RE: MACUA AND WAMUA SUBMISSIONS TO THE CHIEF INSPECTOR OF MINES DEPARTMENT OF MINERAL RESOURCES AND ENERGY, MINE HEALTH & SAFETY INSPECTORATE ON GUIDELINE FOR THE COMPILATION OF A MANDATORY CODE OF PRACTICE FOR THE MANAGEMENT OF COVID-19 IN THE SOUTH AFRICAN MINING INDUSTRY.
Dear Mr Msiza.
We are grateful for the opportunity to provide you with our submissions following the court directive that we should be included in a “meaningful consultation” process towards ensuring that all stakeholders are adequately protected during this Pandemic and State of Disaster.
MACUA, as an affected stakeholder, will submit that mining affected communities are particularly vulnerable to severe and even fatal cases of Covid-19 so as to warrant special protection. Unless targeted prevention measures are put in place and health facilities are scaled-up in mining affected communities, Black working class and poor women in communities are likely to suffer the worst of this pandemic.
Socio-economic circumstances of mining affected communities
While the legislative framework has the potential to drive positive social and economic development, particularly at the local level, it is MACUA’s considered view that there is a disjuncture between the intended impact of the legislative framework and the lived reality of many mining affected communities.
Despite extensive regulation and notable attempts by mining companies and government to implement progressive and sustainable projects, current industry practice is characterised by inconsistent legal compliance and reflects concerning legislative gaps. As a result, many mining affected communities continue to experience significant levels of poverty and systemic inequality. This reinforces the notion that the benefits of mining operations disproportionately favour mining companies and the State and are often to the detriment of mining affected communities.
Furthermore, existing socio-economic challenges in mining affected communities are compounded by a lack of coordination and cooperation among industry stakeholders and a general disregard for
South Africa’s unique context. These challenges are heightened in rural or remote communities, where there is inadequate access to basic services, poor infrastructure, endemic unemployment and high levels of poverty.
In fact, in South Africa, mining has not only denied people the resources for nutrition but has resulted in the direct infringement of their right to health. Mining has been linked with illnesses such as tuberculosis, silicosis and other respiratory illnesses.
The environmental impact of mining includes erosion, formation of sinkholes, loss of biodiversity, and contamination of soil, groundwater, and surface water by chemicals from mining processes. In urbanised environments mining may also produce noise pollution, dust pollution and visual pollution.
In many mining affected communities, mining has led to a loss of natural resources on which communities rely for their livelihoods and well-being, including water resources, agricultural land due to pollution of their water sources, air and shifting of topsoil through mining activities such as blasting
While the public are advised to wash their hands frequently to avoid exposure to the virus, in many mining affected communities’ levels of access to safe potable piped water are low. Many mining affected communities do not have access to clean running water, washing their hands on a regular basis as required by government is almost impossible. Given the frequent impacts of mining on water.
companies and the State Respondents need to make sure communities are able to access sufficient water, especially at a time when water is critical for preventing the spread of Covid-19. In most cases mining companies have pre-existing obligations with respect to access to water in terms of their social and labour plans.
Large scale mining, especially where labour is not recruited locally, often leads to a significant housing backlog, as is notorious in an area such as Rustenburg. As the case of Marikana has shown, the social and labour plan housing obligations in order to offset these impacts are often not complied with. The result in many mining-affected communities is crowded settlements exacerbated by the lack of water and services.
At a time in which social distancing and staying at home is required to prevent the spread of Covid-19, the lack of adequate access to housing and the necessary water and sanitation is a recipe for a humanitarian catastrophe. Of particular concern during the Covid-19 pandemic and the exposure due to the re-opening of mining are limited access to health facilities (to treat patients) compounded by transport challenges.
Impact of mining on communities that render them especially vulnerable to Covid-19.
Environmental Health.
The environmental right in Section 24 of the Constitution seeks to ensure that one is not exposed to an environment that is harmful to their health and well-being. A healthy environment therefore lies at the core of the environmental right.
As we’ve highlighted, mining has been linked with illnesses such as tuberculosis, silicosis and other respiratory illnesses.
It is widely known that severe cases of Covid-19 are more common amongst people with pre-existing health conditions such as respiratory illnesses. There is, therefore, a real danger that mining-affected communities are particularly vulnerable to severe and even fatal cases of Covid-19 so as to warrant special protection.
Mining and the Right to Health.
The preamble of the World Health Organisation defines the right to health as “a state of complete physical, mental and social well-being.” The right to health is therefore not only the right to access health care, but it is also the right to conditions that do not put your health at risk.
The link between mining and various respiratory illnesses is undeniable. For people living in poverty, their health may be the only asset on which they can also exercise other economic and social rights, such as the right to work or the right to education. Physical health and mental health therefore enable adults to work and children to learn, whereas ill health is a liability to the individuals themselves and to those who must care for them. Individuals’ right to health also cannot be realised without realising their other rights, the violations of which are at the root of poverty.
Access to water.
Section 27(1) (b) of the South African Constitution states that everyone has the right to sufficient food and water. As previously highlighted, while the public are advised to wash their hands frequently to avoid exposure to the virus, in many mining affected communities’ levels of access to safe potable piped water are low. Many mining affected communities do not have access to clean running water, washing their hands on a regular basis as required by government is almost impossible.
Food security
In rural communities, the land is an important source of sustenance. Community agriculture and livestock provide food and therefore saves many from hunger even those not employed in the formal economy. Produce is also often sold on a small scale to the market providing basic income.
Mining frequently disrupts and removes this source of security and livelihood through dispossession of land and rights to land, and pollution which damages both crops and causes death of livestock.
Mining at best only employs a very small fraction of communities, especially newer mines in sectors such as platinum which are increasingly mechanised. Coupled with the impacts on food security, this unemployment means that many in mining-affected communities are going hungry at a time when weakening of immune systems is especially likely to lead to mortality.
Housing
As previously highlighted, many mining affected communities are in crowded settlements exacerbated by the lack of water and services. At a time in which social distancing and staying at home is required to prevent the spread of Covid-19, the lack of adequate access to housing and the necessary water and sanitation is a potential recipe for a humanitarian catastrophe.
Women and children
It is common cause that in practice the burden of unpaid productive labour, including the usual domestic tasks and caring for the ill fall on women. Obstacles in accessing water, for example, already increase this burden on women, which in turn detracts from time and energy for livelihoods.
In this context, should Covid-19 be allowed to spread in mining affected communities, the burden on women is likely to be compounded. Further, they will be exposed to the virus as carers of family members who are infected. Unless targeted prevention measures are put in place and health facilities are scaled-up in mining affected communities, Black working class and poor women in communities are likely to suffer the worst of this pandemic.
Children are also a particularly vulnerable group. Given that many in mining affected communities are likely to have compromised immune systems due to the pollution associated with mining, for children this could mean severe illnesses being suffered by their parents, grandparents and other caregivers.
Many mineworkers live in mining affected communities. The approach to dealing with the Covid-19 pandemic should be coordinated. It therefore makes little sense to for instance screen and test miners but make no efforts to integrate this with the screening and testing within mining affected communities.
Proposals by MACUA & WAMUA
Overview
The mines, mineworkers and mining affected communities are intrinsically interlinked. This is a unique relationship. Evidence of this relationship is contained in various legislative provisions such as the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), Social Labour Plans
and the Socio- Economic Empowerment Charter for the Mining and Minerals Industry, 2018 (Mining Charter).
As confirmed by the Labour Court Judgement, mining affected communities` environmental and health rights are recognised by the MHSA. In this regard, the MHSA places certain duties on the State and on mines to ensure the protection of mining affected communities.
Mining affected communities are vulnerable stakeholders in mining. MACUA seeks to ensure that the Minister and/or the Chief Inspector exercise their statutory powers in a manner that also protects mining affected communities during the Covid-19 pandemic irrespective of the statutory provisions that they seek to invoke.
Section 5(2)(b) of the MHSA stipulates that as far as reasonably practicable, every employer must ensure that persons who are not employees, but who may be directly affected by the activities at the mine, are not exposed to any hazards to their health and safety.
Furthermore, section 8(1)(c) of the MHSA stipulates that every employer must prepare a document that establishes a policy concerning the protection of persons who are not employees but who may be directly affected by the activities at the mine.
In addition, section 49(1)(e) of the MHSA compels Inspector to determine and implement policies to promote the health and safety of persons at mines and any person affected by mining activities.
In connection with any health hazard, section 76 (2)(f) of the MHSA stipulates that the Minister, after consulting the Council, by notice in the Gazette, may provide for any other matter that the Minister considers necessary to protect employees exposed to the health hazard.
Mining affected communities are persons who may be directly affected by mining activities as contemplated by the aforementioned statutory provisions. Section 49(1)(e) of the MHSA and section 76 (2)(f) of the MHSA enjoin the Minister and the Inspector to exercise their statutory powers in a manner that protects persons affected by such as mining affected communities during the Covid-19 pandemic. Furthermore, section 5(2)(b) of the MHSA and section 8(1)(c) of the MHSA also places certain horizontal duties on mines to exercise their statutory powers in a manner that protects persons affected by such as mining affected communities during the Covid-19 pandemic.
From our initial reading of the GUIDELINE FOR THE COMPILATION OF A MANDATORY CODE OF PRACTICE FOR THE MANAGEMENT OF COVID-19 IN THE SOUTH AFRICAN MINING INDUSTRY presented to us on the 06th of May 2020, we have not identified any community specific interventions that would suggest that the statutory and constitutional obligations towards affected communities have been met.
We therefore recommend the following for inclusion into the GUIDELINE FOR THE COMPILATION OF A MANDATORY CODE OF PRACTICE FOR THE MANAGEMENT OF COVID-19 IN THE SOUTH AFRICAN MINING INDUSTRY.
- 3. OBJECTIVES OF THE GUIDELINE, to include communities as follows:
The objective of this Guideline is to assist employers to establish and maintain a
COVID-19 management programme at mines, which if properly implemented and
complied with, would protect the health of the mine employees [and affected communities].
- 5. SCOPE, to include communities as follows:
5.1 This Guideline applies to all mines or part/s thereof, mine employees, irrespective of employment category, (and), contract employees [and affected communities] in the SAMI that might be exposed to COVID-19 in the performance of his or her duties, [or by virtue of living close to the mine].
- 6. Task Team:
We have noted that there are no community representatives on the Task Team and we ask that this be rectified by the addition of 2 representatives of Community organisations onto the Task Team.
- 8.3.1.2 We propose the inclusion of community in the following:
This COP and procedures for immediate isolation of people who have signs
and/or symptoms of COVID-19 must include:
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- i. A dedicated 24-hour number of which employees [and affected community members] will use to reach the mine’s dedicated health employees assigned to COVID-19;
- ii. Procedures to report when an employee or [community member]is sick or experiencing symptoms of COVID-19,
- iii. How and where the 14 days isolation will take place for employees [and community members] suspected of being infected with COVID-19;
- iv. The site/s where employees [and community members] with suspected COVID-19 infection will be screened, diagnosed, treated. This must include what will lead to admission to a health facility;
- 8.3.2.2 We propose the following additions:
- The provision of psychosocial support for the employees [and community members] through the Employee [and Community] Assistance Programme.
- 8.3.2.3 We propose the inclusion as follows:
Vulnerable employees [and community members] should be triaged and managed as per the NICD protocols.
- 8.3.3.2. We propose the following changes:
Communicate and establish a process for collaborating with the Department of
Health (DOH) District Communicable Diseases unit in order to be familiar with the
district’s plan including the district’s process on early outbreak detection,
diagnosis (testing) procedures, isolation, quarantine, reporting procedures for
COVID-19 and arrangements for hospitalisation of employees [and community members] who require it. (if a mine does not have the hospital facilities)
- 8.3.3.3. We Propose the following addition:
Ensure sufficient availability of resources such as:
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- i. Facilities – pre-screening areas, isolation areas, quarantine areas, [and masks for employees and affected communities]
- 8.3.3.5 We propose the following changes:
Screen on a daily basis healthcare employees and staff assisting with the RTW before mass screening of employees [and the surrounding community] thereafter screen all employees on daily basis.
- 8.3.4 Arrival of employees. We propose the following additions:
- d) Create an awareness material for employees [and affected communities] on COVID-19
- i) [Ensure that hand sanitisers (as per World Health Organisation guidelines) or water and soap are made available to affected communities and at the starting points and end points of all places where close contact among the community is likely to occur.]
- 8.3.5 Screening and testing We Propose the following additions:
- 8.3.5.1. The employer must screen all the employees [and affected communities] including the visitors at the designated areas.
- 8.3.5.3 We propose the following changes:
Employees [and affected community members] will be tested only if they meet the PUI criteria, which includes having symptoms of a respiratory illness of recent or sudden onset.
- 8.3.5.4 We Propose the following inclusion:
Employees [and affected community members] who do not have elevated temperatures must be referred to the Medical Centre for COVID-19 Risk Assessment and to complete return to work medical.
- 8.3.5.6. We Propose the following:
Employees [and affected community members] with pre-existing conditions that will predispose them to COVID-19, must be identified and only be permitted to work after being declared fit by an occupational medical practitioner, [or be isolated according to medical advice].
- 8.3.5.8 We Propose the following addition:
Dates for flu vaccination for all employees [and vulnerable community members] must be scheduled and employees [and vulnerable community members] with pre-existing conditions must be prioritised.
- 8.3.6.1 We Propose the following additions:
The employer must implement a referral system that will assist in determining the need for testing:
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- i. Employees [or community members] with abnormal findings to the medical centre for further assessment and management.
- ii. Employees [or community members] with any psycho-social symptoms to medical centre to facilitate referral to EAP (Employee Assistance Programme).
- 8.3.7.1 We Propose the following inclusions:
The employer must identify and implement designated areas for isolation whereby the following must apply:
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- i. Assessment of employees [or community members] for COVID-19 signs and symptoms.
- ii. Referral of employees [or community members] who meet the NICD criteria of a PUI.
- iii. Employees [or community members] whose test results are positive for COVID-19 and are not very sick with the capacity to self-isolate may do so at home for 14 days (under the guidance of a medical personnel)
- iv. These employees [or community members] must be provided with the necessary PPE and contact tracing must commence thereafter in accordance with DOH procedures.
- v. The medical centre team must follow-up telephonically with the employee [or community members] on a daily basis, record progress and refer to hospital if required.
- vi. Inform the medical centre if the employee [or community member] is not fit to return to work.
- vii. A register of employees [and community members] presenting with symptoms, i.e. PUI and who are referred for isolation, as per DOH guidelines, must be kept.
- 8.5 COMPENSATION. We propose the following changes:
- 8.5.1 In the event of an employee [or community member] acquiring COVID 19 that arises out of [the re-opening of the mine] and[/or] in the course of the employee`s employment, [or community members exposure to mine employees and pollution from mining activities] the employer must follow the process stipulated in the Notice on Compensation for occupationally acquired novel corona virus disease.