Harmony Gold Mining’s Kusasalethu mine remained closed because the company was still not in a position to assure the safety of its employees, the South Gauteng High Court heard on Wednesday.

The court was hearing an urgent application by about 50 of the mine’s workers who want to be allowed back into their compound. The mine has been closed since last month after a violent strike last year.

The mineworkers’ counsel, Ivan Miltz SC, said when workers left for their Christmas break, they were not told the mine would not reopen.

On returning, they found they had been shut out and spent the first nights sleeping outside the gates, in the open. Some were now being sheltered in a tent in a church, he said.

He said their uninterrupted and peaceful possession of their hostel rooms — some since the early 1980s — had been taken away without their knowledge or consent. They were entitled to its restoration, he said.

But counsel for the mine, Frans Barrie SC, said miners had been told that the mine would be closed. He said their union representatives, who claimed they did not know that the mine was closing, were "lying".

When a mine was acting reasonably and in good faith in pursuing its legal obligations in terms of the Mine Health and Safety Act — to "protect life and limb" — it could not be said to have deprived the miners of their possession unlawfully or illicitly.

The decision to close the mine was a "momentous one", given the millions that the mine was losing.

"A mining company does not close a mine and keep employees out of its hostel just for the fun of it," Mr Barrie said.

He said that the court case was little more than a "membership drive" for the Association of Mineworkers and Construction Union, the union that is backing the mineworkers’ application.

But Mr Miltz argued that, in law, it was "irrelevant" why the workers wanted to return to the hostel, despite the closure of the mine and despite an offer by the mine to pay for their transport back home.

But Judge Ndawoyakhe Tshabalala suggested: "If I come to the conclusion that the situation is indeed tense, that it may grow out of control (and) something that may remind us of recent history may occur, I have to weigh in all those."

Mr Miltz said if there was violence at the hostel, the court should not have to condone it. But, in fact, while there had been violence at the mine shaft, it had not reached the hostel, he said.

The "only incident of any nature that the respondent can refer to is the destruction of some turnstiles in November last year".

But Mr Barrie rejected the idea of the hostel as "an island of peace in a sea of anarchy". He said the mine shaft and the compound were only about 100m apart and described how the strike had resulted in two employees "hacked to death".

But Mr Miltz said none of Mr Barrie’s arguments provided a legal defence for what the mine did. If the mine was concerned about the potential threat, it should have gone to court to evict them. "But it cannot lock them out," he said.

Judgment was reserved.