DISASTERS AND JUSTICE OP-ED
Remembering Hlobane – 40 years of the struggle for mine health and safety
The Hlobane mining disaster marked a major turning-point in the ongoing battle to secure higher levels of occupational health and safety for workers in South Africa, but much remains to be done.
Early on the morning of Monday, 12 September 1983, a methane explosion tore through the Hlobane colliery outside Vryheid in northern KwaZulu-Natal, killing 68 mineworkers.
By a tragic coincidence, 57 miners had died and six were seriously injured in 1994 in a previous methane explosion at the same mine, 39 years to the day earlier.
The picture of the accident that emerged showed how it flowed from apartheid-era mining practices. The response of the recently formed National Union of Mineworkers (NUM) was to have a lasting impact on mine health and safety.
The mines in 1983
Hlobane, which was owned by the parastatal Iscor, worked a shift system known as the 11-day fortnight, with a half day on Saturdays. This working condition was insisted on by the Mynwerkersunie which represented white mineworkers. A benefit was that their members could play or watch rugby and other sports on Saturday afternoons.
Apartheid-era job reservation was still in place and black workers were not permitted to obtain the qualifications needed to become a certified miner and to move up the mine hierarchy. They were still required to address their often much younger white supervisors as “baas”. As black workers spent their working days at mine working faces, they were at far greater risk of injury, disease and death than their supervisors.
Methane gas, which is explosive when found in quantities between 5% and 15%, is an ever-present danger in coal mining. For an explosion to occur there must be a build-up of methane which goes undetected and is ignited. The massive gash in the middle of the Johannesburg city centre is a stark reminder of what can happen when methane goes undetected.
The mine was ventilated by air driven into its working faces. Heavy cloth curtains, known as brattices, were installed to ensure the full force of air pumped into the mine reached the working faces to dilute the methane. On the Saturday morning before the explosion, a brattice had been holed by a piece of heavy mining equipment that was driven through it. The air escaping through the hole reduced the ventilation flow by about half, massively increasing the risk of a methane build-up.
The miner on duty reported the incident to his immediate supervisor, the shift-boss, who told him to “maak ‘n plan”. What repairs were made is not known as the shift-boss, who had a legal duty to ensure safety requirements were met, did not follow up or report the incident up the mine hierarchy before he went off for the weekend.
Methane accumulated in the empty mine over the weekend, reaching lethal levels. The gas was not detected at the start of the Monday-morning shift and shortly afterwards a spark from a piece of mining equipment triggered the explosion. The workers had entered a death trap.
The accident offered NUM, which had been in existence for less than a year, its first major opportunity to challenge apartheid-era mining health and safety.
NUM quickly instructed my colleague, Clive Thompson, to assemble a legal team, with the late Dennis Kuny SC and Gilbert Marcus as counsel, to represent the families of deceased mineworkers at the joint inquest-inquiry held into the accident at the Vryheid Magistrates’ Court.
With assistance from international mineworkers’ bodies, the union assembled a team of three renowned health safety experts (from the UK, Germany and the US) who, together with a local expert, made substantial technical input at the inquiry.
The accident was the consequence of the failure of several safety systems. Despite this, the Chamber of Mines had awarded it four (out of a maximum of five) stars through its safety rating system.
In preparation for the inquest I travelled to Natal with the late Zoli Kunene, who was then a legal officer at Council of Unions of South Africa to copy the inquest documents and make contact with the families of deceased miners. When we needed to spend a night in Vryheid, Zoli was told he could only sleep in a minute “driver’s room” at the back of the hotel and so we drove back to Johannesburg. NUM general secretary Cyril Ramaphosa was to suffer similar indignities when he travelled down to attend court.
The inquiry lasted for two weeks and attracted considerable national and international media coverage. Ramaphosa and his counterpart, Arrie Paulus from the Mynwerkersunie, were in court on the same day. When a press photographer asked them to pose together for a photograph, Cyril agreed while the latter, a noted racist who opposed any advancement for black miners, declined.
The evidence at the inquiry showed that the accident was the result of shocking systemic neglect. The ventilation was below the required levels, there were inadequate lamps to test for methane and 14 of the 29 pieces of mining equipment in the blast area were not properly flame-proofed to prevent ignitions. The brattices were not made of fire-proof material, as required by law, and basic precautions to control coal dust with water were not taken.
These two factors greatly increased the death toll: while the initial explosion was of moderate strength, it was propagated by burning brattices and coal dust, killing workers who were up to 450m from the site of the explosion.
The accident was the consequence of the failure of several safety systems. Despite this, the Chamber of Mines had awarded it four (out of a maximum of five) stars through its safety rating system, which NUM was later to show was more a PR exercise than a serious safety rating system. The mine was rather more efficient in its production systems: underground work resumed on the afternoon of the accident.
South African mining companies tended to pin the blame for accidents on individuals, particularly those who had lost their lives, and obscure the broader systemic causes.
The NUM team also demonstrated that the regulations for South African collieries were well below international standards. Techniques for detecting methane, preventing ignitions and mitigating harm commonly used elsewhere in the world were not required. There had been a massive increase in the scale and profitability of South African coal mines since the oil crisis of 1973, but mines continued to operate under outdated and inadequate safety standards.
The evidence produced at the inquiry led to significant revisions to the mine safety regulations that raised the health and standards for collieries. The publication of those regulations marked NUM’s first major contribution to health and safety regulation. Shortly afterwards, the union published a health and safety manual titled “8,000 ways to die” which amply summarised the risk of being a mineworker in South Africa.
NUM also obtained increased financial compensation for the families of the deceased workers under the Workmen’s Compensation Act, with the compensation commissioner accepting that the mine’s negligence had caused the explosion. It was the first successful claim of this type for many years but the miners’ low pay limited the size of the claim.
South African mining companies tended to pin the blame for accidents on individuals, particularly those who had lost their lives, and obscure the broader systemic causes. This “last-straw” thinking was a significant reason that mine accidents occurred with such regularity during apartheid. More than a decade later, in 1994, at the Commission into Mine Health and Safety, this position was still articulated by the Chamber of Mines which claimed that South Africa had “first-world mining companies with third-world miners”. This argument was rejected by the commission whose report provided the basis for the Mine Health and Safety Act of 1996.
The fight-back: State capture
In the aftermath of the inquiry, the mine inspectorate and mining houses closed ranks to prevent NUM’s challenge to the racial status quo. In this form of “state capture”, state authorities are so dominated by the interests of the industries they are supposed to regulate, that they interpret their mission as being to protect the industry, even from its own workers and their unions.
Various strategies were deployed to exclude NUM from safety forums. This approach reached its peak after the Kinross accident in 1986 in which 177 miners lost their lives in an entirely preventable fire. The presiding inspector refused to allow NUM to participate in the accident inquiry, on the grounds that none of its members could be held responsible for the accident. As a result, the inquiry into the largest accident in the history of gold mining in South Africa lasted for a full three hours. NUM had to litigate all the way to the Appellate Division to reopen the inquiry.
Much-needed changes to create an appropriate crime of corporate homicide, which is a feature of health and safety laws internationally, have not been introduced.
The Chamber of Mines was angered that the late Mike Martinson, a senior lecturer in the Mining Engineering Department at Wits University, had assisted NUM at Hlobane and other inquiries. A few years later, when he turned 60, the chamber made sure that the university refused to renew his contract for a further five years, as was the standard practice at the time.
At the inquiry, NUM contended that there was ample evidence for the mine to be prosecuted for culpable homicide and for breaching 21 separate regulations. The mine was eventually charged with breaches of a few regulations and in a hush-hush hearing conducted without notice to the union or the families of the deceased, the mine was fined the insulting amount of R400. (As NUM pointed out in a press statement, less than R6 per life lost.)
Past, present and future
Hlobane marked a major turning point in the ongoing battle to secure higher levels of occupational health and safety for workers in this country, but much remains to be done.
Some of my colleagues at Cheadle Thompson & Haysom still represent NUM at mine inquiries. Many of these inquiries result in recommendations for prosecutions but the NPA does not regard this as a priority and there has not been a prosecution in recent years. Much-needed changes to create an appropriate crime of corporate homicide, which is a feature of health and safety laws internationally, have not been introduced. Press reports indicate that further cuts to the budget of the mine health and safety inspectorate are possible.
Read more in Daily Maverick: Jagersfontein dam disaster highlights transparency, ESG issues
The death of 68 mineworkers at Hlobane in 1983 was a very South African tragedy. That it was a repeat of a virtually identical accident 39 years earlier illustrates the reluctance of the mining industry to learn the lessons of the past.
Forty years on, South Africa may be a different country but much of the song remains the same: the law is not used to sanction employers who do not protect their workers’ health and safety and there are minimal consequences for negligence. The victims continue to be our country’s workers who still face the ever-present risk of injury, disease or death at work. DM
Paul Benjamin is a director of Cheadle Thompson & Haysom Inc. Attorneys and an Extraordinary Professor of Labour Law at the University of the Western Cape. He has been active in labour law and labour market policy issues since 1980.