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Rising Death Toll Triggers Comprehensive Review of Mining Safety Legislation - International Law Office

International Law Office

Energy & Natural Resources - South Africa

Rising Death Toll Triggers Comprehensive Review of Mining Safety Legislation

January 28 2008

Audit
Health and Safety
Penalties
Compensation
Comment


On October 4 2007 former President Thabo Mbeki ordered the Department of Minerals and Energy (DME) to conduct a health and safety audit of all mines. The order followed the rescue of 3,200 mineworkers trapped 2.2 kilometres underground at Harmony Gold’s Elandsrand mine and a rising death toll which surpassed 200 in 2007. South Africa’s deep mines and lack of safety history are causing increasing concern, and government and industry have finally begun taking steps to increase the health and safety of mineworkers nationwide.

Audit

The audit commenced in December 2007 and encompasses a comprehensive review of health and safety standards in mines across South Africa. It is divided into two streams: a legal aspect and a technical aspect. The legal aspect is focusing on:

  • health and safety policies and procedures;
  • risk management;
  • reporting mechanisms; and
  • water and pollution management.

The technical aspect is addressing:

  • seismic activity and rock falls;
  • shaft infrastructure;
  • mining equipment; and
  • the effectiveness of legal sanctions under the Mine Health and Safety Act (29/1996).

The audit is expected to introduce minimum safety standards for mines (which do not form part of prevailing South African law).

Health and Safety

Stricter health and safety measures for mines would be welcomed by the National Union of Mine Workers (NUM), which organized a nationwide strike on December 4 2007 to highlight its concerns over workers’ safety. As South African mines dig to some of the deepest depths in the world for minerals in order to increase production, seismic activity and rock falls have become more prevalent and unpredictable. A 2004 study by the Chamber of Mines showed that South Africa’s safety performance was 50% worse than that benchmarked by Canada, Australia and the United States, and required a 20% improvement each year to reach the same international standards by 2013. The national mining industry has thus far lagged behind its stated goals.

Stricter safety measures for mines would also be welcomed by mining companies. The DME has previously forced mines to cease operations for inspections following the occurrence of death(s) underground. Protracted delays in or suspension of production inevitably results in large losses for mining companies. For example, Harmony Gold stood to lose over 35,000 ounces of production as a result of its mine closing for a 48-day safety inspection.

Penalties

A loss of income might not be the only penalty mines face for health and safety violations. The NUM has increasingly called for the Department of Justice and the Directorate of Public Prosecutions to begin prosecuting negligent officials and employers for the deaths of its mineworkers. Chapter 7 of the Mine Health and Safety Act provides for court-determined fines or imprisonment for those convicted of contravening or failing to comply with its provisions.

Compensation

A further development in the courtroom has been the R2.6 million summons served on AngloGold Ashanti by a former employee, Thembekile Mankayi. After 16 years at AngloGold’s Vaal Reef operations, Mankayi fell ill with silicosis from inhaling silica quartz dust caused by drilling underground during his tenure. He received R16,300 in compensation and, with a wife and 10 children to support, was left unemployable and destitute. Under labour law, companies are protected from such action by the Compensation for Occupational Injuries and Diseases Act 1993, which was enacted to create a government-run fund to provide compensation for employee disablement or disease caused by occupational injuries, or for death resulting from such disablement or disease. However, Mankayi’s legal counsel is arguing that there is no provision in the act specifically barring employees from suing their employers. The suit is largely seen as a test case which, if successful, could open the floodgates to thousands of similar claims. It is estimated that bringing compensation for mineworkers up to the level of other industries would cost approximately R10 billion.

Comment

The recent death toll may prove to be the canary in the mineshaft for South Africa’s mineworkers and mining companies. On November 27 2007 the NUM and the Chamber of Mines signed an agreement to engage in senior-level meetings in 2008 in order to address safety concerns. In addition, recent legal actions could potentially force immediate widespread health and safety compliance. As the rising death toll weighs on the mining industry’s conscience, it is clear that only a concerted effort from all parties (including through the introduction of minimum safety standards for mines) will allow the industry and government to meet their health and safety goals by 2013.

For further information on this topic please contact Paul Bellin at Fasken Martineau by telephone (+27 11 685 0800) or by fax (+27 11 685 0818) or by email (pbellin@fasken.com).


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