Klass Looch Associates

Employer OHS Champion since 1986 

Law and justice

David McKay

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."

Corporate homicide' Bill causes tremors - Mail & Guardian of 12 March 2009. ' Mining chief executives may face prison sentences for homicide if the controversial Mine Health and Safety Amendment Bill becomes law. At least 870 miners have died from work-related injuries since 2004 and the Department of Minerals and Energy feels that tougher legislation is long overdue. But the Bill has raised debate - as well as tempers -within the mining sector. The new legislation marks a shift from the preventative approach of the current Mine Health and Safety Act (MHSA). It gives the department substantially increased regulatory powers allowing it to: ' Professor May Hermanus, director of the Centre for Sustainability in Mining and Industry at Wits, said the new legislation -however tough -will not be enough to transform the lives of South Africa's miners. Hermanus said it is vital to engage with deeper issues, like individual disempowerment and income discrepancy. "In this industry we are still caught up in the legacy of the past," she said. "There is a major lack of communication between employers and labourers because of language differences." Her view is shared by Chamber of Mines Chief Executive Sipho Nkosi. He said the threat of high fines and imprisonment will inevitably chase skilled managers and supervisors away from the mining sector to less pressured jobs. The Mine Health and Safety Amendment Bill has been awaiting President Kgalema Motlanthe's signature for nearly six months. Meanwhile, the debates are still causing tremors within the mining sector.

Increase non-compliance fines from a maximum of R200 000 to R1-million;

Enforce deadlines for mine authorities to produce accident reports;

Grant and revoke health and safety permits;

Close down accident sites until the department's safety standards are met.

Most controversially, the Bill introduces the concept of "corporate homicide" which means that mine bosses could spend five years behind bars if they are found guilty of negligence. The department and the National Union of Mineworkers (NUM) agree that mining deaths decreased in 2008, but the Presidential Mine Health and Safety Report, released last month, paints a depressing picture of the state of South Africa's mines. The report finds that the general safety compliance rate is only 66%, with many mines lacking adequate emergency evacuation exits, proper equipment maintenance systems, and qualified machine operators. But when it comes to safety and accountability, mining companies are only one element in a complex spider web of interdependent role players. Other key players are the department itself, which investigates and regulates mine-related issues, and the National Prosecuting Authority (NPA), the responsibility of which is to prosecute companies for fatal negligence. "The DME is not doing its job," said advocate Hendrik Schmidt, the Democratic Alliance spokesperson for minerals and energy. "They are under-funded and under-staffed." Schmidt feels that lack of capacity within the department leads to irregular and delayed inspections and to inspectors spending more than 50% of their time on administrative duties. "It's a Catch-22," he says. "[Finance Minister Trevor] Manuel says he will provide more money if the department shows it can spend it properly, but if they don't have money, they can't get inspectors to do the job." Lance Greyling, the Independent Democrats spokesperson for Minerals and Energy, feels that the department needs to be more accountable. "Perhaps government should receive penalties too," he said. When it comes to inefficiency, fingers are not pointed only at the DME. Of the 223 negligence-related cases referred to the NPA since 2004, only three have been concluded. One mining company was found guilty; two have been fined R5 000 and R2 500. The remaining 220 cases are still "awaiting response". Tlali Tlali, spokesperson for the NPA, said he had not seen the presidential report and was unable to explain the backlog of cases. "We cannot say why 200 cases are still awaiting an outcome, because it will take weeks for us to be able to track down these cases and tell you who was responsible," he said.

Mine safety bill worries chamber. Business Day of 1 April 2009. 'THE Chamber of Mines believes it has made good progress on representations to the government on two key clauses in the Mine Health and Safety Amendment Bill, CEO Mzolisi Diliza said yesterday. The bill is aimed at reducing the high rate of deaths in South African mines. It proposes that heads of mining houses who have ignored safety regulations should pay a fine of up to R1m or face five years’ imprisonment, and that mine accident investigations must be completed in 10 days and a report filed within 30 days. Diliza said the bill was awaiting presidential approval, which meant changes could still be made to it. The chamber was particularly concerned about the clause that provides for closing a mine shaft after a fatality, as it makes no provision for reopening the shaft after the issue has been addressed. The second concern was that the bill made CEOs criminally liable for fatalities that occurred on their companies’ mines, with no extenuating circumstances. That could mean the CEO of a London-listed company with operations in SA could be arrested at the airport on criminal charges, Diliza said. It would not be taken into account that perhaps the company’s manuals and procedures instructed staff on safe behaviour. Their lawyers, labour and government were looking at these clauses.

Mine closures must be lawful - specialist attorney. Mining News of 19 November 2007. By Willem le Roux. 'The Mine Health and Safety Council set a target in 2003 to reduce mine fatalities and to achieve safety performance levels in 2013 which are equivalent to current international benchmarks for underground metalliferous mines. Specialist attorney firm in mining health and safety Brink Cohen le Roux (BCLR) director Willem le Roux says that the mining industry’s safety performance has improved materially since 1996. The fatality rate measured for each million hours worked has been reduced from 0,41 in 1996 to 0,25 in 2004. In 2005 and 2006, the fatality frequency rate was 0,2 fatalities for each million hours worked. It would seem that the industry may not achieve any material improvement in the reduction of the fatality rate in 2007. Le Roux says that the health and safety standards which apply to the mining industry in South Africa are generally of a high standard. Accident prevention does, however, remain a complicated matter in that accidents are caused very often by a large number of factors, some of which may not be proved at an accident investigation and inquiry. Although it should be the objective of all employers to achieve a zero fatality rate, one must bear in mind that many legitimate economic activities involve some risk of harm. Le Roux points out that a changing environment is associated with increased risk, such as the activities in mining, fisheries, forestry, transport, building and construction. Le Roux comments that the Department of Minerals and Energy (DME) has resorted to extreme measures in its attempts to reduce accidents. The mining industry has experienced a very large number of mine closures brought about by instructions of the DME to close mining operations