THE Labour Court (Johannesburg) has delivered a potentially important judgement in favour of mining companies seeking less drastic application of the Mine Health and Safety Act (MHSA) by the Department of Mineral Affairs (DMR).
The court’s Judge Andre van Niekerk ruled that the DMR officials had ignored the notion of “proportionality” when it issued a Section 54 notice shutting AngloGold Ashanti’s Kopanang mine last month.
In layman’s terms, the DMR including the acting chief inspector of mines, Xolile Mbonambi, had acted wrongly in shutting the entire mine when transgressions of the act had only occurred on level 44 which employed 2% of Kopanang’s entire 4218 employees. Kopanang is situated in Orkney in South Africa’s North West province.
He ordered that AngloGold Ashanti’s interdict of the Section 54 order be granted, effectively reopening the mine. However, the mine suffered an opportunity cost of R9.5m a day – R48m in total – owing to the Section 54 order.
The mine was shut on October 17 after the regional inspector for the North West department of the DMR had spotted explosive cartridges had not been returned to their boxes on level 44 of the mine. Tramming switch devices were also not attached on certain switches in that level.
Judge Van Niekerk said that it was untrue to say that these abuses – which were acknowledged by AngloGold in its interdict – were reflective of health and safety conditions throughout the mine.
In addition, Judge Van Niekerk was dismissive of the DMR’s answering affidavit which said that a safety stoppage was supported by the conclusion that Kopanang had a history of such health and safety abuses. “…[T]hese generalised assertions have no relevance …,” said Judge Van Niekerk.
“No circumstance existed on level 44 which rendered the whole mining operation unsafe; or on which the third respondent [Petrus Nthongoa, senior inspector of mines for the North West province] could rely to infer that not only 44 level was unsafe, but the whole mine,” he said.
Perhaps even more tellingly, Judge Van Niekerk relied for his judgement on a previous decision handed down in the High Court relating to ‘Berts Bricks’ where a similar extrapolation was made on the basis of an isolated infringment.
He noted: “The present case [AngloGold Ashanti] is one that involves the same regional office and, indeed, some of the same individuals, at least the second respondent …”. The second respondent was Thabo Ngwenya, the principal inspector of mines for the North West province.
Finally, Judge Van Niekerk fired a shot across the bows of the DMR’s officials: “Had the applicant sought an order for costs on the basis that the respondents bear the costs of these proceedings in their personal capacities, I would have given serious consideration to such an order”.
Whilst AngloGold Ashanti suffered loss at Kopanang – among the most marginal of its mines in South Africa – it provides more evidence of the country’s mining sector to stand firm against perceived government abuses.
Sibanye Gold subsidiary, Sibanye Platinum drew up an affidavit regarding a Section 54 notice in July when the DMR sought to close its Kroondal Platinum Mine. The affidavit described the conduct of the Principal Inspector as “… nothing short of misguided and wrongful”.