Supreme Court of Appeal Lays Down the Law Against Mining Companies regarding Protection of Resources such as Water Protection of

Supreme Court of Appeal lays down the law against mining companies regarding protection of resources such as water

The Supreme Court of Appeal laid down the law on Wednesday the 4 December 2013 vis-a-vis obligations of mining companies to prevent pollution by taking effective and reasonable measures especially relating to water. Its common knowledge that acid seepage from defunct mines is seeping into aquifers which are resources for potable water, in Gauteng. What happens is that when a mine becomes less profitable,mining companies dispose off the mines to third parties, in the mistaken belief that any obligation against them would fall away. Harmony Gold was one such company.

The case in question is cited as  Harmony Gold Mining Company Ltd v Regional Director: Free State Department of Water Affairs (971/12) [2013] ZASCA 206  (4 December 2013)

Harmony Gold lodged an appeal against a decision of the Gauteng High Court that held that even though Harmony Gold no longer owned the land, a directive issued against it in terms of section 19(3) of the National Waters Act 36 of 1998  was valid and enforceable against it. Harmony Gold had also questioned whether the Minister of Water Affairs had such wide powers to enforce directives against entities no longer in ownership of the land.

At the time the directive requiring Harmony Gold and others to take effective measures to prevent pollution of aquifers through seepage of acid etc was issued Harmony owned the land which was later sold to another company Pamodzi  which then went into liquidation. The contention on appeal and against the judgement of the Gauteng High Court was that once Harmony ceased owning the land, its obligation under the directive fell away as against it.

A unanimous Supreme  Court of Law disagreed with that contention and held that the obligation was an ongoing one if and when a directive is issued in terms of section 19(3) of the National  Water Act,a company owned or used the land in question, even though it disposed of the land, that obligation stood.

This judgment is important. The Supreme Court of Appeal affirmed the right to a safe environment guaranteed under section 24 of the Constitution and it pointed out that it was for that reason that the National Environmental Protection Act (NEMA) was passed. It means that in  terms of NEMA landowners have a positive duty to take all reasonable steps towards protecting the environment.

Yours Faithfully

Saber Ahmed Jazbhay

4.12.2013