Despite ceasing mining operations, a mining company has been told by the Supreme Court of Appeal (SCA) that it remains responsible for water pumping that it instituted years ago.
The SCA dismissed Ezulwini Mining Company’s appeal after it argued it had no legal obligation to manage underground water.
Since 2014, Ezulwini Mining Company operated a mine in the West Rand of Gauteng. Ezulwini conducted deep-level mining that sometimes required the management of “extraneous water”, which flowed into the underground mining area. Water enters various openings, requiring the miner to pump this extraneous water to the surface so the operation can continue.
The West Rand mine has been operating since 1961. Every operator has pumped out water to the surface. However, in 2016, Ezulwini ceased its mining operations in West Rand. It therefore also wished to cease water pumping operations, as these were of no benefit to Ezulwini’s concerns but still required its resources.
As per the legal requirements, Ezulwini had to apply to the regional mineral regulator to cease water operations. It applied in 2017, but the regulator refused. Ezulwini then applied for a reconsideration by energy minister Gwede Mantashe, who partially agreed, remitting the matter back for consideration.
Ezulwini’s authorisation, at this time, was still not finalised. As its resources were still being used, its lawyers advised that the applications were, in fact, unnecessary.
In 2019, Ezulwini asked the Pretoria high court to allow it to cease water-pumping operations. This was opposed by the minister. Alternatively, Ezulwini argued that if this was refused, Gold Fields, which shared the mine, should contribute to the costs of the water pumping.
However, Gold Fields told the Pretoria high court that, though both operations were interconnected, the connection itself has been sealed. If Ezulwini ceased its water pumping, Gold Fields argued, the seal could collapse, resulting in flooding, and thus was a risk to employees.
In 2021, judge Hans Fabricius found Gold Fields’ argument persuasive. In his judgment he found that Ezulwini remained responsible. “Until at least when the [relevant authority] has issued a closure certificate in terms of [environmental legislation],” Fabricius said.
Ezulwini appealed to the SCA, contending it is not responsible for pumping operations as it has ceased all other operations in the area.
Acting judge Glenn Goosen, writing for a unanimous court last week, examined the relevant environmental legislation: the National Environmental Management Act and the Mineral & Petroleum Resources Development Act.
Goosen said companies whose operations affect the environment must “obtain an environmental authorisation” before operations. This requires “an assessment of the impact of the activity”. If granted, the authorisation generally requires the implementation of, and adherence to, an environmental management plan.
Legislation, Goosen noted, allows the minister to issue permits for various mining operations. However, “[a mining] operation is subject to prior assessment of potential impacts and management in accordance with [a management plan]”.
The legislation “imposes an obligation upon the holder of a mining permit to apply for a closure certificate [which includes] the cessation of mining operations.”
Ezulwini argued that the legislation established only liability, not obligation. The company, it argued, was under no obligation to continue to pump water, which was the focus. The company was not seeking to close a mine, it was trying to cease pumping water.
However, the minister argued that, as Ezulwini was a permit holder, this came with obligations including “pumping”, which is specifically mentioned in the relevant legislation. Pumping arose because of the inherent conditions of Ezulwini’s operations. Gold Fields agreed with the minister.
Goosen agreed with both, noting that pumping was part of Ezulwini’s operations and water management was part of its responsibility as a permit holder. “It cannot be the case that a mine operator who for operational reasons has pumped extraneous water from its mine works, may simply cease pumping,” he said, “and then allow the mine to fill with water without assessment of the consequential impacts.”
He held that Ezulwini must continue to pump water “until authorised to cease pumping”.
Ezulwini’s appeal was dismissed with costs.
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