On 18 and 25 March 2020, following the declaration of a national state of disaster, the Minister of Cooperative Governance and Traditional Affairs (“COGTA”) published regulations in terms of section 27(2) of the Disaster Management Act, 2002 ("the Act") regarding the steps necessary to prevent an escalation of COVID-19 or to alleviate, contain and minimise the effects of the disease (“the Previous Regulations”).

On 29 April 2020, the Minister issued further regulations in accordance with section 27(2) of the Act (“the New Regulations”) in terms of which the Previous Regulations were repealed and replaced by the New Regulations. However, despite the repeal of the Previous Regulations, all directions issued in terms thereof continue to apply unless varied, amended or withdrawn by the Cabinet member responsible for such directions.

The New Regulations contemplate five different “Alert Levels” that will apply at different stages throughout the duration of the national state of disaster. The applicable Alert Level, and the extent to which it applies, will be declared by the Minister of COGTA from time to time. 

Alert Level 4 will be applicable from 1 May 2020 throughout the Republic of South Africa and will remain in force until a different Alert Level is declared. Details of what is permitted and prohibited at each Alert Level will be detailed in due course. At present only Alert Level 4 criteria have been detailed.

The New Regulations prescribe general measures that must be adhered to in order to contain the spread of COVID-19. In this regard it is contemplated that:

• everyone must wear a cloth face mask (or a homemade item that covers the nose and mouth) when in a public place;

• no one will be allowed to use any form of public transport, or enter a building, place or premises if they do not wear a cloth face mask or another appropriate item to cover the nose and mouth;

• every employer must provide each employee who may come into direct contact with members of the public as part of their duties with a cloth face mask (or another appropriate item) to cover the employee’s nose and mouth; and

• all employers must also adopt measures to promote physical distancing of employees.

Alert Level 4 continues to prescribe that every person is confined to his or her place of residence, except in specified instances, such as when that person is performing an essential or permitted service, as specified for Alert Level 4; purchasing permitted goods; exercising during the permitted hours; or obtaining a service that is permitted to operate in terms of the New Regulations.

Annexure D to the New Regulations sets out those essential services that may be performed during Alert Level 4. As in the Previous Regulations, it is stipulated that gold, gold refinery, coal and mining are permitted. However, this must now be read with Part K of Table 1 and regulation 30, which deals with “Mining Operations”.

Unfortunately, the term “Mining Operations” has still not been defined in the New Regulations and it therefore remains unclear as to whether “Mining Operations” includes integral upstream and downstream activities.

Regulation 30 sets out what is permitted as part of Mining Operations together with related conditions. It states that the following activities may be performed:

“(1)      Open-cast mining scaling up to a baseline of 50% and thereafter scaling up to full employment.

 (2)       All other mining starting in batches scaling up towards 50% employment.

 (3)       Mining operations, must be conducted at a reduced capacity of not more than 50%, and thereafter at increasing capacity as determined by direction issued by the Cabinet member responsible for mineral resources and energy.”

This is slightly different to what was initially introduced on 16 April 2020 through an amendment to the Previous Regulations, which contemplated that Mining Operations must be conducted at a reduced capacity of not more than 50% during the period of lockdown, and thereafter at increasing capacity as determined by direction issued by the Cabinet member responsible for mineral resources and energy.

It appears that an attempt has been made to clarify the uncertainty around what was intended by “a reduced capacity of not more than 50%”, as regulation 30(1) and (2) now specifically refer to 50% employment. Our interpretation of this, is that open-cast mining may operate with 50% of its workforce during Alert Level 4 and may scale this up to 100% of its workforce still during Alert Level 4; whereas all other operations may only operate at a maximum of 50% of their workforce.

Regulation 30(3) reintroduces some of the same uncertainty into the New Regulations by omitting the word “employment”. It appears as though the intention is that mining is permitted at 50% of the total labour force at each individual mining operation (and 100% at opencast operations), and that the production capacity shall not be more than 50% until the Minister of Mineral Resources and Energy directs otherwise.

Regulation 30(4) prescribes the conditions that will apply when mining companies start operations and subsequently increase capacity. This regulation contemplates that:

• appropriate measures must be implemented by mining companies to protect the health and safety of workers, in accordance with the directions issued from time to time by the Minister of Mineral Resources and Energy;

• a rigorous screening and testing program must be implemented as employees return to work;

• the mining industry must provide quarantine facilities for employees who have tested positive for the COVID-19;

• data collected during the screening and testing programme must be submitted to the relevant authority; and

• mining companies must make arrangements to transport their South African employees from their homes to their respective areas of operation.

This largely mirrors the requirements which were provided in terms of regulation 11K(2) of the Previous Regulations. The New Regulations accordingly do not clear up the previous interpretational issues and resultant concerns which mining companies previously experienced.

That being said, directions were issued by the Minister of Mineral Resources and Energy on 29 April 2020 (the same day that the New Regulations were published) to all mining operations, which provide some clarity as to what is required to ensure that safe procedures are in place to maintain the health and safety of employees.

The directive requires that every employer conducting mining operations and activities in connection therewith at a mine, must implement appropriate measures to protect the health and safety of workers in respect of COVID-19.

The health and safety measures must be contained in a standard operating procedure which must be developed in consultation with organised labour or worker representatives at the mine.

Mining companies must ensure that in the development of the standard operating procedure, the following must be applied:

• the relevant guidelines issued by the World Health Organisation;

• directions and guidelines issued by the National Department of Health;

• guidelines issued by the National Institute of Communicable Diseases; and

• the risk-based approach contemplated in the Guiding Principles of Prevention and Management of COVID -19 in the South African Mining Industry issued by the Chief Inspector of Mines of the Department of Mineral Resources and Energy on 26 March 2020 (“the Guiding Principles”).

The risk-based approach referred to in the Guiding Principles is based on section 11 of the Mine Health and Safety Act, 1996 (“MHSA”) which requires the employer of a mine to assess and respond to risk.

The Guiding Principles indicate that the employer must conduct a risk-based assessment covering all workings at the mine, which must:

• identify the risk of exposure for vulnerable employees (i.e. employees with occupational diseases as well as communicable and non-communicable diseases);

• determine whether workers could be exposed to activities or materials where COVID-19 may be encountered;

• consider the number of employees at workplaces, meetings etc, taking into account the recommended social distancing requirements; and

• review internal HR policies regarding business travel, sick leave and other related policies to account for COVID-19.

This is in addition to the directive that was issued on 23 April 2020 regarding start up procedures that are to be followed to ensure that section 5(1) of the MHSA is complied with. This section requires that every employer must, as far as reasonably practicable, provide and maintain a safe working environment.

The directive indicates that the start-up procedure must address measures to be followed in order to prevent the spread of COVID-19, as well as take the necessary action to provide and maintain a safe working environment. These measures should include:

• screening of employees and contractors before accessing the mine;

• testing of employees (and contractors) who have symptoms of COVID-19;

• ensuring adequate social distancing is followed by employees;

• the provision of quarantine facilities by employees showing signs of COVID-19;

• establishing and maintaining a personal hygiene programme amongst the work force; and

• providing appropriate personal protective equipment (including face masks) to the work force.

Mines are also encouraged to systematically phase workers in at the mines.

Mining companies must consult with labour unions and develop the start-up procedure. A copy of the start-up procedure must be provided to the DMRE before commencing or ramping up operations.

The DMRE will continue with scheduled and unannounced visits to Mining Operations to monitor compliance with the Regulations and Guiding Principles, as well as the start-up procedure for that particular operation.

It is also contemplated in the New Regulations that all industries and businesses which are permitted to operate under Alert Level 4 must develop a plan for the phased return of their employees to the workplace, prior to reopening of the workplace for business. The plan must correspond with Annexure E of the New Regulations and must be retained for inspection and contain certain information, such as which employees are permitted to work; what the plans for the phased-in return of employees is; what health protocols are in place etc.

In addition, a COVID-19 compliance officer must be delegated for the business. This individual is expected to oversee the implementation of the plan and adherence to the standards of hygiene and health protocols relating to COVID-19 at the workplace. It is unclear from the New Regulations whether this is still required even in instances when a business (such as a mine operating at 50% capacity) was already operating prior to the commencement of Alert Level 4.

Interestingly, the restrictions on Mining Operations under Alert Level 4 appear largely to be the same as those which were in place during the complete lockdown. However, a major change brought about by the New Regulations, which is positive news for the mining industry, is that rail, ocean, air and road transport is permitted for the movement of cargo to other countries in respect of goods which are allowed to be exported as set out in “Annexure C”. Annexure C indicates that the export of mining products, which are permitted for production under Alert Level 4, will be permitted, subject to directions issued by the Minister of Mineral Resources and Energy.

The Minister of Transport will also issue directions for the resumption of different modes of public transport to cater for the gradual return to work.  These directions will set out hygiene conditions that must be adhered to and steps to be followed to limit exposure to COVID-19 through the use of public transport.