Steeped in Blood (12 page)

New mining areas were being developed at the time, and huge haulages were being cut into the unforgiving rock. Once a passageway has been cut into the rock, the workers have to be protected against large chunks of rock breaking off from the roof (known as the hanging wall). Large steel rods, similar to Rawlbolts, are driven into the exposed surfaces and a steel mesh is secured over this to prevent rock falls.

The steel meshwork has to be covered with some protective coating, as the chemical atmosphere down the mine is somewhat corrosive due to the explosions that produce corrosive gases. Traditionally, the meshwork is coated with gunnite, a thick slurry of cement sprayed on by huge compressed air guns. While very effective, the disadvantage of using gunnite is that it is relatively slow to apply. In the mining industry, time is money, and money is king.

When a salesman approached the Kinross mine management and offered a faster solution to the problem, their attention was riveted. The salesman suggested that the mine use a type of foam – polyurethane foam – down the mine shaft, which could be sprayed on and which would harden in a matter of minutes. The management saw the opportunity to finish the tunnel in about half the time it would have taken using gunnite, and they were sold on the idea. Within a very short period of time, the walls of the tunnels were coated with the foam. All went reasonably well for a year or two.

This new method, however, was not without risk. An incident occurred at a coal mine in England, with disastrous consequences, and the dangers of polyurethane foam became well known to most mining engineers. The alarm was raised, and the salesman was called back to the mine to explain why he had recommended polyurethane
foam. His explanation was as simple as it was dishonest: ‘This is not polyurethane,’ he said. ‘It is polyisocyanurate.’ Strictly speaking, he was right. He produced a journal article showing that polyisocyanurate was more resistant to ignition than polyurethane, and the work continued.

What he failed to tell the mine management was that this foam, if subjected to a powerful ignition source, would also ignite, and that once ignited, there would be precious little difference between this and the much-feared polyurethane. The substances look similar and have a similar chemical composition – both of them contain nitrogen atoms in their make-up. When they burn, they produce copious quantities of cyanide gas, which means that the smoke and combustion products produced by this substance are extremely dangerous to all living things.

Then disaster struck at Kinross. On the morning of 1 October, a platelayer took his welding equipment, consisting of an oxyacetylene kit, down to do some repairs on the railway line in the tunnel lined with polyisocyanurate. During the process, he accidentally knocked over the acetylene bottle and damaged the valve, which started emitting acetylene, and it caught alight. It became like a huge flamethrower, the flame playing directly on the wall of the tunnel.

Within seconds, the side wall of the tunnel ignited, and the fire spread rapidly down the rest of the railway line, fanned on by a strong, forced air draft produced by the ventilation fans. The result was an underground inferno that produced lethal fumes. The platelayer managed to escape quickly and ran for help, but it was in vain.

It was a disaster on a grand scale, and the political implications were enormous. Cyril Ramaphosa, the then secretary general of the National Union of Mineworkers, was quoted as saying, ‘We are obviously back to the dark ages of mining,’ and accused the mine owners of not placing enough store in the safety of their employees.

I was called in to investigate this disaster about three days after it happened. It came as no surprise to me when, a few days after the Gencor team had contacted me, I was phoned by the legal firm Cheadle Thompson & Haysom, which specialised in, among other things, politically sensitive cases. They wanted to involve me in the case for the National Union of Mineworkers. By then, however, I had accepted the brief for Gencor. My declining the law firm was to have interesting consequences later on in my career.

I travelled to Kinross to inspect the scene. Cyril Ramaphosa and I visited the devastated mine, along with a whole delegation. We travelled down the mineshaft in a wagon that worked on pedal power. A burly black miner pedalled furiously as we sat in the cart, propelling us along the railway tracks within the mine. Arriving at the level where the fire had occurred was a frightening and eerie experience. We traipsed along the blackened mine tunnel along a distorted disrupted railway line for about a kilometre and a half. The temperature and the humidity were almost unbearable, and the smell of death was everywhere.

After examining the mineshaft, I proceeded to the mine managers’ office, where I started the tedious process of taking a full history of the shaft and the events leading up to the disaster. As is so often the case, the secret to proper investigation is to get the fullest possible history. Within a few hours, it became clear to me that the mine had coated the shaft with polyurethane foam because it had been misrepresented to them by the salesman.

Direct evidence in the form of an invoice and correspondence showed that the mine management had queried the use of the foam. The subsequent correspondence made it quite clear that the salesman had allayed their fears by producing literature that detailed the fire behaviour of the polyisocyanurate in small-scale fire tests.

This invoice and the subsequent correspondence proved to be the central feature of the defence when the matter was later tried in
the criminal court in Witbank, near Kinross. The other information that proved vital in the case against the mine was the data I gathered in Germany, where I went to pay a visit to the Bayer factory, on the outskirts of Cologne, which is the font of all knowledge on the family of polyurethanes. I established that, although polyisocyanurate was a different substance, it was nevertheless possible to ignite it – it just needed a larger ignition source.

In South African law, in order to be guilty of a crime, one needs to have the so-called ‘guilty mind’ or ‘intention to commit a crime’ (
mens rea
). If, through no fault of your own, an accident such as the one at Kinross happens, provided you have not been negligent, you may escape the criminal consequences of the accident. After a long trial, the fact that the Kinross mine management had queried the use of the foam, coupled with the fact that they had been misled by the unscrupulousness or ignorance of the salesman, was sufficient to eventually result in an acquittal for most of the accused.

I involved Dr Len Anstey in the matter, as we had to determine the cause of death of the 177 mineworkers. Len is a pathologist in Cape Town, and he travelled with me to Kinross when I went to examine the scene. The only place nearby that could provide us with the most basic facilities needed to conduct the autopsies was Standerton. There, we found the bodies piled one on top of another in a makeshift mortuary fridge that, in happier times, had seen service as a cold room for beer and cold drinks.

It was quite clear that the men had suffered from asphyxiation in some way, but it was very difficult to pinpoint the exact cause of death. We had even found a group of men a kilometre away from the fire, clustered around an air hose, stone dead. These men probably died as a result of the cyanide produced by the burning foam, together with other highly toxic gases emitted during the fire.

The case finally went to trial. The accused included an array of seven employees from the mine, from the platelayer who had caused the fire to the directors – they all sat in the dock. Our counsel
in the case was Chris Plewman, who went on to achieve great things on the Supreme Court bench and later as a judge of appeal.

The entire case was fraught with political tension. Kinross mine was heavily criticised for not announcing the disaster until hours after it happened, and for identifying the dead black miners by ethnic group only. Despite all of this, I believe that the accused were given a fair trial and were, in my opinion, correctly acquitted. The Congress of South African Trade Unions (COSATU) subsequently established a National Health and Safety Day in recognition of the tragedy.

Despite this terrible tragedy and the fact that it showed clearly that polyisocyanurate should not be used underground, about two years later, Anglo American had a fire in one of their mines, when the same substance caught alight. The Kinross disaster had obviously not been enough of a warning to them. Fortunately, there were not too many casualties in the Anglo American fire. The occurrence of this second, preventable tragedy indicates that the bosses of big business seem to be driven purely by profits, irrespective of the risks they take and the potential danger in which they place their employees.

A strange irony arose for me from this story. Some years later, I was called again by an attorney called Helen Seady from the firm Cheadle Thompson & Haysom. A young man called Padi had escaped from police custody. (I have never quite understood why he went to all the trouble of escaping, because he would in any event have been released a few weeks later.) The police tracked Padi down and, just to show him that it was wrong to escape, emptied their firearms into him and his girlfriend, Faith.

One of the attorneys wanted me to investigate the shooting for the family. During my conversation with this attorney, she informed me that the firm had been displeased with me for accepting the brief from Gencor in the Kinross matter and, as a result, had decided not to brief me from then on. I replied that I was grateful they had
put aside their annoyance and that they were prepared to hire me for this case. Some time into the discussion, she asked me if I could recommend a good pathologist to perform a post-mortem for the families. I had no hesitation in recommending Jonathan Gluckman, a private pathologist who had been involved in the inquiry into the death of Steve Biko in the late seventies.

Her answer to me was at once both revealing and exceptionally irksome. ‘Can’t you recommend someone else?’ she said. ‘Gluckman is regarded as something of a left-wing sympathiser.’ I was utterly astounded and told her that she seemed to be suffering from schizophrenia. ‘What do you mean?’ she said, bridling immediately.

‘It is quite simple,’ I replied. ‘Here you have told me that you took exception to my working for Gencor in the Kinross matter when they had briefed me first, and now you tell me that you don’t want to appoint Gluckman because he never acts against you and is seen to be a left-wing sympathiser as a result.’

Despite these comments, however, I ended up working on the case. Lawyers can be funny creatures.

‘Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.’

– MARTIN LUTHER KING JR,

leader of the African-American civil rights movement and Nobel Peace Prize winner

The 1980s in South Africa were violent and unstable years. We were in the stifling grip of apartheid, a system based on discrimination, denial and segregation that was applied to every aspect of South African life. It permeated the social, political and economic fibre of our country, grossly violating human rights in numerous ways and on many different levels.

I was to get extraordinary insight into these injustices from an unusual and very different perspective. Because I was the only independent forensic consultant in the country at the time, I became involved in many cases where human rights violations had taken place, often finding myself in situations far beyond my experience.

In 1985 I received a phone call from Geoff Budlender, who headed up the Johannesburg office of the Legal Resources Centre,
the first public-interest law organisation in South Africa, co-founded by Arthur Chaskalson (later Chaskalson C.J.) in 1979.

A man by the name of Saul Mkhize had been shot and killed by the police. Under the Group Areas Act, certain areas were declared ‘white areas’, and families of colour occupying these areas were forcibly relocated to ‘black areas’. The Mkhize family and Mkhize’s community were in the process of being forcibly removed from their East Rand dwelling, which they had occupied since time immemorial. Mkhize had objected to being removed, and was shot as a result.

The police claimed that Constable Nienaber had shot Mkhize in self-defence, after Mkhize had attacked the policeman. A severely dented and damaged gas mask had been handed in as evidence of the alleged frenzied attack by Mkhize on the policeman. Nienaber was exonerated – policemen were not found guilty of shooting blacks in those turbulent days of police rule.

Mkhize’s family were unhappy with the outcome, and had lodged a claim against the Minister of Police for damages that they had suffered as a result of his death. It was at this point that I was called in.

I asked Budlender to secure the gas mask for me. Examining it closely, I was struck by the symmetry of the damage to the canister: each dent on the canister was separated from another dent by about 180 °. Looking at the canister under a microscope, it was quite easy to see that the damage consisted of three pairs of dents, one set of dents containing wood fibres embedded in the metal, and the opposite set of dents containing sand particles embedded in the metal. This could never have happened in the manner alleged by the police. Also, the canister was damaged, but the rubber surrounding it was intact. The damage did not appear to have been caused during an attack.