Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Petse AP, Molemela JA, Makgoka JA, Basson AJA and Goosen AJA
• Judgment Date: 30 May 2023
• Docket Number: 289/2021
• Hearing Date: 24 November 2022
• Court: Supreme Court of Appeal

Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA concurring):

[1]

Deep-level mining may require the management of extraneous water that enters the underground mining area. Mine shafts are sunk from the surface occasionally to great depths, in order to access rock seams containing mineral deposits. As these mining areas are worked to extract the mineral-bearing rock, voids are opened. Groundwater from higher and adjacent areas seeps through fissures in the rock, under force of gravity, into the voids. When this occurs, the extraneous water must be pumped out and discharged at the surface of the mine in order to continue safely and effectively working these mining areas. Such dewatering of the underground mining area is, in these circumstances, an

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Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA concurring)

essential feature of underground mining operations affected by the ingress of extraneous water.

[2]

The issue in the appeal is whether a mine operator's obligation to continue pumping extraneous water from underground mining areas, endures despite its cessation of underground mining operations. The Gauteng Division of the High Court, Pretoria (the high court) answered that question in the affirmative. It consequently ordered the appellant, Ezulwini Mining Company (Pty) Ltd (Ezulwini) to continue with such pumping, until the first respondent had issued to it, a closure certificate in terms of s 43 of the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRDA). Ezulwini appeals against that order, with the leave of the high court.

[3]

Ezulwini is the holder of a mining permit and operator of a mine on the West Rand of Gauteng (the Ezwulini mine), which it acquired from its predecessor in 2014. The mine has been worked since 1961. The first, second, and third respondents are the Ministers whose departments are, respectively, responsible for the management of relevant legislation. The first respondent, the Minister of Mineral Resources and Energy, is responsible for the MPRDA and the Mine Health and Safety Act, 29 of 1996 (MHSA). The second respondent, the Minister of Environment, Forestry and Fisheries, is responsible for the National Environmental Management Act, 107 of 1998 (NEMA). The third respondent, the Minister of Water and Sanitation, is responsible for the National Water Act, 36 of 1998 (the Water Act). The fourth respondent is an official in the Department of Mineral Resources, based in Gauteng.

[4]

The fifth respondent, GFI Joint Venture Holdings (Pty) Ltd (GFI) is the owner of a mine that is adjacent to Ezulwini mine. The sixth respondent, Gold Fields Operation Limited (Gold Fields) is the operator of the mine owned by

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Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA concurring)

GFI. I shall refer to them collectively as Gold Fields and to the mine as the Gold Fields mine. The Gold Fields and Ezulwini mines are interconnected. The underground connection has, however, been 'plugged' or sealed. The seventh respondent, Lucky Farms Partnership (Lucky Farms) conducts a farming operation in the vicinity of the surface operation of the Ezulwini and Gold Fields mines. It draws water from a stream and groundwater resources for its farming operation. It was cited for its interest in the matter. Of all the respondents, only the Minister of Mineral Resources and Energy (the Minister) and Gold Fields participated in the appeal, and opposed the relief sought by Ezulwini. Lucky Farms filed a notice to abide in this Court, and thus also took no part in the proceedings.

[5]

It was common ground that the pumping of extraneous water from the underground works at Ezulwini has been carried out for many years by the mine's previous operators. Indeed, the dewatering of mines has occurred at many mines operated on the West Rand. This has resulted in dewatering of basins, which occur in the dolomite layers between the surface and the deep-level mining areas. Ezulwini has, since it took over mining operations from its predecessor, continued to pump extraneous groundwater from its underground mining areas. The extraneous water is pumped to the surface where it is treated before being discharged into natural water courses on the surface. Its pumping and treatment of the extraneous water is licenced in terms of the Water Act. [1]

[6]

In September 2016, Ezulwini discontinued its underground mining operations as these were no longer economically viable. It has continued to conduct certain operations involving the processing of mineral-bearing material

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Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA concurring)

at its surface mining area. In October 2017, Ezulwini applied to the fourth respondent, for an environmental authorisation to cease the pumping of extraneous underground water in terms of s 24 of NEMA (the NEMA application). It also applied to the Provincial Head of the Settlements, Water and Sanitation Department, for an amendment of its water use licence issued in terms of the Water Act (the water use amendment application).

[7]

In May 2018, Ezulwini's NEMA application was refused. It lodged an appeal against the refusal, to the first respondent. The appeal was upheld in part, in that the application was remitted for reconsideration following a public participation process.

[8]

Neither the NEMA, nor the water use application has been finalised. Acting upon legal advice to the effect that neither application was lawfully required, Ezulwini brought an application before the Gauteng Division of the High Court, Pretoria (the high court) seeking declaratory relief in regard to its legal obligation to continue pumping extraneous groundwater from the underground works (the main application). The main application was commenced on 24 July 2019. The primary declaratory relief it sought was that neither an environmental authorisation (in terms of NEMA), nor an amendment to the water use licence is required to allow Ezulwini to cease pumping extraneous underground water. It sought, in the alternative, an order authorising it to cease the pumping, based on environmental, health and safety and cost considerations. In the further alternative it sought an order to the effect that, if it is obliged continue the pumping, Gold Fields should contribute to the costs of such pumping, on the basis that it is continuing with underground operations at its mine.

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Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA concurring)

[9]

In addition to opposing Ezulwini's application alongside the Minister, Gold Fields also filed a counter-application. As mentioned, the Ezwulini and Gold Fields mines are inter-connected, although the inter-connection had been sealed. Gold Fields' counter-application was premised on that fact. in It sought the following orders:

'1.

Declaring that [Ezulwini] remains responsible for the pumping and treatment of extraneous water from the underground workings of the Ezulwini mine until at least when the [first respondent] has issued a closure certificate in terms of section 43 of the [MPRDA] to [Ezulwini] or such longer period as contemplated in section 24R of [NEMA].

2.

Directing [Ezulwini] to take such steps as are necessary to maintain the shafts and pumping infrastructure required for the pumping and treatment of the water from Ezulwini's underground workings where it has ceased mining for such period as it remains responsible for the pumping and treatment of extraneous water.

3.

Directing [Ezulwini] to allow the Fifth and Sixth Respondents access to the Ezulwini mine for purposes of inspecting the condition of the entire Cooke 4 shaft and infrastructure required for purposes of the pumping and treatment of extraneous water from the Cooke 4 shaft.'

[10]

Gold Fields contended that Ezulwini's proposed cessation of water pumping had the potential that the seal of the connected underground areas could fail. This would result in the Gold Fields mine being flooded with water from the Ezulwini mine, resulting in significant health and safety risks to the mining operations conducted by Gold Fields, especially to its employees.

[11]

The matter came before Fabricius J in December 2020 and was decided without oral argument, and judgment was delivered on 15 January 2021. The learned judge determined the counter-application on the basis that it was dispositive of the disputed issues between the parties. He issued a declaratory order in terms of which Ezulwini remained responsible for the pumping and treatment of extraneous water from the underground workings of its mine. This

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Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA concurring)

would endure until at least when the first respondent has issued a closure certificate in terms of section 43 of the MPRDA to it or such longer period as contemplated in section 24R of NEMA. The high court dismissed the relief sought in prayers 2 and 3 of Gold Field's counter-application. Costs were awarded in favour of Gold Fields.

[12]

The issue on appeal, as it was in the high court, is a crisp one. Is Ezulwini obliged in law to continue pumping extraneous water from its underground mining works despite its cessation of underground mining? If so, when does the obligation cease? The answer requires the interpretation of s 43 of the MPRDA and s 24N of NEMA.

[13]

The legislative framework regulating all aspects of mining and mineral extraction has its origin and is intended to give effect to the rights enshrined in s 24 of the Constitution. [2] The primary legislative instrument to give effect to s 24 of the Constitution is NEMA. It establishes a framework for the authorisation of activities that impact or affect the environment, and for management of such impacts so as to meet the objectives of s 24 of the...