Author: Gary Moore

Date: 23 July 2018

The Mine Health and Safety Act, 1996[1] states[2] that it is a statute to provide for protection of the health and safety of employees and other persons at mines.[3]

Prohibition of work or exposure to a substance for any health or safety reason

The Act states that the Minister[4] may,[5] for “any reason” relating to health[6] or safety,[7] prohibit[8] “any work” or “any exposure” of a person to a substance[9] or “environmental condition”[10] if he has[11] “consulted” the Council[12] on the prohibition,[13] and if he has (unless he “believes that the public interest requires” the prohibition to be published immediately) published[14] a draft of the proposed notice and an invitation to interested persons to submit comments[15] about it.[16] The Minister may[17] attach “any conditions” to the prohibition.[18]

This gives the Minister discretion to prohibit any work[19] for any reason relating to health or safety. This violates the Rule of Law in not more closely specifying what conditions relating to health or safety would justify[20] the exercise by the Minister of this discretion.[21]

It gives the Minister unfettered discretion as to the types of work or exposure [22] that may be prohibited.[23] This violates the Rule of Law in not more clearly defining different types of work or exposure which might be prohibited in different circumstances.[24]

The Minister must first consult the Council. This does not require the Minister to act in accordance with any recommendations of the Council.[25]

The Minister, similarly, is not required to act in accordance with any submissions by interested persons pursuant to the Minister’s notice inviting comments. Indeed, the Minister need not publish a notice inviting comments if he believes that the public interest requires the notice to be published immediately. This gives the Minister a relatively unfettered subjective discretion whether to invite comments or not.[26]

The Minister’s power to attach any conditions to a prohibition[27] is also discretionary. This violates the Rule of Law in not indicating types of conditions which may be attached.[28]

Declaration that a substance or environmental condition is a health hazard

The Act[29] provides that the Minister may[30] declare that an “environmental condition” or a substance present at a mine is a “health hazard” to employees who are “or may be” exposed to it, if the Minister has[31] consulted the Council,[32] and (unless he believes that the public interest requires the declaration to be published immediately) published[33] a draft of the proposed notice and invitation to interested persons to submit comments[34] about it.[35]

A health hazard means “any” physical, chemical or biological source of or exposure to danger to health,[36] including “anything” declared to be a health hazard by the Minister.[37]

The provision confers discretions, which violate the Rule of Law for the same reasons that apply to the Minister’s power to prohibit work for a reason relating to health or safety.

In connection with any health hazard, the Minister[38] may[39] impose “conditions” on the performance of work by employees “exposed to” the health hazard, and stipulate the standards of fitness for an employee to perform work involving exposure to it;[40] may require employers to take “measures to eliminate, control and minimise” health risks associated with it, to conduct “specified” occupational-hygiene measurements, and to conduct “specified” medical surveillance i.r.o. employees exposed to it;[41] and may provide for “any other matter that the Minister considers necessary” to protect employees exposed to it.[42]

These provisions also confer discretionary powers, violating the Rule of Law. They do not indicate types of conditions which may be imposed for performing work, or types of fitness standards which may be stipulated, or stipulated for different types of exposure.

Nor do they indicate the types of measures which employers might be required to take to address health risks, or the types of occupational-hygiene measurements which might be specified, or specified for different types of exposure; or types of medical surveillance to be conducted which might be specified, or specified for different types of exposure.

Exemptions

The Act states that a notice by the Minister which prohibits work for a reason relating to health or safety,[43] or which declares a health hazard or imposes conditions i.c.w. health hazards,[44] may exempt a particular person or group of persons from compliance with the notice, if the Minister “is satisfied” that in the circumstances the exemption is “desirable”[45] (or that either of two other circumstances exist which are not relevant[46]).

The provision[47] contain no objective criteria to guide the Minister’s decision[48] regarding whether an exemption is desirable. It leaves the question of the desirability of an exemption to the Minister’s subjective discretion, in violation of the principle of the Rule of Law that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.[49]

And, by leaving the desirability of an exemption (and hence the scope of a prohibition of work, or of a health-hazard declaration or notice prescribing conditions regarding health hazards) to the Minister’s subjective discretion, it violates the principle of the Rule of Law that the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.[50]

(It might be contended that the provision contains objective criteria by implication.[51] But a court should probably not try to identify circumstances in which an exemption would be desirable, and it is for the legislature to provide the necessary guidance.[52]  Whether something is “desirable” is not a question of the existence or otherwise of a factual position where an objective test can be applied.[53])

Declaration that Occupational Health and Safety Act and other laws apply to mines

The Act states that the Minister may[54] declare[55] that any provision of the Occupational Health and Safety Act, 1993[56] or a regulation made thereunder, or of any other Act or regulations, must apply to a mine.[57] Such a declaration may differentiate between mines, types of mines, parts of a mine, occupations and types of work.[58]

(The Occupational Health and Safety Act states that it does not apply to a mine, except insofar as the mining laws otherwise provide.[59])

This provision, that the Minister may declare that the Occupational Health and Safety Act or any other law will apply to a mine, violates the Rule of Law, by conferring on the Minister an unfettered discretion to determine whether to and when to declare that any such law will apply to mines, and by delegating a law-making power on the Minister without imposing any limits on Minister’s power to make laws applicable to mines and without defining the purpose of such a delegated power.[60]

Ministerial alteration of periods of imprisonment or fines which may be imposed

The Act states that the Minister[61] may[62] add to, change or replace Schedules to the Act,[63] including the Schedule which lists the periods of imprisonment or maximum fines that may be imposed for offences under the Act.[64]

This goes beyond the mere adjustment[65] of the amount of the fines which may be imposed i.r.t. statutory periods of imprisonment (which is already provided for in law[66]).

This provision authorises the Minister in his discretion to increase both forms of punishment, periods of imprisonment as well as fines.

The provision violates the principle of the Rule of Law that[67] questions of legal liability should be resolved by law and not the exercise of discretion.[68]

 

[1] Mine Health and Safety Act 29 of 1996.

[2] Mine Health and Safety Act, Long title.

[3] (As its short title suggests.)

[4] I.e., the Minister of Minerals and Energy. Mine Health and Safety Act s 102 sv “Minister”.

[5] By notice in the Gazette.

[6] Health refers to occupational health at mines, which includes occupational hygiene and occupational medicine. Occupational hygiene means the anticipation, recognition, evaluation and control of conditions at the mine, that may cause illness or adverse health effects to persons. Occupational medicine means the prevention, diagnosis and treatment of illness, injury and adverse health effects associated with a particular type of work. Mine Health and Safety Act s 102 svv “health”, “occupational health”, “occupational hygiene” and “occupational medicine”.

[7] Safety means safety at mines. Mine Health and Safety Act s 102 sv “safety”.

[8] Or restrict.

[9] Including any solid, liquid, vapour, gas or aerosol, alone or in any combination. Mine Health and Safety Act s 102 sv “substance”.

[10] Undefined.

[11] Mine Health and Safety Act s 75(1)(a).

[12] The Mine Health and Safety Council. Mine Health and Safety Act s 102 sv “Council”.

[13] Or restriction.

[14] At least three months previously.

[15] And representations.

[16] Within a specified period. Mine Health and Safety Act s 75(1)(b)(i) and (ii).

[17] By specifying them in the published notice.

[18] Or restriction. Mine Health and Safety Act s 75(2).

[19] Or exposure to any substance or environmental condition.

[20] Accepting that it is not possible to specify all the conditions relating to health or safety which might justify the exercise of the discretion.

[21] Rights and liabilities should not be determined by discretion. The broader a discretion, the greater the scope for subjectivity and arbitrariness, the antithesis of the Rule of Law. Lord Bingham, Sixth Sir David Williams Lecture, “The Rule of Law”, second sub-rule.

[22] And the types of exposure to a substance or environmental condition.

[23] Or restricted.

[24] Accepting that it is not possible to define all the different types of work or exposure which might be prohibited in different specified circumstances.

[25] It only requires the Minister to be receptive to the Council’s views. President of the Republic v Reinecke [2014] ZASCA 3 per Wallis JA (Mpati P, Petse and Saldulker JJA and Van Zyl AJA concurring).

[26] The broader a discretion, the greater the scope for subjectivity. Bingham, supra.

[27] Or restriction.

[28] Accepting that it is not possible to define all the different types of conditions which might be imposed in different circumstances.

[29] Similarly.

[30] By notice in the Gazette.

[31] Mine Health and Safety Act s 76(1)(a).

[32] On the issuing of the declaration.

[33] At least three months previously.

[34] And representations

[35] Within a specified period. Mine Health and Safety Act s 76(1)(b)(ii).

[36] Health refers to occupational health at mines, and includes occupational hygiene and occupational medicine.

[37] Mine Health and Safety Act s 102 svv “health hazard” and “hazard”.

[38] After consulting the Council.

[39] By notice in the Gazette.

[40] Mine Health and Safety Act s 76(2)(a) and (b).

[41] Mine Health and Safety Act s 76(2)(c), (d) and (e).

[42] Mine Health and Safety Act s 76(2)(f).

[43] Mine Health and Safety Act s 75.

[44] Mine Health and Safety Act s 76.

[45] Mine Health and Safety Act s 78(a).

[46] Either that the performance of the work by that person or group of persons is temporary; or that the risk to which that person or group of persons is exposed is negligible. Mine Health and Safety Act s 78(b) and (c).

[47] While any exemptions from such ministerial notices should perhaps be welcomed in principle.

[48] Accepting that it is not possible to outline all criteria or standards for when an exemption may be desirable.

[49] Bingham, “The Rule of Law” supra, second sub-rule.

[50] Bingham, “The Rule of Law” supra, third sub-rule.

[51] Provided that the Minister arrives at his opinion in good faith and fairly.

[52] See Dawood and ano v Minister of Home Affairs and others 2000 (8) BCLR 837 (CC) pars [50], [54], [55].

[53] In contrast, for example, the question of whether something is a “matter of public concern” is an objective one that the courts can determine. President of the Republic and others v South African Rugby Football Union and others 1999 (10) BCLR 1059 (CC) par [171].

[54] After consulting the Council.

[55] By notice in the Gazette.

[56] Occupational Health and Safety Act 181 of 1993.

[57] Mine Health and Safety Act s 80(1).

[58] Mine Health and Safety Act s 80(2).

[59] Occupational Health and Safety Act s 1(3)(a). That statute refers to prior legislative provisions governing mine health and safety, viz. Minerals Act 50 of 1991 ss 26–37.

Those provisions of the Minerals Act have since been repealed and replaced by the Mine Health and Safety Act. Mine Health and Safety Act s 99 read with Sched 3 Pt A (Minerals Act 1991) item 8.

References in the Occupational Health and Safety Act to repealed provisions of the Minerals Act governing mine health and safety must be interpreted as references to provisions of the Mine Health and Safety Act: Interpretation Act 33 of 1957 s 12(1).

[60]  Any power granted by the legislature to an executive authority should be exercised within the narrowest possible limits, and the legislature should define the extent and purpose of such delegated powers. International Commission of Jurists, Declaration of Delhi 1959, sub tit “The Executive and the Rule of Law”.

[61] After consulting the Council.

[62] By notice in the Gazette.

[63] Mine Health and Safety Act s 97(1).

[64] Schedule 8 (Maximum fines or period of imprisonment that can be imposed for offences).

[65] To account for inflation.

[66] Adjustment of Fines Act 101 of 1991 s 1(2) read with Magistrates’ Courts Act 32 of 1944 s 92(1)(b) and amounts determined thereunder from time to time.

[67] As mentioned.

[68] Bingham, “The Rule of Law” supra, second sub-rule.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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