South Africa: Audi Alterem Partem In The Context Of Suspension Or Cancellation Of Certificates Of Competency In The Mining Industry

Last Updated: 9 August 2011
Article by Wessel Badenhorst

The far reaching powers of the Department of Mineral Resources when enforcing compliance with the Mine Health and Safety Act

The past calendar year has witnessed the lowest fatality rate in the South African mining industry in recent history. The year-on-year improvement was a significant 24% and the credit for this improvement must go to the collective efforts of all stakeholders. This notwithstanding, the focus remains on the enforcement of safety standards and the various statutory duties of care placed on mines and persons in authority.

The Health and Safety Directorate of the Department of Mineral Resources (DMR) has vast and far reaching powers under the Mine Health and Safety Act, No. 29 of 1996 (MHSA) to enforce compliance with the statutory minimum standards for safe mining. These powers include the ability to halt mining activities where the health and safety of employees are endangered and to suspend or to cancel certificates of competency held by persons working at mines where such persons are guilty of a dereliction of their statutory duties.

Certificates of competency in the mining industry

Certificates of competency are issued by commissions of examiners under the auspices of the DMR upon a candidate meeting minimum requirements and essential knowledge of the operations of mines set for each class of certificate. These certificates are a prerequisite to being able to work in certain positions at mines and candidates have to pass examinations and meet practical requirements before they are issued with such certificates. In most instances, these certificates are the culmination of many years of study and practical application.

These certificates include the miner's blasting certificate, which authorises the holder to charge up and initiate an explosive blast; the mine overseer's certificate which authorises the holder to take charge of a section of the mine; and the mine manager's certificate, which entitles the mine manager to manage the mine and mining operations under his or her control.

Power to suspend or to cancel certificates of competency

Chapter 29 of the Minerals Act Regulations (which are still in force under the MHSA), provide, amongst other things that:

  • the Chief Inspector of Mines may suspend or cancel the certificates of a mine manager, an engineer, a mine surveyor, or mine overseer;
  • the Principal Inspector of Mines may suspend or cancel the certificates of winding engine drivers, locomotive drivers, stationary engine drivers or boiler attendants; and
  • the Regional Director may suspend or cancel blasting certificates or lamps person's certificates.

Grounds for suspension or cancellation

Before deciding on the suspension or cancellation of a competency certificate, the decision maker must satisfy himself or herself that the holder of the competency certificate is guilty of conduct which warrants the decision.

Although this is not expressly provided for in the Regulations, the determination of the grounds for the suspension or cancellation of a competency certificate must involve two stages of investigation. Firstly, there should be a factual investigation of the incident or occurrence. Secondly, the facts so established should be compared with the standard of care required of the holder of the certificate.

Should this two-stage investigation reveal that the holder of a competency certificate breached the standard of care expected of him or her, suspension or cancellation of the certificate may follow in circumstances of:

  • gross negligence, which indicates a material or even wilful deviation from the standard of care expected of the reasonable person in the position of the holder of the certificate. Such gross negligence may involve not only a breach of the statutory duty of care, but also the common law reasonable person test, which standard is incorporated in the MHSA and its Regulations;
  • misconduct, which in general parlance means any conduct, or omission, which deviates from the standard expected. Misconduct in labour law is understood to mean any behaviour which is unacceptable to the employer, but this is not what is meant by misconduct in this context. Misconduct as referred to here is probably meant to indicate negligence on the part of the holder in the exercise of his or her duties. As with gross negligence, a breach of the statutory duty of care or the common law reasonable person test will give rise to grounds for the suspension or cancellation of the certificate; or
  • any breach of the MHSA or its Regulations (which would not in itself amount to gross negligence or misconduct). This final ground is the "catch-all" which entitles the suspension or cancellation of the certificate when measured against the statutory obligations placed on the holder of a competency certificate.

The procedure to be followed before deciding on the suspension or cancellation of the certificate

Unless the investigation referred to above is followed before a decision on the suspension or cancellation of a competency certificate is taken, there is a material risk that the decision making process may be rendered arbitrary or capricious. The extent of this investigation will depend on the circumstances of each case.

It is within the power of the Chief Inspector of Mines to refer the investigation to the commission of examiners for the particular certificate to convene a formal inquiry into the matter before a decision is taken. Such a formal inquiry is not a requirement, but merely an alternative open to the Chief Inspector of Mines. During such formal inquiry, the rules of natural justice and fair administrative procedures will prevail.

However, should such a formal inquiry not be convened, there appears to be no requirement for the application of the rules of natural justice, which include the opportunity to make representations to the decision maker before the decision is taken (audi alterem partem or the audi rule). The audi rule has for time immemorial been accepted as one of the cornerstones of natural justice and a prerequisite to fair administrative action.

But all is not lost. The absence of the audi rule in the Regulations does not render the Regulations unfair. Any decision on the suspension or cancellation of a competency certificate is administrative action which is subject to the Promotion of Administrative Justice Act, No. 3 of 2000 (PAJA) which must be read into the Regulations.

PAJA gives meat to the constitutional right to fair administrative action. At a basic level PAJA provides that before a decision is made which affects a person, that person has the right to adequate notice of the administrative action, a reasonable opportunity to make representations to the decision maker and in serious or complex cases must have an opportunity to obtain legal representation.

PAJA does permit a decision maker to deviate from these requirements in limited circumstances when considering, amongst other things, the nature and purpose of the decision to be taken, or the urgency with which the decision has to be taken.

The suspension or cancellation of a certificate of competency prevents the holder from continuing to render services to his employer in the position for which he or she was employed. Both employee and employer alike are materially affected by the decision and it is unlikely that any material deviation from the requirements of PAJA will result in fair administrative action.

Where a formal inquiry is not held by a commission of examiners, the decision makers will have to ensure that a fair administrative process is still followed. It is contended that such fair administrative action will not only apply to the holder of the certificate as the primary party affected by the decision, but will also include his or her employer as the suspension or cancellation of the certificate leaves the employee incapable of continuing his or her employment duties.

Consequently, both the holder of the certificate and his or her employer should receive adequate notice before the decision is taken, during which time they should be permitted to employ legal representation and then be given an opportunity to make representations to the decision maker before a decision is taken. Thereafter, both the holder of the certificate and his or her employer will have the right to obtain reasons for the decision to suspend or to cancel the certificate of competency.

Appeal against the decision to suspend or to cancel the certificate

Any holder of a certificate of competency may appeal against the decision to suspend or to cancel such certificate. The appeal must be made within 30 days from when the decision was taken and there does not appear to be any powers for the Minister to condone a late appeal.

This notwithstanding, the holder is required to return his or her suspended certificate of competency to the Chief Inspector of Mines within two weeks from when the decision was taken. Although the Regulations are silent on whether an appeal suspends the underlying decision, the requirement to return the competency certificate would indicate that the appeal does not suspend the decision.

Conclusion

Although until now the suspension or cancellation of competency certificates had been an infrequent occurrence, it is anticipated that these decisions may become more regular as the DMR improves the enforcement machinery of the MHSA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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