Glencore Operations South Africa Proprietary Limited Coal Division v Minister of Mineral Resources and Others (JR 91/2014) [2016] ZALCJHB 31; (2016) 37 ILJ 966 (LC) (3 February 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 91/2014

DATE: 03 FEBRUARY 2016

Reportable

GLENCORE OPERATIONS SOUTH AFRICA

PROPRIETARY LIMITED COAL DIVISION.....................................................................Applicant

And

MINISTER OF MINERAL RESOURCES................................................................First Respondent

THE MINE HEALTH AND SAFETY INSPECTORATE....................................Second Respondent

LJA BEZUIDENHOUT, N.O.....................................................................................Third Respondent

A B NKOSI, N.O.......................................................................................................Fourth Respondent

Heard:5 January 2016

Delivered: 3 February 2016

Summary: Review-Section 6 of PAJA-Recommendation - Section 55A of MHSA-Decision-Section 55B-Imposition of fine-Recommendation and

Decision-Administrative action in terms of PAJA-Decision making process flawed-principal inspector of mines deciding administrative

fine will be imposed-principal inspector of mines requested inspector to make a recommendation-principal inspector of mines decided to impose administrative fine-bias as to subject matter and prejudice-concepts of impartiality, independence and bias considered-test for bias-considered Sections 55A and 55B of MHSA-principal inspector of mines prejudged-Decision to impose a fine a fait accompli.

VENTER, AJ

Introduction:

[1] This is an application for the review and setting aside of a recommendation ("the Recommendation") and subsequent decision ("the Decision") of the third and fourth respondents, taken pursuant to the provisions of the Mine, Health and Safety Act[1] ("the MHSA") to impose an administrative fine upon the applicant.

[2] The applicant seeks the review and setting aside of the Recommendation and Decision in terms of the Promotion of Administrative Justice Act[2] ("PAJA") on the basis that the Recommendation and Decision amount to unlawful administrative action. Alternatively, the applicant seeks the review and setting aside of the Decision and Recommendation on the basis that the Decision and Recommendation violate the rule of law and the doctrine of legality in terms of section 1(c) of the Constitution of the Republic of South Africa[3] ("the Constitution").

[3] In addition and should the Court review and set aside the Decision, the applicant seeks an order that the first or second respondents repay to it the amount of R500 000.00 together with interest at a rate of 15.5% per annum to be calculated from 2 August 2013 to date of payment.

[4] Despite filing a notice of opposition,[4] the first, second, third and fourth respondents failed to deliver an answering affidavit.

Background facts:

[5] The applicant is the owner of a coal mine, South Witbank Colliery ("SWC") and conducts mining operations in terms of a mining right issued to it pursuant to section 23 of the Mineral and Petroleum Resources Development Act.[5]

[6] The applicant is responsible for the health and safety of all the persons within the mining area of the SWC and is the employer for purposes of the MHSA.

[7] On 2 October 2012, an employee of M&S Projects (Pty) Ltd, Mr Barry Paxton ("Paxton"), was fatally injured in an accident underground while a crew was welding brackets onto equipment.

[8] Following the incident, an enquiry in terms of section 65 of the MHSA ("the Section 65 Enquiry") was convened. The third respondent, Louis Bezuidenhout ("Bezuidenhout"), who at the time was employed by the second respondent in the capacity

of principal inspector of mines, presided over the Section 65 Enquiry. The Section 65 Enquiry was conducted on 11 and 12 December

2012.

[9] On 13 January 2013, Bezuidenhout, in his capacity as presiding officer of the Section 65 Enquiry, issued a written report in terms of section 72 of the MHSA detailing his findings, recommendations and remedial steps ("the Section 72 Report").[6]

[10] In the Section 72 Report, Bezuidenhout found that:[7]

'Although no person can be held directly responsible for the death of Mr. Barry Grant Paxton, the lack of the proper level of supervision during underground cutting and welding operations certainly contributed to the contravention of various regulations and safety measures that led to the death of Mr. Paxton.

The prescribed safety measures of the underground cutting and welding permission have been grossly violated and will form part of an administrative penalty or alternatively a permanent stoppage of the practice in terms of section 54 of the Mine Health and Safety Act as disregard for these safety measures can have catastrophic consequences.'

[11] The Section 72 Report was posted to the applicant, the South African Police Services, the Chief Inspector of Mines, Mrs Paxton and the Senior Public Prosecutor under cover of letters dated 13 February 2013.[8]

[12] The applicant did not receive the Section 72 Report.

[13] On 18 February 2013, the fourth respondent, AB Nkosi ("Nkosi"), employed at the time by the second respondent in the capacity of inspector submitted the Recommendation to Bezuidenhout in terms of section 55A of the MHSA.[9] At the time of making the Recommendation, Nkosi was acting under the empowering provision of section 55A(1) of the MHSA.

[14] Nkosi, in the introductory paragraph of the Recommendation, states as follows:

'I recommend that a fine be imposed on, the employer at South Witbank, who has contravened or failed to comply with the provisions as contemplated in section 91(1B) of the Mine Health and Safety Act, 1996 (Act 29 of 1996) as amended. Actions taken during the underground welding on 2 October 2012 were contraventions of a Code of Practice implemented in terms of Section 9(2) of the Mine Health and Safety Act.'

[1] Act 29 of 1996, as amended.

[2] Act 3 of 2000.

[3] Act 108 of 1996.

[4] Pages 845 - 846 of the record.

[5] Act 28 of 2002.

[6] Page 901 of the record.

[7] Pages 903 and 904, paras 7.1 and 7.2 of the record.

[8] Pages 896 - 900 of the record.

[9] Pages 890 - 895 of the record.

[10] Pages 890 - 894 of the record.

[11] Pages 613 - 616 of the record.

[12] Page 894 of the record.

[13] Page 895 of the record.

[14] Page 888 of the record.

[15] Pages 864 - 881 of the record.

[16] Pages 617 - 635 of the record.

[17] Page 858 of the record.

[18] Page 825 of the record.

[19] Sections 50 to 55 of the MHSA.

[20] Sections 55A and 55B of the MHSA.

[21] Administrative action is defined as 'any decision taken, or any failure to take a decision, (a) by an organ of state, when - exercising a power in terms of the Constitution or provincial constitution; (ii) or exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include- (aa) the executive powers or functions of the National Executive, including the powers or functions referred to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution; (bb) the executive powers or functions of the Provincial Executive, including the powers or functions referred to in sections 121(1) and (2), 125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution; (cc) the executive powers or functions of a municipal council; (dd) the legislative functions of Parliament, a provincial legislature or a municipal council; (ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), and the judicial functions of a traditional leader under customary law or any other law; (ff) a decision to institute or continue a prosecution; (gg) a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law; (hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; or (ii) any decision taken, or failure to take a decision, in terms of section 4(1).

[22] Section 1(i)(aa) - (hh) of PAJA.

[23] Section 1(vi) of PAJA.

[24] [2005] ZASCA 43; 2005 (6) SA 313 (SCA) at para 23.

[25] Section 33 provides that: "Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given reasons.'

[26] See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at para 25 and Oosthuizen Transport (Pty) Ltd and Others v MEC, Road Traffic Matters, Mpumalanga & others 2008 (2) SA 570 (T) at paras 18 and 19.

[27] 2006 (2) SA 311 (CC).

[28] The Constitutional Court was divided on whether regulation making constituted administrative action. The view of the majority of the Court was that regulation making was not administrative action.

[29] New Clicks decision (supra) at para 137.

[30] Ibid at para 672.

[31] 2008 (2) SA 570 (T).

[32] Act No. 93 of 1996

[33] Oosthuizen's Transport (supra) at paras 24 and 25.

[34] Oosthuizen Transport (supra) at paras 27 and 30.

[35] Oosthuizen Transport (supra) at paras 29 and 30.

[36] At pages 617 - 635 of the record.

[37] At page 619. The Enforcement Guideline was set aside by this court for non-compliance with section 49(6) of the MHSA as it was not published in the Government Gazette. See International Ferro Metals (SA) (Pty) Ltd v Minister of Mineral Resources and Others (J1673/13) [2015] ZALCJHB 9 (21 January 2015).

[38] Pages 53 - 69 of the record.

[39] Section 6(2)(a)(i) of PAJA.

[40] Section 6(2)(d) of PAJA.

[41] Section 6(2)(e)(iii) of PAJA.

[42] Section 6(2)(e)(vi) of PAJA.

[43] Section 6(2)(c) of PAJA.

[44] Section 6(2)(a)(iii) of PAJA.

[45] Pages 54 - 55 of the record.

[46] Section 6(2)(f)(ii)(dd) of PAJA.

[47] 2002 (4) SA 877 (T).

[48] [2004] ZACC 15; 2004 (4) SA 490 (CC) at para 48.

[49] Pages 26 - 30 of applicant's heads of argument.

[50] "No one may be a judge of his or her own cause".

[51] The Shorter Oxford English Dictionary, volume 6, 2007.

[52] 1944 WLD 52 at page 55.

[53] 1924 1 K. B. 256 at page 259.

[54] [1998] ZACC 6; 1998 (7) BCLR 779 (CC) at para 71.

[55] 1985 2 S.C.R. 673.

[56] (1992) 13 ILJ 803 (A) at page 817.

[57] Page 29 para 74 of the applicant's heads of argument.

[58] Baxter Administrative Law (1984) at pages 564 and 565.

[59] 2000 (4) SA 621 (C) at para 67.

[60] See also De Lille and Another v Speaker of National Assembly 1998 (3) SA 430 (C).

[61] [2000] ZACC 10; 2000 (3) SA 705 (CC) at para 13.

[62] (2001) 22 ILJ 1311 (SCA) at para 10.

[63] 2003 (5) SA 51 (C) at 61G-H.

[64] At page 59.

[65] The Shorter Oxford English Dictionary, volume 6, 2007.

[66] Page 904 of the record.

[67] Page 895 of the record.

[68] 2 July 2002 Government Gazette number GNR 904/2002. At page 903.

[69] Page 894.

[70] See pages 83 and 84 of the record.

[71] Section 55A(5) provides that 'a representation made in terms of this section may not be used against the employer in any criminal or civil proceedings in respect of the same set of facts'.

[72] Page 858 of the record.

[73] Section 55D(2) was repealed by section 20 of Act 74 of 2008 which came into effect on 30 May 2009.

[74] See BTR Industries (supra) at page 693.

[75] Ibid at pages 694 and 695.

[76] 1999 (4) SA 915 (SCA) at paras 32, 33 and 34.

[77] 2015 36 ILJ 655 (LAC) at para 54.