[miningmx.com] — SOUTH AFRICA’S courts will increasingly act as arbiters
for disputes over safety-related mine closures, as more mining firms are expected to
seek legal recourse against the increase in Section 54 stoppages issued by the Mine
Health and Safety Inspectorate.
The interim order granted in favour of Northam Platinum by the Labour Court on
Monday, to have a Section 54 instruction set aside, comes notwithstanding the near-
conclusion of an investigation by Migdett – a task team comprising industry, labour
and Government representatives – into the possible unfair and inconsistent
application of Section 54 stoppages by the mining inspectorate.
Platinum production has been hit particularly hard by Section 54 notices, with South
Africa’s platinum group metals output falling 19.5% year-on-year in January, according
to data issued by Stats SA.
Northam brought the application for an urgent interdict following a safety audit last
week, in which the company was issued a Section 54 notice to close the mine. The
Labour Court provisionally ruled in the employer’s favour and gave the Department of
Mineral Resources until March 27 to submit replying affidavits. Northam will again
have until April 20 to respond to the Department’s affidavits.
Warren Beech, a partner at legal firm WebberWentzel which specialises in health,
safety and environmental aspects, says Northam’s application comes in the wake of a
judgement delivered by the North Gauteng High Court in February – Bert’s Bricks and
another v The Inspector of Mines, North West Region and others – which commented
on and addressed some of the concerns that have been raised regarding the use of
Section 54s.
The judgment was also critical of the manner in which a Section 54 instruction was
issued in the circumstances of the particular case.
“The issuances of Section 54s are too frequent and often don’t make sense,’ Beech
said. “They also often don’t contribute to what they set out to achieve.’
He said the application by Northam Platinum was indicative of the growing frustration
over the number of Section 54’s being issued, particularly in North West, and possibly
the lack of progress in the constructive engagement process with the Mine Health and
Safety Inspectorate.
“A dual approach is necessary, namely constructive engagement with the Mine Health
and Safety Inspectorate and an approach to the courts to obtain clarity and
assistance with the implementation of comprehensive systems to continuously
improve health and safety,’ Beech said.
“An approach to the courts should not be regarded as an adversarial approach, but
rather as a necessary step in achieving consistency, transparency and certainty.’
National Union of Mineworkers spokesperson Lesiba Seshoka said a problem created
by the court process was that employees were being sent back to work before the
court could make a final verdict on the validity of a work-stoppage notice.
“It is only an interim order, which may be set aside later on,’ he said.
Said Beech: “No responsible miner will challenge a Section 54 notice if they know
conditions are unsafe.’
He said he will definitely advise a client to approach a court for recourse should the
mine be of the opinion that a stoppage notice was issued unfairly.
Frans Barker, senior executive at the Chamber of Mines, said the body would continue
to engage the Inspectorate by means of the Migdett task team, but that individual
Chamber members couldn’t be prevented from following their rights and approaching
the courts.
David Msiza, Chief Inspector of Mines, was not immediately available to comment.
Mines Minister Susan Shabangu is due to address the media next week on health and
safety issues.
