In a scathing judgment, the Labour Court has overturned a safety stoppage at AngloGold Ashanti’s Kopanang mine and addressed the core concern mining companies have about the way the Department of Mineral Resources’ safety officials implement stoppages.
For the past two years, mining executives have become increasingly outspoken in their frustration with the way mine safety has been handled, with shutdowns ordered by the department’s inspectors of entire mines for violations of the Mine Health and Safety Act in sections of the mines.
The Chamber of Mines has estimated the cost of the safety stoppages between 2012 and 2015 at R13.6bn in lost revenue, excluding the losses incurred in restarting mines. The trend has nearly doubled the value put on shutdowns, rising to R4.8bn last year from R2.6bn in 2012.
"We believe that the Labour Court has, in this case, clarified the limits on the powers of the inspectorate," the chamber’s CE, Roger Baxter, said on Monday.
It was in line with the industry’s approach in which it has sought to persuade the department to avoid unjustified stoppages that were compounding losses in already trying financial times, Baxter said.
Royal Bafokeng Platinum has said the recent sharp increase in the frequency and severity of these orders, which did not appear to be addressing noncompliance with safety standards, was "very disappointing" and it could no longer offer the same acceptance and support of these orders it had in the past.
In a judgment handed down on November 4, Judge Andre van Niekerk said the order to shut Kopanang near Orkney in North West on October 17 at a cost of R9.5m a day due to violations involving explosives and tramming at the 44 level of the mine was disproportionate.
The 91 affected workers represented just 2% of the mine’s 4,218 employees and the 28 railway line switches that came under scrutiny were a fraction of the 206 switches used by Kopanang’s trams.
"It is patently clear therefore that [the affected] 44 level comprises a very small portion of the total operation and conditions there are not axiomatically representative of conditions elsewhere on the mine," Van Niekerk said, ordering the lifting of the safety stoppage of the entire mine, but retaining the suspension of the offending level.
"The instructions insofar as they relate to a prohibition across the entire mine in respect of explosives and tramming were out of all proportion to the issues identified by the third respondent. At worst, they should have been confined to level 44," he said.
The legal fraternity welcomed the judgment.
"The judgment is an indictment of the manner in which certain officials execute their duties. The judge’s sentiments echo the views of the mining industry as well as the legal counsel who have to deal with the consequences of these abusive practices on a daily basis," said Allan Reid of Cliffe Dekker Hofmeyr.
"Enforcement issues are all too frequently approached in an aggressive, heavy-handed and ill-considered manner," he said.
AngloGold CE Srinivasan Venkatakrishnan said on Monday the world’s third-largest gold miner had lost 82,800oz of gold in SA to safety stoppages so far this year.
"This judgment will provide clear guidelines. You can’t just stop and start these big, deep-level mines. There are consequences to doing that."
Ben Magara, CE at the world’s third-biggest platinum miner Lonmin, said it had lost 164 production days in its financial year to end-September in 50 section 54 stoppages compared to 173 days in 36 stoppages in the previous year.
"Section 54 stoppages were enforced more broadly and were taking longer to lift in the first nine months of the year. Not only do safety stoppages affect production, they also have a negative impact on safety routines and care must be taken to safely shut down work areas so that on their return, workers do not enter a work area that is hazardous," Magara said.
Asked if Lonmin would also turn to the courts to contest the stoppages, Magara said the company preferred to build relationships with officials while it worked at improving safety and this strategy had paid off in the fourth quarter of the year.
Van Niekerk singled out the North West office of the department and its officials for particular criticism, drawing on a 2012 judgment delivered in favour of Bert’s Bricks contesting the shut down of their operations for safety reasons.
That judgment found that of the officials ordering the stoppage not one had “properly applied his mind to the operation of the MHSA and that there was a gross abuse of the provisions of the act,” the judgment said, calling the litigation a waste of tax payers’ money and berated department officials for not listening to complaints.
Van Niekerk said no lessons appeared to have been learnt at the North West office or by its officials.
“It is also astonishing, given the content of their answering affidavit and the submissions made on their behalf, that the respondents clearly fail to appreciate the conceptual framework within which they are required to discharge their duties,” he said, pointing out that in the department’s submission “proportionality was irrelevant’ because it did not feature in Section 54 of the MHSA which entailed shutting down mines.
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