While the mining industry has acknowledged the need to continuously improve health and safety to achieve its goal of ‘zero harm’, the application of Section 54 of the Mine Health and Safety Act (MHSA) is often unclear and inconsistent.

International law firm Hogan Lovells partner and mining head Warren Beech explains that a Section 54 instruction, which requires the closure of a mine in its entirety or a particular mine workplace, can be issued by the Mine Health and Safety Inspectorate (MHSI) under situations that would lead a reasonable person to deem the health and safety of any person at the mine to be compromised.

However, he notes that mining companies have criticised the lack of clarity relating to the circumstances under which a Section 54 instruction can be issued and whether the instruction must be applied to an entire mine or only part of a mine, arguing that applying stoppages across an operation results in crippling and uncalled-for production losses.

Further criticism is levelled at MHSI inspectors for failing to apply alternative sections of the MHSA, particularly Section 55, which does not require a mine to close, but rather that the corrective measures stipulated by an inspector following an inspection be implemented.

Last month, the Labour Court set aside a Section 54 mine stoppage order at gold miner AngloGold Ashanti’s Kopanang mine, in the North West, with judge André van Niekerk stating that the MHSI acted “outside of the bounds of rationality” in enforcing a stoppage of the entire mine.

The stoppage was issued based on the inspection of Level 44 of Section 12 at the mine, which employs only about 2% of the 4 000-plus employees at the mine.

The Chamber of Mines welcomed the judgment last month, saying that it “provides greater clarity, which will be useful to industry and the inspectorate”.

“We believe that the Labour Court has, in this case, clarified the limits on the powers of the inspectorate,” the chamber added, pointing out that this gave credence to the industry’s attempts to engage with the Department of Mineral Resources (DMR) “to avoid unjustified stoppages that are responsible for compounding industry losses in already trying financial times”.

Beech explains that a series of six instructions were issued in terms of Section 54 at Kopanang, following an October inspection of Level 44.

“The first two instructions prohibited the use of explosives at the entire mine and all underground tramming operations. The effect was that the entire mine was closed from October 17 at a significant loss.”

Following unsuccessful appeals by AngloGold Ashanti to have the instruction amended or overturned by the regional principal inspector of mines and DMR acting mines chief inspector Xolile Mbonambi, the matter was taken to the Labour Court.

The instruction was overturned by the court, as it found that the Level 44 workplace only employed a small percentage of the overall workforce employed at the mine. Further, the court found that conditions on Level 44 were not automatically representative of the entire mine and no specific circumstances existed on Level 44 that rendered the whole mine unsafe, or constituted circumstances under which the relevant inspector could reasonably issue instructions for the entire mine.

“It is hoped that the AngloGold Ashanti judgment will be regarded as useful guidance to all stakeholders in the industry going forward,” Beech concludes.