A mine overseer who was dismissed by Sibanye Gold following the death of three workers has been reinstated after the Labour Court in Johannesburg ruled that he was being used as a scapegoat for the accident.

On the day of the accident, on December 3, 2021, the Load Haul Dump (LHD) operator reported in his checklist that the LHD would not start, and he left the decline after getting permission from the foreman. He left the LHD at the workshop for the mechanic to fix. 

LHD is a large vehicle that operates daily in the decline between the hours of 5am to 9am to clean the spillage at the bottom of the shaft.

Swart, a diesel mechanic, who was not licensed and not authorised to operate the LHD, took it upon himself to operate the LHD to load the spillage. Meanwhile, a second team came to work in the decline.

Nell, the mine overseer, was unaware that the LHD was being operated by Swart. He was under the impression that the LHD was being operated by the licensed driver who had left.

He notified a worker, who then instructed the secondary support team to vacate the decline. This allowed the LHD to finish its daily task of loading the spillage. The team complied and moved to a safe location, as no workers were permitted in the decline while the LHD was operational.

After the LHD finished loading, Swart informed the secondary support team that he was done and that the crew could begin working in the decline. Consequently, the team entered the decline to start work. However, Nell was not made aware of these new developments.

As Swart was working, he was asked by some employees to bring an oxygen cylinder down the decline and instead of walking, he agreed to transport the oxygen cylinder using the LHD which was in contrary to the safety rules. Nell was not aware that Swart had agreed to transport the oxygen cylinder down the decline using the LHD.

Unfortunately, Swart was unaware of the LHD’s faulty brakes, including a malfunctioning parking brake. Unfamiliar with emergency procedures, Swart failed to follow safety protocols as the LHD descended down the decline, leading the vehicle to strike two workers. Swart was ejected from the vehicle during the incident and later died from his injuries.

Subsequent to the fatal incident, Nell was charged, found guilty and dismissed for giving Swart permission to operate LHD while he had full knowledge that the secondary team was also working in the decline.

He was further accused of failing to ensure that the secondary team go through job induction on operating procedures before commencing work on the decline.

Nell challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA) and he was cleared of any wrongdoing.

‘‘My finding is that this charge against the applicant (Nell) is without merit,” said the commissioner.

Unhappy with the ruling, Sibanye Gold sought relief at the Labour Court and argued that the

Sibanye Gold was dissatisfied with the ruling and sought relief from the Labour Court, arguing that the commissioner committed a gross irregularity by failing to consider material evidence.

The mine contended that had this evidence been considered, it would have been found that Nell was guilty because he failed to stop the LHD from operating. If he had done so, Swart would have been identified and instructed not to go back down the decline.

Looking at the evidence, acting judge Deirdre Venter said Nell could not have foreseen harm as the secondary support crew, to his knowledge at that time, was not in the decline while the LHD was being operated.

Judge Venter added that prior to the secondary support crew commencing their work, there was a site visit where the operation of the LHD was discussed.

“The secondary support crew are trained in safety and are experienced miners.”

As a result, judge Venter dismissed Sibanye Gold’s application.

sinenhlanhla.masilela@iol.co.za

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