Anglo American must stop its unlawful migration process of moving Mine Health and Safety Act (MHSA) to Occupational Health and Safety Act (OHSA)

27 March 2023

The National Union of Mineworkers (NUM) condemns in strongest terms the unlawful migration from Mine Health & Safety Act to Occupational Health and Safety Act.

Last year 2022, Anglo American embarked on the so-called “migration process” in which it seeks to exclude Waterval Smelter, Anglo Converter Plant, Precious Refinery, Rusterburg Base Metal Refinery and Mortimer Smelter from the regulatory regime of the MHSA to OHSA.

It should be noted that these operations have always been, rightly so, under the regulatory regime of the MHSA. The reason given by Anglo American is that it sold the mining rights and retained the process operations as well as surface rights.

As the NUM we pointed out to Anglo American that it does not matter who owns the mining rights, the fact of the matter is that the refineries and smelters are part of the mine and furthermore, activities that are conducted at those operations are mining activities as defined in the MHSA.

Secondly, we advised them that this so called “migration process” is self-created concept which does not exist in law. Neither the MHSA nor OHSA provides for migration from one act to the other.

The only provision in law that exists, is section 79 of the MHSA which requires an employer to apply to the Minister to be exempt partially or whole from the provision of the MHSA.

The section 79 process requires the applicant to provide cogent reasons why such exemption should be granted, which Anglo American is afraid of as they have no cogent reasons for such exemption.

After they refused to accede to our demand to withdraw this unlawful migration, we launched an application to the High Court to interdict Anglo American from continuing with this unlawful process and for the court to declare the alleged “migration” to be unlawful.

It is without any doubt that the MHSA is the only legislation applicable in mines as far as health and safety of employees is concerned. 

On the other hand, section 1(3) of the OHSA provides that OHSA shall not apply in respect of a “mine, mining area or any works as defined in the Mineral and Petroleum Resources Development Act (“MPRDA”).

We should not forget that the MHSA was promulgated in 1996, as recommended by the Leon Commission, a commission which was established and led by Judge Leon.  This was after the death of 104 mine workers in Vaal Reefs.  The Commission gathered evidence that showed how the health and safety of mineworkers was compromised and not taken care of by Mining houses.

The promulgation of the MHSA was a huge victory for the mineworkers and such gains cannot be reversed by this unlawful migration by Anglo American. 

The reason for migration is simple, Anglo American seeks to move away from the strict regulatory regime of the Department of Mineral Resources and Energy to the toothless and incompetent department of Labour Inspectorate.

The migration from MHSA to OHSA will result in mine workers loosing their hard fought rights as contained in the MHSA:

Section 22: Employees’ duties for health and safety.

Section 23:  Employees’ right to refuse to work and or withdraw themselves from working in areas they deem to be unsafe;

Section 54: Inspector’s powers to deal with dangerous conditions.

Section 55A: Inspector’s powers to recommend a fine.

Section 55B: Principal Inspector of Mines may impose fines.

Section 60:  Initiating investigations for serious injuries and fatalities.

Section 64:  Investigation reports by inspectors.

Section 65:  Initiating injuries for serious injuries and fatalities;

Section 69:  Right to participate in the inquiry.

Section 74:  Inquiry and inquest may be conducted jointly.

All these rights are not contained in the OHSA.

Right to leave a dangerous working place

One of the fundamental rights enjoyed by mineworkers is the right to leave a dangerous working place without seeking permission first.  The MHSA explicitly grants employees in the mines, the right to stop work in circumstances of danger, whilst the OHSA does not.

Anglo American claim that the said migration in consultation with the Chief Inspector of Labour and the Chief Inspector of Mineral Resource & Energy.  As the NUM we are of the view that no law in this country provides legal authority to any Chief Inspector to authorise migration.

We served all of them including the Ministers of both departments with court papers.  However, none of them has filed court papers to indicate whether they support this unlawful conduct by Anglo American or not.

We call upon Minister Gwede Mantashe and Minister Thulas Nxesi, together with their Chief Inspectors to file affidavits in Court and declare their stance on this matter.

We further call on all workers to take note of the unlawful migration process by Anglo American.  We have declared a dispute and launched application in the High Court.  This is a matter which if need be, will find its way to the Constitutional Court.

We thus call upon the employer to stop the unlawful implementation of the unlawful migration pending the court case.

Accordingly, The NUM special congress reflected on the longstanding resolution tabled at NEDLAC by COSATU and other Federations to merge the two legislation MHSA and OHSA. The NUM believe that MHSA is more protective of the right of the workers compared to OHSA. In that the MHSA is more directive and well-regulated compare to OHSA. Accordingly we call upon the parliament to expedite the process of promulgation of the merging of the two legislation.

As NUM we are going to do whatever it takes to protect the rights of mineworkers.

Issued by Livhuwani Mammburu, NUM National Spokesperson, 27 March 2023