A number of interested parties were cited, namely the Minister of Minerals and Energy as well as the Minister of Employment and Labour, together with the relevant chief and principal inspectors, who all chose to abide with the decision of the court. The Association of Mineworkers and Construction Union did likewise, but the National Union of Mineworkers pinned its colours to UASA’s mast.

The retained operations comprised certain processing activities, which included certain smelters, convertor plants, precious metal and base metal refineries. In the period 2016–2018, AAP sold particular mining rights to third parties but kept the retained operations, which had previously been “coupled” to those mining rights. Once the sale was complete, AAP and RPM applied the provisions of the OHS Act to the retained operations, as opposed to the MHSA. This sparked a controversy with UASA, which insisted that the provisions of the MHSA should continue to apply regardless of the disposal of those mining assets.

The Labour Court had to grapple not only with the question of whether the MHSA had continued application, but also whether the processing activities carried out by the retained operations constituted “a mine”, “mining area” or “works” as defined by the MHSA.

Determining the scope of jurisdiction

UASA’s primary contention was that the migration process undertaken by AAP and RPM from the MHSA to the OHS Act was not “recognised by law” and that the reach of the MHSA necessarily spread across all the retained operations because their respective activities were incidental or ancillary to mining. UASA contended that employees enjoy better protection under the MHSA and that the inspectorate under the MHSA has a “better experience and competency” than their counterparts under the OHS Act.

UASA argued that if AAP and RPM wanted to remove the retained operations from the scope of jurisdiction of the MHSA, then a substantive application for an exemption had to be launched in terms of the MHSA, and so neither AAP nor RPM could do so unilaterally. UASA further argued that AAP and RPM were seeking to escape the more onerous provisions of the MHSA in favour of the OHS Act, an argument that AAP and RPM rightly disputed.

AAP and RPM argued that a distinction had to be drawn between mining operations and processing operations, where they had always applied the MHSA to the relevant mines and processing operations, but not after the sale of the underlying mining rights as they were no longer the recognised mining rights holders thereof. AAP and RPM argued that the retained operations, being processing activities, were of a “non-mining” nature and were not taking place within the footprint of any mining right held by them. It necessarily meant that such processing activities did not require either of them to hold a mining right.

The Labour Court noted that UASA was under a misconception that RPM was purchasing ore from the third parties for processing and smelting at the retained operations when in fact the metal concentrate purchased by RPM had already undergone a “multi-step concentrator process at mine level”. Concentrate is not a mineral that naturally occurs in the earth. Processing activities produce a separate and distinct product that was not as a result of AAP or RPM conducting mining activities.

The Labour Court considered the requirements for a declaratory order, namely a live dispute that must be resolved over the existence or otherwise of a legal right or entitlement. Declaratory relief will not be awarded if what is sought amounts to a court dispensing advice to the parties.

Clarifying statutory definitions

The Labour Court carefully unpacked the statutory definitions of “a mine” and “incidental mining activities” in terms of various pieces of prevailing legislation. This was necessary given that the OHS Act does not apply to “a mine” or “mining area” or “works”. The court found that neither AAP nor RPM were conducting mining per se as the third parties that had purchased the mining rights had become the rightful holders of the mining rights to conduct the extraction of ore. There cannot be overlapping rights in that regard as this would be an absurdity.

A “mining area” is not necessarily a mine, because it needs to be a place where a mineral deposit is being extracted, won and exploited. This did not happen where the only activities embarked upon by AAP and RPM were of a processing nature. The Labour Court also found that the retained operations did not constitute “incidental mining activities” to the third parties’ mining operations as the retained operations were separate and distinct activities independent of such third parties’ mining operations.

UASA’s contention that AAP and RPM should have sought an exemption from the MHSA did not have merit where the Labour Court found that the activities undertaken by the retained operations did not constitute mining or incidental mining activities and hence the MHSA did not apply.

The Labour Court dismissed UASA’s application with costs. An important aspect which influenced the adverse costs order was UASA’s participation in similar litigation between the parties in a different forum, the High Court, concerning the same or similar relief.