The liability of historical mine authorisation holders for rehabilitation of 'old order mine dumps'

• Author: Suzette Hartzer,Willemien Du Plessis
• Pages: 469-493
• DOI: 10.10520/EJC-7978985a1
• Published date: 01 January 2014
• Record Number: sapr1_v29_n2_a12
• Date: 01 January 2014

LLB LLM (NWU). Legal Adviser at Digby Wells Environmental. This article is based on a mini-

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dissertation written by the author as a LLM (Law and Governance) student at the North-West

University (Potchefstroom Campus 2010). The authors would like to thank Michael Hennessy, Digby

Wells Environmental, for their valuable comments and review of this article.

B Jur LLB MA LLD (PU for CHE). Prof essor of Law, North-West Univers ity.

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The liability of historical mine

authorisation holders for rehabilitation

of ‘old order mine dumps’

Suzette Hartzer and Wille mien du Pless is

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Abstract

Mine dumps or tailings (i.e. ‘mine waste’) created by mining activities are some

of the main environmental impacts of mining. Historically little or no regard was

given to the environment while planning mine dumps, since planning was based

on minimum cost, the availability of land and the safety of underground workings.

Mine dumps continue to cause water and air pollution when abandoned without

being rehabilitated.

Abandoned mines and their dumps are common features of the South

African landscape. Section 46 of the Mineral and Petroleum Resources

Development Act 28 of 2002 (MPRDA) provides that the state is responsible to

rehabilitate abandoned mines if the owner is deceased, cannot be traced,

ceased to exist or has been liquidated. Rehabilitation of these mines has

extensive financial consequences for the state and indirectly to the taxpayer.

The aim of this article is to determine the responsibility of historical

mining right holders for such rehabilitation. ‘Historic polluters’ refer to mining

companies who caused pollution and environmental degradation due to mining

activities before the Minerals Act came into force in 1991. Also to be addressed

in this article is the question whether owners of tailings created through an

authorisation issued in terms of the now repealed Minerals Act or prior legislation

(old order dumps) would be able to escape their rehabilitation obligations or not.

Reference will be made to the new proposed amendments to the MPRDA as well

in addressing the question.

(2014) 29 SAPL

470

The term ‘tailings’ was defined in the Minerals Act 50 of 1991, to include all ‘mine waste, such

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tailings dams, sand dumps and other waste dumps’. (In this article the term ‘tailings’ will bear the

meaning assigned to it by the Act.)

Strydom and King (eds) Fuggle and Rabie’s environmental management (2009) 551.

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Kidd Environmental law (2011) 225.

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Section 46(1) MPRDA, as amended by the Mineral and Petroleum Resources Development

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Amendment Act 49 of 2008 (MPRD Amendment Act) that came into operation on 2013-06-07 –

Proc 17 in GG 36541 of 2013-06-06. The Mineral and Petroleum Resources Development

Amendment Bill [B15B-2013] (2013 Bill) substitutes the amended s 46(1) and (2) – cl 33.

The former Department of Minerals and Energy (DME) was split into two departments in 2009,

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namely the Department of Mineral Resources (DMR) and the Department of Energy. In this article

reference to both DME and DMR will be made depending on the historical context.

See discussion of closure certificates in terms of the MPRDA in 5.1.

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Minerals Act 50 of 1991. It must be noted that in terms of the provisions of the MPRD Amendment

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Act, the definition of ‘old order mining right’ was extended to embrace rights that had been granted

in terms of legislation operative prior to the MA, such as claims, mynpachten and tributing

agreements. The interpretation of the definition of ‘old order right’ is contentious – see Holcim

(South Africa) Pty) Ltd v Prudent Investors (Pty) Ltd 2011 1 All SA 364 (SCA).

Item 10 of the MPRDA.

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See discussion in 5.1.

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2006 1 SA 432 (T).

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1 Introduction

Mine dumps or tailings created by mining activities are some of the main

1

environmental impacts of mining. Historically little or no regard was given to the

environment while planning mine dumps, since planning was based on minimum

cost, the availability of land and the safety of underground workings. Mine dumps

2

continue to cause water and air pollution when abandoned without being

rehabilitated.3

Abandoned mines and their dumps are common features of the South

African landscape. Section 46 of the Mineral and Petroleum Resources

Development Act 28 of 2002 (MPRDA) provides that the state is responsible to

rehabilitate abandoned mines if the owner is deceased, cannot be traced, ceased

to exist or has been li quidated. Rehabilitation of these mines has extensive

4

financial consequences for the state and indirectly to the taxpayer.

In terms of the MPRDA rehabilitation liability only ceases once the

Department of Mineral Resources issues a closure certificate. The MPRDA

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repealed the Minerals Act (MA) and its regulations. The transitional provisions in

the MPRDA provided that mining rights obtained in terms of the MA (old order

rights) had to be converted before 1 April 2009 and the conditions, inter alia

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obtaining a closure certificate, in the old order right remained valid until it was

converted to a new order right. The MPRDA did not address rehabilitation of

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mines where operations ceased before the MA came into force. In Bareki No v

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Gencor Ltd (Bareki case) the court held that the respondent, who ceased mining

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