The Bon Accord Environmental Forum (BAEF), a voluntary non-profit organization, challenged permissions granted to Four Rivers Trading 263 (Pty) Ltd to conduct blasting operations within 500 meters of public buildings and residences. On 31 July 2017, the Principal Inspector issued permission to blast, which was later suspended following complaints from BAEF about distances. After investigations and meetings, the Principal Inspector issued another permission on 18 October 2017. BAEF lodged an internal appeal on 18 December 2017 (outside the prescribed 30-day period) with the Chief Inspector, who dismissed it on 6 June 2018 for being late and lacking valid grounds. BAEF then launched both: (1) an appeal under section 58 of the Mine Health and Safety Act (MHSA), and (2) a review application under section 6 of the Promotion of Administrative Justice Act (PAJA), effectively challenging the same decision through two processes.
1. The review application (JR 1984-18) was dismissed for want of jurisdiction. 2. The appeal (J 2688-18) was dismissed. 3. The BAEF was ordered to pay costs, including costs of senior counsel.
The Labour Court lacks jurisdiction to entertain a PAJA review of decisions made under the MHSA. Section 7(4) of PAJA requires such reviews to be instituted in a High Court or another court 'having jurisdiction' - the Labour Court's jurisdiction stems from section 157 of the LRA which does not extend to PAJA reviews in this context. Section 82 of the MHSA confers exclusive jurisdiction only over 'disputes about interpretation or application' of the MHSA, which is fundamentally different from judicial review. Where the MHSA provides a specific remedy (appeal under section 58), that is the exclusive prescribed remedy. A judicial review is not a 'dispute about interpretation or application' - it is a remedy concerning the lawfulness, rationality and procedural fairness of a decision. When exercising powers under regulations, inspectors perform mechanical duties constrained by minimum standards of legality and good administration, aimed at preventing significant risk. Courts must show deference to the technical expertise of mine inspectors on factual health and safety matters.
The Court made several important observations: (1) An objection to late filing of affidavits under the practice manual must be clear, unambiguous and unequivocal, made within 10 days, and not by way of replying to the merits of the affidavit; (2) Where a party replies to allegations in an answering affidavit, that party cannot thereafter object to its lateness; (3) Interpretation and application of legislation are related concepts - disputes arise when parties disagree about meaning and whether provisions apply to particular facts; (4) Consultation as a statutory requirement is different from procedural fairness; (5) Blasting is inherent and incidental to mining operations; (6) Nothing prevents BAEF from approaching a court with proper jurisdiction to test reasonableness and procedural fairness, subject to time limitations; (7) Exercise of power to refuse an appeal is itself an exercise of statutory power appealable to the Labour Court; (8) In statutory appeals without a record, courts may adopt a 'wide appeal' approach, receiving fresh evidence and deciding matters anew.
This case clarifies the jurisdictional boundaries between the Labour Court and High Court in mining-related administrative decisions. It establishes that: (1) The Labour Court lacks jurisdiction to conduct PAJA reviews of MHSA decisions; (2) Section 7(4) of PAJA requires such reviews to be heard in the High Court; (3) Section 82 of the MHSA's 'exclusive jurisdiction' is limited to disputes about interpretation and application, not judicial review; (4) An appeal under section 58 of the MHSA is the prescribed remedy for challenging exercise of powers under the Act; (5) Courts must show deference to the technical expertise of mine inspectors on factual matters relating to health and safety; (6) The principle of legality can be applied in statutory appeals to assess lawfulness and rationality of administrative decisions, even where PAJA review is unavailable.