With more coal mines being recommissioned, owing to the increasing global demand for coal, more employment opportunities and a rising contribution to the fiscus in South Africa are expected, says law firm Webber Wentzel employment, health and safety partner Kate Collier.

Despite the global emphasis on a just energy transition and a move away from coal by 2050, South Africa and other countries are still heavily reliant on the commodity, says Webber Wentzel partner and mining law specialist Rita Spalding.

The recommissioning of mines will also allow operations “a chance to do things better”, Spalding adds.

This means that mining operations have the opportunity to improve on, for example, safety and dewatering systems, as well as make operations more economically viable for surrounding communities than they were previously, before being placed on care and maintenance.

Moreover, Spalding assures that the recommissioning of coal mines will not necessarily adversely impact on 2050 goals as long as mining operations ensure carbon offsets and renewable-energy projects are put in place.

Hence, such recommissioning can help drive more sustainable mining operations by enabling companies to generate revenue in “previously forgotten coal mining regions”.

“Mining companies should ensure that some form of economic succession planning is conducted now in order to create subsidiary industries in and around the mines to make the surrounding community sustainable post the ultimate closure of the mine,” adds Webber Wentzel partner and mining head Jonathan Veeran.

However, he says conceptual changes for mining operations cannot be regulated because bespoke solutions are required for individual operations.

Thus, he encourages mining companies, labour unions and government to collaborate on creating a policy agenda and developing a social compact.

Health, Safety Regulations

While recommissioning mines may be economically viable for South African coal operations, mining houses are still expected to be aware of the applicable health and safety laws and regulations that would apply when recommissioning mines and ensuring that measures – as outlined in the Mine Health and Safety Act (MHSA) – are implemented from the outset.

The MHSA outlines general obligations for employers to assess and respond to risk, and also empowers employees to refuse to work in dangerous environments.

“We must stress that the regulations are the minimum steps that employers have to take. “While employers are doing their risk assessments, if they identify that simple compliance with the regulatory framework still exposes employees to a risk of harm, employers must take additional measures because of their general duty of care towards the health and safety of their employees,” warns Collier.

She adds that the MHSA also outlines legal consequences from a mineral rights regime perspective.

As a result, inspectors can suspend certificates of competency, impose administrative fines or refer matters to prosecution. Should they find any immediate threat to the health and safety of employees they can issue instructions halting some or all of the operations.

Both individuals and companies can, consequently, be charged for contravention of the MHSA, or culpable homicide in the event of a fatality.

Compliance with health and safety is also a key consideration for compliance in terms of the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA): should the mining right holder be in breach of Section 93 of the MPRDA, the relevant official from the Department of Mineral Resources and Energy (DMRE) can issue a compliance notice.

This notice can either order the immediate suspension of certain mining activities, or indicate to the mine what needs to be done to end the notice.

Moreover, considering that when a mine is placed on care and maintenance, those operations will not have a closure certificate, and the mine owner remains responsible for ensuring that the operation causes no harm to persons.

This includes, for example, ensuring ground stability, security and having proper water pumping systems in place while under care and maintenance.

When looking at recommissioning and bringing an operation out of care and maintenance, an employer should consider whether the mining work programme may be out of date. Other aspects to consider will include an assessment of environmental authorisations and approvals.

“In our experience, mine recommissioning requires engagement and discussions with the various government departments on what needs to be done, and which documents may require amendment,” says Spalding.

She adds that, while there are regulations to outline the procedure for mines going into care and maintenance, there are minimal regulations for mines being recommissioned too.

Notwithstanding the lack of specific regulations on how to recommission mining operations, employers are still required to comply with existing regulations and the terms of the rights and permits.

“Mining companies are required to report to, for example, the South African Revenue Service, health and safety officials, and to the DMRE; there is a lot of reporting which does tend to ensure ongoing compliance by mining companies,” Spalding concludes.