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Mines sue inspectors for mine safety stoppages

DMR minister Mosebenzi Zwane extended mining safety inspections to health and social issues. However the DMR is sued for overstepping their powers.
DMR minister Mosebenzi Zwane extended mining safety inspections to health and social issues. However the DMR is sued for overstepping their powers.

Sibanye Platinum claims R26.8-m from Mineral Resources minister Mosebenzi Zwane and three DMR officials, for losses during mine safety stoppages.

Sibanye Platinum is acting against Zwane, and the acting chief inspector of mines, Xolile Mbonambi, and two senior inspectors in North West province, where Sibanye operates Kroondal mine.

Production was suspended at the two mines after the inspectors ordered a safety stoppage at 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 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 from the stoppage 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 summonses are the latest in a series 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 R180-m.

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”.

[See earlier reports on allegedly heavy-handed mine safety stoppages here:]

State defends spate of mining safety stoppages

Hermanus wants mining safety enforcement debate

In the AngloGold Ashanti and Bert’s Bricks cases, courts found that inspectors had acted out of proportion when ordering shutdowns of mines for relatively minor and localised situations.

Sibanye said Kroondal, which employed 9500 people, had undergone so many stoppages that it had become a marginal mine.

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.

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.

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 R13.6-b 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.

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.

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 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.

  • Source: Adv Raynard Looch,
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