Labour Court restricts DME mine safety closures

Willem le Roux represented AngloGold Ashanti in the Labour Court.
Willem le Roux represented AngloGold Ashanti in the Labour Court.

The SA Labour Court instructed DME mining inspectors to restrict section 54 /55 mine safety closures, to sections or levels where they found unsafe conditions.

AngloGold Ashanti had challenged the SA Department of Minerals and Energy (DME) in the Labour Court, ending in a judgment that sets out certain legal principles and requirements regarding instructions issued by mining inspectors in terms of section 54 of the Mine Health and Safety Act (MHS Act).

ENSafrica lawyer Willem le Roux was the lead attorney in obtaining the judgment in Johannesburg on 4 November 2016, report ENSafrica Mine OHS department lawyers Pieter Colyn, Celeste Coles, Warren Hendricks, Gerhardt Ehlers and Tyla Foster.

The Labour Court judgment includes:

  • A mining inspector may only close an entire mine if he/she has objective reason to believe that occurrences and conditions that he/she has identified endangered, or may endanger the health and safety of any person at the mine, and not only of a portion of the mine.
  • An instruction issued in terms of section 54 or section 55 of the Act, constitutes administrative action for purposes of the Promotion of Administrative Justice Act, 2000. Such an instruction must be proportional to the harm or potential harm that it intends to prevent. The judge quoted an author on administrative law, who said that “one ought not to use a sledgehammer to crack a nut.”

The judge remarked about the approach followed by the Mine Health and Safety Inspectorate (MHSI): “As this case illustrates, [the MHSI] are clearly under the impression that they are empowered to close entire mines on account of safety infractions in a single section or on a single level, without specific reference to objective facts and circumstances that rendered the whole mining operation unsafe…. That does not entitle those responsible for enforcing the Act, to act outside the bounds of rationality.”

In one case, an Inspector of Mines inspected a tiny portion of a mine, but issued instructions that had the effect that all mining operations on the entire mine came to a standstill. The judge concluded that no circumstances existed on the particular level that was inspected, that could lead the inspector to infer that the entire mine was unsafe.

Employers re-commit to improving mine health and safety

Mining stakeholders met at a two-day Mining Occupational Health and Safety (OHS) summit in November 2016, to review the state of mining health and safety, and progress made in achieving the OHS milestones towards ‘zero harm’, which were revised two years ago.

The milestones included:

  • Occupational Safety, by December 2016, there should be a 20% reduction in serious injuries;
  • From January 2017, a 20% reduction in Lost Time Injuries (LTIs);
  • Occupational Health, by December 2024, 95% of exposure measurement results to be below respirable crystalline silica of 0.05 mg/m3; for coal dust respirable particulate of 1.5 mg/m3 (<5% crystalline silica); and for platinum dust respirable particulate of 1.5 mg/m3 (<5% crystalline silica);
  • By December 2024, the TB incidence rate should be at or below the National TB incident rate, and all employees should be offered HIV counselling and testing annually, with all eligible employees linked to an Anti-Retroviral Treatment (ART) programme as in the National Strategic Plan (NSP);
  • By December 2020, full implementation of the Culture Transformation Framework.

Tripartite stakeholders at the summit re-commited themselves to achieving ‘Zero Harm’, and further pledged to improve these declared actions:

  • Tripartite visible felt leadership;
  • Trust deficit;
  • Communication;
  • Empowerment of supervisors and employees;
  • Annual company health and safety days.

The DME called for further cooperation from stakeholders, following “a challenging year on mine health and safety in terms of accidents and fatalities”.

  • This post reports on some developments in legislation and policies, relevant to mining health and safety management. It does not constitute any complete law, nor legal advice.
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