JOHANNESBURG (miningweekly.com) – The Labour Court has criticised the mine safety inspectorate for acting “outside of the bounds of rationality” in enforcing mine safety legislation.

Labour Court judge André van Niekerk used the quotation that “…one ought not to use a sledgehammer to crack a nut”, in granting a final suspension order in the case of AngloGold Ashanti versus Department of Mineral Resources (DMR) acting mines chief inspector Xolile Mbonambi and six others.

Van Niekerk said he would have considered ordering the officials concerned to bear the legal costs in their personal capacities had he been asked to do so.

Even though the inspectorate’s safety role was commendable, that did not entitle those responsible to act “outside of the bounds of rationality”.

ENSafrica’s legal team led by Willem le Roux obtained the final order suspending the instructions issued to AngloGold under Section 54 of the Mine Health and Safety Act.

The instructions applied to level 44 of section 12 of Kopanang mine, which employs 2% of the 4 000-plus employees at the mine, but they brought the entire mine to a standstill, at a cost to AngloGold of R9.5-million a day.

On the particular level inspected, no circumstances existed to conclude that the entire mine was unsafe and the judge ruled that Section 54 instructions needed to be proportional to the potential harm that they are intended to prevent.

The judge also recalled the same regional office had been involved in the Bert’s Bricks case, but had seemingly not heeded the High Court’s caution handed down in that case.

At question time during Monday’s results conference, AngloGold Ashanti CEO Srinivasan  (Venkat) Venkatakrishnan said in response to Mining Weekly Online that during his company’s engagement with the DMR, the department had stated that appealing its application of Section 54 safety stoppages was among the channels available to mining companies, in addition to engagement.

As far as the Kopanang stoppage was concerned, AngloGold Ashanti had gone through the full process of appeal, part of which was taking the issue to the Labour Court.

“And, as you can see, the Labour Court judgment pretty much speaks for itself. There’s nothing more one can add and one hopes that this judgment will help in better application of Section 54 because it identifies the need to operate on the grounds of proportionality and within the Promotion of Administrative Justice Act,” Venkat said.

He added that the first thing the company’s operational management did when there were mine infringements regarded as being unsafe was to institute their own stoppages.

“We do that in any event in respect of any serious injury or fatality. The intention of us and the DMR should actually be the same but one has to wait and see how this judgment is taken by the DMR,” he said.

Given the unpredictability of the safety stoppages, the company would from next year be more punitive in factoring their impact into mine plans and also be prudent in setting external guidance targets.

“We’ll err on the side of conservatism,” he added in response to Mining Weekly Online.