In 2016, the Mine Health and Safety Inspectorate (MHSI) forced an AngloGold Ashanti mine to cease all operations after finding fault with one shaft in the mine. The company lost R9.5-million every day that the mine was closed.

While the High Court ultimately ruled the MHSI’s behaviour illegal, the court did not address the source of the problem – a defect in the MHSI’s empowering legislation – which persists today.

It is reasonable to expect mines to be safe for surrounding communities and for employees. A safe work environment necessarily means healthier, happier employees who are more productive than those who suffer from a mine-related ill or are constantly worried that the shaft might collapse on their heads.

The Mine Health and Safety Act of 1996 was enacted to ensure such a safe work environment.

The first provisions of the Act are eminently reasonable, and, far from requiring legislation to spell them out, are common-sensical. Among other things, employers must ensure mines are designed and equipped with safety and health in mind; there must be working communication systems, and non-employees who might be affected by the activities at the mine must not be exposed to hazards to their well-being.

Under this noble guise of workplace safety, however, lies a more nefarious reality that not only costs the mining industry untold millions, but also harms a pillar of South Africa’s constitutional order: the Rule of Law.

Section 1(c) of the Constitution provides that South Africa is founded upon the supremacy of the Constitution and the Rule of Law. The implications of this often overlooked provision are far-ranging.

One of the “basic tenets” of the Rule of Law identified by the late Justice of the Constitutional Court, Tholakele Madala, is “the absence of arbitrary power – which encompasses the view that no person in authority enjoys wide unlimited discretionary or arbitrary powers”. In quoting the Indian Supreme Court, Madala also drew attention to the fact that unreasonableness is antipathetic to the Rule of Law.

Section 54 of the Mine Health and Safety Act provides that if an inspector “has reason to believe” that something at a mine endangers, or “may” endanger, health and safety, the inspector can give “any” instruction to protect health and safety. It was under this section that in 2016 the MHSI closed down the whole AngloGold mine despite the fault only being with one shaft. It is also a crime to fail to comply with an inspector’s instructions.

The Act does not prescribe any criteria that sets out the preconditions with which an inspector must comply before they can issue an instruction; thereby giving MHSI inspectors virtually unlimited power unless challenged in court on the basis of rationality.

Clearly, these provisions in the Act do not comport with Madala’s enunciation of the Rule of Law’s aversion to arbitrariness. As a result, mining companies, their employees, and the South African public at large are essentially forced to have blind faith in the expertise and integrity of lowly, faceless and nameless inspectors.

Companies can challenge irrational decisions in court but are understandably averse to doing so. The fact that the decision – rather than the enabling provision – has to be challenged means that the MHSI retains the discretionary power despite the judgment of the court.

From a business perspective, there is thus a clear risk involved: Do you take your regulator to court and win this one battle, only for them to apply their draconian powers even more forcefully upon your company in retribution in years to come? Without criteria in the legislation itself, what would seem to the naked eye to be an ordinary exercise of regulatory power can in fact simply be the façade that hides a malicious agenda. Litigation, in other words, is often out of the question.

Had the High Court, and the courts in general, taken a more substantive view of the Rule of Law as a founding principle of South Africa’s constitutional dispensation, it could – and should – have at least declared section 54 of the Mine Health and Safety Act to be inconsistent with section 1(c) of the Constitution, and therefore invalid and inoperative. This would have had profound implications.

The dirty secret of South Africa’s legislative environment is that the Mine Health and Safety Act is not alone by any stretch of the imagination in violating the basic tenets of the Rule of Law. The 2002 Mineral and Petroleum Resources Development Act, for instance, empowers government to accept, reject, renew or not renew mining permits and licences for essentially any reason whatsoever, without any criteria or substantive limitation.

But even outside of mining, practically every statute that assigns any kind of power to a government official does so irresponsibly. Legislation that contains limiting criteria that officials must comply with are few and far between.

The kind of arbitrariness that officials can legally get away with should shock anyone who appreciates the fact that uncertainty, and recently hostility to enterprise by government, are some of the reasons why South Africa finds itself in a zero-growth situation.

Far from being an academic concept, the Rule of Law is a necessary ingredient for any society to be prosperous and free. Were our legislators to respect it and cease dishing out unlimited discretionary powers, South Africa might just become the jewel of Africa we thought we would be at the dawn of constitutional democracy in 1994.

Martin van Staden is a legal and policy analyst pursuing a Master of Laws degree at the University of Pretoria. This article was commissioned by the Institute of Race Relations (IRR), a liberal think tank that promotes economic and political freedom. Go to https://irr.org.za/