Covid-19 is a public and occupational health issue. Mining companies have a duty to implement guidelines to safeguard the lives of mineworkers and their families and communities against the Covid-19 pandemic.

AMCU (Applicants) launched an opposed application against the Minister of Mineral Resoucres and Energy and the Chief Inspector of Mining (Respondents) seeking implementation of detailed regulations and measures in the mining industry to ensure that mineworkers and their surrounding mining communities are protected against Covid-19 in accordance with sections 9 and 49 of the Mine Health and Safety Act, 26 of 1996 (MHSA).

The issue in this matter was whether the decision by the respondents not to enact guidelines in terms of section 9 of MHSA was unreasonable and thus reviewable under the Promotion of Administrative Justice Act, 3 of 2000.

The Applicant argued that numerous mineworkers across South Africa were required to return to work, which meant that they would be susceptible to contracting Covid-19. AMCU contended that the regulations that have been passed by the Disaster Management Act (DMA) are inadequate to safeguard the lives of mineworkers, and the communities in which they reside, against Covid-19 pandemic.

The Respondents raised the following grounds in opposing the relief sought by AMCU:

• The Covid-19 pandemic is a public health matter rather than an occupational health issue. The risks posed by Covid-19 are controlled through regulatory measures under the DMA.
• The Applicant had not established that employers will not protect the health of the workers unless the Chief Inspector compels employers in the mining industry to implement mandatory codes of practice. A single set of national laws should be applicable, as opposed to implementation of measures at individual mining companies.
• The existing regulatory measures, including directions requiring every employer to implement appropriate measures to protect the health and safety of employees, were sufficient and adequate.

The Labour Court held that Covid-19 requires a general public health response and an occupational health response, particularly in mining companies. Section 9 of MHSA is applicable to health and safety issues relating to the Covid-19 pandemic. The enforcement of measures formulated by the MHSA provides a suitable mechanism to address Covid-19 hazards effectively, with sufficient consideration to circumstances of the particular mine and with appropriate degrees of flexibility.

The Court held that, contrary to the existing regulations, the code of practice issued under section 9 of MHSA provides a single standard form of guidelines which requires consultation with the relevant parties, and which is subject to review by the Chief Inspector and the employer.

The Court directed the Chief Inspector to publish a notice in the Government Gazette requiring employers to prepare and implement codes of practice to reduce the effect of the outbreak of Covid-19 on the health and safety of employees and the mining community.

Counsel for Applicant

Alan Dodson SC

Michael Bishop