NPA Progress Reports on the issues around Optimum Coal Mine & Lily Mine disaster, with Deputy Minister

Meeting report

Opening Remarks
The Chairperson greeted the Deputy Minister of Justice and Constitutional Development. He recapped for Members present that he had received two letters: one was from the National Mineworkers Union (NUM) and the second one was from the Congress of South African Trade Unions (COSATU) requesting the Committee's intervention. After that, he also received a letter from the House Speaker that the Portfolio Committee should interact with that particular process as it was within the Committee's mandate. The meeting was called to get progress reports from the ministry and from the NPA with regard to the two issues: one was the Optimum Mine issue; the other was the Lily Mine disaster. The reports were circulated by the NPA very early on and Members would have gone through the reports. The NPA could just highlight the important issues because it seemed to be straightforward and then he would open the floor to Members.

Deputy Minister John Jeffery informed the Chairperson that he was just accompanying the NPA to the meeting as the Minister was, unfortunately, not able to attend due to other commitments. He suggested that he hand over directly to the Deputy National Director of Public Prosecutions, Adv Rodney de Kock.

Briefing by the National Prosecuting Authority
Adv de Kock introduced his colleague, Adv Ouma Rabaji-Rasethaba, Deputy National Director of Public Prosecutions: AFU, who would brief the Committee on progress in the Optimum Mine matter. He would report on progress in the Lily Mine matter. He added that the NPA was well aware of the fact that many people had lost their jobs at the Optimum Mine.

Optimum Mine
Adv Rabaji-Rasethaba informed the Committee that in December 2021, the NDPP instituted two related preservation applications in terms of section 38 (1) of the Prevention of Organised Crime Act: the first application sought an order preserving the shares of Tegeta Exploration and Resources (Pty) Ltd in Optimum Coal Mine and the Business Rescue Practitioners; in the second the NDPP sought an order preserving the claims of Templar Capital Limited against Optimum Coal Mine (the Templar claims). The National Union of Mineworkers (NUM) and the Mpumalanga Action Movement joined in the preservation application after intervention applications.

The objective was to finalise the forfeiture proceedings so that the curator could sell the mine as speedily as possible, at market value, and for operations to start as soon as possible as many people sought employment, but it was a highly contested space. Various forms of litigation were delaying the forfeiture application. Two freezing order applications were launched on 23 March 2022, which was two days before the business rescue practitioners intended handing the mine back to the Guptas for literally R1.00. The NDPP was successful in both preservation applications, and a preservation order in each application was granted. The NPA had approached the Deputy Judge President of the High Court where the matter was to be heard as it was a matter of public interest that had to be dealt with expeditiously and an agreement was reached for a judgment before 25 March 2023. As the law requires, within 90 days of obtaining a preservation application, the NPA filed for future proceedings on 1 July 2022 and filed papers on the purchase the following day. A curator was appointed over and above the business rescue practitioners, who were running the day-to-day operations of the mine, to oversee the business rescue process so that the value of the mine was not eroded.

Since then several parties, including the Business Rescue Practitioners, Templar, Liberty Coal and Tegeta, and others, had filed appeals against the preservation application. NUM had also filed an application of appeal. NUM’s appeal of the preservation order seemed to contradict the stated position of COSATU that it was supporting all measures to tackle corruption and state capture and recover stolen assets. However, most of the parties had not yet filed their papers and the indications were that they were engaging in a delaying tactic. The NPA had requested the Deputy Judge President to appoint a judicial case manager to call the parties to a meeting and to set a timetable. The NPA had also asked that a second judge be appointed to make sure that all the interlocutor applications were dealt with explicitly and expeditiously.

The curator had since raised his concerns surrounding three areas: water and waste management and the ramifications of the water treatment plant that was not operational; safety and environmental concerns involving humans and animals; rehabilitation compliance and funding. As a result of a fear that assets were being stripped, the AFU sent a letter to the Department of Mineral Resources (DMR) on 14 November 2022. No response had been received.

Important was the fact that the AFU alleged that the mine was bought using the proceeds of crime. No one had filed an affidavit to dispute that allegation.

Lily Mine
Adv de Kock informed Members that the tragedy at the Barberton Lilly Mine occurred on 1 February 2016. At that point, the South African Police Services did not open an investigation into the matter. In April 2019, the family members of the missing miners engaged with the South African Police Services and an inquiry docket was opened. SAPS stated that originally the case was not reported to them, either by the mine management or the Department of Mineral Resources and Energy. The DPP office in Pretoria requested that documentation be presented to it so that the matter could be considered for an inquest and it appeared that only during October 2020 was a formal case docket opened in relation to the matter. The decision was then taken by the DPP office to prepare the matter for an inquest to determine whether any individual or institution was responsible for the tragedy that occurred at the mine and, on the assumption that the miners are deceased, whether any person could be held responsible for the deaths of the miners. The date of 10 February 2023 had been set aside at Barberton Magistrates Court for closing arguments.

Adv de Kock added that the letter from COSATU had raised a concern about the recovery of the bodies of the three mine workers from Lily mine. However, that was not an issue that the NPA could comment on; such questions had to be directed to the SAPS and the management of the mine. The NPA was keeping family members fully informed of the progress in the matter.

Discussion
Ms N Maseko-Jele (ANC) welcomed the report but noted that SAPS should have attended the meeting to engage in the Lily Mine matter but apparently the time available had been an issue. Her main concern was the time that the families had been waiting and also the carelessness with which the matter had been handled, especially by the mine management that had to be provoked into action by television reports and threats of activism by the community. The mine probably had plenty of cash but the families had been left with no help at all. If the case were only opened in 2020, it showed how people in the mines were treated. There were also questions about how the Department of Mineral Resources and Energy (DMR) had handled the matter. There was a concern that cases were delayed deliberately – cases had to be prioritised. Could the NPA, in any way, try to push the matter more speedily? Could the matter be prioritised in the new year?

Adv S Swart (ACDP) was saddened by the tragic events at the Lily Mine and the lack of closure for the families of those deceased miners. His thoughts and prayers were with the families. What was the role of the DMR? He appreciated the fact that there was an inquest, but why had it taken so long? The Committee needed SAPS to advise Members.

Regarding the Optimum Mine matter, Adv Swart commended the NPA on the two preservation orders which were the biggest in the history of the NPA. The matter went back, as the documents indicated, to the Public Protector’s Report. It also went back to the parliamentary Oversight Report, which had made a lot of findings in that regard and was put on the agenda of the National assembly in November 2018. That report, which was accepted by Parliament, suggested criminal investigations into every possible act arising from a lot of irregularities at Eskom and, in particular, highlighting the Tegeta-Gupta link with the Optimum Mine that resulted in the situation the mine workers were faced with. Retrenchment of the mineworkers took place in 2018 so that the workers could obtain their pension benefits, but, as indicated by the NPA, many were hoping to be re-employed. He noted the apparent contradiction between the position of the National Union of Mineworkers and COSATU when it came to the delays being incurred in the finalisation of the forfeiture orders that would further delay the finalisation of the matter.

Adv Swart concurred with Ms Maseko-Jele about speeding up matters. Having read the documentation, he appreciated the efforts of the NPA but assured the NPA that every step of the process was going to be appealed because there was a litany of litigants involved in the Optimum matter and all of them wanted to prevent the forfeiture order from going through because it would mean the state would take possession of the Optimum Mine and the Optimum Coal Terminal at the Richards Bay terminal, which was very lucrative. The NPA had prevented the mine from going straight back to the Guptas for R1.00; that could not be allowed, given the findings that both Parliament brought out as well as the Zonda Report.

He suggested that perhaps the Committee needed a report from the DMR as he was deeply concerned about the report by the curator as to the possible asset stripping at the mine. At the end of the day, it could well be that by the time the forfeiture order had gone through all the different appeals, there would be nothing left. He also reminded the Committee that the Arnot Mine in Mpumalanga, with 1 500 miners, was closed down by the state capture project and those miners had lost their jobs.

Adv G Breytenbach (DA) was concerned by what appeared to be a lack of synergy between the NPA and the Police in the Lily Mine events. She had expected the matter would be managed by a prosecutor who would be in control and able to get the matter finalised more quickly. Could the NPA explain why that appeared to be the case?

Ms Maseko-Jele asked whether there was any information about the bodies buried in the Lily Mine. Had it been decided to close the matter of the retrieval of the bodies? Was there to be no further attempt to retrieve the bodies for their families?

Adv Swart added that he was extremely concerned that there had been no response from DMR to the letter from the NPA expressing deep concerns about safety and environmental issues, waste management, and rehabilitation at the Optimum Mine. It was in the interest of the state for Parliament to oversee the process. Could the Portfolio Committee not call the DMR to account to Members about what they were doing?

Adv de Kock dealt first with some of the follow-up questions regarding the Lily Mine. Members had to bear in mind that the circumstances of the tragic incident happened within the confines of the mine operations and so the competent authority to investigate the mine incident was the Department of Mineral Resources and Energy. According to the information he had received, the report flowing from the investigation was submitted to the DPP on 15 March 2018, which was standard practice. When there was an incident in the workplace, the law required that the DPP be furnished with a report. As could be seen from the report, the DPP office immediately engaged with the police and although initially an inquiry docket had been opened in 2016, it was only after that report from the DMR that a formal case docket had been opened. So from that point onwards, a prosecutor would have been driving the issues around the investigation, both from a labour point of view, in terms of the Occupational Health and Safety Act and from a criminal point of view.
Whether or not anyone would be found responsible for the unfortunate tragedy from a criminal point of view, was uncertain, but he assured the Committee that the DPP was fully apprised of the matter. Since it had come to the attention of the DPP national office, various reports had been requested and the DPP had been assisted to find both experts and all available evidence. The NPA had engaged in consultations with the Department of Justice which had also assisted by gathering expert witnesses. Prosecutors had been assigned both in the lower court and a prosecutor from the DPP office. The point he was making was that after receipt of the initial report, the prosecution drove, in all earnestness, the conclusion of the investigation. Could the NPA speed up the process? It certainly would do that by ensuring that the case was fully argued in February 2023 when all the parties returned so that there would be proper ventilation of the arguments in court. And then it was in the hands of the inquest magistrate, but he was sure that a short date would be given by the magistrate to come back with the inquest findings. At least then one would be able to make a determination of liability. Flowing from that, the court would listen to all the evidence, including issues around whether or not the bodies could be recovered. Once the judgment of the court was received, everyone would be in a much better position to understand how to take the matter forward on behalf of the families and whether anyone should be held responsible for the initial delays that had occurred in the matter.
Adv Rabaji-Rasethaba stated that Mr Swart was spot on. The role played by NUM was contradictory. She had personally sat with them to discuss their position. Initially, the workers and the union were all concerned about the plight of the workers and had filed a joint practice note, but when the NPA had served the preservation application, the NUM changed its position. The matter had to be finalised expeditiously and the Prevention of Organised Crime made it possible that, with the preservation order, within 90 days the NPA could file for the forfeiture order and the procedures could be concluded that fast. But with NUM opposing the application, which was not in accordance with the initial stance, the matter had to be flagged. The NPA was appealing to the Committee to help the NPA again. There was a concern about how the DMR had approved the selling of the mine to the Guptas right at the beginning and now there was an attitude of indifference. The NPA found it very difficult and did not understand how it was going to proceed under those circumstances. The mine was an asset that rightfully belonged to the people of South Africa and the value of the mine should be preserved, particularly around the issues that the NPA raised with them in the recent letter but, as yet, the NPA had not even received an acknowledgement of receipt from the Department. Previously, the NPA had to request the Deputy Judge President to assist with intervention and would do so again. The intention was to request the Deputy Judge President to allocate a judge to manage the case to the conclusion to make sure that the forfeiture application was set as the Prevention of Organized Crime Act did not allow for the proceedings to be delayed between preservation and forfeiture.
The Chairperson requested the Deputy Minister to make closing remarks.

Deputy Minister Jeffery stated that the NPA was dealing with the matter and he had little to add. He was aware that the letter from COSATU to the Portfolio Committee for Justice and Correctional Services was also addressed to the Portfolio Committee on Mineral Resources and Energy. The letter was originally addressed to the Speaker and the Chief Whip of the majority party, but it asked specifically that the matters be referred to the Portfolio Committee responsible for Mineral Resources and Energy as well as that responsible for Justice and Correctional Services. He hoped that some of the issues and concerns relating to Mineral Resources and Energy would be dealt with by that Committee and that Chairperson Magwanishe could possibly liaise with the Chairperson of that Committee. From his side, the NPA was dealing with the issue so it was for them to report, which it had done and, hopefully, the Members were satisfied with the report on the actions that the NPA had taken.

Closing remarks
The Chairperson believed that it was quite clear that work had been done, especially on the side of the NPA, but the NPA was not the only party to some of the issues, especially concerning the Optimum Mine and even the Lily Mine. With regards to the Optimum Mine, he would write a letter to the Speaker to report on the meeting and further request that the Speaker interact with the Portfolio Committee on Mineral Resources and Energy to ensure that things like asset stripping were avoided as best possible. He did not see any reason to have another meeting because most of the issues were part of the judicial processes and other matters were being appealed. The Committee would wait for the NPA to make closing statements in the Lily Mines inquest; those matters were prescribed by the law. But what was key is that the Committee should ask the Speaker to engage with the Portfolio Committee on Employment and Labour because that was one of the Committees asked to look at matters as their business pertained to workers and how they could be assisted. However, the bulk of the work to be done had to be dealt with by the Department of Mineral Resources and Energy. He would draft a report to the Speaker that the remaining matters had to be attended to by the Department backed by that Portfolio Committee.

Adv Swart agreed with his approach but suggested that should the NPA not receive assistance from the Department, or if the Portfolio Committee on Mineral Resources and Energy were not quick enough in responding, perhaps the Portfolio Committee could invite the NPA to come back so that a joint meeting could be held with Mineral Resources and Energy because it was a very important preservation and forfeiture, the biggest in the history of the NPA. That should not be frustrated by a Department or possibly another Portfolio Committee that might not respond quickly enough. He requested guidance from the Chairperson in that regard.

The Chairperson explained that was the reason he was drafting a report to the Speaker. He expected that the Speaker would, or would require the House Chairperson to, ensure that the Portfolio Committee on Mineral Resources and Energy made the necessary follow-ups. But if there were no response from either the Portfolio Committee or the Department by March 2023, the NPA could come back to the Committee which would take the matter up with the Speaker and the House Chairperson, possibly for a joint Committee meeting. But before that, he had to follow the required processes. Would that be in order?

Ms Maseko-Jele agreed that the Committee should keep a close watch on the matter and ensure that it received the attention it deserved.

The Chairperson informed Adv de Kock that the Committee was expecting an update from the NPA on 1 March 2023, whether anything had transpired or not. The update should focus especially on the concerns raised about environmental issues, the stripping of assets, and so on.

The meeting was adjourned.