Mass confusion is reigning over culpability in the Jagersfontein tailings dam disaster in which as many as five people are feared to have died.
Mineral resources & energy minister Gwede Mantashe said at a virtual media briefing on Sunday afternoon, after the dam collapsed earlier that day, his department has “no jurisdiction” over the dam. However, it will not close its eyes to the crisis.
Mantashe said the owners of the dam will be held liable but some have argued the departments of labour and water affairs may also be on the hook for failing to do adequate health and safety inspections despite warnings of potential disaster.
The confusion seems to stem from a landmark high court ruling in December 2007 involving the Jagersfontein mine’s previous owner, De Beers, and Ataqua Mining, in which it was found that minerals already mined and deposited as waste in tailings dams are the property of the owners of the processing plant. At issue at the time was whether tailings dumps should be considered minerals governed by the Mineral and Petroleum Resources Development Act of 2002, with ownership vesting under the custodianship of the state.
The court ultimately ruled that previously processed minerals in the form of tailings are the property of the owners of such processing facilities, leaving De Beers free to sell the Jagersfontein tailings dumps to other parties without having to convert old order mining rights to new rights under the Mineral and Petroleum Resources Development Act. The result was that De Beers sold the Jagersfontein tailings dam to the Superkolong Consortium in 2010.
However, the 2007 court ruling that tailings dams are not governed by the act also means they do not fall under the auspices of the Mine Health Safety Act, which is likely to be why Mantashe denied department of mineral resources & energy jurisdiction over the dam.
Human rights lawyer Richard Spoor told Cape Talk on Monday that this suggested the disaster may fall under the department of labour, a conclusion based on typical workplaces being governed by the Occupational Health and Safety Act.
“Responsibility for health and safety is with the department of labour, which has very limited capacity to monitor and control this — and of course no experience of mine tailings dams,” Spoor told the radio station.
In a follow-up conversation with Business Day Spoor spoke about two key safety assessments pointing to possible safety issues at the Jagersfontein dam. Spoor said a 2019 assessment by Turn180 Environmental Consultants indicated the rate at which tailings were being dumped into dam would exceed its design capacity with a year. He said a 2020 report by SRK Consulting also identified risk of potential failure of the dam.
Spoor told Business Day that the department of water affairs also faces potential culpability and questioned whether the Jagersfontein tailings dam had been issued with the appropriate water use licence. The gravity separation method used to extract diamonds during the tailings treatment process resulted in “huge quantities of water” being pumped into the dam.
“I think this is one of those dams that fell through cracks,” said Spoor.
Paul Miller, director of mining consultancy AmaranthCX, also asked why the Jagersfontein tailings treatment dam would have held large quantities of water at the end of the SA dry season in a particularly arid part of the country. Miller points to the department of labour as facing potential culpability due to either shoddy or absent inspection of the tailings dam and agrees that due to the 2007 De Beers-Ataqua ruling the facility does not fall under the department of mineral resources & energy’s jurisdiction.
“When last do you think an inspector from the department of labour visited Jagersfontein to look at the safety standards of tailings dams?” Miller asked.
However, Miller said the department of mineral resources & energy is also due some culpability because of what he said is a fixation with “ideological mega-amendments” to the Mineral and Petroleum Resources Development Act rather than focusing on more minor technical engineering amendments.
“The result was that they presented bills to parliament that were simply unworkable, meaning they could never wrest back jurisdiction for some historic mine dumps to the department of mineral resources & energy though they had always been unhappy with the outcome of the 2007 De Beers-Ataqua judgment.”
At issue too is who exactly owns the Jagersfontein tailings dam. While Superkolong Consortium bought it in 2010 the group is believed to have established a separate legal entity called Jagersfontein Developments, which is said to have included Johann Rupert’s Reinet as a shareholder along with private company Sonop Diamond Mining. However, Reinet’s latest annual report shows it sold its interest in the Jagersfontein and Rooipoort diamond mining projects in April 2022 for €20m.
It is unclear whether the other shareholders in Jagersfontein Developments also sold their stakes, the Competition Commission said on April 1 it had unconditionally approved a merger in which Dubai-based Stargems Holdings will acquire Jagersfontein and Rooipoort.
Spoor told Cape Talk that Jagersfontein Developments should be held accountable and also pointed to the potential liability of the departments of mineral resources & energy and of to the extent that they had “taken their eye off the ball.”
However, Ernst Müller, a senior associate at law firm Herbert Smith Freehills, says whether the department of mineral resources & energy or the department of labour has jurisdiction over safety issues at the Jagersfontein dam may boil down to its precise location.
“If it falls within the historic mining area, then it could fall under the department of mineral resources & energy,” said Müller. “But if the tailings facility is deemed to fall outside of the historic mining area then it may be considered as a normal plant, which will put it in the jurisdiction of the department of labour which oversees enforcement of the Occupational Health and Safety Act.”
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