Law and justice

[] — A FAVOURITE yarn is that you can enter a gold mine at Nigel, in the far east Rand, and only resurface at another in Randfontein in the west Rand. I’m not sure if that’s accurate, but the interconnectedness of the Witwatersrand’s gold mines, with its labyrinth of declines, conduits and inclines, is just one of the reasons illegal underground gold mining is rife.

The other is corruption. Harmony Gold suspended 77 workers last week for allegedly assisting illegal underground mining at its Eland shaft. That’s quite a support staff for the 200-plus illegal miners so far discovered at the operation. It hints at just how widespread the practice of illegal gold mining is in South Africa.

I spoke this week with a former executive of a South African gold mining company, who admitted that illegal mining was endemic and impossible to police. But I was also astonished at how low-key the criminality is.

For instance, fake ID documents allow criminals to access a mine, normally when the pump shift is going down during the early hours, or they get through the turnstyles in twos. And if the cage is not full, so much the better as it’s easier to slip in one or two criminals unnoticed. They just stroll in.

Once underground, the illegal miners head for unused areas (but not only) which have either been closed down because it’s not commercial to mine there, or it’s too dangerous.

If the area has been plugged shut, often with concrete and timber, the illegal miners will blast it away with dynamite stolen from underground stores. Remember, once beneath the earth, illegal miners are almost impossible to detect, invisible almost. The entire mine infrastructure is theirs to plunder.

They often head for narrow reefs – areas where a seam of gold-bearing rock snakes through the tonnes of rock above and beneath it – and manually scrape out the ore. Given the micro-attention they pay to such deposits, a grade of 40g per tonne of rock is retrieved whereas a company, working on the basis of extracting as much volume as possible, will achieve a mere 4g or 8g/tonne from the same reef.

High-grade ore is then crushed underground with a makeshift milling instrument, such as a gas bottle. Smelting is performed with a cutting torch. Further smelting happens on surface, where the unrefined gold is taken by “carriers” in return for food supplies.

So who carries the can?

That’s because the illegal miners, who incidentally are the poorest paid in the whole crooked syndicate, will work a one-month shift or more, turning yellow from light deprivation.

Harmony is by no means the only company facing gold theft in this manner, but the fact that it dominates certain regions suggests that it is particularly vulnerable to piracy.

In the Free State, it’s possible to descend into St Helena mine, owned by Harmony, and resurface at the group’s Masimong about 20km to 30km away. Similarly, Harmony’s Randfontein and Ezulwini operations are linked underground to Gold Fields’ South Deep mine, again many surface kilometres removed.

Who is responsible?

Mining executives would fairly argue that it’s impossible to be responsible for illegal underground mining, but that’s unlikely to cut the mustard with the minerals and energy department if certain aspects of the Mine Health and Safety Amendment Act, gazetted on April 17, are any guide.

What stands out from the amendments is that a fresh interpretation of reasonable steps to avoid injury and death is emerging. Thus in section 86A of the act, it’s not now possible for CEOs to defend themselves from culpability in the event of a fatal accident by saying a general order or instruction had been issued to operate safely.

Here’s the act verbatim if you don’t believe me: “[The] fact that the person issued instructions prohibiting the performance or an omission is not in itself sufficient proof that all reasonable steps were taken to prevent the performance or omission.”

Similarly, CEOs or the company cannot evade responsibility for a fatal accident by blaming it on the victim’s actions.

I took this to a Johannesburg-based labour attorney with a strong interest in the mining industry. “The test of negligence in the past led to a causal chain of events, and it was often shown that someone lower down had been responsible.

“In that light, it was hard to blame the CEO. Now, there’s a clear attempt to make CEOs more accountable,” the attorney says.

CEOs in the spotlight

And how! According to the amendments, punishments on CEOs in their personal capacity for fatal accidents ranges from R50 000 or six months in jail to R1m or five years behind bars.

It seems enormously unfair to believe Harmony CEO Graham Briggs is responsible for the 76 deaths of criminals operating illegally on his mine, but in a climate of new legislation, and with high awareness of the recent spate of fatal accidents, what are the chances he could fall under the microscope?

“The effect of the mine’s activities on the community around me is very much part of health and safety legislation,” the attorney says.

That’s true. Dust blowing off a tailings dam is an indirect hazard of gold mining. “But the law also requires a bit of common sense,” the attorney says.

But I leave the final word with Sandile Nogxina, director-general of the minerals department and a former advocate. In an interview on Friday, he said CEOs can’t insulate themselves by blaming fatal accidents on the actions of others.

“If there is a death on a mine, the CEO becomes vicariously liable,” he says.

“If you have a car accident and someone dies, the courts will decide if you are responsible. So we’re saying issues such as fatalities on mines are a question of common law in just the same way.

“In that case, the Inspector of Mines can’t take action, but he must certainly refer the matter to the prosecuting authorities,” he says.

“CEOs can be imprisoned if there is negligence. If there is a nexus between the CEO’s behaviour and death, he must be answerable.”