ATC221109: Report of the Select Committee on Land Reform, Environment, Mineral Resources and Energy on the oversight visit to the Free State, dated 8 November 2022

NCOP Agriculture, Land Reform and Mineral Resources

Report of the Select Committee on Land Reform, Environment, Mineral Resources and Energy on the oversight visit to the Free State, dated 8 November 2022

A delegation of the Select Committee on Land Reform, Environment, Mineral Resources and Energy having conducted a fact-finding visit to the Jagersfontein disaster site in the Free State from 19 to 21 September 2022 reports as follows:

1. Background and Introduction

The Committee has prioritised oversight over the Jagersfontein mine dam collapse due to the magnitude of the event and the impact that it will have on the committee’s oversight role in the near future. The communities surrounding the dam have been traumatised and their lives severely affected, while the environmental damage caused by the incident cannot be measured at present but is likely to be significant and lasting.

While there is a risk of appearing to seek an instant explanation for the cause of the tragedy and assign blame, this is not the intention of the Committee during this oversight. There has been initial reports received that the risk of dam collapse was potentially known to numerous role-players, but it is simply too early to determine what level of understanding of the potential risk of the dam collapse was known to provincial entities, the Department of Mineral Resources and the mine owner.

The oversight focuses of the committee include both the portfolios of environmental affairs and mineral resources. The events that have unfolded at Jagersfontein has significant impacts to both those oversight focus areas of the Committee.

During the most recent strategic planning exercise, the Committee re-affirmed its focus on the oversight theme “Negative impacts of mining and the efficacy of the One Environmental System”. This tragic event, unfortunately feeds directly into the oversight theme as the environmental impact of this event will be severe, and the committee would want to start the process of determining what oversight lapses may have occurred to allow the threat of dam collapse to go unnoticed.

The Committee therefore wishes, first and foremost, to convey their heart-felt condolences to the affected communities. It further wishes to establish channels of communication with local government, provincial offices of the DMRE and DFFE, as well as the National offices of the Departments in question in order to continue gathering information regarding the factors that ultimately played a role in the disaster. Lastly, the committee wishes to get a first impression of the scale of the environmental impact that unfolded, as well as to continue oversight over the environmental impacts of the event as these become evident.

The delegation consisted of the following members of Parliament, Ms TC Modise (Chairperson, ANC), Mr AJ Nyambi (ANC), Ms W Ngwenya (ANC), Ms L Bebee (ANC), Ms C Labuschagne (DA), Mr A Arnolds (EFF), Mr FAB Du Bryn (FF+) and Parliamentary support staff, Mr AA Bawa (Committee Secretary), Mr J Jooste (Researcher), and Ms A Zindlani (Committee Assistant).

Objectives of the Visit

The days following the collapse of the dam wall contained a significant amount of press articles creating a degree of uncertainty. Some stating that there have been warnings about the state of the wall, questioning the ownership of the facility, alluding to the potential environmental risk of the chemicals in the tailing sludge that was released, and also as a result of the damaged sewerage infrastructure at Jagersfontein.

The Committee oversees the Department of Mineral Resources and Energy, as well as the Department of Forestry, Fisheries and the Environment. The uncertainty around the scale of the spill as well as the ownership, activity and regulation of the property by the DMRE was considered to be an impediment towards performing efficient oversight over the Committee portfolio. The concurrent competency of the DFFE is a key focal point of the Committee, although impacts on agriculture (also a concurrent competency) and the roles and responsibilities of the DMRE are not relegated.

The Committee Fact-finding visit is considered to be a prelude to in-depth oversight over the two departments involved, as well as to begin to formulate a better understanding of the departmental policies that directed the Departments. Inconsistencies or gaps in the policies could hopefully be identified and focused on during in-depth oversight.

DAY 1: Meeting with the Department of Forestry, Fisheries and Environment as well as the Department of Mineral Resources and Energy

2.1 Presentation by the DFFE

The DFFE highlighted its responsibilities and immediate actions following the disaster.

2.2. The following was highlighted:

A comprehensive set of water samples were taken immediately post spill event

DFFE Specialist capability provided:
- Interpret pre - spill data
- Develop an immediate containment response plan – delineation of hotspot areas
- Direct manner in which immediate containment is undertaken
- Formulate medium to long term rehabilitation of the system
- Use specialist network at the Free State University to provide resources in relation to sampling (quick turnaround time) as well as technical advice.

Support provided was also provided to the Free State Environmental Dept. with immediate instructions to proceed with activities in response to the incident issued
The DFFE is collaborating with the Joint Operations Committee led by the Xhariep District Municipality
The actions of the DFFE compliment Directives that were issued by the Dept. of Water Affairs and Sanitation related to Containment (S28(4)) Directives that may still be issued.

2.3. In terms of administrative actions required, the Department had, performed the following by the time of the Delegation’s visit:

The Jagersfontein disaster meets the definition of “incident” as defined in the NEMA, and as a result, DFFE and DESTEA advised Jagersfontein Development of the 25 September 2022 deadline for the submission of the report required
The NEMA and EIA Regulations normally require that an environmental impact assessment (EIA) be followed and an Environmental Authorisation (EA) be issued for identified activities, which would ordinarily include activities involved in responding to this type of incident. The Department issued a S30A Directive, enabling these activities to proceed without such a requirement.
Specifically, the S30A issued by DESTEA (support from DFFE) enabled the following actions to take place immediately:
1. Containment of pollution
2. Cleaning of polluted areas
3. Structural and civil works on or the development of new roads, bridges, substations, sewage treatment works, power lines, houses and other infrastructure

2.4. One of the most pressing responses required was sampling the mine slurry released after the dam wall collapse in order to ascertain what environmental risk this spill poses. The following actions were initiated:

2 sampling campaigns undertaken by the 13th of September, the samples were processed as follows:
Samples taken to SAPS Forensic Science Laboratory, as it might be used later on, but SAPS is also assisting to determine constituents post-spill
Another set collected on the 19th of September 2022 – taken to the University of the Free State in order to receive sample analysis results in a quicker turnaround time

2.5. In order to develop rapid safety responses, the following actions were implemented:

3 reports were submitted by Jagersfontein Development (Pty) Ltd, outlining the chemical composition of tailing slurry pre-spill.
2x Occupational Hygienist reports were submitted. The pre-spill waste was classified as a Type 3 chemical, which can safely be disposed to Category C landfill
The clean-up process was effected and further testing will be undertaken

The Department advised on the type of Personal Protective Equipment that will be required for government officials participating in the search and rescue as well as the clean-up process

2.6. As the spill will impact the Kalkfontein dam (which is a source of drinking water in the area) tests were immediately performed to determine whether dangerous chemicals such as arsenic within limit. This was the case suggesting no risk of using the water.

The initial clean-up process was a three-phased approach, consisting of:

Contain current deposited slimes by placement of retaining walls, weirs and silt fences
Removal of sludge from preferential flow paths and dams
Removal of sludge from slopes, banks and adjacent landscape or apply bioremediation

2.7. Questions put to the Department

The delegation thanked the Department for the detailed presentation received. Questions put to the officials present included:

Did the Department receive any complaints about the state of the tailing dam wall, and has it at any time in the past inspected the dam wall? In a related question, the Department was asked whether the transfer of ownership from one company to the next would not have required a new EMP. If this is the case, should the requirement for a new EMP not have required a site inspection, leading to the disclosure of the state of the tailing dam?
Some press releases stated that the contents of the tailing dam was not immediately known. Members wished to know if this type of information should not be on record.
The way forward with the disposal of the spill material needed clarity.
Members wished to know what the potential impact of the spill was on the Kalkfontein dam, and whether the damage to sewerage infrastructure near streams feeding into the dam posed a significant risk.
The delegation requested that the specialist reports mentioned in the Department’s presentation be supplied to the Committee.
Members expressed concern over the fact that some residents chose to remain in the area affected by the spill. They wished to know why all residents were not relocated, and how long it will take before the DFFE has finalised response plans in place.
Concerns were raised about the province’s disaster management capacity, and whether the district or local municipalities are in a position to response to a disaster of this magnitude.

The delegation wanted to know whether there is any indication of what the clean-up costs will be, and whether disaster funds can be accessed for this purpose.

2.8. Responses from the Department

The department responded to the delegation’s questions, highlighting the following:

After the institution of the One Environmental System, the inspection of tailing and other mine dams became the competency of the DWS, while all environmental compliance responsibilities rest with the DMRE. The DFFE was of the opinion that the legal regime should be reviewed in order to determine whether it is operating as intended. The Department was aware of the fact that the DWS did express concerns over the state of the dam wall in 2020.
The Department acknowledged that there were currently sewerage spills in the neighbourhoods affected by the spill. Access to the waste water treatment facility was restored, but the integrity of the drainage pipes from the municipality is still unknown.
In terms of mopping up options, the fact that the old mine site is a heritage site limits options such as pumping slurry back into the old mining pit.
The Department indicated that a directive to leave the spill site was issued to all residents, but some people did not want to leave and the disaster response team do not want to remove people by force.
The Department assured the delegation that all spheres of government is working around the clock to deal with the disaster, but that some initial delays took place in order to give first responders access to the area.
The Department clarified that the ultimate cost of rehabilitation would be the responsibility of the owners of the mine, following the polluter pays principle.
The Department clarified that the chemical composition of the released tailings slurry is not the same as what occurs in the tailing dams of gold mines. The chemical composition of the kimberlite host rock is alkaline, not acidic. There is some concern about the salts present in the slurry, which is a component of the reclamation process used. There is, however, the possibility that the salts can be neutralised on site. This will reduce the need to clear up all of the spill should the slurry composition be considered environmentally safe.

2.9. Presentation by the DMRE

2.9.1. The Department provided a concise report detailing their feedback regarding the operations at the facility and their role in its oversight. The discussion started with the history of ownership and operations at the mine. It was explained that the diamond mine that operated at Jagersfontein was owned by De Beers. The mine ownership pre-dated the promulgation of the Mineral and Petroleum Resources Development Act. As a result, the mining right was considered to be an old-order right, which companies had to re-apply for before a 2005 deadline. De Beers chose not to do this, which resulted in the department offering it to a new applicant.

2.9.2. De Beers responded with legal action as a result. Arguments presented in court focused on the fact that the MPRDA did not regulate tailing dumps, that the dumps are moveable assets of the mining company that created them, and that the re-working of such dumps cannot be defined as mining as contemplated in the Act. In 2007, the Bloemfontein High Court found in favour of De Beers, setting in motion a chain of events that the Department expanded upon. The key points from this explanation is:

In line with the decision of the court indicated above, the Department did not issue any mining related license on the Tailings/surface dumps situated in Jagersfontein since the date of the court judgement (December 2007);
Consequently, there is no environmental management programme or environmental authorisation, neither is there a social and labour plan approved and issued by the department in respect of the relevant activities;
Since there is no mining right issued by the department due to the court judgment, consequently, there is no S&LP in place in respect of activities taking place on the Jagersfontein dumps as the department has no jurisdiction to regulate the relevant dumps; and

The Department stated that it performed a site visit after the disaster, and can confirm that the company found on site (Stargems) confirmed that it only has a Water Use license issued by the Department of Water Affairs. It is regulated by the Department of Labour on occupational health and safety issues, and that there is no Environmental Authorisation issued by any department.

2.10. After the presentation, the Committee raised a number of concerns. These included:

What are the reasons for the Department not appealing the 2007 Court judgement? This now makes it convenient for the Department to state that it is not in a position to act against the company or regulate it.
What made the Court side with De Beers? The mine was closed and no activity was taking place on site.
A number of other companies have owned the “mine” since the Court Judgement. Wat did they buy? Why are there no regulatory framework in place for these companies as they took ownership after the promulgation of the MPRDA?
Once a mine is closed, who takes responsibility for an old tailing dam? Also, how can the tailing dam be in use by the current owner without mining activity taking place?
Why has the Department waited since 2007 to amend the relevant sections of the MPRDA that created this situation?
There is a long history of complaints being raised about the state of the tailing dam. Someone must be accountable for responding to these. Complaints about the state of the tailing dam wall was also presented to the Minister of Mineral Resources and Energy when he visited the Kopanong area in 2020. Was the memorandum not handed over to the DWS?
What is the definition of mining? How can the activities at Jagersfontein not be consider to be mining?
Further to the complaints raised about the state of the dam wall, there are reports that bribes were paid to silence the complainants. Can the Department comment on this matter?
Did the last operator of the site when it was classified as a mine provide any financial guarantees for mine rehabilitation as required by the Act? Was this not used to stabilise the dam wall? Additionally, if the dam wall as altered by the current users of the site, who authorised this?

2.11. Departmental response

The Departmental official present could only respond to a limited number of questions, but tried to highlight that:

The mandate of the DMRE is to regulate the extraction of mineral resources out of the earth. The operation at Jagersfontein does not constitute this as it is the re-working of man-made tailing dumps. The operation at Jagersfontein was not a mine, but a reclamation site where old tailing dumps are re-worked to extract diamonds missed during previous mining activity;
Old-order mines are not held accountable for the rehabilitation of sites once mining is completed;
The creator of tailing dumps are immediately the owner of the dump (the Department did not clarify who the original owner sold the dumps to); and

It is the opinion of the Department that the High Court ruling only applies to the Free State Province.

2.12. Follow-up comments made by the delegation in response

The committee was concerned about the nature of responses, particularly with the fact that ownership and responsibility for on-site activity regulation were not resolved. Follow-up statement sought to highlight the following:

Ownership of the operation was not clarified, and press reports indicate that the current owners could be based in Dubai. This can result in challenges should financial compensation for damages be sought;
The activity at the site must be regulated. A tailing dam in operation and a reclamation site cannot simply exist without government responsibility to monitor and regulate. The fact that the Department appears to have no responsibility regarding the operation of the tailing dam is especially concerning, as there may be many more such operations in the country;
There is a need to re-evaluate the One Environmental System as it appears as if there is much room for improvement in terms of regulating potentially high-risk operations such as dump reclamation facilities;
If the Department considers itself absolved of any responsibility, why did it immediately visit the disaster area and why is it assisting in recovery efforts?

The complete lack of appetite of the Department to appeal the Court ruling is not conducive to sound mineral extraction oversight. No matter what the operation n is called, minerals are being extracted through a reclamation process, and the Department has to regulate the sale of the diamonds recovered. It is inconceivable that the extraction process should be unregulated.

2.13. Reflection on the interaction with the DMRE

The Department’s position on its role in regulating the activity at the Jagersfontein site was not considered satisfactory. The ease with which it apparently accepted the 2007 Court ruling is troubling, and so is the knowledge that it left the activities at Jagersfontein totally unregulated apart from the role of the DWS.

It was also of concern that the Department appeared to take the position that it had nothing to do with the regulation of the mine since 2007, yet it performed a site visit shortly after the disaster. In a question put to the Department, it was further stated that the Minister of the DMRE visited the Kopanong municipality in 2020. This was not disputed by the Department in its response, although no details were given regarding the purpose of the interaction, and the fate of a memorandum of complaints apparently handed to the minister. The mayor of Kopanong also stated that the Department performed sporadic visits to the facility operating at the site of the old mine.

3. The MPRDA position regarding mining activity and infrastructure.

At the time of the De Beers legal challenge, the latest version of the MPRDA that was effective was the 2002 amendments, which came into effect in 2004. It contained the following definitions that pertain to the matter of tailing stockpiles:

(i) any excavation in the earth, including any portion under the sea or under other water or in any residue deposit, as well as any borehole, whether being worked or not, made for the purpose of searching for or winning a mineral;

(ii) any other place where a mineral resource is being extracted, including the mining area and all buildings, structures, machinery, residue stockpiles, access roads or objects situated on such area and which are used or intended to be used in connection with such searching, winning or extraction or processing of such mineral resource; and

(b) used as a verb, in the mining of any mineral, in or under the earth, water or any residue deposit, whether by underground or open working or otherwise and includes any operation or activity incidental thereto, in, on or under the relevant mining area;

(Definition of ―mine‖ substituted by section 1(m) of Act 49 of 2008 with effect from 7 June 2013)

"mineral" means any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth or in or under water and which was formed by or subjected to a geological process, and includes sand, stone, rock, gravel, clay, soil and any mineral occurring in residue stockpiles or in residue deposits, but excludes-

(a) water, other than water taken from land or sea for the extraction of any mineral from such water;

(b) petroleum; or

"mining area"-

(iii) all buildings, structures, machinery, residue stockpiles, or objects situated on or in the area as contemplated in subsections (ii)(a) and (ii)(b).

It would appear from the wording of the act that there is substantial similarity between the description of tailing stockpiles argued by De Beers to be moveable assets, and “residue stockpiles” as contemplated in the legislation. This appears, however, not to be the case as can be seen from exerts from the 2007 Bloemfontein High Court verdict on the case between De Beers and the DMRE:

From court verdict (2007):

“Whoever wants to remove diamonds from the dumps, will have to engage in mining activity. There is a vast difference between NEMA and the MPRDA e.g. the MPRDA requires an environmental impact assessment (39(1)), whereas NEMA has no such requirement. Section 40 of the MPRDA imposes a duty on the Minister of Minerals and Energy to consult with other state departments. NEMA contains no such provision.”

“Section 41(1) of the MPRDA imposes a duty on an applicant for a prospecting or mining right to make financial provision in advance for rehabilitation and management of negative environmental impacts. NEMA has no such provisions. Thus the taking of minerals from dumps cannot be regulated only by NEMA.”

“There are several reasons why tailings dumps, and in particular applicant’s tailings dumps which form the subject matter of this case, are not subject to control by the MPRDA:

(i) The tailings dumps are movable, and the diamonds occurring in them do not occur “naturally in or on the earth”.

(ii) Tailings dumps do not occur naturally. They are formed by the placement of processed and partly processed materials, to be reworked in future years when technology improves.

(iii) The tailings dumps have been owned by Applicant since 1973. Applicant’s ownership of the tailings dumps is not in dispute. Applicant has spent money and labour and time on these tailings dumps. The transitional provisions of the MPRDA in schedule II do not continue applicant’s permit under section 6. The MPRDA did not want to regulate tailings dumps. There is no continuation of the regime under the Minerals Act in respect of tailings dumps. “Mining” of a tailings dump is in fact “processing”. It is the winning of the mineral.”

“(v) As to purposive interpretation, looking at the history and origin of the MPRDA, the White paper and the objects of the Act, those sources are silent on tailings. There is no reference to tailings indicating that mineral rights in tailings fall under the custodianship of the state in terms of the MPRDA. As Henderson (above) points out, the MPRDA achieves sovereignty over a period of time. The purpose of the Act is not defeated or notably reduced by excluding tailings dumps.

(vi) A finding that the state is now the custodian of the minerals remaining in tailings dumps, would amount to expropriation, which is not expressly provided for and cannot be inferred to have been contemplated by the legislature.”

“The question in this case is not whether the diamonds occurred in the ore. In order for diamonds in the tailings dumps to be considered “minerals” for purposes of the MPDRA (and therefore vesting under custodianship of the state) they must be found to be occurring naturally in the earth. The fact that they still occur naturally in the ore is irrelevant for purposes of the definition of “mineral” in the MPRDA. The diamonds in the ore were severed from the mother rock. Then the ore became a new object. That vested ownership in the mineral title holder, the applicant. That all happened before the MPRDA came into operation. The MPRDA did nothing to detract from applicant’s rights to the tailings dumps.”

“Tailings are a unique place in which minerals can be found after someone has taken them out of the earth and processed them to some extent. Unmined materials are different: they are in the ground; in a sense they were a bonus to the land owner. If they were undiscovered when the landowner bought, they were transferred without cost. Tailings are different: the owner of the tailings has, while exercising a legal right, made later extraction by improved means possible. It is not part of the heritage to which section 3(1) of the MPRDA refers.”

4. Implications for South African mining and regulation of mining activity

The implications of this ruling is significant for the entire country. It is unlikely, as the Department had argued, that the ruling only applies to the Free State. The ruling of the Court draws on Departmental policy, its White Paper, the date on which the MPRDA came into effect, and the nature of the material contained in tailings dumps. As the regulation of mining activity and mineral resources is a National Competency, there is the potential that mining companies in other provinces can use the case as an argument to the same effect.

Of further concern is the lack of follow-up by the Department following the ruling. During press statements made by the Minister of Mineral Resources and Energy, the court ruling was described as a “dangerous high court judgment crippled his department’s jurisdiction over all tailings dams”. The statement leads to a number of questions:

The minister refers to tailing dams. The court ruling pertained to tailing dumps. The statement appears to recognise the fact that the ruling, plus the creation of the One Environmental System (OES), set off a chain of events that led to the current regulatory challenge. The court ruling pre-dates the creation of the OES, thus it appears as if a lapse of due diligence allowed the further erosion of control over the reclamation of materials from tailing dumps. An argument highlighting this question follows this section.
If the ruling was indeed as dangerous as the Minister implied, why was nothing done to rectify the situation? The ruling was not appealed. The Department had until the present date, a period of nearly 15 years, to address any perceived regulatory weakness caused by the ruling, but this was not done. In fact, changes to NEMA and the MPRDA after the ruling could have further entrenched the situation.
Part of the court ruling relied on the fact that the tailing dumps were created by the original owners in the 1970’s, and that the fact that the dumps pre-date the MPRDA means that the Act does not alter the ownership of the dumps. The Jagersfontein operation was sold twice since the ruling, without the Department gaining jurisdiction over the operation. This suggests that fundamental flaws in the MPRDA, and not the historical ownership of the dumps, still precludes the Department from monitoring activity at the site.

4.1. Statutory recognition of the One Environmental System vs. the claim of sufficient oversight through NEMA and DWS

[42] The One Environmental System is expressly recognised in s 50A of NEMA and in s 163A of the Water Act, the terms of which are similar. Section 50A of NEMA states that any proposed amendments to the provisions of NEMA or any other legislation that may have the effect of amending the provisions of the ‘Agreement’ must be subject to concurrence between the Environment Minister, the Water Minister and the Mining Minister. The ‘Agreement’ is defined as follows:

‘… the Agreement reached between the [Environment Minister], the [Water Minister] and the [Mining Minister] titled One Environmental System for the country with respect to mining, which entails –

that all environment related aspects would be regulated through one environmental system which is [NEMA] and that all environmental provisions would be repealed from the [Mining Act];
that the [Environment Minister] sets the regulatory framework and norms and standards, and that the [Mining Minister] will implement the provisions of [NEMA] and the subordinate legislation as far as it relates to prospecting, exploration, mining or operations;
that the [Mining Minister] will issue environmental authorisations in terms of [NEMA] for prospecting, exploration, mining or operations, and that the [Environment Minister] will be the appeal authority for these authorisations;

4.2. Ability of the DFFE to act on mining infringements

One of the arguments put forward by council for De Beers during arguments in court was that there is still sufficient oversight over the processing of mine tailings due to the environmental authorisation and inspection falling under NEMA, and also the DWS. The court arguments and ruling took place in 2007. In 2008 through to 2014, the MPRDA and NEMA was amended to create the One Environmental System. The outcome of this set of amendments was that the DFFE’s role was reduced to that of appeals authority, while the DMRE became responsible for environmental enforcement as well. The unintended outcome, was potentially that the amendments took away any potential for the DFFE to play a role in oversight over the reclamation activity, leaving the DWS as the only department with some sort of oversight capacity. This situation appeared to be confirmed by the DFFE and DMRE during the fact-finding visit to Jagersfontein.

Two recent court cases involving the DFFE, Mineral Sand Resources (MSR) and environmental activists highlights the fact that the DFFE is in some instances powerless, and in others potentially risk-averse when dealing with mining related challenges, even if it is the appeals authority on the granting of mining licenses. Both cases have relevance for the Committee as it underlines the degree to which the One Environmental System has eroded the DFFE mandate on environmental regulation and appetite for action regarding the environmental impacts of mining.

The first case involved the South African subsidiary of an Australian mining company. The subsidiary, Mineral Sand Resources (MSR) operated Tormin mine on the West coast. In 2016, the mining company took legal action against the Department of Environmental Affairs (DEA) for what it claimed was an “illegally obtained search warrant”. The DEA raided its west coast mine, Tormin without the presence of any DMR officials, who were instructed on the day of the raid not to participate. This was apparently due to the DEA’s insistence that police form part of the action. The then DEA and Department of Mineral Resources confirmed that they were conducting a joint investigation into the mine, and was engaged in a joint compliance investigation on the right-holder in relation to its environmental obligations. Instead of enforcing NEMA, the DEA focused on enforcing the Integrated Coastal Management Act as the perceived transgressions occurred within the coastal zone under jurisdiction of this Act.

While a number of contraventions to the original mining EMP had been suggested in the years preceding the DEA raid, the focus of the action revolved around MSR actions culminating in the collapse of a cliff face, impacting the coastal zone. This area is governed by the Coastal Act and its Regulations. The position of the DEA national inspectors was that it was mandated to conduct inspections to establish compliance with the aforementioned Act. MSR challenged the supposed contravention of the Coastal Regulations and said that the use of vehicles was a listed activity authorised by MSR’s environmental authorisation and EMP, and that the DMR was empowered by NEMA as the competent authority to appoint mining inspectors.

Arguments were complex and included more than one matter that the DEA considered breaches of the mine EMP or contraventions of the Coastal Act. In the end, however, the court ruled in favour of MSR on a number of important points related to this report. These were:

The warrant is invalid, insofar as it relates to the jetty charge, the increased footprint charge and the road charge, because the investigation of those charges was not within the mandate of the national inspectors.
The warrant is invalid, insofar as it relates to the above three charges and the failing cliff charge, because the DEA failed to disclose the legislative changes of 8 December 2014 and MSR’s position on the mandate issue.
Were it not for the finding in (b), I would not have set aside the warrant in relation to the failing cliff charge, ie I do not think that the other attacks on the warrant in respect of this charge are sound.

The second case also involves MSR and the Tormin mine. In early 2019, the Department of Mineral Resources and Energy (DMR) issued an integrated environmental authorisation to MSR to expand its Tormin operations on the West Coast from the existing 120-hectare mineral sands mining operation with an additional 188 hectares along 42 kilometres of coastline. The extended area of the mine would also include an ecological corridor and designated Critical Biodiversity Area. The Centre for Environmental Rights (CER) appealed against the authorisation and applied for the approval to be suspended pending the outcome of its appeal.

When the DMR did not respond, CER appealed to the environment minister in 2020. The Minister has legal authority to uphold the appeal and block environmental authorisation for the Tormin mine expansion, but this appeal was also dismissed. The CER then brought a judicial review application against both the DMR and the Minister, while MSR was cited as a respondent. The case was due to have started in March this year, but before it got underway, the parties agreed to negotiate.

4.3. Extent of jurisdiction of the DWS:

As the SC does not oversee the DWS, and due to the short time-frame of the fact-finding visit, the input of the DWS was not sought. Due to the nature of responses received from the DFFE and DMRE, as well as reports of numerous previous engagements with the DWS regarding concerns over the state of the tailings dam, it is important to interact with the DWS regarding this incident. According to a DWS publications titled “Management for Mine Residue Deposits”, the following legislation is applicable to mine tailing dams. Since the site in question at least started off as a mine, although the current owner describes it as a reclamation site, at least some of the legislation ought to apply to the Jagersfontein site:

The following provides a summary of the principle legal framework for Mine Residue Dams:

National Water Act, 1998 (Act No.36 of 1998) stipulates that a water use authorisation must be obtained before construction of a MRD and/or return water dam may commence. Some guidance on a water use authorisation application is given below.
Government Notice No. 704, National Water Act, 1998 (Act No. 36 of 1998) dealing with regulations on use of water for mining and related activities aimed at the protection of water resources. Specific attention is drawn to the following pertinent regulations under this notice:
- Regulation 2: Information and notification
- Regulation 4: Restrictions on locality
- Regulation 5: Restrictions on use of material
- Regulation 6: Capacity requirements of clean and dirty water systems
- Regulation 7: Protection of water resources
- Regulation 8: Security and additional measures
- Regulation 9: Temporary or permanent cessation of a mine.

The Dam Safety Regulations (published in Government Notice R. 1560 of 25 July 1986) requires that every dam with a safety risk shall be classified in accordance with regulation 2.4 on the basis of its size and hazard potential. An authorisation is required from the dam safety office before construction of a dam commences.
National Environmental Management Act, 1998 (Act No.107 of 1998) requires that an environmental impact assessment (EIA) must be carried out before the construction of a new MRD.

Mineral and Petroleum Resources Development Act, 2002 and its regulations requires that an environmental impact assessment be undertaken for a mine, which will include MRDs. The EIA will include a scoping report and an environmental impact assessment report.

From this list, however, it would appear as if most of the regulations apply to the approval and construction phase of a tailings dam. Regulations related to the monitoring of tailing dam walls after construction appear to be absent, although these surely exist. This is one of the critical matters that need to be addressed with the DWS.

5. Day 2: Site Visit and Briefing by the Clr Xolani Tseletsele, Major of Kopanong Local Municipality

The major welcomed the delegation and provided a detailed overview of the events after the tailing dam wall collapsed. The extent of the damage to municipal and private property was detailed, as well as the current understanding of the number of injured, deceased and missing individuals. Iponeng and Charlesville townships was directly in the path of the deluge of slurry that followed the collapse of the dam wall. In total, 164 households were directly affected by the event. 15 houses were totally destroyed and many more extensively damaged, with significant loss of private property. Most of the residents were either relocated to hotels/bed-and-breakfast establishments, or housed with relatives in the municipality residing in areas that were not damaged. All residents in the area affected are being supported with food parcels. Jagersfontein Developments (PTY) LTD, the operators of the reclamation facility, has taken responsibility for the accommodation and food parcels. Additional support in the form of dignity packs, hygiene packages, blankets and food parcels were also supplied by the office of the Free State Premier, the Mayor of Letsemeng LM and various NGO’s. Due to the disruption of children’s education, it was later decided to bring the 77 affected learners back to be able to continue their education.

In terms of municipal infrastructure, the damage has been extensive as well. The following facilities were destroyed or significantly damaged:

The main ESKOM substation were submerged, resulting in days of power cuts to the affected area;
The municipal waste water treatment works were totally submerged, and sewerage infrastructure in the townships extensively damaged. This creates an obvious health hazard with the additional risk of environmental damage as a result of sewerage spilling into the local watercourses; and

The drinking water reticulation system was damaged, resulting in water supply disruptions.

In conclusion, the mayor highlighted some of the challenges that the municipality is experiencing in dealing with the disaster. These included:

A lack of dedicated disaster management focal persons at district level; No disaster management centre;
No disaster management budget;
Unable to determine cost implications yet due to ongoing assessments being performed by provincial departments.

5.1 Committee questions and responses during site visit

The Committee thanked the mayor for the detailed input on the impact of the disaster and the realistic picture painted of the local municipality’s ability to respond to it.

Questions put to the mayor was diverse, but focused on the following key points:

When will a general idea of the cost implication of the disaster be available? It has been 10 days since the event.
The Committee wished to know why the municipality did not accept the offer of emergency structures made to it after the disaster.
Who is leading the response in the light of the lack of a disaster response unit at district level? Is this function budgeted for and what contribution has the municipality received from the district counterpart?
What has the municipality been able to develop in terms of providing counselling support for the community and to provide updates on the actions taken thus far? It was also suggested that channels of communication should be developed in order for affected residents to provide detailed reports of financial losses suffered during the event.
The mayor, a long-time resident and community activist in the area, was asked to elaborate on his past interactions with the reclamation facility operators, and what his understanding of the ownership of the property. The committee further enquired about reports that community members had reported problems with the tailing dam wall on numerous occasions.
Press reports indicated that the property owners had immediately provided R20 million for use to address the urgent need of affected residents. The Committee wished to know how these funds were being administered and where it is being applied.

5.2. Responses from the Mayor

The mayor provided a detailed response on the task team formulated to respond to the disaster. It included local and district municipality officials, as well as provincial and departmental specialists. The local government is simply not able to handle the response by themselves as the district municipality has only two staff members dedicated to disaster response, and the local municipality a single co-ordinator. The municipality is simply not capacitated to deal with disaster. Of the total budget allocation for disaster response in the Gariep region, the municipality only receives R100 000, of which 90% is dedicated towards operational expenses. The District has the lowest funding for disaster response in the province, and there is no funding made available through District Development Model structures. The municipality had been promised a disaster management centre for over 15 years, but nothing is in place.
The financial implications of the disaster is difficult to determine as the area was submerged for a while, and search-and rescue officials first had to comb the area and determine that it was safe for others to enter. The Department of Human settlements will assist with the reconstruction of the area, but the mayor felt that the target of July 2023 for the completion of this was too optimistic. The owners of the reclamation facility also need to assist in the process, as well as be held accountable for costs incurred. Many community members are uncertain as to how property losses will be recovered, as the State can only assist if it was RDP houses destroyed and the occupants earned less than R3500 per month. An updated situational report can be forwarded as soon as it was available as it would supply greater details on questions asked.
The R20 million supplied by the property owners are administrated by them and are being used to pay for the accommodation cost of affected residents.
The emergency structures were not used as community members could be housed in accommodation provided for by property owners. The funds that would be required to pay for the emergency structures could better be applied to assist in the response to the disaster. The community did not want to be housed in emergency structures or community halls. It is not the intention of the local government to house people away from the community for a prolonged period, and plans are in place to start bringing those residents back immediately.
In terms of social services and community report back, the mayor indicated that social workers are housed in the establishment where community members are accommodated, and that the mayor holds daily report back sessions to update residents.

Regarding the state of the tailing dam wall, the mayor expressed the opinion that it was never considered adequate. It had been leaking long before the collapse and this was reported to the DWS on more than one occasion. The DWS had been inspecting the dam wall and the DMRE had also made periodic visits to the property. The mayor stated that the owners of the reclamation facility had never been engaged, only the local operators. What is known about the owners is the same as what the press reports indicated. The DMRE had been avoiding the community since 2007 and it is difficult to get answers from them regarding the situation. The relationship with the operators of the facility had not been good, although recent engagements had resulted in some commitments to invest in the local area. This is not done as the operation is not considered a mine and therefore no Social and Labour plan is in place to facilitate Local Economic Development.

6. RECOMMENDATIONS AND RESOLUTIONS

The Department contradicted inputs received by the Committee that indicated an ongoing presence of the DMRE at Jagersfontein. The Department further did not sufficiently respond to questions on concerns about the dam wall raised by community members to the DMRE. The Department needs to provide an in-depth response on the topic, and in particular, the existence and fate of the memorandum handed to the Minister in 2020.
The degree to which the officials from the DMRE was able to respond to questions was limited. The Department was requested to provide a written response to questions by the next week.
The possible application of the De Beers judgement to other provinces requires clarity. A legal opinion should be sought to clarify the extent to which all tailings dumps of similar description to those owned by De Beers and pre-dating the date on which the MPRDA came into effect is not under the control of the DMRE.
The Committee resolves to seek clarity on the wider impact of the 2007 High Court Ruling as well as regulatory changes made to the NEMA and MPRDA to facilitate the creation of the One Environmental System. A legal opinion is sought on the following matters:
1. Does the court ruling on the ownership of tailing dumps extend to any other operation perceived as mining or reclamation associated with those dumps?
2. Does the ruling mentioned above also still apply to tailing dumps at mining operations sold after the MPRDA took affect?
Additional to the questions above, the Committee wishes to receive a full briefing from the DMRE to explain:
1. Why the 2007 High Court judgement was never appealed?
2. Why the MPRDA was never amended since the 2007 ruling to address the “dangerous situation” alluded to by the Minister?
The Committee is concerned about the limitations placed on the DFFE to respond to potential environmental damage from mining activity. It is the opinion of the Committee that the One Environmental System (OES), although touted as a mechanism for streamlining mining applications, is in need of review. This review should include public participation, and should result in the comprehensive revision of policy and legislation, should it be required.
The Committee resolves to engage with the DWS in order to seek clarity on the nature and methodology of oversight that the department has over South African mine tailing dams, as well as actions the department is mandated to take should concerns be raised during inspections or received from the public.
The Committee expressed its concerns with the under-funding of emergency response capacity at local government level. This concern will be communicated to the relevant Parliamentary structures
The fact that the mayor of Jagersfontein also indicated that the concerns over the state of the tailings dam was communicated to the DWS on more than one occasion is a further concern. The recommendation that the DWS is engaged to determine the extent to which it responded to these concerns, is repeated. The fact that the operation was apparently forced to shut down but then allowed to resume operations point towards the possibility of a failed regulatory environment.
The input received by the Mayor that the DMRE still made periodic visits to the facility contradicts the input received from the DMRE and it needs to be clarified with the Department.

Report to be considered.

Documents