1 THE SUSPENSION OR CANCELLATION OF CERTIFICATES OF COMPETENCY PRESENTED BY EDWARD JAMES Associate Brink Cohen le Roux Inc. BCLR Place 85 Central Street Houghton, Johannesburg Tel: (011) 242 8000 Fax: (011) 242 8001 e-mail: ejames@bclr.com 1
INTRODUCTION 2 Chapter 29 of the Minerals Act Regulations, which remain in force in terms of Item 4 of Schedule 4 of the Mine Health and Safety Act, No. 29 of 1996 (the MHSA) Certain limitations on the powers of the relevant functionaries from the Mine Health and Safety Inspectorate (the MHSI) of the Department of Mineral Resources Which certificates of competency may be suspended or cancelled? Who may exercise the power to suspend or cancel? On what grounds may such a decision be made? Remedies: Appeal Review Urgent relief The correct approach if the MHSI requests reasons why a certificate of competency should not be suspended or cancelled 2
INTRODUCTION (CONTINUED) 3 The enforcement guidelines of the MHSI Even if the MHSI does not suspend or cancel a certificate of competency, can it instruct a mine not to appoint a person in a specified designation? Put in the positive, a mine may want to determine when legal assistance will be given to certain employees (policy formation) What categories of employees should be assisted? Under what circumstances should these employees be assisted? The role of insurance. Put in the negative, a mine may want to know how to approach these situations from an HR perspective with the affected employee. This will be dealt with by Johan Olivier. 3
REGULATION 29 OF THE MINERALS ACT REGULATIONS: 4 CHAPTER 29 SUSPENSION AND CANCELLATION OF CERTIFICATE OF COMPETENCY 29.1.1 If the Chief Inspector is from information laid before him of the opinion that the holder of a mine manager's, mechanical or electrical engineer's, mine surveyor's, mine assayer's or mine overseer's certificate issued in accordance with these regulations or any amendments thereof or heretofore issued under any law in force in any province of the Republic, has been guilty of gross negligence or misconduct or non-compliance with these regulations, he may forthwith suspend or cancel such certificate or may submit the matter for inquiry and report to the respective commissions of examiners appointed under the said regulations, and may, on the recommendation of such commission, suspend or cancel such certificate, in which case the holder thereof may appeal to the Minister, who shall, if the matter has not been reported on by the commission of examiners, submit 4
REGULATION 29 OF THE MINERALS ACT REGULATIONS: (CONTINUED) 5 it for inquiry and report to a person or persons designated by him:. 29.1.2 The Chief Inspector may cancel and retain any certificate issued in accordance with these regulations or any subsequent amendments thereof, or heretofore issued under any law in force in any province of the Republic if, in his opinion, such certificate is being fraudulently or improperly used. 29.2.1 If at any time a winding-engine driver, locomotive-engine driver, stationary-engine driver or boiler attendant, being the holder of a certificate issued in accordance with these regulations or heretofore issued under any law in force in any province of the Republic, is, in the opinion of any Principal Inspector of Mines guilty of misconduct or gross negligence in the execution of his duties, or suffer from any infirmity, likely to be detrimental to the efficient discharge of his duties, such Principal Inspector of Mines may suspend such certificate or recommend the same to the Chief Inspector for cancellation or both. 29.2.2 The winding-engine driver, locomotive-engine driver, stationary-engine driver or boiler attendant shall have the right to appeal from such decision to the Chief Inspector as in the manner hereafter provided. 5
REGULATION 29 OF THE MINERALS ACT REGULATIONS: (CONTINUED) 6 29.2.3 The Principal Inspector of Mines shall immediately report such suspension or recommendation to the Chief Inspector who, on receipt of such appeal as aforesaid, may submit the matter for inquiry and report to the commission of examiners appointed under the said regulations. 29.2.4 The Chief Inspector may confirm such suspension or cancel such certificate or take such other action as may seem to him desirable under the circumstances. 29.2.5 Any such suspension, if confirmed by the Chief Inspector, may be noted on the certificate. 29.3 If the holder of a blasting certificate, an onsetter's certificate or a lampman's certificate issued in accordance with these regulations is, in the opinion of any regional director guilty of misconduct or gross negligence in the execution of his duties, or suffers from any infirmity likely to be detrimental to the efficient discharge of his duties, such regional director may immediately 6
REGULATION 29 OF THE MINERALS ACT REGULATIONS: (CONTINUED) 7 suspend or cancel such certificate, in which case the holder of such certificate may appeal against such decision to the Chief Inspector in a manner hereinafter stipulated, and the Chief Inspector shall either personally or by deputy decide such appeal. 29.4 Any person wishing to appeal under any regulation contained in this chapter shall proceed with his appeal within 30 days after receiving notice that his certificate has been suspended or cancelled or recommended for cancellation, as the case may be, by filing with the Minister or with the Chief Inspector a written statement setting out the grounds upon which the appeal is based. 7
CERTAIN LIMITATIONS ON THE POWERS OF THE RELEVANT FUNCTIONARIES OF THE MHSI The relevant functionaries from the MHSI are creatures of statute. This means that they may only exercise the functions and powers that they are given by empowering legislations, and they may not exercise any function and power that they are not given. Furthermore, the functions and powers must be exercised in the manner provided for in the empowering legislation. Any decision by the relevant functionaries of the MHSI to suspend or cancel a certificate of competency is an administrative action in terms of the definition contained in section 1 of the Promotion of Administrative Justice Act, 2000 (also referred to as PAJA). PAJA regulates the manner in which public power can be exercised. Such decisions must therefore comply with the requirements of, amongst others, sections 3 and 6 of PAJA, failing which they may be subject to judicial review. 8 8
WHICH CERTIFICATES OF COMPETENCY MAY BE SUSPENDED OR CANCELLED? 9 The following persons may, amongst others, have their certificates of competency suspended or cancelled: a mine manager; a mechanical or electrical engineer; a mine overseer; and a miner (the holder of a blasting certificate of competency). It is important to note that, amongst others, certificates that are issued by the Chamber of Mines for rock engineering and mine environmental control, cannot be suspended or cancelled in terms of the provisions of regulation 29 of the Minerals Act Regulations. 9
WHO MAY MAKE A DECISION TO SUSPEND OR CANCEL A CERTIFICATE OF COMPETENCY? 10 The Chief Inspector of Mines may suspend or cancel, amongst others, the certificate of competency of a mine manager, mechanical or electrical engineer and mine overseer. Although the office of the regional director no longer exists, in terms of rules of the interpretation of statutes, the reference to this person must be read as a reference to the Principal Inspectors of Mines, who are empowered to suspend or cancel, amongst others, any blasting certificate of competency. 10
ON WHAT GROUNDS MAY SUCH A DECISION BE MADE? 11 The Chief Inspector of Mines may suspend or cancel the certificate of competency of a mine manager, mechanical or electrical engineer or mine overseer if, based on the information before him/her, he/she is of the opinion that such certificate holder has been guilty of: gross negligence; gross misconduct; or gross non-compliance with these regulations. The reference to these regulations must be interpreted restrictively and therefore must be read to only refer to the Minerals Act Regulations and not the Mine Health and Safety Regulations. 11
ON WHAT GROUNDS MAY SUCH A DECISION BE MADE? (CONTINUED) 12 Any Principal Inspector of Mines may suspend or cancel a blasting certificate of competency if he/she is of the opinion that the holder of such a certificate of competency: has been guilty of gross misconduct; has been guilty of gross negligence in the execution of his/her duties; or suffers from any infirmity that is likely to be detrimental to the efficient discharge of his/her duties. The opinion referred to above is an object of criterion. The functionary must have objective verifiable reasons to believe that appropriate grounds exist that would justify suspending or cancelling the relevant certificate of competency. A subjective belief on the part of the functionary will not suffice. 12
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED 13 Right to Appeal Sections 57 and 58 of the MHSA deal with the general right to appeal against the decisions of any inspector (including any Principal Inspector of Mines) and against decisions of the Chief Inspector of Mines. Section 57 stipulates that an appeal against a decision of any inspector (including any Principal Inspector of Mines) must be made to the Chief Inspector of Mines. The Chief Inspector of Mines must, as soon as reasonably practicable, confirm, set aside, vary or substitute the decision. 13
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 14 Right to Appeal (continued) Section 58 of the MHSA stipulates that an appeal against the decision of the Chief Inspector of Mines must be made to the Labour Court. Such an appeal must be lodged with the Registrar of the Labour Court in accordance with the Rules of the Labour Court. It is very important to note that an appeal in terms of sections 57 and 58 of the MHSA does not suspend the decision (see section 59 of the MHSA). However, the Labour Court may, on reasonable grounds, suspend the operation of a decision pending the determination of the matter. In addition to the above general rights, regulation 29.1.1 of the Minerals Act Regulations, empowers an affected certificate holder to appeal to the Minister. 14
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 15 Right to Appeal (continued) Furthermore, regulation 29.2.2 empowers an affected certificate holder to appeal to the Chief Inspector of Mines. Such an appeal in terms of the Chapter 29 of the Minerals Act Regulations must contain a written statement setting out the grounds upon which the appeal is based. 15
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 16 Right to Review As already mentioned, any decision by the Chief Inspector of Mines, or a Principal Inspector of Mines, to suspend or cancel a certificate of competency is an administrative action in terms of PAJA. Accordingly, the various aspects pertaining to procedurally fair administrative action contained in section 3 of PAJA must be complied with. In terms of these aspects, affected parties must, amongst others, be furnished with a clear statement of the administrative action and a reasonable opportunity to make representations regarding the administrative action. 16
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 17 Right to Review (continued) In addition to the above, failure to comply with, amongst others, the procedural and substantive requirements listed in section 6 of PAJA may give rise to judicial review. These include, amongst others, the following: the administrator (Chief Inspector or Principal Inspector) must be authorised to perform the administrative action; the administrator must be unbiased; the administrative action taken must be procedurally fair; 17
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 18 Right to Review (continued) the administrator must not misunderstand their powers and accordingly, the administrative action must not be materially influenced by an error of law; the administrative action must not be taken for a reason not authorised by the empowering legislation; irrelevant considerations may not be taken into account; relevant considerations must be taken into account; the administrator must not act in bad faith; 18
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 19 Right to Review (continued) the administrative action must be rationally connected to the information before the administrator; and the administrative action must be rationally connected to the reasons given for it by the administrator. 19
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 20 Urgent relief Appeal and review are both processes which take a relatively long time to complete. Appeal will not automatically suspend the operation of a decision to suspend or cancel a certificate of competency. Such decision will also not be suspended when proceedings for review are instituted. In light thereof, it is advisable to apply to the Labour Court to suspend the operation of the decision to suspend or cancel the certificate of competency, pending the institution and finalisation of the appeal and/or review. Such an application must set out reasonable grounds that justify the suspension of the decision. 20
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 21 The correct approach if the MHSI requests reasons why a certificate of competency should not be suspended or cancelled The MHSI has sent various mines notices that require these mines to provide the MHSI with reasons why certain certificates of competency should not be suspended or cancelled. Such notices usually contain little or no information concerning the reasons why the MHSI considers to suspend or cancel the certificates of competency. It is therefore impossible for the mine, and the affected certificate holder(s), to submit the required reasons and this approach by the MHSI is an abuse of power that does not comply with, amongst others, the right to just administrative action, as entrenched by section 33 of the Constitution of the Republic of South Africa, 1996 (also referred to as "the Constitution") and PAJA. 21
REMEDIES IF A CERTIFICATE OF COMPETENCY IS SUSPENDED OR CANCELLED (CONTINUED) 22 The correct approach if the MHSI requests reasons why a certificate of competency should not be suspended or cancelled In terms of section 3 of PAJA, affected parties must, amongst others, be furnished with a clear statement of the administrative action and a reasonable opportunity to make representations regarding the administrative action. These aspects at the very least require that the affected certificate holder be furnished with sufficient information to enable them to oppose the proposed action by the MHSI and to reply to the allegations relied upon. The affected certificate holder must be furnished with a reasonable time within which to respond. What is a reasonable time will depend on the circumstances of the matter. 22
23 THE ENFORCEMENT GUIDELINES OF THE MHSI The MHSI recently released its enforcement guideline. Prior to this enforcement guideline, there was an undertaking by the MHSI that it would not exercise the power to suspend or cancel until the release of the guideline. What does the guideline say? If an inspector recommends such action to the Chief Inspector or a Principal Inspector, they must take statements, collect evidence, analyze events and prepare a report. When deciding whether or not to take such action, the Chief Inspector or a Principal Inspector shall...judge the seriousness of the transgression against the magnitude of the contravention, failure to comply with an instruction and previous history of noncompliance by the holder of such certificate. 23
EVEN IF THE MHSI DOES NOT SUSPEND OR CANCEL A CERTIFICATE OF COMPETENCY, CAN IT INSTRUCT A MINE NOT TO APPOINT A PERSON IN A SPECIFIC DESIGNATION? 24 Section 54(1) of the MHSA: If an inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, the inspector may give any instruction necessary to protect the health or safety of persons at the mine The MHSI must have objective verifiable reasons to believe that the appointment of the person endangers, or may endanger, the health or safety of persons at the mine. 24
WHEN SHOULD LEGAL ASSISTANCE BE GIVEN TO CERTAIN EMPLOYEES - POLICY FORMATION What categories of employees should be assisted? Management Paterson grading Persons that carry legal appointments Under what circumstances should these employees be assisted? Specify relevant legal or other proceedings For any act or omission that is performed during the course and scope of their employment Certain degrees of negligent conduct They should not be assisted if they act recklessly 25 25
WHEN SHOULD LEGAL ASSISTANCE BE GIVEN TO CERTAIN EMPLOYEES - POLICY FORMATION 26 The role of insurance The mines insurance should cover management for certain legal expenses that arise during the course and scope of their employment This insurance will in all likelihood cover certain degrees of negligence, but will not cover reckless conduct For lower down employees, personal insurance may be beneficial, however, for management, the mines insurance should be sufficient It is important to ensure that the mine reserves the right to appoint the attorneys 26