South Africa’s Department of Mineral Resources (DMR) reduced a Section 54 work stoppage at Sibanye Gold’s Kroondal Platinum Mine in August after the precious metals firm prepared a founding affidavit for the Labour Court in Johannesburg in which it said the economic future of the mine, which employs 9.500 people, was at stake.
In its founding affidavit, which was placed on public record and has been seen by Miningmx, Sibanye Platinum described the actions of officials at the DMR as “misguided and wrongful” as the company had already taken reasonable measures to ensure the safety of its employees.
The fatal accident occurred at Kroondal’s Bambanani shaft after an employee was trapped between a trackless mobile vehicle, known as a TMM, and a utility vehicle.
The affidavit is a crucial development and came only days before mines minister Mosebenzi Zwane issued a statement in which he criticised private sector allegations that his department had been uneven in its application of Section 54a.
Section 54s are the notices issued in terms of the Mine Health and Safety Act (MHSA) that allows government to stop mining in the event of an accident.
Mosebenzi went to say that the MHSA had provisions for recourse against the unfair application of Section 54s but that, to date, no such recourse had been undertaken by mining firms.
These comments followed publication of a report by the Chamber of Mines that intemperate safety-related stoppages had cost the mining sector R4.8bn in lost revenue in 2015.
The general view of the mining sector is that Section 54s could be replaced, in some instances, by Section 55 notices which allow for safety instructions to be issued without suspending mining operations while remedial actions are taken by the mining company.
For its part, the DMR argues that it is acting in the interests of employee safety. Fatal accidents this year on South Africa’s mines have increased a fifth compared to 2015 in which the sector achieved its best ever safety record.
Sibanye Platinum ascribed the accident at Kroondal to non-compliance by employees to existing safety policies and procedures. It added the accident was avoidable if only procedures had been followed and as such it was not considered to be a wide ranging threat to employee safety.
The Section 54 order given by the DMR however, stopped production at Kroondal’s five shafts which would have impacted significantly on the operations.
Despite a number of interactions between Sibanye’s senior management between August 19 and August 22, including CEO Neal Froneman and a comprehensive audit of the safety systems on TMM’s, the DMR’s office would not lift the stoppage.
Sibanye Platinum argued in the affidavit that the blanket stoppage would result in a revenue loss of some R13.5m a day and threaten the continued operation of the mine which had been loss-making for two years.
“The applicant [Sibanye Platinum] cannot afford a continuing shut-down of its operations at the mercy of the respondents, with no reasonable justification whatsoever,” one paragraph in the affidavit read. “The conduct of the Principal Inspector is nothing short of misguided and wrongful,” it added.
“If the applicant is required to have its operation closed down for the full time it may take for it to vindicate its legal rights, it will go out of business and its staff will necessarily no longer be employed by it,” it said.
According to the founding affidavit, however, the principal inspector called for safety improvements across all TMMs across all five shafts.
The respondents named in the affidavit included the DMR’s chief inspector, Xolile Mbonambi and the principal inspector of the DMR’s North West office, Monageng Mothiba.
In addition to the blanket ban on production at Kroondal, the principal inspector also called for the “legal appointment to be withdrawn” of three staff of Kroondal Platinum Mines’ management team.
When the matter was escalated to the chief inspector, there were additional calls for a mass meeting at which DMR officials were to attend. Further audits of additional safety protocols were also required when Sibanye Platinum made a later presentation to the DMR’s offices. Sibanye Platinum’s view was that it would have been more practical to issue a Section 55 notice limited to the section in which the accident occurred.
“The failure on the part of the Chief Inspector and/or the Principal Inspector to consider whether reasonably ‘practicable measures’ to prevent such accidents have been taken by the employer and whether there is a ‘significant risk’ of such accidents reoccurring, renders the decision to issue the section 54 instruction appealable,” said Sibanye Platinum in the affidavit.
“The decision is simply wrong in the circumstances,” it added.
This is the second time this year Sibanye Gold has fought for continued operations at Kroondal after the Labour Court granted an interdict in May against a proposed strike by the Association of Mineworkers & Construction Union (AMCU).
In that instance, the Labour Court judged that AMCU’s strike would be illegal. AMCU is required to suspend any strike action taken by its members, said Sibanye in a statement following the granting of the interdict.