Mineral resources and energy minister Gwede Mantashe plans to approach SA’s judiciary to see whether it can revisit the 2007 high court judgment that found that his department has no jurisdiction over tailings dams such as the one that collapsed at Jagersfontein earlier this month.
Mantashe told Business Day on Friday that there were flaws in the judgment, which he wanted to discuss with the judiciary: “We will check with them if there are any avenues to revisit the case. If they say we must appeal we will appeal, if they agree,” he said.
But mining lawyers said it was most unlikely that the courts would condone an appeal on the 15-year-old De Beers-Ataqua case, and in any event, the court’s interpretation of the law was completely correct — which is believed to be why the department did not take the judgment on appeal at the time.
Lawyers pointed out too that if the judgment were to be reversed it would unravel the entire industry of processing and re-treating old tailings dumps that has developed on the basis of the 2007 judgment.
Mantashe has repeatedly blamed the court’s decision for his department not having power to inspect dams like the one at Jagersfontein, which collapsed causing death, injuries and destruction of property.
The mineral resources department didn’t appeal the judgment on the De Beers-Ataqua case, in which the high court found that the tailings dumps and dams housing the waste products of mines that were no longer operating did not fall under the ambit of SA’s new mining legislation and therefore were not subject to regulation by the mining authorities.
The court found that under the Mineral and Petroleum Resources Development Act (MPRDA) that came into effect in 2004, De Beers owned the tailings dump of the old Jagersfontein diamond mine which it had shut down in the early 1970s, and that the dump was a movable asset — rather than a mining resource — which it was entitled to sell without approval from the department of mineral resources & energy.
Lawyers say efforts to redraft the MPRDA in 2008 again failed to bring tailings at disused mines into the ambit of the Act. “They [the department] do have jurisdiction over the ‘residue stockpiles’ at current operations if these are part of an operating mine, but not over stand-alone old dumps. The court’s decision was right and there is no ways they could bring an appeal now,” said Werksmans partner Chris Stevens.
Herbert Smith Freehills partner Peter Leon suggested that even if the MPRDA did not apply to old tailings, the Mine Health & Safety Act still does and it was a dereliction of duty for the department to say it was not responsible at Jagersfontein.
Mantashe’s spokesperson Nathi Shabangu moved to counter perceptions that the department is doing nothing about SA’s 6,100 abandoned and derelict mines. He said it has done some rehabilitation, especially of abandoned asbestos mines, but conceded it is moving too slowly, in part because of a lack of funds.
Mantashe told parliament in a recent briefing on illegal mining that it would cost over R49bn to rehabilitate those mines, for whose rehabilitation the state has taken responsibility “to safeguard our environment”.
But the department receives only R140m a year to do this. That means it can rehabilitate just three mines and seal 20 shafts each year, and it has made the 270 derelict and ownerless former asbestos mines a priority because of their health hazards.
The zama zama illegal mining issue highlighted the need for regulators to address the problem of abandoned mines, and the Jagersfontein tragedy has added to the concern, with no firm estimates of how many old tailings dams still exist and what condition they are in.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.