BY Willem le Roux AND Warren Hendricks
South Africa: Urgent court applications relating to COVID-19 regulatory framework at mines
On 17 April 2020 and 20 April 2020, consecutive urgent court applications were launched by the Association of Mineworkers and Construction Union (“AMCU”) at the High Court of South Africa, Pretoria Division; and the Labour Court of South Africa, Johannesburg, respectively.
Respondents included the Minerals Council South Africa, the Minister of Mineral Resources and Energy (the “Minister DMRE”), the Minister of Co-operative Governance and Traditional Affairs (the “Minister COGTA”), the Director-General: Department of Mineral Resources and Energy (the “Director-General DMRE”) and the Chief Inspector of Mines (the “Chief Inspector”).
The application launched in High Court of South Africa, Pretoria Division
In the first application, AMCU sought an urgent order from the court to review and set aside the decision by the Minister DMRE and the Director-General DMRE, to grant apparent “exemptions” to mining owners from the operation of the regulations issued in terms of section 27(2) of the Disaster Management Act, 2002, on or before 8 April 2020.
The application became theoretical when the Minister COGTA promulgated regulations on 16 April 2020 in terms of which the words “essential mining” were substituted with the term “mining”.
The application was scheduled to be heard on 21 April 2020, but was removed from the urgent court roll by AMCU.
The application launched in Labour Court of South Africa, Johannesburg
In the second application, AMCU sought urgent relief in form of an order:
- compelling the Minister DMRE to declare the Coronavirus (“COVID-19”) a health hazard in terms of section 76(1) of the Mine Health and Safety Act, 1996 (the “MHSA”);
- in the alternative, requiring the Chief Inspector to issue a guideline for the compilation and implementation of a mandatory code of practice to prevent and/or limit the exposure to COVID-19 at working places at mines, in accordance with sections 9(2), 9(3), read with section 49(6) of the MHSA; and
- in the further alternative, that regulations 11J, 11K and Schedule B, Part B, Item 22 of the regulations issued in terms of the Government Notice 318 of 18 March 2020, as amended, be declared to be constitutionally invalid and set aside.
The application was heard before the Honourable, Mr A van Niekerk on 29 April 2020 and 30 April 2020.
Click here for a copy of the court order (together with annexures “A” to “C” referred to therein), and here for the judgment handed down by Mr Van Niekerk. The crux of the order is that the Chief Inspector will issue a guideline for the compilation and implementation of a mandatory code of practice. In the event of the issuing of a guideline by the Chief Inspector, mines would be allowed to take into account their own particular circumstances, when compiling and implementing a mandatory code of practice.
ENSafrica acted on behalf of the Minerals Council South Africa in both matters. Willem le Roux and Warren Hendricks were the lead attorneys on these matters.
For more information, please contact:
Willem le Roux
Executive Consultant | Mine and Occupational Health and Safety
+27 82 772 5267
Executive | Mine and Occupational Health and Safety
+27 82 788 0733