South Africa: Mining Rehabilitation – A Regulated Activity

Last Updated: 28 November 2011
Article by Justin Truter

The Mineral and Petroleum Resources Development Act No. 28 of 2005 (the MPRDA), the National Environmental Management Act No. 107 of 1998 (NEMA) and the National Water Act No. 36 of 1998 (NWA) and the Regulations thereto regulate the impacts of mining operations conducted in South Africa on the environment and prescribe statutory duties in respect of, inter alia, environmental standards, the mitigation of environmental impacts and rehabilitation of the affected environment. Criminal and civil liability is also created under all three of the acts.

What are the requirements prescribed by this legislation?

The MPRDA and NEMA require that mining and activities incidental thereto should be conducted in an environmentally sustainable manner while the NWA regulates the sustainable use of water resources. These statutes, furthermore, prescribe remedial measures as well as penalties to counter any harm caused.

Every person who has applied for a mining right in terms of section 22 of the MPRDA and whose application is accepted by the regional manager, must conduct an environmental impact assessment and submit an environmental management programme (EMPr) within 180 days of the date on which he or she is notified by the regional manager to do so.

Any person who applies for a reconnaissance permission, prospecting right or mining permit and whose application is accepted by the regional manager must submit an environmental management plan (EMP) as prescribed.

Section 37 of the MPRDA prescribes environmental management principles and incorporates the NEMA principles which are aimed at ensuring sustainable development. These principles apply to all prospecting and mining operations, and any associated activities.

Any prospecting or mining operation must be conducted in accordance with generally accepted principles of sustainable development by integrating social, economic and environmental factors (the "triple bottom line") into the planning and implementation of prospecting and mining projects in order to ensure that exploitation of mineral resources serves present and future generations.

Section 38 of the MPRDA deals with integrated environmental management and prescribes the responsibility to remedy any environmental degradation or pollution.

The holder of a prospecting right, mining right or mining permit must:

  • give effect to the general principles of integrated environmental management prescribed in Chapter 5 of NEMA;
  • consider, investigate, assess and communicate the impact of his or her prospecting or mining on the environment;
  • manage all environmental impacts in accordance with the EMP or approved EMPr; and
  • as far as it is reasonably practicable, rehabilitate the environment affected by the prospecting or mining operations to its natural or predetermined state or to a land use which conforms to the generally accepted principle of sustainable development.

The holder of the right is responsible for any environmental damage, pollution or ecological degradation as a result of the prospecting or mining operations. Significantly, this duty extends to damage, pollution or degradation which occurs both inside and beyond the boundaries of the area to which such right or permit relates.

Section 41 of the MPRDA prescribes financial provision for the remediation of environmental damage.

Before the minister approves an EMPr or EMP, the applicant for a prospecting right, mining right or mining permit must make the prescribed financial provision for the rehabilitation or management of negative environmental impacts.

If the holder of a prospecting right, mining right or mining permit fails to rehabilitate or manage any negative impact on the environment, or is unable to undertake such rehabilitation or management, the minister may, upon written notice to the holder, use all or part of the financial provision to rehabilitate or manage the negative environmental impact in question.

The holder must annually assess the environmental liability and increase the financial provision to the satisfaction of the minister.

If the minister is not satisfied with the assessment and financial provision, the minister may appoint an independent assessor to conduct the assessment and determine the financial provision.

The requirement to maintain and retain the financial provision remains in force until the minister issues a mine closure certificate, but the minister may retain such portion of the financial provision as may be required to rehabilitate the closed mining or prospecting operation in respect of latent or residual environmental impacts.

What are the penalties for non-compliance?

The directors of a company or members of a close corporation are jointly and severally liable for any unacceptable negative impact on the environment. This includes damage, degradation or pollution advertently or inadvertently caused by the company or close corporation which they represent or represented. Upon conviction a director may be sentenced to a fine or imprisonment not exceeding six months or any magisterially imposed penalty.

In terms of section 43 of the MPRDA, the holder's liability in respect of rehabilitation ceases only upon the issuance of a closure certificate.

The failure to rehabilitate exposes the holder of a prospecting right, mining right or mining permit to criminal liability for not complying with the requirements of the EM P or EM Pr which may attract a fine not exceeding ZAR 100 000 or two years imprisonment or both. The holder's failure to manage adverse impacts in accordance with an EM P or EM Pr also attracts liability in the form of a fine not exceeding ZAR 500 000 or ten years imprisonment or both.

Where the mining activities include associated activities (which are listed in terms of NEMA), such activities require prior environmental authorisation by the relevant environmental authority. Failure to obtain such authorisation prior to commencement with the listed activities is an offence in terms of section 24F of NEMA and the offending party is liable upon conviction to a fine not exceeding ZAR 5 million or 10 years imprisonment or both.

Where the holder of an environmental authorisation fails to comply with a condition of approval, which may include the submission of an EM P which makes provision for rehabilitation and compliance with such an EM P, the environmental authority may issue a compliance notice in terms of section 31L of NEM A. Failure to comply with a compliance notice is also an offence and the offender is liable on conviction to a fine not exceeding ZAR 1 million or 5 years imprisonment or both.1

Furthermore section 28(1) of NEMA prescribes an environmental duty of care and provides that, where any person causes, has caused or may cause significant pollution or environmental degradation, he or she has a duty to prevent such pollution or degradation from occurring or recurring, or (where it cannot be prevented) to take reasonable steps to mitigate such damage.

This duty creates retrospective liability. Where there has been a failure to comply with this duty the minister or a provincial head of department can issue a directive directing certain steps to be taken including rehabilitation measures. Failure to comply with such a directive is an offence and the offender is liable on conviction to a fine not exceeding ZAR 1 million or five years imprisonment or both.

Section 151(2) of the NWA creates criminal liability in respect of various offences in relation to water resources and creates criminal liability on the first conviction to a fine or imprisonment for a period not exceeding five years, or to both a fine and such imprisonment and in the case of a second or subsequent conviction, to a fine or imprisonment for a period not exceeding 10 years or to both a fine and such imprisonment.

How effectively is the legislation enforced?

Regrettably, despite the forceful provisions contained in the MPRDA, NEM A and the NWA, these provisions are seldom effectively enforced. There are a number of reasons for this.

Generally the mining authorities lack capacity and the will to enforce compliance by mines with the conditions of the permits or rights and EMPs / EMPrs. Furthermore, the mining authorities tend to pay lipservice to the environmental impact assessment requirements contained in the MPRDA before granting prospecting and mining rights.

The DEA will act in instances where there is a breach of the duty of care under NEM A resulting in significant pollution or degradation. Certain provincial environmental departments, particularly the Western Cape Department of Environmental Affairs, are more inclined to act against errant mining companies that carry out listed activities under NEM A without authorisation, cause significant pollution or degradation, or fail to rehabilitate.

The Department of Water Affairs is beginning to monitor compliance by mining companies with their duties under the NWA and enforce the provisions of the NWA more effectively.

The question of rehabilitation and the liability for such rehabilitation has also arisen recently in the context of the current acid mine drainage dilemma. While the minerals and environmental authorities have the legislated power to conduct the necessary clean up and recover the costs from those that were responsible or benefited, this poses an evidentiary headache.

The continued pumping of fissure water from gold mine shafts is essential to prevent water contamination, flooding of shafts and decanting. Even after a mine closes, the need to continue pumping to prevent environmental degradation and pollution remains. However, when a mine closes because it is no longer profitable, the rehabilitation fund is often inadequate to fund the required pumping for more than a few months at most.

The question of who is responsible for funding the continued pumping then arises. Presently the options are rather limited. either the neighbouring mines will need to carry this cost (so as to prevent their shafts from fl ooding) or Government will need to exercise its powers under the relevant legislation by intervening (to prevent environmental degradation and pollution from occurring) and then recovering the costs proportionately from those that benefited from the measures taken.

In such a scenario, responsibility should rest with Government and this is supported by provisions under the mPRDA, NemA and the NWA, but will it be able to mobilise the funds and put the necessary measures in place quickly enough? It is certainly a risk that few neighbouring mining companies will be prepared to take, in which case they have to either take the necessary steps themselves or bring a high court application to compel Government to act.

Footnote

1 The Constitutional Court will be asked to pronounce on, inter alia, whether the holder of a mining right or permit also requires environmental authorisation under NEMA prior to undertaking activities associated with mining which are listed under NEMA in a matter that is set down for hearing on 16 February 2012. Werksmans is acting for the Western Cape Provincial Minister of Environmental Affairs who seeks this declaratory ruling.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions