Analysis of the Current Legal Framework Protecting the Health of Communities Near Gold Mine Tailings in South Africa

• Jurisdiction: South Africa
• Date: 01 December 2022
• Pages: 1-19
• Author: Bernard Kengni,Vusumuzi Nkosi
• Published date: 01 December 2022
• DOI: 10.25159/2522-6800/12919

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/12919

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), ISSN 2219-6412 (Print)

Volume 37 | Number 2 | 2022 | #12919 | 19 pages

© Unisa Press 2023

Published by Unisa Press. This is an Open Access article distributed under the terms of the

Creative Commons Attribution-ShareAlike 4.0 International License

(https://creativecommons.org/licenses/by-sa/4.0/)

Analysis of the Current Legal Framework Protecting

the Health of Communities Near Gold Mine Tailings

in South Africa

Bernard Kengni

https://orcid.org/0000-0002-7643-0723

NRF/DST SARChI Research Chair:

Mineral Law in Africa,

Department of Private Law and the NRF

Community of Practice: Resilient

Futures, University of Cape Town

Bernard.Kengni@uct.ac.za

Vusumuzi Nkosi

https://orcid.org/0000-0002-5112-0163

Environment and Health Research Unit,

South African Medical Research

Council, Johannesburg

Department of Environmental Health,

Faculty of Health Sciences, University

of Johannesburg

vusi.nkosi@mrc.ac.za

Abstract

South Africa has a robust legal framework to ensure that mine tailings do not

become a health hazard. This notwithstanding, this article will show how a lack

of effectiveness with regard to implementation and compliance has led to a

situation where the health and safety of people living in communities near gold

mine tailings are constantly threatened. This health hazard is exacerbated by

human settlements being developed too close to mine tailings, a consequence of

poor monitoring, planning and control. The authors explain how the problem

could be remedied through effective implementation and compliance with the

legal framework and concerted efforts between the government, mining

companies and affected communities. Similarly, the establishment of exclusion

zones is key to limiting exposure to pollution. At the same time, awareness

campaigns will ensure that community members are equipped with the

knowledge to safeguard themselves against health hazards caused by gold mine

tailings.

Keywords: Gold mine tailings; health; pollution; communities; legal framework;

implementation; enforcement

Kengni and Nkosi

2

Introduction

Gold mining has a positive as well as negative impact on society. While contributing

significantly to the economy of South Africa,

1

the financial gains from the extraction of

mineral resources come at a price—namely the pollution caused by large quantities of

waste material.

2

South Africa has been a mining country for more than a century

3

and over time, mine

wastes have become a significant cause of pollution.

4

For many decades, large volumes

of waste material—generally the unwanted and uneconomic by-products of mining

5

located on or around mine sites

6

—have been accumulating across the country. Such

sites often contain high levels of heavy metals that are likely to be toxic, corrosive and/or

radioactive.

7

These lead to high levels of air pollution and contamination of land and

water sources, especially around mine sites.

8

Such high levels of pollution are, in turn,

a permanent threat to the health of communities living close to mine dumps.

A major contributor to this problem is the high prevalence of abandoned mine sites,

where no owner or responsible party can be identified. On such sites, mine wastes

typically go unattended.

9

As a result, there are close to 6 000 abandoned and

unrehabilitated mines across the country.

10

There are also hundreds of mine tailings still

awaiting remediation across South Africa.

11

Consequently, communities in several parts

1

Stats SA, ‘Mining: Production and sales’ in Statistical Release P2041 8 (Stats SA, 2019)

accessed 27 October 2022;

Nadine Wenzel, Bill Freund and Olivier Graefe, ‘Surviving in the BRICS: The Struggle of South

African Business in Coping with New Partners and Investors’ (2019) 33 International Review o f

Applied Economics 51, 54.

2

RK Tiwary, ‘Environmental impact of coal mining on water regime and its management’ (2001) 132

Water, Air, and Soil Pollution 185, 185–186.

3

Lochner Marais, Stuart Denoon-Stevens and Jan Cloete, ‘Mining Towns and Urban Sprawl in South

Africa’ (2020) 93 Land Use Policy 9.

4

Lorren Kirsty Haywood, Benita De Wet, Willem de Lange and Suzan Oelofse, ‘Legislative

Challenges Hindering Mine Waste being Reused and Repurposed in South Africa’ (2019) 6 The

Extractive Industries and Society 1079, 1080.

5

These include rock, sediment, tailings, metallurgical wastes, dusts, ash, and processing chemicals.

6

Karen Hudson-Edwards, ‘Tackling Mine Wastes’ (2016) 352 Science 288, 288.

7

ibid.

8

Abraham Albertus Jacobus Naudé, ‘A Methodology to Quantify the Groundwater Impacts of Mega-

Tailings Dams for the Gold Mining Industry, South Africa’ (MSc Thesis, North-West University

2016) iii.

9

David Laurence, ‘Optimisation of the M ine Closure Process’ (2006) 14 Journal of Cleaner

Production 285, 286.

10

Herman Cornelissen, Ingrid Watson and Tshepo Malefetse, ‘Challenges and Strategies of Abandoned

Mine Rehabilitation in South Africa: The Case of Asbestos Mine Rehabilitation’ (2019) 205 Journal

of Geochemical Exploration 1

11

Muibat Omotola Fashola, Veron ica Mpode Ngole-Jeme and Olubukola Oluranti Babalola,

‘Physicochemical Properties, Heavy Metals, and Metal-Tolerant Bacteria Profiles of Abandoned

Gold Mine Tailings in Krugersdorp, South Africa’ (2020) Canadian Journal of Soil Science 218, 219.