On Wednesday 3 February 2016 judgment was handed down in the Labour Court in the matter between Glencore Operations South Africa (Pty) Limited - Coal Division v Minister of Mineral Resources and others. The judgment reiterates the need for inspectors exercising their enforcement powers in terms of the Mine Health and Safety Act (MHSA) to act in accordance with the principles of fair administrative justice.

The case in question dealt specifically with the imposition of an administrative fine in terms of section 55B of the MHSA. In this case the principal inspector of mines who considered a recommendation to impose an administrative fine and subsequent representations filed by the employer, imposed the administrative fine notwithstanding that he had previously applied his mind to the same set of facts that gave rise to the recommendation to impose the administrative fine in the first place. The fatal error on the part of the principal inspector of mines was that he had previously determined that a fine should be imposed in his report prepared in terms of section 72 of the MHSA, subsequent to an inquiry held into a work related fatality.

The findings of the Labour Court in respect of the manner in which inspectors are required to apply the MHSA will, in our view, equally guide the manner in which inspectors should be expected to approach any enforcement action and / or decision making, including the issuing and upliftment of instructions in terms of section 54 of the MHSA and the manner in which inquiries, under section 65 of the MHSA, are convened.

In relation to administrative fines specifically, Venter AJ held that:

• the interaction between sections 55A and 55B of the MHSA is a key "check and balance" in the manner in which inspectors enforce the provisions of the MHSA. As a result, it could not have been the intention of the legislature to conflate the processes of recommendation and decision and "section 55A of the MHSA should be read to exclude the principal inspector of mines from the definition of inspector";
• both the recommendation for an administrative fine to be imposed and decision to impose that fine amount to administrative action. No internal remedy is provided for by the MHSA and any such internal remedy that may otherwise exist under the MHSA is expressly prohibited in relation to the imposition of administrative fines. Accordingly, employers who wish to challenge the imposition of an administrative fine under the Promotion of Administrative Justice Act 3 of 2000 are entitled to approach the Labour Court for relief;
• the importance of an employer's representations as provided for in section 55A(4) of the MHSA "cannot be overstated". In particular, the MHSA "elevates the representations to be privileged or without prejudice statements". The Court notes that an employer is encouraged "to be honest and transparent in the representations and to fully disclose all facts despite those facts possibly being incriminating"; and
• a principal inspector is required to apply his mind to a recommendation and any representations without prejudice and to objectively arrive at a decision.

On the conduct of the principal inspector of mines in this case, because he had already been seized with the facts that underpinned the initial recommendation, had applied his mind when preparing his report in terms of section 72 of the MHSA and indicated in that report that a fine would be imposed, Venter AJ found that he "was in no position to objectively consider the representations" and that his decision was a fait accompli.

The Labour Court was critical of the conduct of the principal inspector of mines and in setting out its displeasure with the manner in which this particular decision was taken, the judgment provides principles for all inspectors when exercising power in terms of the MHSA:

• where a principal inspector of mines has already considered a matter and expressed a finding he is not open to influence or persuasion in considering two sides of any further decision to be taken in relation to the same facts. Such conduct denies an employer a right to fair hearing before a decision is taken;
• attempts to create an impression of impartiality, or administrative correctness, by a separate, subordinate, inspector making the recommendation for the imposition of an administrative fine based on a previous finding of the principal inspector of  mines is not a remedy. The Court finds it unlikely that an inspector is able to independently and impartially, without influence from the principal inspector of mines, assess the evidence and make a recommendation, particularly in light of the subservient position between inspector and principal inspector of mines;
• where a principal inspector of mines has presided over an inquiry in terms of section 65 of the MHSA and comes to a finding on that matter that principal inspector of mines is "disqualified on the grounds of bias from exercising his power as the principal inspector of mines" in imposing an administrative fine; and
• all that is required to render decisions of a principal inspector of mines as administratively reviewable and possibly unlawful / unfair is a reasonable suspicion of bias. Importantly, the Court finds that there can be no doubt of a reasonable suspicion of bias where a principal inspector of mines has already considered a matter and made a finding in relation to the same set of facts.

Aside from being a helpful touchstone in the legal interpretation of administrative fines under the MHSA, the principles set out above are likely to have significant consequences for inspectors in their everyday enforcement of the MHSA and provide much sought after legal guidance to employers who wish to assess and possibly challenge the conduct of inspectors in enforcing the MHSA.

It is our view that this judgment applies equally to conduct such as:

• a principal inspector of mines attending at a mine or the scene of a mine accident and on return to the office a subordinate inspector being briefed on his findings and thereafter issuing an instruction in terms of section 54 of the MHSA - the upliftment of which is later assessed by the principal inspector of mines;
• an inspector who issues an instruction in terms of section 54 of the MHSA participating in, and influencing, the upliftment process which requires an impartial assessment of the facts presented by the employer;
• an inspector who participates in and influences a decision regarding the upliftment of a section 54 instruction following a mine related accident thereafter presiding over an accident inquiry; and
• an inspector attending at a scene of a mine accident, conducting an inspection and speaking to witnesses and thereafter issuing an instruction in terms of section 54 of the MHSA and / or a list of "observed non-conformances", and that same inspector being charged to preside over an inquiry and assess evidence presented and then having to objectively and fairly make a finding regarding any breaches of the MHSA or causes of an accident.

Prepared by Kate Collier, Partner, Webber Wentzel