“Safety of employees at the workplace is paramount, it cannot be compromised. An employer cannot be expected to wait until an employee has maimed or lost his or her life before taking decisive action against an employee who has exposed fellow employees to danger. Procedures which are intended to prevent injury and fatality, particularly in the mining industry, need to be complied with properly because the lapse has disastrous consequences” – Sasol Mining (Pty) Ltd v CCMA & Others.
Anyone associated with the mining industry knows just how dangerous a mine can be, and that compliance with health and safety systems and rules that are implemented in compliance with the provisions of the Mine Health and Safety Act, No. 29 of 199 (MHSA) is critical to avoid incidents/accidents. In addition to training, mentoring and coaching programmes that are aimed at securing compliance with the mine rules, employers also resort to disciplinary action, particularly where the breach of the rules is serious and where a breach results in injuries or even death.
The Labour Court has again, recently, had to consider dismissals for health and safety breaches, and in this article we discuss two recent review judgments of the Labour Court.
The recent Labour Court judgment of NUM obo Howard Mathebula v CCMA & Others has highlighted the importance of an entrenched principle of mine health and safety law, being that of an employee’s duties for health and safety, as well as the reasonableness of an employer’s dismissal of employees who fail to adhere to safety rules and procedures.
Section 22 of the Mine Health and Safety Act obliges all employees to take reasonable care to protect their own health and safety, as well as take reasonable care to protect the health and safety of other persons and comply with prescribed health and safety measures. It is well known in the mining industry that this duty extends from subordinates to superiors, and vice versa.
In NUM obo Howard Mathebula v CCMA & Others, handed down in late August 2025, the Labour Court was tasked with a review application, brought by an Engineering Supervisor, Mr Mathebula, appointed in terms of Regulation 2.9.2 and Section 7(4) of the MHSA, who was dismissed by Khutala Colliery for a failure to follow health and safety procedures, which resulted in the serious injury of a fellow employee.
The facts of the case are relatively simple and include aspects which are common to employees working in the mining industry. Mr Mathebula was instructed to repair a damaged nip guard bracket and as the appointed engineering supervisor, was required to ensure that there was compliance with all applicable legislation, as well as Khutala Colliery’s mandatory code of practice for lockout of systems, machinery, equipment and apparatus. Mr Mathebula was also required to ensure that all persons under his control were fully conversant with the MHSA, and to provide and maintain a safe working environment that is safe without risk to health. In carrying out the repairs, Mr Mathebula failed to ensure that there was proper compliance with the isolation and lockout procedure, and when the work began, one of the subordinate employees assisting Mr Mathebula was trapped between the belt and machine, when energy was introduced into the belt which was supposed to have been “locked out”, and the subordinate employee sustained serious injuries.
Following the incident, Mr Mathebula was subsequently dismissed from Khutala Colliery for his transgression of lifesaving rules, for allowing subordinates to work in unsafe conditions and/or against the standards and rules of Khutala Colliery. He was additionally charged with dishonesty in respect of an alteration to a “Hot Work” permit, which alteration was made after the incident had occurred, as a means of covering up.
In the CCMA, the Arbitrator found, amongst other things, that Mr Mathebula had shied away from his responsibilities and taking accountability for his actions, his allegations that he was not trained to work on the machine were improbable, that he was negligent in carrying out his functions as a supervisor, and that he was instructed to alter the work permit is highly improbable.
On review in the Labour Court, the Labour Court found that Mr Mathebula did not, in the circumstances, satisfy the grounds for review, and failed to find that the Arbitrator was unreasonable in her finding. The Labour Court analysed the Arbitrator’s findings and determined that the Arbitrator’s findings were not open to attack. The Labour Court re-emphasized the important of health and safety rules in the workplace, and reiterated prior judgment of Sasol Mining (Pty) Ltd v CCMA & Others, as well as Samancor Chrome (Tubatse Ferrochrome) v MEIBC & Others. In reaching its decision, the Labour Court underscored that “in such a case in the mining industry, it is reasonable to highlight the importance of safety rules, considering the potential life-threatening consequences of a breach of such rules”.
In Sibanye Gold (Proprietary) Limited v CCMA and Others, handed down on 14 August 2025, the Labour Court had to decide whether the dismissal of a mine overseer (Mr Nel) who was appointed in terms of Regulation 2.14.1 of the Regulations that remain in force and effect in terms of Schedule 4 of the MHSA was substantially fair, as found by the Commissioner following an arbitration under the auspices of the CCMA.
The facts of this case are also relatively simple but what distinguishes it from the case referred to above, is that, in this matter, three persons were fatally injured.
Following the accident underground on 3 December 2021 which resulted in the death of three employees, Nel was charged, found guilty and dismissed in relation to two offences.
The relevant facts were that, on the morning of 3 December 2021, the licenced operator of the load haul dumper (LHD) a large piece of machinery, reported on his pre-use checklist that the LHD would not start, and he left the excavation (Decline) after getting permission from his supervisor. The operator of the LHD left the LHD at the underground workshop for the mechanic (Mr Swart) to fix. Nel was not aware that the licenced operator of the LHD had left the Decline, and Nel was not aware that a discussion had taken place amongst employees that the LHD would not operate in the Decline that day.
Swart, a diesel mechanic, was not licenced and authorised to operate the LHD, but he nevertheless took it upon himself to operate the LHD. Nel was not aware that Swart was operating the LHD. When Nel was informed that the LHD was operating in the Decline, he was not aware that it was being operated by Swart, and he was under the impression that the LHD was being operated by the licenced driver. Nel was also not aware that employees were in the Decline at the time. As Swart operated the LHD down the Decline, with a faulty parking brake, the LHD “ran away”, striking two employees, while Swart himself was ejected from the LHD, and succumbed to his injuries. The Commissioner found that Swart was on a “frolic of his own” when he operated the LHD, and that Nel was not aware that Swart was operating the LHD.
The Court dismissed the application to review the decision of the Commissioner and, essentially upheld the Commissioner’s finding that the dismissal of Nel was not justified on the evidence presented to the Commissioner.
These judgments emphasise the importance of health and safety, but at the same time, reaffirm the importance of ensuring that, when employees are charged with offences relating to health and safety, the evidence must support the charges, failing which dismissals may be found to be substantially unfair, and attempts by employers to take a “zero-tolerance” approach to health and safety breaches may be compromised.
Should you require any more information, please contact Warren Beech at warren@bv-inc.co.za or Bryan White at bryan@bv-inc.co.za.
Disclaimer:
This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.