Managing Health And Safety Enforcement In South African Mining

A single inspection can halt production, disrupt supply chains and expose a mine to significant financial and reputational risk. In South Africa's highly regulated mining environment, health and safety enforcement is not theoretical, it is an operational reality. Understanding the powers entrusted to inspectors to enforce health and safety, how companies can prevent the issuing of notices and how to respond when unlawful and disproportionate notices are issued is critical to managing health and safety enforcement in South African Mining.

The Mine Health and Safety Act 29 of 1996 ("MHSA" or "the Act") establishes a comprehensive enforcement framework aimed to protect the health and safety of persons at a mine and to ensure compliance with the provisions of the Act. For mining companies, a practical understanding of enforcement mechanisms, particularly section 54 closure notices, section 55 compliance notices, and administrative penalties under sections 55A and 55B - is essential to maintaining operational continuity, managing regulatory risk and demonstrating commitment to zero harm.

Section 54 instructions: closure orders

Section 54 empowers an inspector to issue instructions where the inspector has reason to believe that any occurrence, practice, or condition at a mine endangers, or may endanger the health and safety of any person. The section provides for varying degrees of enforcement, including:

• section 54(1)(a): halting operations at a mine or part of a mine;
• section 54(1)(b): suspending a specific act or practice;
• section 54(1)(c): requiring remedial steps to be taken within a specified period; and
• section 54(1)(d) removing persons to a place of safety.

Closure notices must be served on the employer or a designated representative. Importantly, any notice issued under section 54(1)(a) must be confirmed, varied, or set aside by the Chief Inspector of Mines ("CI") as soon as practicable. Instructions remain effective until they are set aside or until compliance has been achieved.

According to the Mine Health and Safety Inspectorate ("MHSI") Annual Report for 2024/2025, inspectors issued 629 closure notices, comprising 3,186 instructions to address 5,086 alleged contraventions. While most notices related to specific areas rather than full mine closures, the operational and financial implications associated with such notices can be significant depending on the extent and duration.

Judicial interpretation and proportionality

The courts have provided significant guidance on section 54 powers, with specific focus on proportionality.

In AngloGold Ashanti Limited v Mbonambi and Others [2017] 38 ILJ 614 (LC), the Labour Court suspended and set aside instructions that effectively closed an entire mine based on conditions observed on a single level. The court held that conditions on one level were not automatically representative of the entire operation and articulated key principles that continue to guide enforcement:

• an inspector's belief must be based on reasonable grounds supported by objective facts;
• instructions must be limited to what is necessary to protect health and safety; and
• proportionality - encompassing balance, necessity, and suitability - is a core component of reasonable administrative action.

The court memorably cautioned against "using a sledgehammer to crack a nut"

Decisions under section 54 constitute administrative action and may be subject to review under the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") on grounds including procedural fairness, rationality and proportionality.

Section 55 Compliance notices

Section 55 provides an alternative enforcement mechanism where an inspector believes an employer has failed to comply with the Act or its regulations. Unlike section 54, compliance notices are designed to address non-compliance without necessarily stopping operations.

According to the MHSI Annual Report for 2024/2025, inspectors issued 552 compliance notices, containing 1,667 instructions addressing 2,418 transgressions.

The choice between section 54 closure notices and section 55 compliance notices should be guided by the nature of the contravention and the degree of immediate risk posed. A section 55 compliance may be more appropriate where contraventions do not create an occurrence, practice, or condition at the mine which endangers or may endanger any person's health or safety.

Administrative Penalties

Sections 55A and 55B provide for the imposition of administrative fines where an employer fails to comply with its obligations under the Act. An inspector may recommend the imposition of a fine to the Principal Inspector of Mines ("PI"). The employer may make written representations within 30 days of the recommendation. After considering the recommendation and representations, the PI may:

• disregard the recommendation
• impose the administrative fine; or
• refer the matter to the prosecuting authority to consider criminal prosecution.

The maximum fine which may be imposed is R1 million per transgression, payable within 30 days.

Appeal Mechanisms

Section 57 permits any person adversely affected by a decision of an Inspector of Mines ("IM") to appeal such decision to the CI, except the PI's decision to impose an administrative fine.

Following the CI's determination, a further appeal is available to the Labour Court under section 58 within 60 days. An appeal against the decision of an IM or CI does not suspend the decision. Employers are required to comply while the appeal is pending, unless interim relief is sought and granted.

Practical considerations for mining companies

Mining companies should adopt a proactive approach by maintaining constructive engagement with IMs, documenting health and safety measures and remedial actions, and carefully assessing whether the instructions in the notices are proportionate to identified hazards. Early engagements with the PI may provide an opportunity for reconsideration of potentially disproportionate notices.

Employers are encouraged to exercise their rights where notices are fundamentally irrational, disproportionate or establish concerning precedents.

Conclusion

The MHSA enforcement mechanisms aim to protect the health and safety of persons at a mine and to ensure compliance with the provisions of the Act. Courts have affirmed, however, that enforcement must be based on objective facts, be rationally connected to protective purposes and be proportionate.

Effective navigation of health and safety enforcement requires proactive compliance, constructive regulatory engagement, meticulous record-keeping, and the strategic use of the available appeal mechanisms. Mining companies are encouraged to review its compliance frameworks and systems to ensure they remain aligned with the obligations imposed by the Act – protecting people while preserving operational continuity.

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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.