ferro to do the following:

• review the carbon monoxide gas procedure and occupation exposure limits;
  
• withdraw all employees who were working at the sinter screen and bunker tunnel and to retrain them in respect of the revised carbon monoxide procedure by utilising the services of an accredited independent trainer; and
  
• comply with MHSA Regulation 16.4(1) which required Ferro to test its self-contained self-rescuers annually.

Ferro contended that should all the employees be removed from the areas, none of its working areas could operate and this would entail the closure of the furnace building and casting bay as well as a complete shut-down of the ferro-chrome smelter (which operated on a continuous basis).

The inspector contended that for as long as the employees had not been withdrawn from the designated areas, Ferro would remain in breach of the Department of Mineral Resources (DMR's) guidelines. These guidelines were purportedly issued in terms of s49(6) of the MHSA, which reads:
"The Chief Inspector of Mines must issue Guidelines by notice in the Gazette".

Ferro argued that because the guidelines had not been gazetted, they should be set aside. It was an accepted fact between the parties that the guidelines had not been gazetted. The inspectorate argued that the guidelines were neither binding nor took away the discretion of inspectors when issuing a s54 instruction.

Non-compliance with requirements

The court held that because the usage of these guidelines affected the rights and interests of those persons against whom these measures were taken, the guidelines were being enforced by the DMR in circumstances where they did not comply with the statutory requirements. The court noted that the wording of s49(6) of the MHSA is peremptory and therefore the guidelines were set aside due to non-compliance with this statutory requirement.
Having regard to this judgment, it is important to note that apart from the issuance of a guideline in terms of s49 of the MHSA, an inspector has powers to deal with what he or she has reason to believe is an occurrence, practice or conditions which do or may endanger the health or safety of any person at a mine.

The inspector may give an instruction necessary to protect the health and safety of persons, this power emanates from s54 of the MHSA. The inspector is afforded options which include (but are not limited to) the halting of mine operations, the suspension of any act or practice and instructing the employer to take remedial measures within a specified time frame.

Interpretation of wording

The interpretation of the wording "reason to believe" was determined in the case of Bert's Bricks (Pty) Ltd and Another v The Inspector of Mines, North West Region and 4 Others (15347/2011) [2012] ZAGPPHC 11 (9 February 2012), where the High Court found that there were no objective facts which would lead a reasonable person to believe that the damage to the tyre tread (of a single trackless mobile vehicle) would endanger the health and safety of any person at the mine. The High Court found that the instruction to close the entire operation was out of proportion to the risk posed.
The guideline was originally formulated to provide guidance to inspectors on how to objectively assess the dangers posed by employer non-compliance with the MHSA so that as inspector could impose an instruction that is rational and justifiable.

One aspect was to examine an employer's history of non-compliance with its obligations under the MHSA which would mean that the historical data would have needed to be available to an inspector prior to issuance of such notices/instructions. The provisions of s49(6) of the MHSA, however, must first be adhered to before any new guidelines are implemented.