SOUTH Africa’s Labour Court handed down an important decision last month when it granted AngloGold Ashanti an interdict of a Section 54 work stoppage that had been issued by the country’s government.
Section 54 of the Mine Health and Safety Act empowers the Department of Mineral Resources (DMR) to stop production at a mine where an accident has occurred or a safety-related malpractice has been identified.
Judge Andre van Niekerk, however, found the Section 54 applied at AngloGold’s Kopanang mine lacked “proportionality”; in other words it was unfair to close the entire mine when the safety abuses had occurred at only one level (44 level).
The full judgement can be accessed by clicking on this PDF here :- Anglogold Ashanti
The South African mining industry has become increasingly outspoken regarding the DMR’s issuances of Section 54 notices saying they are exorbitant and harming their commercial operations and prospects.
In the AngloGold judgement, Judge Van Niekerk said: “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”.
Set against this, there has been an increase in the number of mining fatalities this year compared to the 63 of 2015 – a record low. There were 615 workers killed on South African mines in 1993.
