Klass Looch Associates

Employer OHS Champion since 1986 

Gideon du Plessis: Blame miners, inspectors – not mines – as death toll soars. 24 March 2017.

Mining is a hazardous business, regularly claiming the lives of breadwinners with many mouths to feed. Mining companies are often in the spotlight for deaths at work, with questions asked about the safety standards and procedures. In this article, union leader Gideon du Plessis highlights another ugly side to mine deaths: they are often linked to the actions of miners who want to add days to their weekends. Spite and incompetence also play a role in inspectors shutting down mines. Du Plessis explains that there are geological reasons for the death toll rising after a mine is re-opened. So, the more often mines are closed, the more likely we are to hear about deaths. With a dramatic rise in the death rate this year, Du Plessis notes that there is a positive side to the legal action taken by Sibanye Gold and AngloGold Ashanti against the Department of Mineral Resources. Although the mining companies are focused on the bottom line, their actions could have the effect of reducing risks to miners. Visiting Anglo American mines in Australia, a South African mining trade union delegate asked an Australian miner what the consequences would be if safety procedures were not heeded. The miner replied, “We do not disregard safety procedures”. Amazed, the National Union of Mineworkers representative repeated the question as a hypothetical question, yet the firm answer remained the same. Despite uncontrollable factors that pose a grave threat to miners’ safety, the quoted conversation emphasises the difference and unique human cause of the high mining death toll in South Africa. In the same way that mining labour relations are destabilised by poor leadership and judgment, so do behaviour, actions and decisions by various mining role-players – driven by feeble discipline, ideology, power and personal gain – contribute to unacceptable mining deaths. In this way, such actions create an abnormal environment in which labour relations and occupational safety are supposed to flourish. The result is the destruction of human lives and job opportunities. Statistics for the period 1 January 2017 to 28 February 2017 show an increase in mining deaths compared with the same period in 2016. During this period, 16 fatalities were already recorded compared with 13 in 2016. Thus far in 2017 there have been eight fatalities in the gold-mining sector, compared with five in 2016. This amounts to an increase of 60%. Contributing to mining deaths may be the abuse of authority by safety inspectors employed by the Department of Mineral Resources (DMR). In terms of the Mines Health and Safety Act, if these employees believe that a life-threatening situation exists, they are entitled to close a mine or part of a mine. Justified cases of a so-called section 54 closure are gratifying; however, some inspectors are vindictive and would order a temporary mine closure just to prove a point for personal or political reasons. Sometimes these employees act out of a simply inadequate knowledge of mining. It is also general knowledge that some of our union “friends” would not hesitate to misuse their relationship with an inspector in order to have a long weekend created through the closure of a mine from a Thursday to a Monday, owing to a fictional or bona fide complaint. A miner walks through an underground tunnel at the South Deep gold mine, operated by Gold Fields Ltd., in Westonaria, South Africa, on Thursday, March 9, 2017. Apart from Chamber of Mines’ information that mines, because of closure orders, had suffered losses of R13,6 billion between 2012 and 2015 – depriving government of billions of rands’ worth of tax revenue closure orders may result in more mining deaths. Put simply: for geological reasons, conventional mines have to remain operational at all times. The use of explosives maintains a geological balance that prevents underground pressure and stress from building up – a typical result in a non-operational mine. Although litigation by Sibanye Gold and AngloGold Ashanti against the DMR and some of their mine inspectors relates to the financial impact on the companies caused by heedless closure orders, it may also have a positive effect on mine accidents. The outcome is that, once a mine is restarted following a closure order, there is an increased risk of ground disturbances and seismic shifts, which may result in rockfalls and mining deaths. In addition, in the wake of such a closure, some employers are guilty of pressuring employees to catch up on lost production: negligence may then lead to accidents. However, sometimes the workers themselves would chase production bonuses and disregard safety procedures, with fatal consequences. The tragedy of the three people who perished in the Lily Mine reminds us of the impact that a mining death could have on a family, dependents and a community. The death of a single breadwinner affects some 10 dependents: that alone is sufficient reason for all mining role-players to eliminate the controllable factors in potential mining deaths. These factors include: tension between the Chamber of Mines and the DMR about the regulatory framework which moves the focus away from safety; spiteful Section 54 closure orders; lack of a clear closure order regulation; rigid production bonuses; flimsy employee discipline; trade union rivalry that hampers job relations; illegal miners damaging infrastructure; the political overreaction of the DMR and certain unions during mining deaths which overshadows the reason(s) for and the lessons to be learned from an incident, and the uncertainty about the appointment of a chief inspector of mines. If these problems are not solved, the mining industry’s efforts to reach the international objective of “zero harm” would never be successful.

Gideon du Plessis is the General Secretary of Solidarity 

Chamber of Mines concerned about inappropriate application of regulations. 30 January 2017. 

The industry’s goal was to ensure that regulations were properly implemented by all parties, including the inspectorate. The Chamber of Mines says it is perplexed by Mineral Resources Minister Mosebenzi Zwane’s statement on Wednesday directed against two of its members, and indeed, in reference to the industry as a whole. “In particular, the chamber is concerned about minister Zwane’s allegation that companies are flouting safety laws and regulations and that their actions ‘cheapen lives of mineworkers’,” the chamber said in a statement. The chamber and its members viewed safety as their most significant priority and prioritised safety above production at all times. The extensive efforts displayed by companies at the most senior levels, the significant resources applied to safety, and the substantial progress made in reducing fatal accidents and injuries was ample evidence of this, it said. “We and all our members are aware that notwithstanding significant improvements in safety outcomes over the past two decades much more remains to be done to achieve the goal of zero harm. “The chamber and its members are concerned about the inappropriate application of regulations where section 54s, for example, are applied in such a way that is not proportionate to the context of the alleged infraction. “A recent court judgment noted that the law requires an inspector objectively to establish that a state of affairs exists which would lead a reasonable person to believe that it may endanger the health or safety of any person at the mine and then to contemplate an instruction that is proportionate to the infraction and the risk that it poses to health and safety,” the chamber said. The industry’s goal was to ensure that regulations were properly implemented by all parties, including the inspectorate. “We would expect that the minister would share that objective. No doubt the courts will continue to provide clarity on these matters and we would hope that all parties would welcome and accept such clarity in the interests of the industry and our collective futures,” the chamber said. Business Day reported on Thursday that just days after saying the mineral resources department was “not at war” with Sibanye Gold and AngloGold Ashanti, Zwane laid into both companies for “refusing to comply with the mining laws of the country”. Zwane’s comments came after Sibanye subsidiary Sibanye Platinum lodged summonses against the minister and three high-ranking safety officials for R26.8 million to recompense the company for losses incurred during a safety stoppage at the Kroondal platinum mine that the company argued was not proportional with the Mine Health and Safety Act. AngloGold Ashanti successfully overturned a safety stoppage at its Kopanang mine in the Labour Court last year, Business Day reported. 

Sibanye claims R26.8m from Zwane and inspectors. 25 January 2017. 

Sibanye Platinum’s move opens the way for other miners to take similar action. 

Sibanye Gold’s subsidiary Sibanye Platinum has served summonses on Mineral Resources Minister Mosebenzi Zwane and three of his officials, claiming R26.8m from them in their personal capacities, opening the way for other miners to take similar action. Sibanye Platinum is acting against Zwane, the acting chief inspector of mines, Xolile Mbonambi, and two senior inspectors in North West where Sibanye has its Kroondal mine. Production was suspended at the two mines after the inspectors ordered a safety stoppage of the mine in August 2016. The officials have 20 days to serve notice that they will dispute the claim, otherwise an order will be made against them. Mbonambi said last Thursday the department had not yet received any details of the summonses and regarded stories that it was about to receive such notices as "a rumour". At the time, Zwane said: "Our differences should not be taken as people at war with each other. We are not. We are not at war with Sibanye, or AngloGold or any other person. We are engaging to ensure the real beneficiaries of our laws in SA benefit." Sibanye said it had suffered damages of R26.8m arising from the closure of the mine and that the defendants were "jointly or severally liable to compensate" Sibanye for damages and that the defendants had so far ignored written demands to pay. The department did not immediately respond to an e-mailed request for comment and reaction on Tuesday. The summonses are the latest in a long line of legal setbacks for the department, which was labelled incompetent in the Aquila Resources ruling last November; and acting out of proportion with clauses in the Mine Health and Safety Act in last year’s AngloGold Ashanti ruling and an earlier judgment in the Bert’s Bricks case. Kroondal had so many stoppages that it had become a marginal mine. The inspectorate ordered at least nine stoppages at the operation between July 2015 and December 2016, costing the mine R180m. In the latter judgments, the judges raised the prospect of officials being pursued for damages in their personal capacities, something neither AngloGold nor Bert’s Bricks opted to do in their cases. After an employee was killed by the vehicle he had failed to properly immobilise with a handbrake and stop blocks at one of five shafts at the mine, the inspector of mines in North West, Clifford Dlamini, conducted an inspection of the mine, finding various faults with vehicles having sub-standard or missing seatbelts, a missing door latch, checklists improperly completed, an underground haulage way too narrow for vehicles to pass each other and a number of fire extinguishers had not been checked in August. Between August 19 and August 26, Dlamini, the principal inspector of mines in North West, Monageng Mothiba and Mbonambi took action against the mine, including halting all trackless mobile machinery underground and the withdrawal of operators for retraining under Section 54. After legal threats from Sibanye and engagements between the company and the inspectorate, the order was changed to just the suspension of the Bambanani shaft where the accident happened. Sibanye argued that all three inspectors had acted in a "draconian" way and beyond the powers granted to them under the Mine Health and Safety Act, ignoring the localised nature of the accident. It said their actions were "irrational … arbitrary, capricious, and were taken for an improper purpose, which is not permitted under the act". This tied into the AngloGold Ashanti and Bert’s Bricks cases in which courts found inspectors had acted out of proportion when ordering shutdowns of mines for relatively minor and localised situations. Sibanye said Kroondal, which employed 9,500 people, had undergone so many stoppages that it had become a marginal mine. The inspectorate ordered at least nine stoppages at the operation between July 2015 and December 2016, costing the mine R180m.

Malicious inspectors face liability at mines. 17 January 2017.

Sibanye serves notices as judgments pave the way for government officials to be held liable in their personal capacity. Incompetent and malicious Department of Mineral Resources officials who overstepped their authority in applying regulations could soon be hauled to court for damages in their personal capacity, industry sources said. Two judgments pertaining to mining as well as a Constitutional Court ruling that government officials can be held liable in their personal capacity have paved the way for the action, which could see mine inspectors and other departmental officials pursued for damages by mining companies. Sibanye Gold is said to be the first company preparing to launch such an action, said the sources who declined to be named. Sibanye spokesman James Wellsted said he could not comment. The sources said the actions brought against various department officials were likely to be related to safety stoppages ordered at the company’s mines in 2016. AngloGold Ashanti won a case against the department’s safety officials in November 2016 after the entire Kopanang mine was shut down because of a violation at a small section of the mine. One of the sources said the company was also preparing to pursue safety officials related to that matter. AngloGold spokesman Stewart Bailey said: "We won’t comment." Under the Institution of Legal Proceedings Against Certain Organs of State Act, the notice has to be served on a government official within six months of the incident, and then a summons can be served. 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 It is understood the Sibanye notices under the act have already been served and the summonses will be served within the coming weeks. While the department officials are unlikely to be able to afford to pay hundreds of thousands or millions of rand in losses stemming from their actions, these summonses could form the basis of talks between mining companies and the department to formulate a protocol on how the Mine Health and Safety Act will be implemented and enforced,  for example. This would be to prevent the shutdown of entire mining operations for relatively minor infractions of the act as has been the case in recent years, costing the industry billions of rand in lost production. 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. "There is a constitutional precedent for government officials who act in bad faith to be sued in their personal capacity. "Mining companies are starting to think in that direction because there are no consequences for DMR [Department of Mineral Resources] officials notwithstanding these judgments, they just ignore them," a source said. The court cases won by Bert’s Bricks and AngloGold Ashanti against safety stoppages ordered by inspectors showed that mineral resources departmental officials had acted out of proportion with the terms of the act. The judges in both cases said that the mining companies could have sought damages against the officials involved. "Had the applicant sought an order for costs on the basis that the respondents bear the costs of these proceedings in their personal capacities, I would have given serious consideration to such an order," Judge Andre van Niekerk said in November’s AngloGold judgment. While AngloGold is unlikely to be as aggressive as Sibanye in following this avenue, the option is still there if it continues to endure a heavy-handed and unwarranted application of the Mine Health and Safety Act at its operations.

Judge rebukes state on mine-safety stoppages. 15 November 2016.

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.

Poor safety performance hits AngloGold Ashanti’s production forecast. 14 November 2016

AngloGold Ashanti pulled its full-year production forecast down to the lower end of its estimate after a poor safety performance in SA, but the higher gold price offset lower third-quarter output and contributed to strong cash flows. AngloGold Ashanti, the world’s third-largest gold miner by volume, said free cash flow for the three months to end-September was $161m from $50m paid out during the same period a year earlier and the $108m generated in the first half of the year. Gold production for the quarter was 900,000oz compared with 974,000oz in the same period a year ago when Cripple Creed & Victor in the US and Obuasi in Ghana jointly added 32,000oz. South African gold production fell by 7% to 235,000oz because of lower grades. During the quarter, AngloGold lost 38,600oz of gold to safety stoppages at its South African mines, bringing the total for the year to more than 80,000oz. On Friday, the Labour Court issued a judgment around the implementation of Section 54 stoppages issued by the department’s safety officials. The judgment pertaining to a full stoppage at AngloGold’s Kopanang mine ruled the entire mine did not need to be shut down for safety violations in a certain section of the operation. The matter of safety stoppages has affected gold and platinum miners alike, causing a number of CEs to speak out strongly on the matter, arguing that only relevant sections of the mine needed to be stopped rather than the entire operation, which caused heavy production and financial losses for an overzealous application of the stoppage orders by department officials. AngloGold CEO Srinivasan Venkatakrishnan said while his officials were "still in constructive dialogue" with their opposite numbers at the department, the company had taken a more "prudent" outlook of what its South African mines would deliver next year, but, he added, it would not be less than this year. There were three fatalities on South African mines during the quarter. Looking ahead, AngloGold forecast its full-year production at between 3.6-million and 3.65-million ounces compared with an earlier forecast of between 3.6-million and 3.8-million ounces.

I have always argued that section 54 of the MHS Act is being abused and is tantamount to an extra-judicial punitive measure. The same applies to the3 Prohibition Notice served in terms of section 30 of the OHS Act. At least the Labour Court has laid the matter to rest. RHL. 

State defends spate of mining safety stoppages. 30 August 2016

DMR minister Mosebenzi Joseph Zwane sees mining safety stoppages as enforcing a priority. SA Mineral Resources minister Mosebenzi Zwane defended mining safety stoppages after complaints of production losses by some employers. The minister said the health of workers should take priority over profit. Anglo Gold Ashanti and Anglo American Platinum have lost some production to the Department of Mineral Resources’ use of section 54 provisions in the Mine Health and Safety Act, reported Bloomberg. These notices stop operations during incident investigations. The spate of stoppages, and complaints, and requests to close and inspect only the areas where accidents had occurred, had two sequels in recent years . Anglo Gold CEO Srinivasan Venkatakrishnan complained of an entire mine being shut down by a safety stoppage. Amplats CEO Chris Griffith made similar comments last month. “Certain mining companies have leveled very serious allegations against the minister (of Mineral Resources) and his officials, intimating that the officials may be using the instruments available to further its own purposes,” the DMR said in a statement in August. The department was “aware of the global economic realities facing commodity producers, but safety is non-negotiable”, said the DMR. Mining companies can appeal against section 54 notices, yet the minister had not received any formal appeals. “It is appalling behavior by some responsible corporate citizenry of South Africa’s mining industry, to be seemingly filing such appeals in… public opinion.” By 18 August, there were 57 fatalities in South African mines for the year, compared to 46 in the same period last year, said the union NUM. The DMR had noted earlier that in 2015, 77 miners died at work, a record low, and a fraction of the annual average of about 800 deaths per year in the two decades to 1994. Anglo Gold, the world’s third-biggest gold miner, had three fatalities and 77 safety stoppages in the first half of the year, losing 44,000 ounces of production. Amplats lost about 30,000 ounces of platinum group metals. Some employers do not complain against mining safety stoppages. Peter Steenkamp, CEO of Harmony Gold, said they have not had any unjustified section 54 stoppages. Sibanye Gold CE Neal Froneman said last month that the DMR was destroying hundreds of millions, if not billions of rand in value, because of unnecessary safety stoppages, reported Reuters. Sibanye has said it lost R135-m in revenue in the 12 months to June at Kroondal platinum mine due to government safety stops. Courtesy Sheqafrica

Heavy handed stoppages at mines hit output. 16 August 2016

ONE of the most contentious issues in the South African mining industry took the spotlight again on Monday night when AngloGold Ashanti CEO Srinivasan Venkatakrishnan called for a more considered approach to government-ordered safety stoppages that cost the company 44,000oz of gold in the first half of the year. Venkatakrishnan said AngloGold could no longer forecast with accuracy its annual production from SA, which accounts for about a quarter of the company’s total output, because of the implementation of safety stoppages by the Department of Mineral Resources through section 54 notices that demand a halt to a mine’s entire operations to address safety concerns. There has been a marked escalation in the cost of safety stoppages for the mining industry, according to a Chamber of Mines document. The total revenue loss amounted to R13.65bn between 2012 and 2015, with the loss in 2015 estimated at R4.8bn, up from R2.6bn in 2012, the document showed. Platinum producers have spoken of a threefold increase in the number of stoppages ordered in 2016. The chamber is due to meet department officials in coming weeks to discuss the increase in safety stoppages. AngloGold’s lost production of 44,000oz at a time of a high rand gold price was about R834m in forfeited revenue in the first six months of the year. While acknowledging safety stoppages were warranted in the case of fatal or serious accidents or of safety violations, it was the broad scope of the reasons behind the stoppages of entire mines that was causing concern for AngloGold, Venkatakrishnan said during an interim results presentation to analysts. "We’ve seen an increase in the number of section 54 stoppages that don’t necessarily arise out of a fatality or high-frequency, high-potential incidents. They come out of mass audits and routine inspections … a marked increase." The department said companies such as AngloGold had the right to appeal against stoppages through a clause in the Mine Health and Safety Act, but the company had failed to do so. "It’s unfortunate that AngloGold Ashanti has chosen to engage with the department on this critical matter through the media. The rightholder is aware of all the channels to follow should they experience challenges in implementing laws and regulations meant to safeguard the health and safety of employees in the sector," the department’s spokesman, Martin Madlala, said. The fatality rate at South African mines fell to 77 in 2015, from 84 in 2014. So far 42 people have been killed in the first half of 2016. Chris Sheppard, head of South African mines, said AngloGold had been served 77 section 54 notices by the end of July, with just six related to accidents. "Are they justified and related to safety? Categorically yes. We’ve no problem with section 54s, but the manner in which they’re applied. It can take two to three weeks to ramp up from zero to plus 90% of production volume and that’s debilitating for any business."