LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 IN THE INQUEST PROCEEDINGS FOR THE MAGISTRATE’S COURT OF UMJINDI, HELD AT BARBERTON (SITTING IN MBOMBELA) INQUEST NUMBER 26/2021 LOW'S CREEK CAS 52/01/2020 INQUEST PROCEEDINGS IN TERMS OF THE PROVISIONS OF THE INQUEST ACT 58 OF 1959 INTO THE CIRCUMSTANCES ATTENDING TO THE PRESUMED DEATH OF: SOLOMON EMMANUEL NYIRENDA YVONE MNISI PRETTY WINNIE NKAMBULE JUDGEMENT PRESIDING OFFICER: A VAN DER MERWE, ASSESSORS: LJHFOURIE DLOuw DATE OF HEARING: 2/11/2021 — 07/02/2023 DATE OF JUDGEMENT: 19/10/2023 Judgement structure Footnotes Annexures to the judgement. ese 1.1. Introduction to the proceedings on 2 November 2021, and annexures 1.2. List of numbered files, 1.3. List of exhibits admitted to the proceedings in terms of section 13, with remarks. .. bee ee 1.4. List of witnesses who testified, including reference to the page number in transcribed record. se Abbreviations and Short References....... Introduction. @ & Development from open pit mining operations to underground mining operations. 7 JUDGEMENT - 19 OCTOBER 2023 Page 1 of 70,LOW'S CREEK CAS 62/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 The Incident. Section 16 . Section 16(1) Section 16(2)... esse Section 16(2)(a) ~ ‘The identity of the deceased... ovntnnntnttatennenintnnatntntnnseee TT Section 16(2)(b) — Cause or likely cause of death....... Section 16(2)(c) — Date of death... Section 16(2)(d) — Accountability Test to be used The Crown Pillar... so Crown pillar design by Dr Kersten...... sesesasaissssunsnses ABT Review of Crown Pillar design, seen 16 Review of crown pillar design by OHMS on ovens I Review of crown pillar design by Mr. W Joughin 18 Finding with relation to the crown pillar design. 19 Inspection of the crown pillar... scenes 19 Comment on the findings by the DMRE in respect of the crown pilla...... 19 Possible Crown Pillar mechanisms of failure... 20 ‘As-built comparison. 21 Impact of large open stopes below the crown pillar seosneeeeee 4 Weak western zone... seossnnnnnnnneinnsinnnannniisnsinen 22 Other sill and rib pillar failures 23 Impact of water seosntnnntetnieneneeeee . 23 Stability monitoring... Impact of blasting Unknown void just below 3% level dams... Why failed?, Management practices ..........sssnsn saevisasea seen 2B Illegal Mining 29 Finding: cause of failure....... 40 Infrastructure on top... 41 Compliance with the mining work programme ... - At Identification of Hazards and Risk Assessment ......c.roes: sisscussqnesusiinp 4B Regulation 17 of the Mine Health and Safety regulations 46 The risk assessment 49 JUDGEMENT — 19 OCTOBER 2023 Page 2 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 Pre-feasibility study and mining work programme 2a51 Bankable feasibility study. 51 Managing the geotechnical aspects. 82 Statement to the DMRE investigators ............ eeeeseeeee 7 54 Can anybody be held responsible? wee D Management... 59 59 62 65 Constitutional responsibilities of the State. The role of the State in the Lily Mine disaster...... Private SeCUTItY ...ccscuestenenesne Impact on environment... 66 Reporting of deaths... 66 Findings... 68 Section 18 Review. 69 Section 17 69 Footnotes A printed copy of the judgement and the annexures thereto will be available to the officers of court upon conclusion of the judgement. The printed judgement contains footnotes with additional information, quotations from evidence and references not read into record, The content of the footnotes forms part of the judgement. Annexures to the judgement 1.1. Introduction to the proceedings on 2 November 2021, and annexures 1.2. List of numbered files. 1.3. List of exhibits admitted to the proceedings in terms of section 13, with remarks. 1.4. List of witnesses who testified, including reference to the page number in transcribed record. Abbreviations and Short References The following abbreviations were used MHSA — Mine Health and Safety Act, 1996 (Act 29 of 1996) JUDGEMENT — 19 OCTOBER 2023 Page 3 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 MPRDA - Mineral and Petroleum Resources Development Act, 2002 (Act 28 of 2002) DMRE — Department of Mineral Resources and Energy Introduction [1] The inquest proceedings dealt with the alleged deaths of Solomon Nyirenda, Yvone Mnisi and Pretty Nkambule. The facts of the matter relate to the Lily Mine collapse on 05 February 2016 in the district of Umjindi (Barberton). The collapse resulted in the presumed death of the aforementioned three persons who went missing after the lamp room, where they were allegedly on duty at the time of the incident, fell into the lower levels of the mine. The bodies had to date not been recovered. [2] The formal issues relating to the inquest proceedings, such as jurisdiction and the appointment of the assessors, were dealt with on 2 November 2021 during the “Introduction to Proceedings", which now also forms part of this judgement. [3] In Timol v The Magistrate of Johannesburg’ the Court had this to say about inquests: " For the administration of justice to be complete and to instil confidence, it is necessary that, amongst other things, there should be an official investigation in every case where a person has died of unnatural causes, and the result of such investigation should be made known. Therefore the Inquests Act provides that, if there is reason to believe that a death has occurred, that such death was not due to natural causes and that it was not followed by the institution of criminal proceedings, there shall be an ‘inquest as to the circumstances of the death." [4] The Appellate Division in Marais NO v Tiley * echoed and confirmed the sentiments of the Timo! case supra by finding: "The underlying purpose of an inquest is to promote public confidence and satisfaction; to reassure the public that all deaths from unnatural causes will receive proper attention and investigation so that, where necessary, appropriate measures can be taken to prevent similar occurrences and so that persons responsible for such deaths ‘The current correct name is DME: - Department of Mineral Resources and Energy. The name of the Department indicated in both the MHSA and the MPRDA is DME - Department of Minerals and Energy. ? Introduction dated 02 November 2021 attached as Annexure 1.1 31972 (2) SA 281 (T) at page 2871-2888 * 1990 (2) SA 899 (A) at 901F and at 902A-B JUDGEMENT - 19 OCTOBER 2023, Page 4 of 70LOW'S CREEK CAS 62/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 may, as far as possible, be brought to justice... To my mind it is axiomatic that public confidence and satisfaction would normally best be promoted by a full and fair investigation, publicly and openly held, giving interested parties an opportunity to assist the magistrate holding the inquest in determining not only the circumstances surrounding the death under consideration, but also whether any person was responsible for such death. A full and fair investigation presupposes adherence to basic principles of procedure, and would in the normal course require the hearing of viva voce evidence. That justice must be seen to be done is no less a truism in the holding of inquests than it is in the hearing of trials.” [5] Freedom Under Law v National Director of Public Prosecutions and Others® described the nature of the process as follow: "An inquest is an investigatory process held in terms of the inquests Act which is directed primarily at establishing a cause of death where the person is suspected to have died of other than natural causes. Section 16(2) of the Inquests Act requires a magistrate conducting an inquest to investigate and record his findings as to the identity of the deceased person, the date and cause (or likely cause) of his death and whether the death was brought about by any act or omission that prima facie amounts to an offence on the part of any person. The presiding officer is not called on to make any determinative finding as to culpability." [6] The court received document files containing statements and documentary evidence as part of the police docket for consideration in terms of section 5 of the Inquest Act. Not all of the documents so submitted were formally referred to or dealt with during the course of the hearing of the formal evidence, and neither did all the witnesses testify who had submitted some form of written statement. As we had worked through all the files, documents and statements submitted prior to the hearing, we had cognizance thereof throughout the process of the inquest. Apart from the oral evidence, we also received additional documents and documentary evidence during the course of the hearing. All the files® were numbered and all documents so received were allocated exhibit numbers. 5 2014 (1) SA 264 (GNP) at paragraph 72 © List of files attached as Annexure 1.2. JUDGEMENT — 19 OCTOBER 2023 Page 5 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [7] The record of this inquest comprises not only the formal evidence and those documents specifically referred to during the formal proceedings. All the documents, statements and evidentiary material presented prior and during the course of the proceedings, are admitted in terms of section 13 of the Inquest Act and forms part of the record, unless specifically excluded.” [8] Thirty witnesses testified during the proceedings.® The individual evidence of the witnesses so received will not be summarised but will where applicable, be referred to during the course of the judgement. [9] The court received the necessary technical assistance from the two assessors, a mining engineer, Mr Henk Fourie and a rock mechanic, Mr Deon Louw. It enabled understanding of the science of mining and they are thanked, not only for their assistance in clarifying the technical issues, but also for their inputs on the technical evidence that enabled the required judicial findings on the facts. [10] The DMRE conducted an investigation into the disaster in terms of section 60(1) of the MHSA. The investigation commenced on 28 June 2016 and was converted into an inquiry in terms of section 66(1) that commenced on 6 March 2017. The court received the “Report in terms of Section 72(1)(b) of the Mine Health and Safety Act, 1996 (Act no 29 of 1996), as amended’, compiled by Funwell Johanne Nkuna and dated 12 March 2018, as part of the police docket and it is hence referred to as the ‘Section 72 report’. [11] _ Section 14 of the Inquest Act provides that “any document purporting to be a copy of the record of any inquiry referred to in subsection (1) of section 23 ... shall at the discretion of the judicial officer holding an inquest in respect of the death which was the subject of such inquiry, be admissible in evidence at the inquest.” Apart from the Section 72 report, the court also received the transcriptions of the section 66 inquiry. The files containing the transcribed inquiry proceedings, were perused and will if necessary, be ” List of exhibits attached as Annexure 1.3. ® List of witnesses attached as Annexure 1.4. JUDGEMENT - 19 OCTOBER 2023 Page 6 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 referred to. It is only the ‘Section 72 report’, presented to court under cover of a sworn statement by Mr Nkuna, that is found to be admissible in evidence at the inquest®. Development from open pit mining operations to underground mining operations [12] The Chief Operations Officer of the Lily Mine at the time of the collapse, Mr Mike McChesney"®, testified that Lily Mine operated as an open pit mine during the years 2000 to 2006. When they reached the economical limits of the main open pit, operations moved to the Lily East pit and the Rosies pit. To ameliorate the environmental impact of creating a bigger waste dump, the waste material from the Lily East pit and the Rosies pit were used to backfill, stabilise and partly rehabilitate the main pit excavations. The court did not receive any evidence that the backfill was compacted, other than the compaction caused by the mining equipment that were used to place and profile the backfill [13] During the pre-feasibilty studies for potential underground operations, it was decided to develop the 2 Level portal on top of the backfill to serve as an temporary entrance for the underground mining operations. The backfill, which was at a depth of approximately 41 meters, was thus levelled to serve as a surface for the portal entry and associated mining infrastructure. [14] The underground mining operations first developed upwards into the mountain to 1 Level and 0 Level, before the mining of the ore body continued downwards to deeper levels. Because the ore body continued underground from the bottom of the pit, mining operations were due to continue under the backfilled pit. Rudiger Welf Olgert Kersten, hereafter referred to as Dr Kersten, was appointed as responsible rock engineer during January 2008" and the duty fell to him to design the now infamous crown pillar between the backfilled open pit and the future underground workings. The Incident [15] On Friday morning 5 February 2016 at approximately 8h00, truck driver Aaron John Sithole™? reported at the lamp room for the start of his shift. After signing in on the ° Exhibit *9 Exhibit B19, Exhibit YY "Exhibit P * Exhibit B15 JUDGEMENT ~ 19 OCTOBER 2023 Page 7 of 70LOWS CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 underground register, he took his truck and followed his colleagues through the 2 Level portal into the belly of the Lily Mine. He was the last of the operators to report on duty, the last one that morning to enter the mine and the last one who had seen the lamp room staff alive. Upon entering the portal, he switched on his headlights for the long haul down the drive to 8 Level east and 12 Level west where they had blasted at 06h22 that morning, and where the gold bearing ore was waiting to be loaded and trucked out of the mine for processing. [16] Suddenly everything became dark and the air filled with suffocating dust. Mr Sithole stopped his truck because even with his headlights on, the darkness surrounding him was impenetrable. After getting out of his truck, he moved to the tail end of the vehicle to investigate. As he turned around, he noticed the earth subsiding behind the truck and suddenly he found himself on a precipice. Through the swirls of dust, he saw that an avalanche of subsiding earth was taking the lamp room and other surface infrastructure with it into the underground depths of the mine. [17] In his office, shop steward Cedrick Abednigo Magongo"® sat, preparing for an upcoming hearing scheduled for later the day. He had just returned from discussing the matter with Solomon Nyirenda in the lamp room. A loud sound caught his attention ‘Something was seriously wrong. He moved to the door and as his gaze travelled towards the mine entrance, he saw the lamp room, containers, generator and water tanks going down into the mine in a cloud of dust and smoke. [18] The collapse was sudden, intense and catastrophic and without any prior warning, and was followed by a frantic scramble to ensure the safety of the survivors Communication with the teams underground revealed that all workers were accounted for and all they had to do was to sit tight whilst arrangements are being put in place to evacuate them from the mine. [19] _ By the end of the day all workers, underground and above ground, were safe, except for the three who had been on duty in the lamp room. July Meshack Sibiya", a technical * Exhibit B39 * Exhibit B40 JUDGEMENT - 19 OCTOBER 2023, Page 8 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 ‘supervisor at the mine, collected a sample from the lamp room between 7h00 and 8h00 and received news of the incident whilst on his way to Barbrook mine. He confirmed from the attendance register that Solomon Nyirenda, Yvone Mnisi and Pretty Nkambule were all on duty at the time of the incident, as did Jacobus Stephanus Potas"*, a senior mine officer at Lily mine before his retirement after 43 years of service and under whose supervision the lamp room staff was employed [20] Solomon Emmanuel Nyirenda had said goodbye to his mother Duduzile Fiona Nyirenda’® when he had left for his shift in the lamp room earlier that morning. He never returned home, leaving his family without a breadwinner. [21] _Yvone Mnisi, who had been in the company of her father Elmon Mzimba Mnisi’” the previous evening, had travelled to work with her boyfriend Shadrack Mdluli. She was on duty in the lamp room at 8h05, Friday morning 5 February 2016. She never returned home after the incident and her two boys never saw their mother again. They are being cared for by her father and other family members ever since. [22] Pretty Winnie Nkambule was supposed to have knocked off with the previous shift Her relief never reported for duty and she thus remained on duty in the lamp room at the start of the Friday morning shift. She never returned to her family or her four children after the incident. Family members took the care of her children upon themselves. [23] The collapse was followed by rescue operations and a race against time to locate and rescue the three lamp room attendants. Despite tireless efforts to move the material that had subsided into the lower levels of the mine, in an attempt to locate the buried container, the rescue operations eventually turned into recovery operations, When the operations were stopped because of concerns over the safety of the rescue personnel, more than 7 000 tons"® of rock had already been moved underground, without any success, 15 Exhibit BB © Exhibit B42 + Exhibit B41 ‘® Transcript: 05/11/2021; page 182 line 21 JUDGEMENT — 19 OCTOBER 2023 Page 9 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [24] The collapse of the main and only access portal of the mine left only the vertical ventilation shaft, the designated second access route as required by law, as an access to the lower levels of the mine. An emergency large diameter borehole was sunk during the recovery operations when the ventilation shaft became unstable. Unfortunately this borehole also became unstable and could not be used, resulting in no safe access to. the underground workings for the recovery teams, The team managing the recovery operations decided to suspend the recovery operations on 3 March 2016. [25] Mr Gustav Barnardt’®, the senior surveyor at Lily Mine, provided the court during the pre-hearing stages of the proceedings with a “Preliminary geotechnical assessment of options for the recovery of the lamp room container’, dated 9 March 2016, The document discussed three available options for the recovery of the container and concluded that “Recovery from an underground decline” will be the most viable option. During evidence the court was informed that the mine went into business rescue to enable it to raise the necessary funds to develop a new portal to get safe access to the lower levels of the mine and to the site where the container, that is believed to still contain the bodies of the presumed deceased, is suspected to be. The evidence was that civil litigation is however hampering the raising of the required funds for the development of the proposed new portal in order to proceed with the recovery of the bodies. Section 16 [26] Section 16(1)?" and 16(2)°? of the Inquest Act provides for the findings that a judicial officer must make following inquest proceedings. ‘© Exhibit B9; Exhibit WW ® Exhibit B9 pages 9 -14 2 Section 16(1) If in the case of an inquest where the body of the person concerned is alleged to have been destroyed or where no body has been found or recovered, the evidence proves beyond a reasonable doubt that a death has occurred, the judicial officer holding such inquest shall record a finding accordingly, and thereupon the provisions of subsection (2) shall apply. 2 Section 16(2) The judicial officer holding an inquest shall record a finding upon the inquest- (a) as to the identity of the deceased person; (b) as to the cause or likely cause of death; {c) as to the date of death; (@) as to whether the death was brought about by any act or omission prima facie involving or amounting to an offence on the part of any person, JUDGEMENT - 19 OCTOBER 2023 Page 10 of 70,LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 Section 16(1) [27] _ Before the court can consider the circumstances surrounding the deaths and possible accountability as indicated in Marais v Tiley, section 16(1) requires from the court to first determine whether “the evidence proves beyond a reasonable doubt that a death has occurred’ in circumstances “where the body of the person concerned is alleged to have been destroyed or where no body has been found or recovered’. [28] _ In order to make the determination required by the sub-section, the court considered the evidence of the family members of the presumed deceased, as well as the evidence of the colleagues who were the last to interact with them prior to the collapse. [29] _ The court is satisfied on the evidence presented, that although the bodies had not been recovered to date, and that there are, as provided for in section 16(1) of the Act, therefore no bodies, that the deaths had indeed occurred. Section 16(2) [30] The court must now consider the four findings required by section 16(2) of the Act. Section 16(2)(a) — The identity of the deceased [31] _ The evidence of the various witnesses and the copy of the passport of Solomon Emmanuel Nyirenda* and the copies of the identity documents of Yvone Mnisi?® and Pretty Winnie Nkambule”® are sufficient for purposes of the required finding Section 16(2)(b) — Cause or likely cause of death [32] The lamp room consisted of two shipping containers that were welded together to form a double capacity space. The evidence of both Mr David Michael Begg”’, a trained geologist and the Director of Operations at the mine at the time of the incident, and Mr Philipus Johannes Jacobus Storm”®, a mine overseer, were that the containers created a stable, strong and secure structure, as long as they were placed on a level surface. 23 1990 (2) SA 899 (A) 24 Exhibit B45, 28 Exhibit B48 2 Exhibit B47 2 Exhibit B18 28 Exhibit B7 JUDGEMENT — 19 OCTOBER 2023 Page 11 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 They believed that during the collapse the containers probably broke apart in the middle where they were welded together, and that they were subsequently squashed under the tons of collapsed rock and other backfill material, [33] Mine geologist, Michael Stanhope Baynes testified that there was a wooden structure erected next to the lamp room that had served as a tearoom for the lamp room staff. Once the ‘rush of the new shift going underground’ was over, the lamp room staff routinely retired to their tearoom. Mr Baynes believed that at least two of the deceased had been in the tearoom at the time of the collapse and that tearoom structure did not withstand the collapse. [34] Dr Gantcho Prodanov Gantchev®, a pathologist from the Department of Health, Forensic Pathology Services, testified that if the deceased had survived the initial collapse inside an intact container, none of them would still have been alive by the time the recovery operations were suspended on 3 March 2016 because lack of drinking water would have led to dehydration and hypovolemia and lack of oxygen to suffocation. His evidence was that the sheer weight of the rocks and the debris during the mine collapse would have been sufficient to kill a person. Section 16(2)(c) - Date of death [35] _ In the circumstances of this matter this finding links with the finding regarding the cause of death in terms of section 16(2)(b) Section 16(2)(d) - Accountability [36] _ In terms of section 16(2)(d) of the Act the court must consider all the evidence in an attempt to determine whether the deaths were brought about by an act or omission prima facie involving or amounting to an offence on the part of any person % Exhibit B10 % Exhibit B44 JUDGEMENT — 19 OCTOBER 2023 Page 12 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 Test to be used [37] Before considering the evidence in order to determine accountability in terms of section 16(2)(d), there is a need to establish the test to be used. Zietsman J stated in In re Goniwe and Others (Inquest)°": “In my opinion the test envisaged by the Inquests Act is whether the judicial officer holding the inquest is of the opinion that there is evidence available which may at a subsequent criminal trial be held to be credible and acceptable and which, if accepted, could prove that the death of the deceased was brought about by an act or omission which involves or amounts to the commission of a criminal offence on the part of some person or persons... the person referred to in the section need not be a natural person but could be an artificial person since artificial persons can be held liable for criminal acts or omissions... where one is dealing with a corporate body or association which can be correctly described as an artificial person.” (my underlining) [38] The two most important questions everybody wants answers to are (a) whether the management of Lily Mine took sufficient precautions to guard against the occurrence of the incident and the subsequent harni suffered, and (b) whether anyone can be held responsible for the deaths of the three deceased [39] The court will proceed to consider the possible answers to these questions, bearing in mind the words of caution from the full bench of the Supreme Court of Appeal in Naidoo v Minister of Police and others**: “After the event, even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine liability.” The Crown Pillar [40] The disaster was caused when the crown pillar, which was solid natural rock left in place between the old open cast mining operations above ground and the mining operations underground, collapsed into the underground excavations. This resulted in the surface infrastructure, including the lamp room, situated on top of the backfilled open 31 4994 (3) SA 877 (SE) at 880B-D % [2016] 4 All SA 609 (SCA), quoting Viscount Simonds from the English decision Overseas Tankship (UK) Lid v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961 AC 388 (PC) ({1961] All ER 104)} JUDGEMENT — 19 OCTOBER 2023 Page 13 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 pit, falling into the underground excavations. After the initial collapse, further collapsing of the hanging wall®, the backfilled material in the pit and portions of the remaining crown pillar occurred, burying the surface infrastructure underground below thousands of tonnes of broken rock and backfill material. [41] _Itis common understanding that this disaster would not have occurred if the crown pillar did not collapse and the consequences of the collapse would have been reduced if the surface infrastructure were not placed on top of the open pit backfill. The court will therefore in the first place consider the design and integrity of the crown pillar and secondly the mechanisms of, and possible reasons for its failure. Thereafter the placement of the surface infrastructure on top of the backfilled pit will be considered. Crown pillar design by Dr Kersten [42] _ In the mining industry, a pillar refers to either a vertical or a horizontal structure. The crown pillar in the Lily Mine was a horizontal pillar in the bottom of the backfilled pit. It acted as the “roof’ to the underground mine operations in the continued extraction of gold bearing ore as the orebody runs deeper underground from the bottom of the open pit [43] The underground mining method practised at Lily Mine was “open stoping”. The method left large excavations, supported by vertical and horizontal rock pillars. There cannot be a 100% extraction of minerals with this mining method because the need for pillars and support underground necessarily require the leaving behind of a percentage of gold bearing rock in the horizontal and vertical pillars. This also applied to the gold deposits that remained inside the crown pillar. [44] _ The dimensions of the crown pillar were designed by Dr Kersten, an Independent Consultant with an MSc in Geology and a MDP from Unisa. The evidence showed that Dr Kersten had “many years experience particularly in the Barberton golafield designing underground excavations” and that he was familiar with the geology of the area and the performance of the rock under stress and how it is affected by mining operations, The hanging wall is the rock mass above the ore body ™ Exhibit POS page 6 ~ Mining work programme JUDGEMENT — 19 OCTOBER 2023, Page 14 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [45] Because of old age and frail health, Dr Kersten was not available to testify, The court therefore had to its disposal for consideration, only the available copies of his reports*® and correspondence™ to the mine management during the course of his appointment The short statement Dr Kersten had made for purposes of the DMRE inquiry in terms of section 66 of the MHSA”” and the affidavit" he had provided to the SAPS investigating officer for purposes of the inquest proceedings were also considered. The copy of the statement for the DMRE inquiry does not reflect that it was formally signed in front of a commissioner of oaths but the court is satisfied that Dr Kersten had dated and signed it on 06 December 2016 and it is therefore accepted in evidence in terms of section 13 of the Act. [46] Dr Kersten was initially appointed to do the geotechnical design of the underground mine during the pre-feasibility study phase. After commencement of the underground operations, he was appointed to carry the legal responsibility of managing all the geotechnical aspects at the mine. [47] Dr Kersten used a numerical model called FLAC to determine the dimensions of the crown pillar as well as the support needed to ensure its stability. The design results were that the crown pillar must be 15 meters high*® and where the economical orebody is in excess of 10 meters wide, like on 4 Level below the crown pillar, a rock support pillar must be left in the centre of the excavations.“° To put a bit of perspective to the height of the designed crown pillar — 15 meters is the approximate height of a five-storey building such as the Mbombela Magistrate Court building. [48] _ In his calculations,*" Dr Kersten not only included the weight of the rock and material that were used to backfill the pit, he also considered the possibility that the pit, although backfilled with rock, may fill and saturate with water. He therefore recommended to the 8 Exhibit 01 - 010; Exhibit DD; Exhibit MB3 % Exhibit FF ° Exhibit B27-1 % Exhibit B27-2 *® Exhibit 02 - Site Visit report September 2008 ‘® Exhibit 06 - Note for the Record attached to the report “Collapse in Stope on 2 Level” September 2009; Exhibit 7 - Lily Gold Mine: FLAC Modelling of the Pillar below the Open Pit Exhibit O7 JUDGEMENT - 19 OCTOBER 2023 Page 15 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 mine management that the water collecting in the backfill in the open pit, must be pumped out and the backfilled pit be kept ‘dry’. This would ensure that the minimum principal horizontal stress keeping the crown pillar in place is always more than the vertical stress“? exerted by the water and the backfill material in the pit on the crown pillar. This design resulted in a safety factor of 1.4, which in the mining industry, is regarded as adequate for this type of excavation. Review of Crown Pillar design Review of crown pillar design by OHMS [49] Open House Management Solutions (Pty) Ltd, hereafter referred to as OHMS, took over the geotechnical management of Lily Mine from Dr Kersten upon his retirement ‘Andreas Petrus Esterhuizen* was the rock engineer at OHMS responsible for the Lily Mine from January 2012 and he carried the legal appointment to manage all the geotechnical aspects at the mine. OHMS conducted a rock-engineering audit during their first visit to the mine on 3 February 2012 and in the report on their audit dated 26 March 2012, they recommend inter alia “that a proper rock mass quantification should be conducted’ so that “the designs of stope backs and pillars be scrutinized and corrected if necessary’. They also recommended more detailed strength tests on rock specimens because they regarded the two tests per rock type, done during the design stage of the underground mine, as not sufficient. [50] The recommendations were accepted and the subsequent rock mass quantification determined a significantly lower value than the value determined by Dr Kersten during the original geotechnical design stage.*° This can partly be explained by the fact that OHMS had the benefit of doing the rock mass quantification in the underground excavations where all laminations and weakness planes in the rock mass could be considered, At the time when Dr Kersten did the original assessment and calculations, there were no underground excavations and he only had the borehole core from a few holes in the rock in the pit, to work with * The weight 4° Exhibit B1 4 Exhibit M32 “© Exhibit M30 JUDGEMENT - 19 OCTOBER 2023 Page 16 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [51] OHMS determined the maximum allowable hydraulic radius for the ore and hanging wall zones as 7 to 8 meters, whereas the calculations of Dr Kersten determined a maximum allowable hydraulic radius of 8,5 to 10 meters. The hydraulic radius is an important rock strength factor that is a measure of the maximum size of a stable unsupported rock surface. If the hydraulic radius is exceeded, failure of the rock walls may occur. [52] Mr Esterhuizen testified that once the different rock strength factors were determined, he did a review of the crown pillar design by Dr Kersten. In the review he could not find anything wrong in the methodology used by Dr Kersten, He was concerned though that Dr Kersten had determined a hydraulic radius of 8 meters whilst the rock strength factors he had used was much higher than those OHMS subsequently determined. On investigation, he concluded that Dr Kersten must have made an error on the scale of one of the tables he had used, reducing the factor by tenfold. If this was indeed what had happened, itis very fortunate that the error was to the positive (conservative) side. The outcome was that the design parameters for the crown pillar determined by OHMS, using the lower rock strength factors, were similar to those determined by Dr Kersten [53] _ When Mr Esterhuizen observed this apparent error in Dr Kersten’s design, he asked his manager, Mr J. Bosman, to peer-review the crown pillar design done by Dr Kersten. Mr Bosman agreed and confirmed Mr Esterhuizen’s conclusions and they determined the crown pillar design to be sufficient. [54] Mr Esterhuizen concluded that he found that the design by Dr Kersten was sound.*® “© Transcript: 17/01/2022; page 103 line 10 — page 104 line 8: “By sound | meant that he followed what ! would consider to be reasonable practice. So he followed the available information on the mine and used that and the acted to what was given to him. He did the design based on very conservative estimates of all the input parameters. He over estimated almost every single parameter to a large extent and we can prove that. He then read the graph and then almost halved the hydraulic radius that you could actually have. He then did ‘numerical modelling on the pillar which is an extra step. He looked at the water, he looked at the stress. He later on went back he obtained more information about the rock mass ratings he incorporated that back into his design. He went underground to see if the design is actuaily well implemented and if i is stable. So to me that is a sound methodology to use. Keeping in mind there is no recommended methodology or design system he used the information he had available based on his experience and he did a design that I felt was reasonable itis a sound reasonable design. There is nothing in that design that | could criticise and say he ‘should have done this or | would have done this differently or Ido not agree with this. In my view it is a sound design, itis @ sound approach.” () JUDGEMENT - 19 OCTOBER 2023 Page 17 of 70,LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 Review of crown pillar design by Mr. W Joughin [55] Mr. William Cain Joughin, a partner and corporate consultant (rock engineering) at SRK Consulting (South Africa) (Pty) Ltd, and who specializes in underground rock engineering investigation and design, was appointed on 01 June 2021 by Vantage Goldfields SA (Pty) Ltd, acting on behalf of the owners of Lily Mine, to provide an independent investigation and review of the crown pillar failure, The purpose of the investigation was inter alia to provide an opinion on the mechanism of failure and to evaluate the design of the crown pillar. His report and findings were accepted as exhibit ZZ to the proceedings. [56] Mr Joughin back analysed the crown pillar design, using the Scaled Crown Pillar method in the CPillar program. Carter developed the CPillar program for crown pillars in Canadian mines in 2014 and geotechnical engineers started to use it in 2016, Its application in South African mines to date is still very limited. The program was not available when Dr Kersten did the crown pillar design in 2009, or when OHMS did the review of the design in 2012. (57] For purposes of the back analysis, Mr Joughin used the dimensions of the crown pillar as it reflected on the mine plan admitted to court as Pic 87. The dimensions of the crown pillar prior to the collapse were according to the plan, 17 meters high and 10.5 meters wide on average at the base of the pillar, which according to Mr Joughin, was more favourable than Dr Kersten's design recommendations. The rock mass quality values in Dr Kersten’s 2007 mine design report*® were used for the back analysis and on these values, the CPillar program determined that the crown pillar had a safety factor of 1.8 and a probability of failure of between 1.5% and 5%. These were acceptable parameters for “Class E”, which according to Carter provided for a crown pillar life of 15 to 20 years [58] During questioning by the assessors Mr Joughin indicated that if he was to use the lower values, as determined by OHMS, in the CPillar programme, it will take the pillar 47 Exhibit MM 8; Exhibit 25 © Exhibit O1 JUDGEMENT — 19 OCTOBER 2023 Page 18 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 design into a “Class D” with a crown pillar life of 5 to 10 years.‘ Mr Joughin still found the design to be reasonable. Finding with relation to the crown pillar design (59] From the two independent reviews and back analysis of the original crown pillar design by Dr Kersten, the court find, with the assistance of the technical expertise of the assessors, that the design was in accordance with design methodology available at the time and that the methodology was correctly applied. The resultant design parameters of 15 meters thick and a hydraulic radius of 8 to 10 meters, with a central pillar to be left in situ and the required dewatering of the pit backfill, were within industry norms at the time. No negligence can be found in either the original design by Dr Kersten, or the geotechnical management during the tenures of Dr Kersten or OHMS as the responsible rock engineers. Inspection of the crown pillar [60] The operating surveillance proposed by Carter for a category “Class E” crown pillar, such as the Lily Mine crown pillar, is “Conscious superficial monitoring’. “Conscious superficial monitoring” was however at the time of the incident, not a reasonable accepted practice in the South African mining environment. Although there is evidence that there were attempts to observe the crown pillar, itis common cause that there was no conscious monitoring of the crown pillar at Lily Mine because the access to 4 level, from where the superficial inspections could be done, was walled off to prevent unauthorized access. This was in line with the common practise at mines to cordon off the old workings for safety purposes. The court therefor finds, for purposes of determining accountability in these proceedings, that “not consciously monitoring” the crown pillar prior to the incident cannot be regarded as an omission. Comment on the findings by the DMRE in respect of the crown pillar [61] _Itis necessary to comment on the findings by the DMRE inquiry in respect of the crown pillar. In paragraph 124 of the Section 72 report, Mr Nkuna found that “the main reason that led to the collapse of the portion of the crown pillar is that the crown pillar was not supported to prevent it from collapsing’, and in paragraph 126, that “this lack of 4° Transcript 19/01/2022; page 161 line 10 - 20 JUDGEMENT — 19 OCTOBER 2023 Page 19 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 support of the crown pillar caused the portion of the crown pillar fo collapse into the ‘mined out open stope below’. On the evidence presented to this court, these findings appears to be fundamentally flawed. A crown pillar is held in position by the rock strengths and stresses prevailing in situ in the crown pillar and by the surrounding rock of the hanging wall and footwall®. These factors provide the stability to prevent the underground structure from collapsing. Any practical external support system will have no, of a negligible effect on the stability of the crown pillar. The design of the pillar had to take all the rock properties, stresses and geological conditions into consideration to provide a pillar design that will ensure that the pillar stays intact and stable within industry acceptable factors of safety and probabilities of failure. The pillar design by Dr Kersten fulfilled all these requirements, as confirmed by the design reviews by OHMS. and Mr Joughin. [62] The finding in paragraph 126 of the Section 72 report that “the employer at Lily mine failed to comply with the provision of section 86(1) of ‘MHSA” in that the said employer failed to install effective support system on the roof of Level 4 (i.e. the floor of the crown pillar that collapsed)" and that it was a “negligent act [that] caused the portion of the crown pillar to collapse" appears equally flawed, Mr Joughin, in answer to a question in respect of the possible strengthening of the natural structure, indicated that “in a competent pillar like {the one at Lily mine] it is going to be difficult to ... change the characteristics [and] itis unlikely to have a positive benefit."®' He confirmed the notion that “in most cases the crown pillars are designed to be self-supporting.”®? The court therefore finds that as there was no need to install external support for the crown pillar, Not installing any external support for the crown pillar did not amount to negligence. Possible Crown Pillar mechanisms of failure [63] There was no prior warning of an imminent problem and there was no evidence of any pre-collapse tremors. Although it is common cause that conscious inspections of the crown pillar were not done, the evidence in respect of the few observations of the crown pillar did not reveal any of the tell-tale signs of a possible problem, not necessarily ® The footwall is the rock mass underneath the ore body 5! Transcript: 19/01/2022; page 129 line 23 ® Transcript: 19/01/1022; page 130 line 4 JUDGEMENT - 19 OCTOBER 2023 Page 20 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 failure, such as flaking of the surface or falling dust. There are however a number of aspects or mechanisms which could have contributed to the crown pillar failure. As-built comparison [64] The dimensions of the underground excavations of a mine must conform to the design parameters of the rock engineer to ensure stable and safe working areas, The surveyor, Mr Barnardt testified that the mine plans that were presented to court are a correct presentation of the actual dimensions of the underground workings. Survey measurements were always cross-checked and back referenced as part of the surveying methodology in order to eliminate any measuring errors. Mr Trevor John Cronwright®, the chief surveyor at the mine, confirmed that he checked these plans periodically before submitting them to the DMRE in terms of the regulations. [65] The actual width of the crown pillar at the time of the incident was determined to be an average of 10,5 meters, which was less than the designed width of 15 meters and thus better than the design. The depth of the crown pillar exceeded the 15 meters design parameter of Dr Kersten as it was measured to be 17 meters. The dimensions of the crown pillar and the surrounding excavations show that the designs and recommendations of Dr Kersten were implemented, taking into account operational tolerances and the court finds that the crown pillar was narrower and thicker, and thus stronger than designed Impact of large open stopes below the crown pillar [66] The horizontal sil pillars below 4 and 5 Level and a portion of 6 Level, directly below where the crown pillar collapsed, were removed during mine operations, with the permission from the rock engineers. This left a very large open stope of approximately 90 meters high, more than 80 meters long and between 6 and 11.5 meters wide, below the crown pillar down to 7 Level. In his report® Mr Joughin stated that the hydraulic radius of the hanging wall beneath the crown pillar, after the removal of the sill pillars, was greater than 16 meters. This could have caused hanging wall failures in the stopes, particularly if the stope geometry was irregular, which was the case. It is therefore © Exhibit BE ® The thickness of the rock between the backfilled open pit and the undermined cavity © Exhibit 2Z JUDGEMENT - 19 OCTOBER 2023 Page 21 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 possible that the stope hanging wall had scaled®® up to a greywacke foliation plane, and that this scaling could have continued upwards to the crown pillar. This would have increased the hydraulic radius of the crown pillar from 5 to 7 meters. It however would stil have been below the designed hydraulic radius. [67] Except for 4 Level and the crown pillar, which were not accessible due to the no- entry rule relating to the worked-out stopes, the evidence confirmed that there was continuous diligent visual monitoring of the open stopes on all the other levels. In respect of the hanging wall below the crown pillar, visual inspections were ineffective and according to Mr Joughin, hanging wall failure may have occurred progressively, in small unnoticed increments. If this had triggered a large sudden failure, it could have caused, or contributed to the crown pillar collapse. [68] As the reports and evidence showed that the appointed rock engineer®” was called to investigate every time there was an rock fall event underground, the court finds that the visual inspections that were done in the prevailing circumstances was adequate for the type of operation and does not imply an omission by mine management. Weak western zone [69] A geological feature, called the weak western zone®, was identified by the geologists and is indicated as a blue hatched area on Pic 8°, Almost all of the reported localised failures underground occurred in this weak western zone. It is clear from the plan, and confirmed by both Mr Esterhuizen and the mine geologist Mr Baynes, that this weak western zone did not extend eastwards into the area where the crown pillar had failed. The court therefor finds that the crown pillar failure did not occur in the weak western zone. [70] The statement in paragraph 130 of the Section 72 report that “it is a fact that the crown pillar collapse occurred on the weak western part of Lily mine’, is therefore % Peeled off © Initially Dr Kersten and later Mr Esterhuizen °° or shear zone as referred to by Mr Esterhuizen © Exhibit MM PIC 8 JUDGEMENT — 19 OCTOBER 2023 Page 22 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 incorrect because the evidence of two witnesses and the mine plans clearly indicated that the crown pillar collapse occurred outside the weak western zone. Other sill and rib pillar failures [71] There were over time several instances of horizontal sill and vertical rib pillar failures on different mining levels below the crown pillar. These pillars were all of different dimensions than the crown pillar and in different geological and geotechnical environments. According to the evidence presented, the majority of these failures occurred in the ‘weak western zone” and that natural faulting in the rock mass played a major role in the failure of these pillars. None of these faults could be extrapolated to have intersected the crown pillar, and thus to have caused weakening of the crown pillar. [72] Both Mr Esterhuizen and Mr Joughin testified that the reasons and mechanisms for the failure of other pillars, and the incidents of hanging wall and footwall scaling that occurred in the mine, were due to localised geological structures. It would not have impacted on the crown pillar stability. Impact of water [73] _ The presence of water above the crown pillar could have had an impact on the crown pillar stability, as a large body of water in the backfill would have exerted additional hydraulic pressure and vertical stress in the crown pillar. Dr Kersten identified this as a potential problem during the crown pillar design and he directed that the water in the backfill must be pumped out as part of the integrity of the crown pillar design. The evidence confirmed that this was done through a dewatering borehole with an automatic stop/start switch that activated the pump if the water level rose to a certain predetermined level in the borehole. Continuous monitoring of the water levels in the dewatering borehole ensured that there was not a build-up of water in the bottom of the pit. [74] Substantial drainage channels were constructed and maintained around the perimeter of the old open pit in order to divert rainwater away from the pit area. These were reported to be effective, thus the catchment area for rainwater was significantly JUDGEMENT — 19 OCTOBER 2023 Page 23 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 reduced and only the rainwater that fell inside the pit perimeter would have collected in the backfill [75] _ The original pit bottom was not flat and it is possible that there was a layer of water always present above the crown pillar that could not be pumped out through the dewatering borehole. Both geologists, Mr Begg and Mr Baynes as well as Mr Esterhuizen, testified that the greywacke rock type that the crown pillar consisted of, is almost impervious, with very litle geological discontinuities like small cracks or slip planes. Mr Esterhuizen confirmed that if weathering did occur, it would have been only a Couple of centimetres deep and thus negligible. There was no evidence of water seeping through the crown pillar during its life, and no water was observed by the rescue teams in the debris underground after the failure. The court therefore finds that the water in the backfill was managed properly and that there was no undue build-up of water in the backfill. Water therefore had a negligible impact on the stability of the crown pillar. Stability monitoring [76] _ Its normal practice, and required by Codes of Practice at mines, to monitor the stability of the walls of open pits. Lily Mine installed a number of beacons on benches around the pit walls and some beacons on the walls itself. These beacons were survey monitored monthly to measure any movement that might have been an indication of instability, not only in the walls itself, but also in the crown pillar below it. No movement outside the tolerances allowed, were observed as reported in the four available reports covering the period January 2011 to September 2013®. No further records for the pre- incident period were available. Mr Cronwright testified that he continued with the monitoring of the slopes after September 2013 but that he has no longer any record of it as he had lost all the data from his laptop when it was hacked in 20175" [77] The court finds on the available evidence, that there was sufficient stability monitoring and that this factor did not prevent early warning detection of an impending catastrophe. It is however a concern that company data was apparently kept on © Exhibits N71 ~ N4: Slope monitoring memoranda 26 January 2011, 10 June 2011, 28 August 2011 and 11 September 2013 °' Transcript: 22/11/2021; page 120 line 7 ~ 11 JUDGEMENT ~ 19 OCTOBER 2023, Page 24 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 personal computers only, with no central back-up or printed hard copies. This can be regarded as a management oversight and omission. The loss of data and information was also evident in the evidence of other witnesses during the Inquest. Management must take responsibility for not keeping proper backup of company records off-site Impact of blasting [78] Daily blasting activities was a normal mining practice at Lily Mine. There was also evidence that illegal miners used explosives in their ‘mining’ activities and that they timed their blasts to go off simultaneously with the mine's operational blasts so that the noise and vibrations will not be noticed. [79] The location, size and type of the normal operational blasts varied day by day and the quantity of explosives and the type of blast determined the magnitude of the blast vibrations. These vibrations could have had an impact on the stability of the mine excavations, and could have been the cause of localised failures. [80] Mr Jan Jacobus Haywood, a shift boss at the time of the incident, described in his unattested statement to the DMRE® that he initiated a relatively big blast at 06:22 on the morning of the incident at 8 Level east incline and the stope at 12 Level west. Mr Haywood did not testify but indicated in his statement that the vibrations of the blast could be felt on the surface. Mr Potas confirmed in evidence that he was on the surface at the mine when they blasted that morning before the incident and that one could not feel the vibrations of the blast on surface®. [81] Blasting, especially if it coincided with a blast from illegal miners, could have contributed to instability in the crown pillar that collapsed less than two hours after the blast on the morning of 05 February 2016. Unknown void just below 3¥% level dams [82] The idea of an unknown cavity or void observed in the remnants of the crown pillar following the initial collapse, was introduced early in the proceedings. Mr Barnardt © Exhibit B21 © Transcript: 08/11/2021; page 63 line 15 - page 64 line 23, JUDGEMENT — 19 OCTOBER 2023 Page 25 of 70,LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 testified that he was at the mine at the time of the collapse and that he started taking photos. He also took photos of a cavity he noticed in the remains of the crown pillar and the exposed hanging wall after the collapse. [83] After the initial collapse, the back filled material continued to shift downwards into the underground stopes in subsequent collapses and eventually settled in such a manner that the originally exposed parts of the crown pillar and hanging wall were once again covered and not visible. The only evidence available in respect of observations of the once exposed remains of the crown pillar and hanging wall directly after the incident, is. the eyewitness evidence of Mr Barnardt and the photos he had taken after the initial collapse. [84] The cautionary rule in respect of the evidence of a single witness applies primarily in criminal cases. The court however regarded it necessary to approach the evidence of Mr Barnardt in respect of his observations of a cavity in the crown pillar, with caution, as no other witness testified about observing the exposed crown pillar directly after the initial collapse or noticing the cavity Mr Barnardt is alleged to have seen, [85] _ The court also considered the content of the photos with caution as photos, although able to give a picture of a scene, may not always be the safest tool to use for observations. Challenges with light, shadows and depth perception in photos, as well as possible suggestions and attempts to convince a person regarding specific observations to be made on a photo, can influence interpretation of the picture in the photo. The evidence of Mr Bamardt of what he observed directly after the first collapse and the interpretation of what can be seen on the available photos taken at the time, were therefore considered with extreme caution. [86] Mr Barnardt testified that he saw immediately after the initial collapse, in the crown pillar a horizontal man-made excavation running the full width of the orebody from north to south with an unclear connecting excavation behind it towards the west.®* One of the & Transcript: 19/01/2022; page 7 line 6 © Transcript: 19/01/2021 page 33 - 39 JUDGEMENT -— 19 OCTOBER 2023, Page 26 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 photos he had taken of his observation was admitted as Exhibit NN35A and another found its way into Mr Joughin’s report®® as Figure 2-9 (87] Two triangular dark areas are visible in the rock face of the exposed rock wall, alleged to be the crown pillar, on the photos, the one dark area allegedly the 3% level dam whilst the other area, slightly lower and to the right on the photo, an unknown cavity only Mr Barnardt had observed. After he had testified on the issue, Mr Barnardt also constructed a section plan®” in an attempt to illustrate what he had seen. [88] Mr Baynes was presented with the photo, Figure 2-9 in Mr Joughin’s report. He immediately and without any hesitation testified that the so-called cavity visible in the photo is the 4 Level drive, whilst indicating on the available maps the reason for his conclusion. Despite an opportunity for re-examination, his evidence was only “clarified” much later when he was recalled after Mr Barnardt had testified on the issue. Mr Baynes then testified that he mis-orientated the photograph, believing that it reflected the western high wall, Once he re-orientated himself in that the photo was taken due south in the pit, he merely opined that “anything that is over there is a litte strange.'”° [89] The court doubts Mr Barnardt's recollection of his observations. Human memory is fallible and susceptible to suggestion, and five years of speculation on the possible causes of the collapse would have taken its toll. A further concer is the fact that Mr Barnardt did not remember taking the relevant photos the day after the initial collapse.”! Only after it was determined, with reference to the embedded data for photograph NN3SA, that the photo was taken on 06 February 2016, did Mr Bamnardt remember that it was the photo in Figure 2.8 in the Joughin report that he had taken on 05 February 2016. A further cautioning factor is the rather convincing evidence Mr Baynes initially gave that the cavity was the 4 level drive. The court therefor cannot accept the evidence of Mr Barnard in respect of the details he had observed in his brief observation of the so-called cavity, or his plotting of those details on the plan presented to court as PIC10. © Exhibit 22 ° Exhibit MM PIC 10 © Transcript: 24/1 1/2021; page 169 line 7- page 170 line 25 © Transcript: 19/01/2022; page 177 line 4 7 Transcript: 19/01/2022; page 179 line 2 ™ Transcript: 19/01/2022: page 7 line 16 and page 8 line 20 JUDGEMENT — 19 OCTOBER 2023 Page 27 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [90] The court is not able to find conclusively that the dark area visible at the bottom on the photos admitted as Exhibit NN36A and figure 2.9 of the Joughin report, is indeed an unknown mined out cavity inside the crown pillar as suggested, but in light of the totality of the evidence presented during the course of the inquest proceedings, the probability that the dark area visible on the photos might represent a mined out cavity inside the crown pillar, cannot be excluded [91] _MrEsterhuizen and Mr Joughin both testified that in the event any cavities or excavations existed inside the crown pillar, it would have compromised its stability significantly, weakened it and thus could have contributed to its collapse. Why failed? Management practices (92] With the pillar design found to be within range and sufficient, the next question that begs answering is why did the pillar collapse? In their statements to the DMRE and/or the police, a number of mine employees raised concerns about irresponsible management practices, over-mining and stealing from pillars, including the crown pillar. Only one of these employees honoured his subpoena and came to court to testify. [93] Dean Martin Ackerman’?, a solo rig operator in the mine at the time of the collapse, attempted to convey the idea that although mine management tried to convince the court otherwise, underground operations were not always according to plan, ring designs or requirements and that they were “stealing” from the pillars whenever production was low. He testified that they mined the “crown pillar’ at 4 level on instruction after breaking down the no-entry bartiers. The evidence however clearly shows that although the drilling was indeed into the crown pillar, it was not in the area where the failure occurred, The mining activities referred to by Mr Ackerman were east of the ventilation shaft whereas the failure happened to the west of the ventilation shaft The plans confirmed that there were mineable ore left in situ below the designed dimensions of the crown pillar on 4 level east of the ventilation shaft. ” Exhibit B30 JUDGEMENT - 19 OCTOBER 2023 Page 28 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [94] Mr Potas”? testified that the crown pillar was at least 20 meters up in the area where it had failed, and that it was thus impossible to mine the crown pillar as part of normal mining operations.” Although he was not directly involved with Mr Ackerman, he confirmed that mining operations occasionally returned to the eastern side of 4 Level as part of planned mining and in order to blend ore.” The mining referred to in the evidence of Mr Ackerman therefore appears to have taken place in these areas, which is not related to the area where the crown pillar had failed [95] Mr Ackerman also testified that he had worked without the required ring designs on instructions of Mr Koorzen and that there were instances of excessive blasting. Barend Johannes Koorzen”® was employed as a mine overseer during 2012-2013 and was no longer in the employ of the mine at the time of the incident. When Mr Koorzen was confronted with Mr Ackerman's allegations that he had to drill without the required ring design, Mr Koorzen did not deny nor did he admit the allegations. [96] The court took note of the concerns raised by Mr Ackerman regarding the mining of the crown pillar to the east of the ventilation shaft and the alleged excessive blasting on 5 Level a few years before the incident.” The court however finds that there is nothing indicating that these issues had impacted the integrity of the crown pillar and contributed to the failure. Mlegal Mining [97] Mr Bezuidenhout had called it the “pink elephant” in the room. The DMRE inquiry into the incident appears to have completely ignored it as there is no mention of it in the final Section 72(1)(b) report,’® even though the transcripts of the inquiry reflect that it did receive attention during the questioning of the witnesses. [98] | The court takes judicial notice of the existence of illegal mining activities in the mines in South Africa in general and in the gold mines surrounding Barberton, including the ® Exhibit BB ™ Transcript: 08/11/2021; page 15 line 14 — page 16 line 2 7 Transcript: 08/11/2021; page 20 line 10 — page 21 line S 7 Exhibit B38 7” Transcript: 05/11/2021; page 40 line 2 - 15 7° Exhibit I JUDGEMENT - 19 OCTOBER 2023 Page 29 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 Lily Mine, in particular. The court was presented with a file”? containing open source documents discussing in various formats the issue of illegal mining in South Africa. The content of the file was not considered as evidence in the proceedings. Mr Barnardt also filed an additional statement® on behalf of the mine whereto he had attached copies of police case dockets involving illegal miners**, copies of the minutes of the “Mpumalanga Stakeholder Forum on Criminal Mining” chaired by the DMRE® and copies of minutes of the “Provincial operational meeting on illicit mining” chaired by the SAPS®. The annexures to the affidavit also included copies of various media reports on illegal mining, both local and national [99] The court has a duty only to make a factual finding whether illegal mining activities might have contributed to the disaster. It is not for this court to investigate the issue of illegal mining in general or to pronounce upon it in any manner other than in relation to the Lily Mine disaster. [100] Mr McChesney denied the notion that mine management stood reckless towards security and illegal mining and that they did not take sufficient steps to safeguard their staff. He testified that since they moved their operations underground in 2008, the problem of illegal mining became more prominent and the services of private security services and an in-house security manager were therefor engaged to assist them to address the issue. [101] The evidence confirmed that the Lily mine management attempted to address the issue of illegal mining. The copies of the minutes of the Illegal Mining Forum showed that the mine was represented in the meetings and that it gave regular feedback on incidents related to illegal mining activities® as well as the challenges experienced. ”° Matked as File 12 © Exhibit VW ® Exhibit VV, Annexure GB4 & GBS Exhibit VV, Annexure GBS 5 Exhibit VV, Annexure GB9 % Transcript’ 23/11/2021; page 70 line 13-22 “We were certainly never ever reckless about illegal mining. The fact that we had Fidelity security and the person of Tjaart van Straaten managing that process which | should just point out as we went underground in 2008 and as those operations expanded in 2009, 2010 and 2011 the illegal mining problem became more prominent. And we certainly did not take an easy route about that, There was a lot of arrests, a lot of confiscation of gold bearing material GBM, a lot of charges laid at the local police station and we put a lot of effort into that. ° Mainly the closing of adits JUDGEMENT — 19 OCTOBER 2023, Page 30 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [102] The court received evidence that Tjaart van Straten was appointed in the position of security manager, Head of Security, during September 2011 and that he remained on as security manager after the incident until his passing in 2021 shortly before we received the first evidence. Due to his unfortunate passing, Mr van Straten was not available to testify in court and the court therefore only has the original of a short nine paragraph statement® that he had made to the police investigating officer on 16 July 2020. The statement was signed by Mr van Straten and commissioned by the investigating officer. The court is satisfied that it is indeed a statement by Mr van Straaten and accepts it as the evidence of Mr van Straten in the proceedings. [103] Mr van Straaten indicated in his statement that during the period 2011 to 2016, they only arrested 3 illegal miners at 0 Level in 2011.” According to him “{nJo further illegal mining activities and arrests took place at any of the levels including Level four (4)" and he “always visited and patrolled all the levels with Fidelity and there was nothing suspicious."®® This statement by the Head of Security at Lily Mine at the time of the incident, therefore gives the impression that there were no problems with illegal miners at Lily Mine. [104] On 13 October 2021, the court granted an application that the identity of a witness. be protected. The witness, a registered informant with the HAWKS and crime intelligence, testified as “Mr X” in the proceedings. Due to the nature of his evidence, the identity of Mr X will remain protected until finalization of the matter with the Director of Public Prosecutions in terms of section 17 of the Act. [105] Mr X® testified that he was previously employed in the mining industry but became an illegal miner when he lost his employment. He was recruited as an informant in 2009 and was in legal employ at Lily Mine at the time of the incident. The broad strokes of the evidence he had given regarding the activities of the illegal miners at Lily Mine corresponded with the evidence Mr Potas, Mr Baynes and Mr Barnardt gave regarding ® Exhibit B35 °” Exhibit B35 par 3 °° Exhibit B35 par 4 °° Exhibit B35 par 6 © Exhibit KK; Transcript: 08/11/2021 page 107 - 139; 09/11/2023 page 2 ~ 46. JUDGEMENT ~ 19 OCTOBER 2023, Page 31 of 70LOW'S CREEK CAS 62/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 their experiences and observations of illegal mining activities at the mine. Mr X’s handler at the time, Mr van den Berg, also confirmed his evidence. The court finds the evidence of Mr X to be credible and reliable. [106] The gist Mr X's evidence was that illegal mining at Lily mine got out of hand prior to the incident, with approximately 50 groups of between 10 and 20 people each, operating at the mine at the time of the incident. The gold buyers provided the illegal miners, also referred to as zamas, who were mainly foreigners from neighbouring countries, with the necessary drill equipment and generators and the zamas will then pay for the equipment in gold. These illegal miners would enter the worked out stopes, also referred to as old sites or madala sites, where they spend weeks and even months underground. The legally employed mine workers would provide them with food, mainly chicken, tinned food and bottled drinks in a bartering system where gold were received in exchange for the commodities. Entry into the underground work areas were either through paying bribes to the Fidelity security guards who escorted them to the sites or by entering the mine dressed and equipped as legal mine workers. Solomon Nyirenda assisted by issuing the lamps and underground equipment of legal mine workers, who were on leave at the time, to the zamas against payment of up to R1000 per person. Entry without involving the formal mining sector included roping down make-shift shafts from the surface to the west of the mine entrance, directly into the madala sites. Mr X testified that access to explosives were gained either with the assistance of legal mine workers or by breaking open the explosives storage boxes, The illegal miners operated in areas where there was visible gold, mainly at 3 Level, but they went as deep as 8 and 10 Level [107] Mr X testified that the zamas were interested in the crown pillar because it contained substantial quantities of visible gold. It was clear that Mr X was well aware of the locality and purpose of the crown pillar. He not only indicated its location on the plans but also explained in detail how the zamas gained access to it through the building of “scaffolding” against the walls of the worked out stopes on 3 Level. He further explained how they tunnelled and mined horizontally into the crown pillar by following the ‘band of gold’. They drilled 35 to 40mm holes with drills, powered either through long extension cables plugged into the mine's electricity supply or from generators. In the tunnelling process they also created additional cavities in the crown pillar. These cavities could JUDGEMENT — 19 OCTOBER 2023 Page 32 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 accommodate 7 to 8 persons and they used it to hide in when they were blasting in the crown pillar to expose the gold. He had been in the crown pillar only once as the zamas had an arrangement that allow everybody an opportunity to remove gold from the crown pillar. They timed their blasting to coincide with the scheduled blasting by the mine and worked mainly at night because the legal mine activities were less pronounced. They spent daytime in their camps where they extracted the gold from the rock and mixed it with mercury to enable them to take it unobtrusively out of the mine. The gold laden mercury was then taken to the townships where they cooked the mercury off and purified the gold. [108] The zamas were only interested in the gold and gave no inkling about the possible impact their activities might have had on the environment and the mine infrastructure. The day after the incident Mr X spoke to an illegal miner who informed him that the zamas were blasting in the crown pillar on the day of the incident. According to Mr X we will never know whether any of the zamas had perished in the collapse as they remained unidentified because of the fact that they were mostly foreigners. [109] Although he was legally employed at Lily Mine prior to and at the time of the incident, Mr X remained involved in the illegal mining activities in order to be able to pass the necessary information to his handler, Mr van den Berg, who in turn passed it on to the relevant authorities. Mr X did not know whether the information was ever communicated to the Lily Mine management. Although he never had direct contact with the Head of Security at the mine, he knew that Mr van Straten, known as Yster, was through middlemen involved in the activities of the illegal miners, as were his family members and the Fidelity security guards under his control. [110] Dirk Johannes van den Berg’ was contracted as a security specialist in the employ of the Fidelity Group, to the Vantage Group during 2008 and was personally responsible for security in respect of illegal mining at Lily Mine until 2012. He had a program in place to keep the accesses to the mine closed and he kept the illegal mining activities under control by regular sweeping of the mine. He recruited Mr X as a registered informant in 2009 after Mr X was arrested for illegal mining at Sheba mine and deployed him during Exhibit JJ; Transcript: 09/11/2021, page 48 - 83 JUDGEMENT — 19 OCTOBER 2023 Page 33 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 2014 to 2016 to Lily Mine because the explosives used in CIT bombings were allegedly coming from the mine. He confirmed the evidence Mr X had given. [111] Mrvan den Berg testified that the groups of illegal miners he was in combat with at Lily Mine were very sophisticated and properly managed. The illegal mining operations underground were intensive and the illegal miners were very well armed and structured with inter alia the Russians as well as the Jewish Mafia from Sandton, identified as the buyers of the gold. He likened illegal mining to cancer and testified that effective control is the only means of keeping it under control. That meant not only monitoring all accesses to the mine but also keeping an eye on your own security personnel as they get drawn into the operations very easily. In his experience, there are two types of illegal mining going on in the mines namely ‘illegal miners’ and ‘criminal miners. A criminal miner is an employed individual who is in his place of work but actively either supporting illegal mining or joining illegal mining and stealing from the mine itself. The illegal miners are the individuals, either from Mozambique, Zimbabwe or Swaziland or sometimes local, who are part of the whole syndicate process and who mine on their own. Finding illegal miners is the easy part. Finding the criminal miner is the difficult part, as he is a typical chameleon. [112] Most of the 30 witnesses who testified during the inquest proceedings were questioned about their knowledge of illegal mining activities at the mine. Their answers ranged from an up close and personal experience to no knowledge at all. Many of the witnesses, including witnesses who were part of the management at Lily Mine, either denied knowledge of illegal mining activities or attempted to downplay the issue. [113] The technical supervisor, Mr Sibiya® testified that he only heard rumours that illegal miners had held people hostage. He was aware of the deployment of security to address the issue where people were suspected to be illegal in the mine but he had never seen illegal miners at the mine. The shop steward, Mr Magongo™ denied more than once knowledge of any illegal mining activities and informed the court that he only heard after the incident that there were illegal miners around. % Transcript: 09/11/2021; page 62 line 8-18 © Exhibit B40 & Exhibit B39 JUDGEMENT - 19 OCTOBER 2023, Page 34 of 70LOW'S CREEK CAS 52/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 [114] Oupa Godfrey Thambokhulu®, a spotter, testified that he heard about a kidnapping incident involving illegal miners and that he was aware of the arrest of illegal miners at 0 Level. He also saw the additional deployment of security when free gold was found in the mine. Mr Sithole®, the dump truck operator who also was the last person to see the deceased persons alive, indicated that he had heard the activities of the illegal miners when he was underground but that he had never personally encountered illegal miners in the mine. [115] Both Henry Koekie Sono”, a packer operator and Patrick Mahlabane®, a truck driver, testified that they had no knowledge of any illegal mining activities at the mine The solo drill ig operator, Mr Ackerman® testified that he was not aware of any illegal mining activities except for an incident where three illegal miners were arrested during 2011. Mr Storm" testified that he was aware of illegal miners being arrested at 2 Level, [116] Mr Potas"*' and Eben Swanepoel", the general manager at the mine at the time of the collapse, testified that they were well aware of the illegal mining activities at the mine. In 2009 Mr Potas was involved in the investigations regarding a hostage incident that involved a co-worker, who was at the time also a friend of his daughter. The investigation showed the involvement of a member of the police, Constable Nyirenda, who was the brother of Solomon Nyirenda. Constable Nyirenda was allegedly later killed in an illegal gold trade related incident."° Mr Potas testified that he was present when a task force did a sweep of the closed 3 Crown Level where they had recovered equipment such as Hilti drills and generators used by the illegal miners. He had also seen CCTV footage that had captured images of the illegal miners using the mine equipment for their operations. Both Mr Potas and Mr Swanepoel testified that they were Exhibit 820 © Exhibit B15 & Exhibit B23 ® Exhibit B12 © Exhibit B30 100 Exhibit B7 1 Exhibit BB 102 Exhibit B17 193 Transcript: 08/11/2021; page 24 line 17 ~ page 26 line 25 "And it was reported and a whole investigation was done, the very same Nyirenda Constable was killed about a month later with the ilegal trade at Lily mine at one of the spaza shops with the illegal gold trade because he was part of i” JUDGEMENT - 19 OCTOBER 2023, Page 36 of 70LOW'S CREEK CAS 62/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 constantly aware of the activities of the illegal miners and that it was part of their life. According to Mr Potas the zamas were all over the mine and they literally nibbled out the visible gold by drilling short holes with the Hilti drill igs and using light charges. Mr Potas could not understand why Mr van Straaten would have indicated in his statement to the police that he had no knowledge of the ongoing activities of illegal miners. [117] Mr Baynes testified that he knew that illegal miners were chased out of 3 Level and that he saw evidence of their activities on 2 level.™ The illegal miners were only interested “in what they called “free-milling gold” which is not necessarily visible, and that they knew exactly what they were looking for."®° "How these guys mined is phenomenal, but they just take the gold, they do not worry with anything else." [118] The mine overseer, Mr Koorzen"®” and Ms Sanet Jonker", the health and safety officer at the mine, both testified about their interactions with Mr van Straten. Mr Koorzen testified that he and Mr van Straten were friends and that they regularly shared a beer. They also had many discussions about illegal mining activities at the mine. From these discussions he was aware that the illegal miners accessed the mine from the top and that Mr van Straaten and his guys had to go and take the people out. He mentioned that one of Mr van Straaten’s biggest complaints was that “there is nowhere to hide when people shoot at you" and “how to get people out that has gone down a piece of rope 40 metres into a hole and he refuses to come out'.“"° He testified that it was his understanding that the illegal miners were on the western side of the ventilation shaft and because the areas were sealed off, the security personnel could not see what was going on behind the seals. Although he had not seen it personally, Mr van Straaten had told him that the illegal miners followed the vein closely whilst using small localised blasts, jackhammers and electrical drills. When confronted with the allegation that Mr van Straten himself might have been involved with the zamas and ‘2 Transcripts: 24/11/2021 page 146 line 10 and page 178 line 21 195 Transcripts: 24/11/2021 page 149 line 3 - 8 1° Transcripts: 24/11/2021 page 179 line 6 °°” Exhibit B38 1° Exhibit LL7 “2 Transcript: 05/11/2021; page 133 line 3 9 Transcript: 05/11/2021; page 133 line 6 JUDGEMENT - 19 OCTOBER 2023 Page 36 of 70LOW'S CREEK CAS 62/01/2020 MAGISTRATE BARBERTON INQUEST 26/2021 that he was alleged to have actually run a syndicate, he replied “! knew the guy over a beer. It is the best | can do and what we spoke. That is it." [119] Ms Jonker indicated that she had known Mr van Straten well and that they had regularly worked together on security related issues that also impacted health and safety. She indicated that the content of the statement by Mr van Straten to the police was not true as “there was illegal mining acti van Straaten had personally encountered suspected illegal miners. She also indicated that the problem of illegal miners accessing the mine was continuously discussed and that Mr Eben Swanepoel had issued instructions for the monitoring and reporting of ities all the time"? and that she and Mr illegal activities at all possible accesses to the mine. She denied Solomon Niyerenda’s alleged involvement in any of the illegal activities at the mine. [120] Mr Swanepoel testified that illegal mining was part of the operations. The closing of adits to prevent access was a continuous process, but the holes will just be opened up again. Although he never personally encountered them underground he noticed the active presence of the illegal miners, He had seen them running away and they had come upon the places where the illegal miners had gathered, slept and worked. Although he was aware that there was a problem with illegal miners in the mine, he was not aware of the scale of the problem." [121] Bongani Arthur Rantho", mine manager at the time of the incident, testified that he had heard verbal reports that people around the community were arrested relating to illegal mining but the mine itself “did not have a major problem as with the other mines our neighbours were inundated with illegal miners""'S. He testified that in comparison to his current place of employment “Lily Mine is a kindergarden’”®. [122] Mr Begg" testified that he was surprised when he heard from Mr X the extent of the illegal mining at Lily Mine. In his experience “illegal mining at Lily was an irritation, we 1 Transcript. 05/11/2021; page 134 line 24-25 2 Transcript: 09/71/2021; page 106 line 19 9 Transcript: 10/11/2021; page 34 line 18 4 Exhibit B2 5 Transcript. 11/11/2021; page 84 line 14 8 Transcript 11/11/2021; page 113 line 18 17 Exhibit B18 JUDGEMENT - 19 OCTOBER 2023 Page 37 of 70,