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[2013] ZASCA 206
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Harmony Gold Mining Company Ltd v Regional Director:Free State Department of Water Affairs and Others (971/12) [2013] ZASCA 206; [2014] 1 All SA 553 (SCA); 2014 (3) SA 149 (SCA) (4 December 2013)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case
No: 971/12
Reportable
In the matter between:
HARMONY GOLD
MINING COMPANY LTD APPELLANT
And
REGIONAL
DIRECTOR: FREE STATE
DEPARTMENT OF WATER AFFAIRS
FIRST RESPONDENT
NATIONAL
MANAGER: COMPLIANCE
MONITORING AND
ENFORCEMENT UNIT
OF THE DEPARTMENT OF WATER
AFFAIRS SECOND RESPONDENT
MINISTER OF
WATER AND ENVIRONMENTAL
AFFAIRS
THIRD RESPONDENT
ANGLOGOLD ASHANTI LTD
FOURTH RESPONDENT
SIMMER AND JACK MINES LTD
FIFTH RESPONDENT
SIMMER AND JACK INVESTMENTS (PTY) LTD
SIXTH RESPONDENT
STILFONTEIN
GOLD MINING COMPANY LTD
(IN
LIQUIDATION) SEVENTH
RESPONDENT
Neutral citation:
Harmony Gold Mining Company Ltd v Regional
Director: Free
State Department of Water Affairs
(971/12)
[2013]
ZASCA 206
(4 December 2013)
Coram:
Navsa ADP, Brand and Shongwe JJA and Zondi and Meyer
AJJA
Heard:
25 November 2013
Delivered: 4
December 2013
Summary: Directive in terms of
s 19(3)
of the
National Water Act 36 of 1998
whether directive: (a) became invalid or
unenforceable vis-à-vis gold mining company that was required to take
anti-pollution
measures when it ceased to be a person who owns, controls,
occupies or uses land on which gold mining operations were undertaken
that
caused pollution (b) is invalid for want of specifying date by which the
anti-pollution measures must be completed; (c)
in its own terms is infinite
and therefore invalid; or (d) of itself by implication came to an end.
ORDER
On appeal from:
North Gauteng High Court, Pretoria
(Makgoka J sitting as court of first instance):
The appeal is dismissed with no order as to costs.
JUDGMENT
Meyer AJA (Navsa ADP,
Brand and Shongwe JJA and Zondi AJA concurring):
[1] This
appeal arises out of a directive issued by the Acting Regional Director of the
Department of Water Affairs (the
Regional Director) on 1 November 2005 in terms
of
s 19(3)
of the
National Water Act 3
6 of 1998 (the NWA). The directive was
issued to the appellant, Harmony Gold Mining Company Limited (Harmony), and to
the other
gold mining companies that undertook gold mining operations in the
Klerksdorp Orkney Stilfontein Hartbeesfontein (KOSH) area
in the
North-West Province, namely the fourth respondent, AngloGold Ashanti Limited
(AngloGold), the fifth and sixth respondents,
Simmer and Jack Mines and Simmer
and Jack Investments (Pty) Ltd (collectively referred to as Simmers), and the
seventh respondent,
Stilfontein Gold Mining Company Limited (Stilfontein). It required
these companies to take anti-pollution measures in respect of
ground and
surface water contamination caused by their gold mining activities. Harmony
ceased to be engaged in mining operations
in the KOSH area on 27 February 2008.
It then asserted that once it no longer had any connection to the land in
question, the
directive became invalid or unenforceable against it, a view not
shared by most of the respondents.
[2] Gold
mining operations by a number of different gold mining companies have been
undertaken in the KOSH area since at
least 1952. Gold mining, inter alia,
entails the sinking of shafts, construction of underground tunnels and the
excavation of
rock to access and remove gold bearing ore. The KOSH area has
shallow aquifers containing uncontaminated water relatively close
to the
surface. Many years of gold mining resulted in all the mines in the KOSH area being
linked underground. The labyrinth of
interconnecting tunnels, shafts, mined
out areas and natural fissures create a pathway through which the underground
water flows
from the aquifers into the shallower mines and shafts and from
there into the deeper ones. It is undisputed that each mining company
which has
mined gold in the KOSH area over the years contributed to the perpetual
draining of underground water into the mines.
[3] The
rock from which the gold bearing ore is removed contains pyrite (iron sulphide)
which oxidises when exposed to oxygen.
Sulphuric acid (also called acid rock
or acid mine drainage) is formed when the iron oxide comes into contact with
water and
it creates acidic conditions that cause salts, iron and other heavy
metals present in the mineral rock to dissolve in the water.
The longer the
water is in contact with the rock the more acidic it becomes and the more salts
and heavy metals dissolve in it.
These salts, acids and heavy metals have
toxic and other detrimental effects on humans and the environment. The
uncontrolled release
of untreated acid mine drainage into the environment
results in pollution of underground and surface water resources.
[4] African
Rainbow Minerals Gold Limited (ARMGold) used to own land on which it operated
Shafts one to seven of its Vaal
River Operations at Orkney in the KOSH area. Harmony
acquired the issued share capital of ARMGold during September 2003. It
thereafter
managed the gold mining operations of ARMGold at Orkney, although
the ownership of the land remained vested in ARMGold. It is common
cause that
the gold mining activities under the control of Harmony were, and are, a
source of potential pollution to the underground
water in the area.
[5] The
Regional Director issued a series of directives in terms of
s 19(3)
of the NWA
during the course of 2005, which directives were aimed at requiring the
companies undertaking gold mining in the KOSH
area to take reasonable measures
to prevent pollution of underground and surface water resources in the vicinity
of the mining
activities. The measures that were identified included the
removal and treatment to an acceptable quality of underground water
before
exposure to the underground workings.
[6]
Section
19(3)
vests certain powers in a catchment management agency.
Section 72(1)
,
however, provides that the powers of a catchment management agency vest in the
Minister of Water Affairs in areas (such as the
KOSH area) for which a
catchment management agency has not been established. In issuing the
directives the Regional Director acted
in this case under the Ministers powers
delegated to him.
[7] On
1 November 2005, the Regional Director issued another directive in the series
to Harmony, AngloGold, Simmers and Stilfontein,
which directive forms the
subject matter of the present dispute (the directive). The Regional Director
recorded in the directive
that the five mining companies . . . are owners of
land, persons in control of land, occupiers of land or users of land, on which
mining activities or processes are or were performed or undertaken, or in
respect of which and on which a situation exists, which
causes, has caused or
is likely to cause pollution of a water resource. It is further recorded that
their workings . . . are
interlinked and part of a hydraulic unit in respect
of water found underground, which needs to be removed at the most advantageous
position to prevent the pollution of ground and surface water resources and to
ensure the continuation of mining activities, and
the safety of people.
[8] Harmony
and the other mining companies were directed to . . . submit an agreement and
a joint proposal towards the long
term sustainable management of water arising
from mining activities in the KOSH area. Apart from being directed to ensure
that
the agreement and joint proposal comply with the requirements listed in
the directive, Harmony, in particular, in the interim (until
the
implementation of an agreement and joint proposal) was directed to:
1. . . .
a.
Ensure
the management of any water found underground or arising in the KOSH basin that
may affect the current and potential future
operations of mines that is or was
under its control, which management encompasses, but is not limited to, the
collection at the
most appropriate location, removal, treatment to general
effluent standards specified in GN. R. 991 (GG9225 of 18 May 1984), and
either
re-use in a legal and approved manner, or discharge into a water resource at a
location approved by the Regional Director
in a legal manner in terms of
Chapter 4 of the NWA;
b.
ensure
the continued operation and maintenance of all infrastructure associated with
any aspect of the management of the water found
underground, and in this
respect, continue to provide the Regional Director with a weekly report
regarding the status of such infrastructure,
as well as the provisions made to
ensure such continued operation and maintenance, to be submitted every Friday,
which reporting
obligation commenced on 22 April 2005 under the previous
Directive dated 13 April 2005.
2. .
. . ensure that the water found underground is managed as follows:
a. 1, 8 ML/day of water
found underground at Harmony #7 shaft is to be collected and removed to surface
by Harmony Gold Mining Company
Limited, reused by Harmony Gold Mining Company
Limited in a legal and approved manner in terms of Chapter 4 of the
National
Water Act 36 of 1998
, and the cost for such collection, removal and re-use is
to be carried by Harmony Gold Mining Company Limited;
b. 3, 1 ML/day of water found
underground at Margaret Shaft, is to be collected and removed to surface,
treated to comply with
general effluent standards specified in GN.R. 991
(GG9225 of 18 May 1984), and either re-used in a legal and approved manner, or
discharged into a water resource at a location approved by the Regional
Director in a legal manner, in terms of Chapter 4 of the
NWA.
3. . . . ensure that the cost of taking the measures under clause
2(b), including the cost for ensuring the continued operation
and maintenance
of all infrastructure associated with any aspect of the management of the water
found underground, is shared equally
between AngloGold Ashanti Limited, Harmony
Gold Mining Company Limited, Stilfontein Gold Mining Company and Simmers. In
the event
that any of the mining companies does not contribute to the costs,
the other mining companies must share the full costs between
themselves, and
recover the cost on their own means from such company.
4. . . . continue to provide the Regional Director with a weekly
report, to be submitted every Friday, which reporting obligation
commenced on
13 May 2005 under the previous Directive dated 7 May 2005, regarding the
following:
a. volume of water removed from underground at each location of
removal;
b. quality of water removed from underground at each location of
removal;
c. status of management measures used for the collection, removal,
storage, treatment and disposal of water so removed;
d. volume and quality of water prior to and after any use and treatment
thereof;
e. location(s) of final disposal of water removed from the underground;
f. volume and quality of water prior to such final disposal; and
g. quality of the
receiving water resource to which water is so disposed, both upstream and
downstream from the location of final
disposal.
[9] Thus,
the directive required the gold mining companies concerned to manage, collect,
treat and use or dispose of subterranean
water that might affect the current
and future operations of mines in the KOSH area and to share the costs of
taking such measures
equally. This includes the obligation to extract
underground water at a particular point (Margaret Shaft) by means of pumping
and to treat the water to comply with general effluent standards. The
directive was issued as an interim measure . . . in order
to ensure that
measures to prevent pollution will continue to be taken . . . until the
implementation of an agreement and joint
proposal towards the long term
sustainable management of water arising from the mining activities in the KOSH
area. The directive
concludes by informing the mining companies that should
a joint solution . . . not be forthcoming in an un-facilitated and un-mediated
manner, the Minister of Water Affairs and Forestry may be requested to consider
the issuing of a Directive in terms of
section 150
of the NWA.
[1]
[10] Stilfontein
was subsequently placed in liquidation. Harmony, AngloGold and Simmers shared
the costs associated with the
pumping and treatment of water found underground
at Margaret Shaft. However, no agreement towards the long term sustainable
management
of water arising from the mining activities in the KOSH area has yet
been reached.
[11] On
29 August 2007 ARMGold entered into a sale of business agreement with Pamodzi
Gold Orkney (Pty) Ltd (Pamodzi) in terms
of which Pamodzi acquired the entire
gold mining business and land of ARMGold in the KOSH area, and it assumed all
Harmonys obligations,
including those arising from the directive, in respect
of the mining operations at Orkney. The sale became unconditional and was
implemented on 27 February 2008 when Harmony ceased to manage those mining
operations. Pamodzi, as a result of financial difficulties,
only paid
Harmonys one third contribution to the monthly costs associated with the pumping
and treatment of water found underground
at Margaret Shaft for the period March
until May 2008. That obligation arising from the terms of the directive was thereafter
resumed by Harmony. ARMGolds land on which the mining operations at Orkney
were conducted was transferred to Pamodzi on 6 January
2009. Pamodzi was
provisionally liquidated on 20 March 2009 and subsequently placed under final
liquidation.
[12] Harmony
(as I have mentioned by way of introduction) asserted that a directive issued
under
s 19(3)
remains valid only for as long as the person to whom it was
issued owns, controls, occupies or uses the land in question. For present
purposes, they are the persons listed in
s 19(1)
who were collectively referred
to by the court a quo and by counsel as landholders and I adopt the term for
the sake of brevity.
The directive, Harmony asserted, became invalid or
unenforceable against it as from 6 January 2009, when the land was transferred
to Pamodzi, because it ceased to be a landholder on that date. Simmers and
AngloGold took issue with Harmonys interpretation
of
s 19(3).
They advised Harmony
that a cessation of its monthly contributions to the costs associated with the
pumping and treatment of the
underground water would be unlawful. In a letter
dated 28 August 2009 that was addressed to the Department of Water Affairs a
request was made by Harmonys attorneys that the directive be withdrawn against
it. The request was refused on 21 September 2009.
[13] Hence
the application in the North Gauteng High Court in terms of which Harmony
sought the review and setting aside of
the directive or of the refusal to
withdraw it, a declaration that it became invalid on 6 January 2009 and ancillary
relief. The
application was opposed by the first three respondents and by
Simmers. In essence the merits of the application fell to be determined
by an
interpretation of
s 19(3).
Makgoka J rejected the interpretation contended for
by Harmony. The application was dismissed and no order as to costs was made.
It is against that order that Harmony appeals to this court with the leave of
the court a quo.
[14]
Part 4
of
Chapter 3 of the NWA has one section, which is
s 19.
Part 4
reads:
Part 4:
Pollution
prevention
Part 4
deals with
pollution prevention, and in particular the situation where pollution of a
water resource occurs or might occur as a
result of activities on land. The
person who owns, controls, occupies or uses the land in question is responsible
for taking measures
to prevent pollution of water resources. If these measures
are not taken, the catchment management agency concerned may itself
do whatever
is necessary to prevent the pollution or to remedy its effects, and to recover
all reasonable costs from the persons
responsible for the pollution.
19. Prevention and
remedying effects of pollution
(1) An owner of land, a person in control of land or a person who
occupies or uses the land on which-
(
a
)
any activity or process is or was performed or undertaken; or
(
b
)
any other situation exists,
which causes, has caused or is likely to cause pollution of a
water resource, must take all reasonable measures to prevent
any such pollution
from occurring, continuing or recurring.
(2) The measures referred to in subsection (1) may include measures
to-
(
a
) cease, modify or control any act or process
causing the pollution;
(
b
) comply with any prescribed waste standard or
management practice;
(
c
) contain or prevent the movement of pollutants;
(
d
) eliminate any source of the pollution;
(
e
) remedy the effects of the pollution; and
(
f
) remedy the effects of any disturbance to the bed and banks of
a watercourse.
(3) A catchment management agency may direct any person who fails
to take the measures required under subsection (1) to-
(
a
) commence taking specific measures before a given
date;
(
b
) diligently continue with the measures; and
(
c
) complete them before a given date.
(4) Should a person fail to comply, or comply inadequately with a
directive given under subsection (3), the catchment management
agency may take
the measures it considers necessary to remedy the situation.
(5) Subject to subsection (6), a catchment management agency may
recover all costs incurred as a result of it acting under
subsection (4)
jointly and severally from the following persons:
(
a
) Any person who is or was responsible for, or who
directly or indirectly contributed to, the pollution or the potential
pollution;
(
b
) the owner of the land at the time when the pollution or the
potential for pollution occurred, or that owners successor-in-title;
(
c
) the person in control of the land or any person who has a
right to use the land at the time when-
(i) the activity or the process is or was performed or
undertaken; or
(ii) the situation came about; or
(
d
) any person who negligently failed to prevent-
(i) the activity or the process being performed or undertaken;
or
(ii) the situation from coming about.
(6) The catchment management agency may in respect of the recovery
of costs under subsection (5), claim from any other person
who, in the opinion
of the catchment management agency, benefitted from the measures undertaken
under subsection (4), to the extent
of such benefit.
(7) The costs claimed under subsection (5) must be reasonable and
may include, without being limited to, labour, administrative
and overhead
costs.
(8) If more than one
person is liable in terms of subsection (5), the catchment management agency
must, at the request of any of
those persons, and after giving the others an
opportunity to be heard, apportion the liability, but such apportionment does
not
relieve any of them of their joint and several liability for the full
amount of the costs.
[15] Subsection
(1) applies whenever there is land on which any activity or process is or was
performed or undertaken or any
other situation exists, which causes, has caused
or is likely to cause pollution of a water resource. The duty to take all
reasonable
measures to prevent pollution from occurring, continuing or
recurring is imposed upon the person who owns, controls, occupies or
uses the
land (the landholder). The measures to be taken may include those referred
to in subsec (2). In
Harmony Gold Mining Co Ltd v Regional Director: Free State,
Department of Water Affairs and Forestry
[2006] SCA 65 (RSA) t
his court
held that
[t]he wording here is may include and that unquestionably signifies that the
list in
s 19(2)
is not exclusive.
[2]
It was held that [t]he legislature intended by the term reasonable measures
to lay down a flexible test dependent on the circumstances
of each case and
that the measures required of a landholder are not limited to measures only on
the land mentioned in subsec (1).
[3]
[16] Subsection
(3) is triggered by a landholders failure to take the measures required under
subsec (1). A catchment management
agency or the Minister or the Ministers
delegate (depending on whether a catchment management agency has been
established for
the area) may then direct the landholder to commence taking
specific measures before a given date, diligently continue with those
measures
and complete them before a given date. Subsections (4) to (8) are triggered
when the defaulting landholder also fails
to comply fully with the directive
issued under subsec (3). The Minister may then take the measures he or she
considers necessary
to remedy the situation and recover all costs of doing so
from a range of persons wider than those listed in subsec (1).
[17] In
managing ARMGolds gold mining operations at Orkney, Harmony exercised control
over and used the land from September
2003 until 27 February 2008. It was
indisputably a person within the meaning of subsec (1) who controlled, occupied
and used land
on which an activity was performed or undertaken which caused or
was likely to cause pollution of a water resource at the time when
the Regional
Director issued the directive. It was not the owner of the land in question
and its contention that it remained a
landowner until the land was transferred
to Pamodzi on 6 January 2009 is obviously wrong.
[18] On
appeal Harmony argued that the Ministers powers under subsec (3) are subject
to the limitation that the landholder
may only be directed to take
anti-pollution measures for as long as it remains the person who owns,
controls, occupies or uses
the land. The obligation to take anti-pollution
measures in terms of subsec (1) does not apply to a person when it is no longer
a landholder. [T]he stream would rise higher than its source and there would
be no rationale for the result, Harmony argued,
if the obligations ensuing from
a subsec (3) directive, which crystallise and enforce the subsec (1)
obligations, continued to
apply to a person when it is no longer a landholder.
Harmony also argued that its interpretation of subsec (3) is supported by
the maxim
cessante ratione legis cessat ipsa lex
(the presumption that a law
ceases to operate if the reason for it falls away).
[4]
Once the jurisdictional
prerequisite of landholding is lacking, it was argued, the legal basis for the
directive falls away and
thus its validity or enforceability.
[19] In
Harmony
(supra)
this court held that [t]he task of construing
s 19
must
commence with reference to
s 24
of the Constitution.
[5]
It confers on everyone the
right to an environment that is not harmful to their health or well-being and
to have the environment
protected, for the benefit of present and future
generations, through reasonable legislative and other measures that (i)
prevent
pollution and ecological degradation; (ii) promote conservation; and (iii)
secure ecologically sustainable development and use
of natural resources while
promoting justifiable economic and social development. Anti-pollution legislative
measures are, amongst
others, to be found in the National Environmental
Management Act 107 of 1998 (NEMA) and the NWA.
[20] The
principles enumerated in s 2 of NEMA . . . apply throughout the Republic to
the actions of all organs of state that
may significantly affect the
environment and . . . guide the interpretation, administration and
implementation of [NEMA], and any
other law concerned with the protection or
management of the environment,.
[6]
These principles . . . must be observed as they are of considerable importance
to the protection and management of the environment.
[7]
One principle is . . .
that negative impacts on the environment and on peoples environmental rights
be anticipated and prevented,
and where they cannot be altogether prevented,
are minimised and remedied.
[8]
And another is that [t]he costs of remedying pollution, environmental
degradation and consequent adverse health effects and of
preventing,
controlling or minimising further pollution, environmental damage or adverse
health effects must be paid for by those
responsible for harming the
environment.
[9]
[21]
Howie P, in
Harmony
(supra), said the following regarding the NWA:
[18] The Acts
preamble recognizes the need to protect the quality of water resources to
ensure sustainability of the nations
water resources in the interest of all
water users.
[19] The purpose of
the Act is stated in s 2 to be to ensure that the nations water resources are,
inter alia
protected, conserved and managed so as to take into account
(h) reducing and
preventing pollution and degradation of water resources.
. . .
[21] Section 3
declares that the National Government, acting through the Minister, is the
public trustee of the nations water
resources and must ensure that water is,
inter
alia
, protected, conserved and managed in a sustainable and equitable
manner for the benefit of all.
[22] As
regards the appropriate approach to the present task [being the proper
interpretation of the relevant provisions of
s 19 of the NWA], s 1(3) requires
any reasonable interpretation which is consistent with the purpose of the Act
to be preferred
over any alternative interpretation inconsistent with that
purpose.
[22] The
limitation contended for by Harmony is not expressly provided for in subsec (3)
and will thus have to be read into
it by implication. Corbett JA, in
Rennie
NO v Gordon & another
1988 (1) SA 1
(A), said that [w]ords cannot be
read into a statute by implication unless the implication is a necessary one in
the sense that
without it effect cannot be given to the statute as it stands.
[10]
I am of the view that effect
can be given to the NWA as it stands without the need to limit the Ministers
wide discretionary
powers under subsec (3) as Harmony would have it.
[23] The
wording of subsec (3) makes it plain that the legislature intended to vest the
Minister with wide discretionary powers
and to leave it to him or her to
determine what measures a defaulting landholder must take and for how long it
must continue to
do so. I find nothing in the wording of subsec (3) or in the
other provisions of s 19 which warrants the conclusion that the Ministers
powers under subsec (3) are intended to be limited in that he or she may only
order the landholder to take anti-pollution measures
for as long as it remains
a landholder. Subsection (3) permits the Minister to impose specific
measures which are not confined
to those a landholder must take in terms of subsec
(1). The measures imposed by the Minister may well be more burdensome than
those under subsec (1). The Ministers powers under subsecs (4) to (8) are
also triggered by a landholders default (in this instance
its failure to
comply fully with the Ministers directive issued under subsec (3)), but the
Ministers powers under subsecs (4)
to (8) are much more extensive (measures
the Minister considers necessary to remedy the situation) than mere enforcement
of the
duties of the defaulting landholder.
[24] The
rationale of subsec (3) is to direct the landholder to address the pollution or
risk of pollution however long it
may take to do so. That rationale does not
fall away when the landholder ceases to own, control, occupy or use the land.
The
limitation of the Ministers power as contended for by Harmony is not only
unnecessary to give effect to the purpose of subsec (3),
but on the contrary
defeats its purpose and renders it ineffective. The landholder directed to
take measures under subsec (3)
would then easily be able to evade its
obligations in terms of the directive by simply severing its ties with the
land. It could,
by way of example, simply transfer the land to a bankrupt
subsidiary. Harmonys restrictive interpretation of ss (3) would result
in the
absurdity that a polluter could walk away from pollution caused by it with
impunity, irrespective of the principle that
it must pay the costs of
preventing, controlling or minimising and remedying the pollution.
[25] An
interpretation that does not impose the limitation on the Ministers powers
under subsec (3) contended for by Harmony
is consistent with the purpose of the
NWA (reducing and preventing pollution and degradation of water resources);
accords
with the NEMA principles that pollution be avoided or minimised and remedied
and that the costs of preventing, minimising,
controlling and remedying
pollution be paid for by those responsible for harming the environment; and gives
expression and substance
to the constitutionally entrenched right of everyone
to an environment that is not harmful to health or well-being and to have it
protected
through reasonable measures that amongst others prevent pollution and
ecological degradation.
[26] I
conclude therefore that the Ministers powers under subsec (3) are not subject
to the limitation that he or she may
only direct a landholder to take
anti-pollution measures for as long as it remains a person who owns, controls,
occupies or uses
the land.
[27] Harmony
argued further that paragraphs (
a
) to (
c
) of subsec (3) are
cumulative; that the word and must be read conjunctively; and that it is
accordingly a mandatory requirement
that a directive issued under subsec (3) specifies
a given date by when the required measures must be completed. The directive
under
consideration does not satisfy that mandatory requirement, so it argued, and is
accordingly invalid and falls to be set aside.
Harmonys interpretation
overlooks the permissive nature of the Ministers powers under subsec (3). The
Minister may decide
to issue a directive and to direct the specific measures
that must be taken. In any event, the directive envisaged a date by which
the
measures would terminate, namely when agreement was reached on an acceptable
future solution.
[28] Harmony
at the hearing of the appeal for the first time argued that on its own terms the
directive was not envisaged to
operate against a non-landholder and that it ceased
to have effect vis-à-vis Harmony when it severed its ties with the land.
The
obligations imposed upon Harmony in terms of the directive (they are quoted in
paragraph 8 supra of this judgment), so it was
argued, cannot be fulfilled by a
person who is not the landholder. There is no merit in this argument. The
obligations arising
from the terms of the directive do not address the issue whether
they can only be performed by a landholder. I have referred to
the decision of
this court in
Harmony
(supra) that the measures imposed on the
landholder by subsecs (1) and (2) are not confined to the landholders land. In
my view
the same holds true for measures required in terms of a directive
issued under subsec (3). In any event, Harmony has thus far complied
with its
obligations arising from the directive even though it had not been the
landowner since 27 February 2008.
[29] Harmony
then argued (also for the first time on appeal) that in its terms the directive
requires measures that are infinite
and that the directive is therefore invalid.
This argument is in conflict with the clear terms of the directive. It is
recorded
that the measures are required to be taken in the interim in order to
ensure that measures to prevent pollution will continue to
be taken until the
implementation of an agreement and joint proposal towards the long term
sustainable management of water arising
from the mining activities in the KOSH
area. There was no evidence placed before the court a quo that the pumping and
treatment
of the underground water would continue in perpetuity. The long term
sustainable management of the subterranean water may achieve
the cessation of
pumping, but I need not speculate about this. The directive in its terms is not
infinite.
[30] When
the shoe pinched Harmony adapted its argument, without intending to be unkind,
rather opportunistically. It then
argued that having been a mere interim
measure pending the implementation of an agreement, the directive by implication
came to
an end when it became clear that agreement would never be reached.
This argument, however, involves questions of fact that have
not been canvassed
on the affidavits. If indeed agreement cannot be reached (and such a finding
cannot be made on the affidavit
evidence before us) then the Minister may issue
a directive under s 150 (either at the request of a party involved or on the
Ministers
own initiative) that requires the mining companies concerned to
attempt to settle their dispute through a process of mediation and
negotiation. These aspects (a s 150 directive and mediation process) have also
not been addressed on the affidavits.
[31] The
court a quo correctly dismissed Harmonys application. Makgoka J was also correct
in following . . . the general
approach of not awarding costs against an
unsuccessful litigant in proceedings against the State, where matters of
genuine constitutional
import arise.
[11]
Each party should also bear its own costs of the appeal.
[32] The appeal is
dismissed with no order as to costs.
________________________
P A MEYER
ACTING JUDGE OF
APPEAL
APPEARANCES:
For Appellant:
A M Stewart SC (with him K S Hofmeyr)
Instructed
by:
DLA
Cliffe Dekker Hofmeyr, Cape Town
McIntyre
& Van der Post, Bloemfontein
For First to Third Respondent:
B Roux SC (with him T A N Makhubele)
Instructed
by:
The
Office of the State Attorney, Pretoria
The Office of the State
Attorney,
Bloemfontein
[1]
Section 150(1) reads: The Minister may at any time and in respect
of any dispute between any person relating to any matter contemplated
in this
Act, at the request of a person involved or on the Ministers own initiative,
direct that the persons concerned attempt
to settle their dispute through a
process of mediation and negotiation.
[2]
Para 28.
[3]
Para 33.
[4]
See:
Labuschagne v Labuschagne; Labuschagne v Minister van Justisie
1967 (2)
SA 575
(A) at 587D-G..
[5]
Para 17.
[6]
Section 2(1)(e) of NEMA.
[7]
Per
Ngcobo J in
Fuel Retailers Association of Southern
Africa v Director-General: Environmental Management, Department of Agriculture,
Conservation
and Environment, Mpumalanga Province & others
2007 (6) SA 4
(CC) para 67.
[8]
Section 2(4)(
a
)(viii) of NEMA.
[9]
Section 2 (4)(
p
) of NEMA.
[10]
At 22E-F. Reiterated by the Constitutional Court in
Bernstein v
Bester & others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) para 105;
National
Director of Public Prosecutions v Mohamed
2003 (4) SA 1
(CC) para 48; and
Geuking
v President of the Republic of South Africa
2003 (3) SA 34
(CC) para 20.
[11]
Per Sachs J in
Biowatch Trust v
Registrar, Genetic Resources
2009 (6) SA 232
(CC) paras 23-24.