About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 4
|

|

Ezulwini Mining Company Pty Ltd v Minister of Mineral Resources and Energy and Others (53379/2019) [2021] ZAGPPHC 4 (15 January 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHERS
JUDGES: YES
(3)
REVISED.
15/1/2021
CASE
NO: 53379/2019
In
the matter between:
EZULWINI
MINING COMPANY PTY
LTD

Applicant
And
MINISTER
OF MINERAL RESOURCES AND ENERGY

First Respondent
MINISTER
OF ENVIRONMENT,
FORESTRY
AND
FISHERIES

Second Respondent
MINISTER
OF HUMAN SETTLEMENTS,
WATER
AND
SANITATION

Third Respondent
REGIONAL
MANAGER, MINERAL REGULATION,
GAUTENG
REGION, DEPARTMENT
OF
MINERAL
RESOURCES

Fourth Respondent
GFI
JOINT VENTURE HOLDINGS (PTY)
LTD

Fifth Respondent
GOLD
FIELDS OPERATIONS
LIMITED

Sixth Respondent
LUCKY
FARMS
PARTNERSHIP

Seventh Respondent
JUDGMENT
FABRICIUS
J
[1]
In these proceedings applicant (hereinafter
“EMC”) instituted motion proceedings on 24 July 2019 in
terms of which the
following relief was sought:
“
1.
Declaring that:
1.1
neither an environmental authorisation in terms of the
National
Environmental Management Act 107 of 1998
and the Environmental Impact
Assessment Regulations published in GN R982 in GG 38282 of 4 December
2014;
1.2
nor an amendment to the water use licence issued to the Applicant in
terms
of the
National Water Act 36 of 1998
;
are required by the applicant to
cease the pumping of the water from the defunct underground workings
of Ezulwini mine located on
the farms Jachtfontein 344, Klipgat 700,
Modderfontein 345 and Waterpan 292, Registration Division IQ,
situated in the Rand West
City Local Municipality, within the West
Rand District Municipality.
2.
Alternatively
, and to the extent that the Court find that an
environmental authorisation or a water use license amendment is
required by the
applicant to cease the pumping of water from the
defunct underground workings at the Ezulwini mine, declaring that:
2.1
in light of the prejudicial financial consequences, physical
constraints and potential health
and safety consequences of the
continued pumping, as well as the findings of the extensive impact
assessment studies completed
by the applicant, the applicant is
entitled to cease the pumping of water from the defunct underground
workings at the Ezulwini
mine in the absence of such environmental
authorisation or water use license amendment;
3.
Further alternatively,
and to the extent that the Court finds
that an environmental authorisation or a water use license amendment
is required by the
applicant to cease the pumping of water from the
defunct underground workings at the Ezulwini mine, and that the
applicant is not
entitled to cease the pumping of water from the
defunct underground workings at the Ezulwini mine in the absence of
such environmental
authorisation or water use license amendment,
directing that:
3.1
the fifth and sixth respondents either cover the costs of pumping
water from the defunct
underground workings at Ezulwini mine or
contribute to such cost together with the applicant, the fifth and
sixth respondents being
jointly and severally liable,
alternatively,
directing the first and/or second and/or third and/or fourth
respondents to order the fifth and sixth respondents to do so.
4.
Directing such respondents who may oppose this application to pay the
costs thereof,
including the costs of two counsel, jointly and
severally, the one paying the others to be absolved.”
[2]
It cited 5
th
and 6
th
respondents (the 6
th
being referred to hereinafter as “Gold Fields”) in their
capacity as the holders of undivided 50% shares of the mining
rights
in relation to the South Deep Mine, which is an incorporated joint
venture (known as South Deep Joint Venture) and were
therefore the
owners and operators of South Deep Mine.
[3]
The 7
th
respondent is a partnership that has its address at Portion 38 of the
Farm Gemspost 288, Westonaria. It was joined for the interest
it may
have in the application but no relief was sought against it, save for
costs in the event of opposition.
[4]
BACKGROUND:
In its Founding
Affidavit the applicant sets out the purpose and background of the
application in some detail and I deem it convenient
to quote the
relevant paragraphs: (It must be noted that I am making no factual
findings by doing so).
“
18.
In May 2014, EMC acquired the underground and surface operations of a
gold and uranium mine which
had commenced operations in the 1960s.
19.
The mine, now known as the Ezulwini mine (“
Ezulwini
”)
or Cooke 4, after the Cooke 4 Shaft, is located approximately 8 km
south-east from the town Westonaria in Gauteng on the
following
farms: Jachtfontein 344, Klipgat 700, Modderfontein 345 and Waterpan
292, Registration Division IQ, situated in the Rand
West City Local
Municipality, within the West Rand District Municipality.
20.
In September 2016, EMC ceased underground mining operations at
Ezulwini as the underground
mine was no longer economically viable.
Surface mining-related operations, including in particular, gold
metallurgical processing
operations, are however ongoing at Ezulwini.
21.
In order to undertake the underground mining operations at Ezulwini,
EMC and its predecessors
pumped groundwater from the underground
workings which resulted in the dewatering of the Gemsbokfontein West
Dolomitic Compartment.
Such dewatering took place pursuant to permits
issued to EMC’s predecessors in terms of the now repealed Water
Act 54 OF
1956 and in terms of a water use license (“
WUL
”)
issued to EMC in 2015 in terms of the NWA.
22.
Notwithstanding the cessation of underground operations at Ezulwini,
EMC continues to pump
and treat the water from the underground
workings at a cost of approximately R21.1 million per month at
present.
23.
For reasons which will be set out later in the affidavit, the
continued pumping of this
groundwater in circumstances where the
underground workings at Ezulwini have ceased, is financially and
physically impossible to
sustain and poses potentially considerable
health and safety risks to EMC’s employees. Furthermore, the
findings of the detailed
impact and risk assessment studies conducted
by EMC show that re-watering is an acceptable closure option provided
that the recommendations
and mitigation measures option provided that
the recommendations and litigation measures proposed by the
specialists are implemented.
Accordingly, EMC intends to cease the
pumping of water from the defunct underground workings at Ezulwini.
24.
The cessation of pumping of underground water will result in the
water levels in the underground
mine workings and above-lying
dolomitic compartment recovering over time. At this stage it is
anticipated that the Gemsbokfontein
Eye, a spring located to the
north of Ezulwini on the banks of the Wonderfonteinspruit, will
receive aquifer flow after approximately
seven years, resulting in
the affected water resources ultimately returning to close to their
pre-mining state. From the comprehensive
studies undertaken by EMC
and its specialists, the risk of the failure of the underground
boundary pillar and plugs between Ezulwini
and the neighbouring mine,
South Deep mine, have been considered extensively and the probability
of these risks manifesting deemed
remote.
25.
On 12 October 2017, EMC, acting on the advice of its environmental
consultants, applied
for two authorisations to cease the pumping of
water from the defunct underground workings at Ezulwini, namely:
25.1     an
application to the Regional Manager for an environmental
authorisation in terms of section 24 of
NEMA read with the
Environmental Impact Assessment Regulations (“
EIA
Regulations
”) published in Government Notice R982 in
Government Gazette
38282 of 4 December 2014, as amended
(“
EMC’s application for environmental authorisation
”);
and
25.2     an
application to the Provincial Head of the Department of Human
Settlements, Water and Sanitation
(“
DWS
”) for the
amendment of its WUL in terms of section 50 of the NWA (“
EMC’s
application for the amendment of its WUL
”).
26.
In addition, and on 3 July 2018, EMC submitted an application to
Regional Manager in terms of
section 43(3) of the MPRDA for the
partial closure certificate in respect of the closure of the
underground workings at Ezulwini.
A partial closure certificate was
sought as certain surface operations are ongoing at Ezulwini as set
out above. For the reasons
set out below, this application was
subsequently withdrawn on 9 April 2019.
27.
EMC’s application for environmental authorisation was refused
by the Regional Manager
on 30 April 2018.
28.
On 21 May 2018, Warburton Attorneys, acting on behalf of EMC,
submitted an appeal against
the Regional Manager’s decision,
which appeal was upheld by the Environmental Minister on 6 March
2019, principally on the
basis that there had been inadequate
consultation by the Department of Mineral Resources and Energy
(“
DMR
”) with, amongst others, the DWS, the
Principal Inspector of Mines and the Council for Geoscience.
29.
Unfortunately, as set out in more detail below, the Environmental
Minister’s appeal
decision has effectively put EMC back in the
same position it was when it first submitted its application for
environmental authorisation
in October 2017, as the decision refers
EMC’s application back to the Regional Manager for
reconsideration following an additional
public participation process.
The Environmental Minister’s appeal decision provides no
guidance to the Regional Manager as
to whether EMC’s
application ought to be granted or refused and it is likely, for the
reasons set out below, that the Regional
Manager’s decision
will again form the subject of an appeal and/or review launched
either by EMC or a third party, such as
Gold Fields.
30.
EMC’s application for the amendment of its WUL similarly
remains pending, although
the DWS has already expressed the
preliminary view, in its comment on EMC’s application for
environmental authorisation,
that it does not support the cessation
of pumping of underground water at Ezulwini.
31.
A significant amount of time has elapsed since EMC submitted the
aforesaid applications
for environmental authorisation and the
amendment of its WUL. The fate of the resubmission of EMC’s
application for environmental
authorisation to the Regional Manager
is uncertain, which second decision by the Regional Manager will only
be taken after the
further consultation process as directed by the
Environmental Minister’s appeal decision (pursuant to EMC’s
successful
appeal against the Regional Manager’s initial
refusal of its application for environmental authorisation).
Therefore, EMC
has taken legal advice as to the other remedies it may
have in law in order to cease the pumping of underground water at
Ezulwini.
32.
This advice revealed that:
32.1     an
environmental authorisation in terms of NEMA and the EIA Regulations
is not required as the proposed
cessation of pumping does not
constitute the activity contemplated by Activities 22 and 34 in
Listing Notice 1 under EIA Regulations;
and
32.2     an
amendment to EMC’s WUL is not required in order for EMC to
cease the pumping of water from
the defunct underground workings as
EMC’s existing WUL constitutes a statutory entitlement to pump
underground water and
does not create an obligation to pump such
water.
33.
Should it indeed be the case that an environmental authorisation and
an amendment to the
WUL are not required in order to cease the
pumping of the water, as is submitted by EMC, then there would
clearly be no purpose
on EMC proceeding with the resubmission of its
application for environmental authorisation or the amendment of its
WUL and there
would similarly be no purpose in the DMR or the DWS
continuing to process such applications.
34.
EMC has nevertheless proceeded with the resubmission of its
application for environmental
authorisation, as directed by the
Environmental Minister’s decision on EMC’s successful
appeal, and the amendment of
its WUL because it does not wish to
disregard the directives made by the Environment Minister and the
Regional Manager pending
the outcome of the present application.
35.
The legal advice further revealed that even it an environmental
authorisation and an amendment
to EMC’s WUL are required for
EMC to cease the pumping of water from the underground workings at
Ezulwini:
35.1     in
light of the prejudicial financial consequences, physical constraints
and potential health and safety
consequences of the continued
pumping, as well as the findings of the extensive impact and risk
assessment studies commissioned
by EMC, EMC is entitled to cease the
pumping of water from the defunct underground workings at the
Ezulwini mine in the absence
of such environmental authorisation or
WUL amendment;
35,2
alternatively
, that GFI and GFO jointly and severally should
be ordered either to cover the cost of pumping underground water from
Ezulwini or
to contribute to such cost, as they are the principal
beneficiaries of the continued pumping of the underground water.”
[5]
The applicant then quite correctly states that
this court has a discretion to grant a declaration of rights if the
applicant is
an interested party with an existing, future or
contingent right. It states that what an applicant seeking
declaratory relief is
required to demonstrate is that some tangible
and justifiable advantage will flow from the grant of the declarator
or that the
determination of the issue will affect its rights. It
submitted that EMC had met these requirements. If neither an
environmental
authorisation nor an amendment to EMC’s water use
license (“WUL”) are required for EMC to cease the pumping
of
water from the defunct underground workings at Ezulwini, there
would be no need for EMC to proceed with its applications for such

authorisation or amendment and there would similarly be no purpose in
the DMR or the DWS continuing to process such application.
In that
event EMC would be entitled to cease pumping water from the
underground workings at Ezulwini forthwith and without having
to
obtain authorisation from either the DMR or the DWS.
[6]
I will deal in due course with all the relevant
statutory and regulatory enactments but at this stage deem it
convenient to refer
to the following:
6.1
S24 of the Constitution of 1996 read with s7(2). 8(1) and s39(2)
thereof. The last-mentioned deals with interpretation
of legislation,
which must promote the spirit, purport and objects of the Bill of
Rights. Section 24 deals with Environment Rights;
6.2
The Mineral and Petroleum Resources Development Act 28 of 2002
(“MPRDA”);
6.3
The National Environmental Management Act 107 of 1998 (“NEMA”).
6.4
The MPRDA Regulations as published in GNR 527 in
Government
Gazette
of 23 April 2004.
6.5
The 2014 Environmental Impact Assessment Regulations (“2014 EIA
Regulations”);
6.6
The Environmental Impact Assessment Regulations Listing Notice 1 of
2014 published in
Government Gazette
No. 38282: Activity 22
and 34;
6.7
Regulations pertaining to the Financial Provision for Prospecting,
Exploration, Mining or Production Operations
(Government Gazette No.
39425);
6.8
The
Mine Health and Safety Act No 29 of 1996
;
6.9
The
National Water Act No 36 of 1998
.
[7]
After applicant’s proceedings were issued,
the 7
th
respondent
filed its Notice of Intention to oppose and thereafter filed its
answering affidavit in the main application. The fifth
and sixth
respondents (“South Deep”) similarly opposed the
application and filed its answering affidavit in the main
application
together with a notice of counter-application and
counter-application. This was obviously opposed by EMC. EMC also

filed a Replying Affidavit to 7
th
Respondents’ answering affidavit as well as to South Deep’s
Answering Affidavit. It also filed its Answering Affidavit
to South
Deep’s counter-application. The last mentioned then filed its
replying affidavit in the counter-application together
with a
rejoinder in the main application. In June 2020 the First and Fourth
Respondents (“the State”) filed their answering
affidavit
in the main application as did the second and third respondents. In
July 2020 EMC filed its replying affidavit to those
answering
affidavits.
[8]
As far as the counter-application by Gold Fields
is concerned the Acting Deputy Judge President ordered that it would
be heard and
decided first, and the case was set down for a hearing
on 3 and 4 December 2020. The record ultimately comprised over 3000
pages
and I was also furnished with detailed heads of argument. The
issue to be decided is only an interpretative one and I accordingly

decided that it could be most conveniently decided on the papers. In
a very useful joint practice note the parties identified the
pages
and paragraphs that I ought to read, and this made my task less
onerous. For present purposes no factual disputes need to
be decided.
[9]
Before I deal with the counter-application, a
number of facts and submissions emanating from EMC’s Founding
Affidavit deserve
repetition:
9.1
In May 2014 EMC acquired the underground and surface operations of
the Ezulwini Mine;
9.2
In September 2016 EMC ceased underground mining operations, but
surface related mining operations are however
ongoing;
9.3
Groundwater had been pumped in order to undertake the underground
mining operations which resulted in the
dewatering of a dolomitic
compartment. Such dewatering took place pursuant to permits issued to
EMC’s predecessors in terms
of the now repealed Water Act 54 of
1956 and in terms of a water use licence (“WUL”) issued
to EMC in 2015 in terms
of the NWA;
9.4
Notwithstanding the cessation of underground operations, EMC
continues to pump and treat the water from the
underground workings
at a cost of some R21 million per month;
9.5
Service surface operations are continuing at Ezulwini, the provisions
of s43 (3)(b) of the MPRDA are not applicable
to the proposed
cessation of pumping from the underground workings. This subsection
(so it was put) requires the cessation of the
mining operations in
their entirety.
9.6
An amendment to EMC’s WUL is not necessary as such does not
require
(I underline)
EMC to pump underground water. It merely
permits
it to do so. No obligation is created to pump such
water.
[10]
GOLD FIELDS COUNTER APPLICATION:
In the “notice
of counter application” dated 23 September 2019 it was stated
that the following relief would be sought:
1.    Declaring
that the Applicant remains responsible for the pumping and treatment
of extraneous water from the
underground workings of the Ezulwini
mine until at least when the DMR Minister has issued a closure
certificate in terms of section
43 of the Mineral and Petroleum
Resources Development Act 28 of 2002 ("MPRDA") to the
Applicant or such longer period
as contemplated in
section 24R
of the
National Environmental Management Act
("NEMA").
2.    Directing
the Applicant to take such steps as are necessary to maintain the
shafts and pumping infrastructure
required for the pumping and
treatment of the water from Ezulwini's underground workings where it
has ceased mining for such period
as it remains responsible for the
pumping and treatment of extraneous water.
3.    Directing
the Applicant to allow the Fifth and Sixth Respondents access to the
Ezulwini mine for purposes of
inspecting the condition of the entire
Cooke 4 shaft and infrastructure required for purposes of the pumping
and treatment of extraneous
water from the Cooke 4 shaft.
4.    In the event
of any party opposing the relief sought in this application, ordering
such party to pay the costs
of this application, if there is more
than one of them, ordering them to pay the costs jointly and
severally, the one paying the
other to be absolved.
[11]
As a consequence of the above EMC, Gold Fields
and the 7
th
respondent have described the issues to be decided. The 2
nd
respondent has also filed heads of argument and supports the granting
of prayer 1 of the Gold Fields application. The other state

respondents in their answering affidavit also support the main relief
sought by Gold Fields.
[12]
ISSUES TO BE ARGUED BY GOLD FIELDS (also
referred to as “South Deep”):
I am referring to
the summary provided in the joint practice note. South Deep and EMC
are neighbouring mines in the Far West Rand
Gold Fields, situated
below a dolomitic compartment holding a massive volume of water
(there is a comment in the affidavits to
the effect that “it is
like mining beneath the Vaal Dam”). EMC’s objective is to
seek clarity in respect of the
application of particular legal
provisions to the cessation of pumping water from its underground
workings which would have the
effect of re-watering the Ezulwini mine
and the dolomitic aquifer. South Deep contends that upon a proper
interpretation of
s43
of the MPRDA, in view of its historical
context, wording and statutory context, the aim of the section is to
regulate the cessation
of pumping. To this end,
s43(1)
provides that
the holder of a mining right remains responsible for the pumping and
treatment of extraneous water until the Minister
has issued a closure
certificate in terms of the Act to the holder. It thus seeks to
preserve the status quo until the required
information, programmes,
plans and reports prescribed by MPRDA and NEMA regulations have been
submitted to the regulator in terms
of section 43 (4), have been
considered, and the Chief Inspector of Mines and each government
charged with the administration of
a relevant law have confirmed in
writing inter alia that the purposes and treatment of extraneous
water has been addressed and
a closure certificate been issued.
Section 24R of NEMA has substantially the same purpose. South Deep
submits that where EMC has
pumped and is still pumping extraneous
water from its mine workings and a closure certificate has not been
issued to it, it is
responsible to continue pumping the extraneous
water at least until it has followed the process envisaged in s43
read with the
regulations and a closure certificate has been issued.
[13]
ISSUES TO BE ARGUED BY EZULWINI (EMC):
EMC raises 2
defences in its answering affidavit. The first is that South Deep
misinterprets s43 of the MPRDA and s24R of NEMA.
It says that neither
of these two sections imposes liability for the pumping and treatment
of polluted or extraneous water but
rather confirm that where such
liability exists, it remains with the holder of the relevant right
until a closure certificate has
been issued (in the case of NEMA) and
even after a closure certificate has been issued (in the case of
NEMA). The source of such
liability is not section 43 of the MPRDA.
To the extent that such liability exists it arises from other
statutory provisions, including
provisions which prescribe the
content of an EMPR of closure plans. EMC’s second defence is
that the obligation to pump only
applies to extraneous water for
purposes of s43 of MPRDA and “polluted and extraneous water”
for purposes of s24(3)
of the NEMA and that “as it originates
from a single dolomitic ground water compartment… (it)
accordingly does not
enter the mine “from elsewhere” and
is not “polluted”.
[14]
The seventh respondent supports South Deep’s
interpretation of s43 of the MPRDA and 24R of NEMA.
[15]
Before I continue with the detailed argument of
the parties as contained in their respective heads of argument, which
I will attempt
to summarise, it is convenient for the sake of clarity
to refer to a specific issue. In par 66 of “applicant’s
heads
of argument in response to fifth and sixth respondents’
counter application”, the following was said:
“
In conclusion, it is
respectfully submitted that on a proper interpretation, sections
43(1) of the MPRDA and section 24R(1) of NEMA
do not create
obligations on the part of a holder of a mining right to pump and
treat extraneous water. Their effect is instead
to prolong an
existing obligation to do so. Because of the view that Gold Fields
has taken regarding the proper interpretation
of these sections, it
has failed to allege and prove a pre-existing obligation on the part
of EMC to pump and extraneous water
from the underground workings of
the Ezulwini mine.”
[16]
This submission prompted me to direct a written
question to EMC’s attorneys as follows: “does EMC say
there is no obligation,
and if so, as I presume it will, exactly why
not?” I received a prompt reply in writing on 24/11/20 and the
following was
said:
“
2.1
The points EMC makes are two-fold. Firstly, that it is not Gold
Field’s case that there
is, apart from s43(1) of the MPRDA and
section 24R(1) of NEMA, an anterior independent obligation to pump
extraneous water. Whether
or not Gold Fields are correct in their
interpretation of those sections is a matter of argument. Secondly,
EMC says that there
is as a fact no independent obligation to pump
extraneous water and accordingly sections 43(1) and 24R(1) do not
impose such an
obligation on EMC.
2.2
EMC contends that it pumped extraneous water not because it was
obliged to do so, but because
it needed to do so in order to conduct
underground mining operations. Therefore, the mere fact that it
pumped water is not evidence
of the existence of an obligation to
pump. Apart from noting that Gold Field’s cannot point to an
obligation to pump water
aliunde its interpretation of s43(1) and
24R(1), EMC cannot prove the absence of an independent obligation to
pump. This is a matter
upon which Gold Fields bears the onus.
2.3
…
2.4
It is common cause that EMC has ceased its underground mining
operations: It continues to
conduct surface mining operations and
consequently it continues to carry on mining operations for the
purposes of the MPRDA.”
[17]
I note also that EMC states in its founding
affidavit that its WUL constitutes a statutory permission or
entitlement to pump a certain
quantity of underground water from a
particular aquifer situated below specified properties in order to
facilitate underground
mining operations. It does not create an
obligation to pump water. It is also said that since surface
operations are continuing
at Ezulwini, S43(3)(b) of the MPRDA is also
not applicable to the proposed cessation of pumping from the
underground workings.
This subsection requires the cessation of the
mining operations in their entirety.
[18]
The above in essence encapsulates EDM’s
argument but I will again refer to its written argument in more
detail.
[19]
Before I deal with Goldfield’s submission a
reference to certain statutory provisions that have been referred to
is appropriate:
19.1
Section 43(1) of the MPRDA reads as follows:
“
The holder of a …
mining right…
remains responsible
for any environmental
liability, pollution ecological degradation, the pumping and
treatment of extraneous water, compliance to
the conditions of the
environmental authorisation and the management and sustainable
closure thereof, until the Minister has issued
a closure certificate
in terms of this Act to the holder… concerned” (I
underline).
19.2
Section 24R (1) and (2) of NEMA provides that:
“
(1) Every holder, holder
of an old order right and owner of works
remains responsible
for any environmental liability, pollution or ecological degradation,
the
pumping and treatment of polluted or extraneous water
, the
management and sustainable closure thereof, notwithstanding the
issuing of a closure certificate by the Minister responsible
for
mineral resources in terms of the
Mineral and Petroleum Resources
Development Act 2002
, to the holder or owner concerned (I underline).
(2) When the Minister responsible
for mineral resources issues a closure certificate, he or she must
return such portion of the
financial provisions contemplated in
section 24P
as the Minister may deem appropriate to the holder
concerned, but may retain a portion of such financial provision
referred to
in subsection (1) for any latent, residual or any other
environmental, including the pumping of polluted or extraneous water
for
a prescribed period after issuing a closure certificate. “
[20]
GOLDFIELDS HEADS OF ARGUMENT RE PRAYER 1 OF
THE COUNTER APPLICATION
Before I deal with
certain specific arguments. It is necessary to refer to the legal
framework for statutory interpretation, as
counsel for the second
respondent in the main application did, and counsel for EMC as well.
The former referred
Natal Joint Municipality Pension Fund v
Endumeni Municipality
2012 (4) SA 593
(SCA), where the relevant
principles were clearly re-stated and which were endorsed by the
Constitutional Court in a number of
cases including
Democratic
Alliance v African National Congress and Another
2015 (2) SA 232
(CC) at par [136], and
Cool Ideas 1186 CC v Hubbard and Another
2014 (4) SA 474
(CC) at par [28].
The following was
said in the last mentioned case:
“
[28] A fundamental tenet
of statutory interpretation is that the words in a statute must be
given their ordinary grammatical meaning,
unless to do so would
result in an absurdity. There are three important interrelated riders
to this general principle, namely:
(a) that statutory provisions
should always be interpreted purposively;
(b) the relevant statutory
provision must be properly contextualised;
and
(c) all statutes must be
construed consistently with the Constitution…”
[21]
It is clear from the decisions that the entire
enactment in which the particular words appear must be considered.
Context remains
important even where the words to be considered are
clear and unambiguous. Words must therefore not be “peered at”
in isolation.
See:
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC) [51] fn 48.
I therefore do not
agree that the words that I underlined in the statutes referred to in
par 19.1 and 19.2 above, standing alone,
provides the answer to the
main issue between the parties. The interpretation of those sections,
and those specific words must
be considered within the context of the
relevant legal framework and of course keeping in mind s24 of the
Constitution read with
s39(2) thereof.
[22]
THE HISTORICAL CONTEXT OF S43
South Deep
(Goldfields) describes this fairly concisely. The underground works
of various gold mines in the West Rand and Far West
Rand area are
situated below dolomitic compartments holding a massive volume of
water. The current mines are situated below the
Gemsbokfontein
Dolomitic Compartment which is some 9000 hectares in extent. The
water stored in these permeates through faults
and cracks and flows
into the mine some 200 to 800 metres below these compartments. The
flow is at an enormous rate and will rapidly
fill the mining area if
it is not pumped out. Pumping is thus a necessity in order to mine.
Both the 1956 Water Act and the 1998
Water Act provides for a permit
and license respectfully to remove such water. These gold mines have
been de-watered over decades.
The de-watering disturbs the natural
balance. The legislative, as indicated in the MPRDA and NEMA is aware
of these activities
and mentions them expressly in s43 of the MPRDA
and s24R of NEMA as well as in various Regulations. Its aim in these
sections and
enactments is to regulate cessation of pumping. The
consequences of such and the resultant re-watering must be considered
carefully
and set out in reports that must be submitted to the
regulator, and that pumping may only cease once the reports are
approved and
a closure certificate has been issued. (See: s43 of
MPRDA read with Regulations 56-62; s24R of NEMA read with the EIA
Regulations
including reg. 19(6) and appendix 5). Regulation 19 deals
with the submission of basic assessment report and environmental
management
programme, and where applicable a closure plan, to
competent authority. Appendix 5 deals with the content of a closure
plan. “Pumping
and treatment of extraneous water or ecological
degradation as a result of closure is mentioned specifically in
clause 1(h) of
appendix 5.
[23]
I have quoted sections 43(1) and 24R(1) and (2)
above. The legislature lists a number of matters in these sections
for which the
holder of a mining right remains responsible until a
closure certificate is issued, or even longer. It is clear, according
to this
argument, that the legislature mentions pumping and treatment
of extraneous water expressly and separately from environmental
liabilities
and conditions of the EMP. What is contemplated is that
where pumping was in fact being conducted in order to mine, the
holder
of the mining right remains responsible for pumping and
treatment of water until a closure certificate issued, in order to
maintain
the status quo until such time as the cessation of pumping
can be properly regulated.
[24]
24.1
THE
STRUCTURE OF S43:
Section 43 (3)
provides for the instances when a closure certificate must be applied
for such application is necessary, amongst
others, upon the cessation
of the prospecting or mining operation. Section 43 (4) in turn
provides that a closure application must
be accompanied by the
required information, programmes, plans and reports prescribed in
terms of the MPRDA and in terms of NEMA.
It is clear that the
legislature had a particular process in mind before pumping can
cease.
24.2
REGULATIONS UNDER THE MPRDA:
24.2.1
Regulation 57 prescribes the application and documentation required

including the environmental risk report and closure plan.
24.2.2
Regulation 60 deals with the environmental risk report.
24.2.3
Regulation 62 prescribes the contents of the closure plan that
has to
accompany the closure application.
24.3
REGULATIONS UNDER NEMA:
24.3.1
I have already referred to appendix 5 of the EIA Regulations.
24.3.2
The Financial Regulations 2015 promulgated under NEMA requires

provision for inter-alia the costs associated with final closure in a
final rehabilitation, decommissioning and closure plan inclusive
of
the costs associated with remediation of latent or residual impacts
which “may become known in the future including pumping
or
treatment of polluted or extraneous water”, as reflected in an
environmental risk assessment report.
24.3.3
“Financial provisions” is defined in s1 of NEMA by

reference to inter alia the pumping and treatment of polluted or
extraneous water.
[25]
Section 43(5) provides that no closure
certificate may be issued unless the Chief Inspector of mines and
each government department
charged with the administration of any
relevant law have confirmed that the provisions pertaining inter alia
“the pumping
and treatment of extraneous water” and
“compliance to the conditions of the environmental
authorisation” have
been addressed.
[26]
GOLDFIELDS CONCLUSION ON THE INTERPRETATION OF
SECTION 43(1) AND 24R(1)
EMC falls squarely
under section 43(1) of the MPRDA and section 24R(1) of NEMA. It is
common cause that EMC is the holder of a mining
right in respect of
Ezulwini. It is common cause that EMC pumped groundwater from the
underground workings and still continues
to do so. There is no
dispute about what water is being pumped and where the water emanates
from but EMC denies that it can be
described as “extraneous”.
It is common cause that no closure certificate has been issued.
[27]
THE LEGISLATIVE HISTORY OF SECTIONS 43(1) (OF
MPRDA) AND 24R (OF NEMA), AS DESCRIBED BY APPLICANT (EMC):
27.1  The MPRDA
commenced on 1 May 2004. Section 43(1) read that “the holder of
a … mining right … remains
responsible for any
environmental liability, pollution or ecological degradation, and the
management thereof, until the minister
has issued a closure
certificate to the holder concerned.” Section 43(3) deals with
the circumstances when a closure certificate
must be applied for.
This includes the cessation of the prospecting or mining operation.
At that time in 2004 the environmental
impacts of mining were
regulated exclusively through the MPRDA and in particular through the
requirement under that Act to obtain
an Environmental Management
Programme (“EMP”) prior to commencing mining and to
ensure that mining takes place in accordance
with such approved EMP.
An EMP was required to identify and describe measures for the impacts
arising not only during the course
of the mining operation but also
thereafter. (See: GN 527 in GG 26275 of 23 April 2004).
27.2  In terms
of the MPRD Regulations, an EMP was required to include action plans
to achieve the said objections and goals
(MPRD Regulation 51(b)(iii).
An EMP was also required to include a closure plan as contemplated in
s43(3)(d) of the MPRDA. Amongst
others, such plan had to include a
description of the methods of decommissioning each mining component
and the mitigation or management
strategy proposed to avoid, minimise
and manage residual or latent impacts (reg 62(f)).
27.3  The said
Regulations further prescribed the quantum of financial provision an
applicant for a mining right was required
to make for the
rehabilitation or management of negative impacts. This included
provision for the actual costs required for, inter
alia, the
decommissioning and final closure of the mining operating and post
closure management and latent impacts (Reg 54 (b)
and (c)).
27.4
Regulation 55(8)(c) provided for a final performance assessment when
the holder of a mining right intended closing a
mining operation.
27.5  The
principles for mine closure were prescribed in MPRD Regulation 56. It
is clear that environmental concerns and impacts
played a major role.
These had to be addressed in the relevant EMP. The commitments made
in the EMP created legal and enforceable
obligations on the holder of
a mining right.
27.6  It was
therefore contended by EMC where mining operation involved the
pumping of underground water and the cessation
of such operations
involved, either the continuation of such pumping or the cessation
thereof, provision for any environmental
impacts had to be contained
in the relevant EMP and closure plan and financial provision would
have to be made thereunder.
[28]
On 8 December 2014 the legislative framework
changed with the introduction of the “One Environmental
System.” Giving
effect to this system envisaged the removal of
all the provisions in the MPRDA that dealt specifically with
environmental authorisation
and management and the inclusion of such
provisions in the NEMA. This system was accordingly implemented
through a number of legislative
amendments including the MPRDA
Amendment Act 49 of 2008 (“MPRDA A.A 2008”), the National
Environmental Management Laws
Second Amendment Act 30 of 2013 and the
National Environmental Management Laws Amendment Act 25 of 2014.
[29]
The following amendments introduced as part of
“One Environmental System” are relevant for present
purposes:
29.1  Sections
38-42 of the MPRDA were repealed. They dealt primarily with the
environmental regulation of mining;
29.2  The
requirement to obtain an approved EMP was replaced with a requirement
to obtain an Environmental Authorisation in
terms of NEMA. These
would contain the obligations of a mining right holder. Prior to that
an applicant was required to compile
a scoping and environmental
impact assessment report, an EMP and a closure plan.
29.3  The
provisions for financial provision for remediation were removed for
MPRDA (s41) and replaced by a new s 24P in NEMA
containing
substantially similar provisions.
29.4  The
regulations in the MPRDA dealing with financial provisions were also
repealed and replaced by new such Regulations
published in terms of
NEMA. The management of latent and residual environmental impacts
which may be known in the future were now
expressly defined to
include “the pumping and treatment of polluted or extraneous
water” (It was contended that this
amendment did not extend the
reach of the section).
29.5  Section
43(1) of the MPRDA was amended and now reads as quoted in par 19.1
above. Section 43 (4) deals with an application
for a closure
certificate. Section 43 (5) prohibits the issuing of such unless
environmental issues have been addressed which now
includes “the
pumping and treatment of extraneous water.”
29.6  Financial
provisions for future negative environmental impacts are dealt with
in s 43 (6).
29.7
Procedures and requirements on mine closure as it relates to the
compliance of the conditions of an environmental authorisation
are
now prescribed in terms of the
National Environmental Management Act
1998
.
29.8  A new
section 24R
, dealing with mine closure and environmental
authorisation was inserted into NEMA in terms of
s8
of the NEMA
Amendment Act 2008. Section 24R(1) and (2) reads as quoted in par
19.2 above.
[30]
EMC’s ARGUMENT
It is at this stage
convenient to state what EMC’s submissions are having regard to
the mentioned amendments. It was said
that the objections and the
legislative measures for the mitigation and management of the
environmental impacts of mining operations
at- and post closure have
not changed. The fact that there is now express reference to the
pumping and treatment of extraneous
water in the MPRDA and to the
pumping and treatment of polluted or extraneous water in NEMA has not
changed the scope of the obligations
on the holder of the right.
[31]
In order to determine EMC’s obligations in
regard to the pumping and treatment of water from the underground
workings, regard
must be had to its existing EMP, which was approved
in March 2015. This EMP contemplates 2 options for the closure of the
underground
workings. The first is the cessation of pumping, which
the EMP states will result in a rise in the water table in the
particular
dolomitic Aquifer, and the second is that the pumping
infrastructure could be maintained by South Deep Mine and pumping
would continue.
In either scenario, the EMP does not contemplate EMC
remaining responsible for the pumping and treatment of water from the
particular
underground workings in perpetuity.
[32]
As far as the purpose of s43 of the MPRDA and
s24R of NEMA is concerned, both dealt with a remaining or continuing
obligation until
the Minister has issued a closure certificate. Both
sections are accordingly concerned with the perpetuation of an
existing obligation
to pump and treat extraneous water and polluted
water, and not the creation of a new obligation to pump and treat
such water. I
have already referred to this defence to the
counter-claim in par 16 above.
[33]
As far as the literal interpretation of the
meaning of the word “remain” and “remains”,
“responsible:
is concerned, both parties have understood the
word “responsible: to refer to a legal obligation. The word
“remain”
is defined in the New Oxford Dictionary of
English as meaning “continue to exist”. The use of the
word “remains”
and “remain” in the sections
therefore requires that the relevant obligation to pump and treat
extraneous water must
exist independently from the sections in
question, in other words, a prior legal obligation must have existed.
Both sections are
concerned with the perpetuation of an existing
obligation and not the creation of a new one. In addition it was
submitted that
the obligations on the holder of a mining right in
regard to environmental liability, pollution and ecological
degradation arise
in numerous other provisions in NEMA and other
legislation (See for example s28 of NEMA,
s19
of the
National Water
Act of s43A
of Act 59 of 2008). Neither s43(1) nor section 24R(1) are
the source of these obligations. Responsibility for the management
and
sustainable closure of a mining operation also does not arise
from these sections. This appears expressly from s43(8) of the MPRDA

of s24R(3) of NEMA, so it was contended.
[34]
EMC also emphasise that the interpretation of a
legislative provision is an objective process. An interpretation
cannot be based
upon the facts or circumstances peculiar to an entity
to which the provision applies. It is alleged that Gold Fields has
wrongly
adopted the latter approach. Gold Fields has however failed
to prove a pre-existing obligation on the part of EMC to pump and
treat
extraneous water.
[35]
As for a prayer 2 of the counter application was
concerned it was submitted that no case has been made out for such
interdictory
relief. The same applies to prayer 3. EMC noted, in the
former case that it addressed an email to Gold Fields on 8 August
2019,
in which it confirmed that “the mitigation and remedial
measures instituted to ensure the safety of our employees and
contractors,
to secure the shaft infrastructure and to allow for the
continuation of pumping activities in the interim remain on-going.”

This assurance was not challenged by Gold Fields. As for a prayer 3
is concerned, EMC refers to written updates provided to Gold
Fields
on four occasions between May and November 2019. These updates
provided sufficient insight as to the shaft infrastructure
and
condition of the shaft and the progress EMC had made in securing the
shaft and associated infrastructure so as to keep Gold
Fields fully
appraised of the relevant facts.
[36]
In both instances Gold Fields has not established
that it has a clear or even prima right to the relief sought nor has
it demonstrated
a reasonable apprehension of any harm should the
relief not be granted.
[37]
I agree with the submissions made by EMC in this
regard. There is no basis laid for the granting of the interdictory
relief sought
in prayers 2 and 3 of the counter-application.
[38]
GOLD FIELDS RESPONSE TO EMC’s DEFENCE IN
RESPECT OF PRAYER 1:
38.1
Firstly, it is argued that EMC misinterprets the
said section 43 and 24R by saying that they only confirm that where a
previous
liability to pump exists, it remains with the holder until a
closure certificate has been issued or even thereafter. This
interpretation
does not accord with the content and structure of
these sections. On EMC’s interpretation any holder can
effectively stop
pumping whenever it chooses to do so. This renders
the whole scheme devised by the legislative for purposes of orderly
closure
redundant. Section 43 does not refer to the cessation of
pumping of extraneous water within the context of an existing EMP but
mentions it by name in addition to existing EMP conditions. Section
43 creates a liability and imposes a duty to continue pumping
(where
pumping has occurred) until a closure certificate has been issued.
The closure plan which needs to be submitted with the
closure
application
must
deal
inter alia with the pumping of extraneous water and the management
thereof (see appendix 5 to the EIA regulations). Furthermore,
in
terms of s43(5), no closure certificate may be issued unless the
Chief Inspector and each relevant government department have

confirmed in writing that the provisions to inter alia the pumping
and treatment of extraneous water have been addressed. EMC’s

argument that some other “obligation: is required, will negate
the provisions of section 43(1) and (5).
38.2
EMC’s second defence is that the obligation
to pump only applies to “extraneous water” for purposes
of the 2 particular
sections, and that “as it originates from a
single dolomitic groundwater compartment… it accordingly does
not enter
the mine from elsewhere. However, there is no dispute
between the parties about what water is being pumped and where it
comes from.
Gold Fields explained the geology in the first part of
its answering/founding affidavit. These facts are admitted in EMC’s

replying affidavit subject to a few qualifications which are not
relevant. It is also common cause that the water which enters
the
underground workings comes from the dolomitic acquifer above the
mine. Water permeates into the workings of the mine through
faults
and cracks of the “floor” of the dolomitic compartment.
This compartment is above and outside the mine ie. extraneous.
EMC
describes the water that “infiltrates” the Ezulwini shaft
as “fissure water”. A fissure is indeed a
crack or deft
in the bottom of the floor of the dolomitic compartment from which
the water comes. There is therefore no merit in
this second defence.
[39]
SECOND RESPONDENT ARGUMENT:
39.1
It is contended that the issue before me is of
national importance and should the unambiguous wording of the
particular sections
not be correctly interpreted, it may have
alarming consequences for mining in general and detrimental
consequences for the environment.
39.2
The relevant sections apply to all holders of a
mining right. The specific statutory obligations emanate by virtue of
s43(1) itself.
There exists no ambiguity.
39.3
EMC’s stance is that for the first time in
the history of South African mining, a “defunct mine”, as
EMC refers
to its Ezulwini Mine, should be allowed to completely
re-water the dolomitic groundwater compartment of the mine void that
was
created during the mining operation. It argues that it is
entitled to do so without any assessment of potential impacts and
without
any authorisation to mitigate and manage the environmental
impacts.
39.4
This would negate the provisions of s43 and s34R,
which must be interpreted in a much wider and polycentric context
than contended
for by EMC.
39.5
The case advanced by EMC is merely a self-serving
interpretation of the mentioned sections.
39.6
EMC’s reliance on the word “remain”
is furthermore misplaced. The words “remain responsible”
related
to the duration of the periods referred to s43(1) of the
MPRDA and in s24R of the NEMA. In my view this argument is sound and
I
agree with it. Neither of the sections contemplates an existing
obligation emanating from a source other than the said specific

statutory provisions to pump and treat extraneous water, as EMC
argues. These provisions itself impose a statutory obligation.
In my
view, I may add at this stage, the words “remains responsible”
in s43(1) must be read together with the word
“until”. In
other words, a time period is contemplated, and not a pre-existing
obligation emanating from some other
source.
39.7
It was also submitted that the statutory
obligation to “remain responsible” may also be regarded
as a blanket reservation
of an obligation to prevent
any
environmental liability, inclusive of
pollution, ecological degradation, and to pump and treat extraneous
water. The statutory obligation
imposed by s43(1) remains and exists
by virtue of a being a holder of a mining right. The word “until”
indicates as
I have said, a reference to a time period, and thus read
with the word “remains”, it refers to the continuation of
the existence of the statutory obligation to be responsible for a
period of time, and not to any pre-existing obligation.
[40]
Counsel for the second respondent also referred
to the applicable legal framework, including reference to the said
environmental
rights contained in s24 of the Constitution, to which
EMC does not refer at all as and did to the interpretation of the
relevant
statutory provisions.
[41]
It is also clear, as also appears in s43(1) that
s24R(1) of the NEMA similarly refers to a prescribed period.
[42]
I have already referred to item 1(h) of appendix
5 to the 2014 Regulations, which in peremptory terms requires a
closure plan to
include the process for managing any environmental
damage, pollution, pumping and treatment of extraneous water, or
ecological
degradation as a result of closure. In addition, Listing
Notice 1 to the 2014 EIA Regulations (published in GNR 983 in GG of 4
December 2014) at item 3(1) therefore, identifies the activities
listed in appendix 1 in terms of s24 (2)(a) of the NEMA, as
activities
that may not commence without an environmental
authorisation from the competent authority. The taking out of
service, such as the
complete re-watering of the underground mine
area of a defunct mine, constitutes the decommissioning of an
activity which then
triggers listed activity 22 of the EIA
Regulations 2014, requiring a closure certificate in terms of s43
MPRDA.
[43]
An additional consideration are the principles
set out in s2 of the NEMA, which are incorporated in s37 of the
MPRDA. They apply
to all mining operations and any matter or activity
relating to such operation, and to serve as guidelines for the
interpretation,
administration and implementation of the
environmental requirements of the MPRDA. Section 37(2) is an
all-enhancing provision and
refers to the general environmental
management principles, about by way of summary, which principles
apply to all mining operations
(s37(1)(a).
[44]
With the onset of the “One Environmental
System” s24N(7)(f) of the NEMA introduced a general
responsibility on the holder
of a mining right for any environmental
damage, pollution, pumping and treatment of polluted or extraneous
water, or ecological
degradation as the result of operations. I agree
that this may be regarded as a further source of the statutory
obligation of the
holder of a mining right to remain responsible for
any environmental impacts, including the pumping and treatment of
polluted or
extraneous water.
[45]
It is also noteworthy that s43(1) of the MPRDA,
which was retained, imposes responsibility on various holders of
rights, despite
the fact that all of them may not necessarily have an
environmental management programme. The holder of an old order mining
right,
or the previous owner of the works that have ceased to exist,
are given as examples. This is a further indication that the
obligation
to remain responsible for the pumping of water cannot
always be sourced in an environmental management programme, as EMC
alleges.
Counsel for second respondent therefore contended that this
argument of EMC was fatally flawed. He also emphasised the importance

of s43(3) and 43(5) of the MPRDA relating both addressing the
cessation of activities and the peremptory requirements in relation

thereto.
[46]
The MPRDA Regulations also place specific
obligations of the holder of a mining right to ensure that risks
pertaining to environmental
impacts be quantified and managed
pre-activity and that possible latent environmental impacts are
identified (Reg 56). Regulation
57 deals with a closure plan, an
environmental risk report. Regulation 62 deals with a prescribed
closure plan. I cannot imagine
that the general provisions on impact
assessment under the NEMA, would not require an assessment of water
related aspects. The
conclusion was that should the holder of a
mining right propose the cessation of the pumping and treatment of
polluted or extraneous
water, it has the statutory obligation to
start the required environmental impact assessment of the proposed
activity, and to address
the identified potential impacts thereof in
proposed mitigation measures to avoid, minimise or limit the
potential impacts of that
proposed activity. I agree that that is
part of the mosaic envisaged by the “One Environmental System.”
[47]
SEVENTH RESPONDENTS’ ARGUMENT:
47.1
Lucky farms is a vegetable farming operation
comprising two farms, one north and one south of EMC’s mine. It
gave details
of its dependency upon water from a spruit, into which
EMC currently discharges water from its mine. The envisaged negative
impact
upon its farming activities are disputed by EMC in its
replying affidavit in the main application. These disputes are not
relevant
to the counter-application. It supports the argument
relating to the importance of the provisions of s24 read with s39(2)
thereof,
in the context of the interpretive exercise that needs to be
undertaken.
47.2
It referred to
Fuel
Retailers Ass. Of Southern Africa v D-G, Environmental Management,
Department of Agriculture, Conservation and Environment,
Mpumalanga
Province
2007 (6) SA 4
(CC) at par [67],
wherein the court indicated that the NEMA principles must be
observed, stating that such interpretation and implementation
not
only of NEMA, but any other legislation that is concerned with the
protection and management of the environment.
46.1
Reference was also made by counsel to s4(1) of
the MPRDA which states that “when interpreting a provision of
this Act, any
reasonable interpretation which is consistent with the
objects of this Act must be preferred over any other interpretation
which
is inconsistent with such objects”. Section 1(3) of NEMA
contains a similar provision, as does
s1(3)
of the
National Water
Act.
46.2
Counsel
submitted, with reference to the purpose,
objects and principles of MPRDA and the NEMA, that the interpretation
by South Deep of
the relevant sections, is in accordance with the
risk adverse and cautious approach, and the preventative anticipating
approach
per
section 2(4)(a)(vii)
and (viii) of NEMA. He submitted
that EMC’s interpretation of the relevant sections is not
supported by the purpose and objects
of either NEMA or the MPRDA. I
agree. The relevant sections, and especially
s43(1)
and s
24R
, that I
have referred to above, in themselves do not support the
interpretation contended for by EMC.
[48]
FIFTH AND SIXTH RESPONDENTS ARGUMENT IN REPLY:
Their heads to a
large extent deals with the interpretation exercise that must be
undertaken having regard to the mosaic on a whole
that I have
referred to already. Counsel however also emphasizes the plain
language of
s43(1)
and
24R
(1). I agree that the plain words of
s43(1)
are compatible with all of the following constructions:
48.1  the
holder remains responsible for pumping where it has in fact been
pumping;
48.2  the
holder remains responsible for pumping where it had an obligation in
terms of the legislation to pump;
48.3  the
holder remains responsible for pumping where it had an obligation
dehors the legislation to pump.
[49]
I have dealt with the relevant principles
relating to the interpretation of statutes. I agree that
interpretation is a matter of
law. There can be no question of an
onus resting on a particular litigant. I also agree that it is not
necessary to allege and
prove that Gold Fields had an antecedent
obligation to pump. No delict is relied up but a current statutory
obligation and responsibility
as per the said
s43
and
24R
, in
circumstances where EMC has been pumping for years and where
section
24N(7)
has since its inception placed a responsibility to pump
extraneous water on the holder of a mining right, as a matter of law.
This
section of Act 107 of 1998 deals with “Environmental
Programme” and in sub-section (7) deals with a holder’s
(of an environmental authorities) obligations in general but also in
specific terms to deal comprehensively with environmental concerns

and impacts. I have also already referred to sub-section 7(f),
substituted in 2014, that reads that such a holder “is
responsible
for any environmental damage, pollution, pumping and
treatment of polluted or extraneous water or ecological degradation
as a result
of his or her operations to which such right, permit or
environmental authorisation relates”. This section is clear.
[50]
It must be added that amongst the new sections
inserted into NEMA with effect from 2014, is section 24N which deals
with the environmental
programme (‘EMP’) which must be
required before considering an application for environmental
authorisation in the case
of mining. The EMP under s24N of NEMA is
not the same as the EMP under the MPRDA. Under the pre-amended MPRDA,
an approved EMP
constituted the environmental approval. Under NEMA,
the EMP is only the management programme which forms part of the EPA,
and its
content is prescribed by NEMA and its regulations. I have
referred to s21N(7)(f). This means that the relevant holder is
responsible
for pumping and treatment of extraneous or polluted water
which is required as a result of its operations. The amended s43(1)
of
the MPRDA provides expressly for the period after cessation but
before a closure certificate is issued. I have already stated my
view
that the words “remains responsible” must be read with
the “until”. In other words, a period of time
is
envisaged, and not a pre-existing obligation. Section 24R(1) of NEMA
provides for the period after the closure certificate as
has already
been pointed out. The new section 24P(5) of NEMA expressly provides
that the Minister may retain such portion of the
financial provision
as may be required to rehabilitate the closed mining operation in
respect of latent, residual and other environmental
impacts including
the pumping of polluted or extraneous water, for a prescribed period.
Section 24R(2) of NEMA contains a similar
provision. All these
sections must in my view be read together. The language is plain and
clear, and so is their purpose. I agree
that the environmental
responsibilities set out in sections 24N(7)(f), 43(1) and 24R(1) thus
exist in addition to those set out
in the relevant EMP and that such
EMP does not contain the sum total of all environmental liabilities ,
duties or responsibilities.
A contrary view would negate the clear
language of these provisions and their purpose in the context of the
overall statutory scheme
introduced in 2014.
[51]
Further written arguments by EMC in reply to the
Gold Fields submissions and the 7
th
respondent were submitted. I have studied these. As far as the former
is concerned EMC emphasizes that the counter-application
must be
accepted as setting out which legislative provisions are relied upon.
This, so it is alleged, narrows the scope of prayer
1 to the proper
interpretation of NEMA, and to a lesser extent the interpretation of
s2
of the
Mine, Health and Safety Act 1996
. No mention is made of the
constitutional provisions or the mosaic that I have referred to, and
that the legislative clearly intended.
I will not repeat EMC’s
argument relating to the particular interpretative exercise. This has
been sufficiently dealt with.
The principles of interpretation were
again set out. Again, this is nothing new. The legislative listing of
the relevant sections
was again referred to. I have dealt with that.
The purpose of the sections was set out. That topic has been dealt
with too. Submissions
in relation to prayers 2 and 3 were repeated.
As I have said I do not intend to grant those prayers for the reasons
already given.
[52]
Regarding the response to the second and seventh
respondent’s heads of argument, it was argued that unlike Gold
Fields, whose
heads in reply “appear to concede” that the
source of responsibility for the pumping of polluted extraneous water
referred
to in
s43(1)
of the MPRDA and
s24R(1)
of the NEMA does not
arise in these sections themselves, the second respondent insists
that the obligation arise by virtue of the
statutory provisions
themselves and because EMC is the holder of mining right. According
to the Minister there is no ambiguity
in these sections and they
require no in-depth interpretation. This view is over-simplistic, so
it is said and the heads overlook
the specific wording of the section
and in particular misinterpret the words “remains responsible”.
I do not intend
to repeat those arguments again. They have been
sufficiently dealt with. I have considered the working of the
sections themselves
against the overall mosaic that I have described
on background and guide-line. Again, nothing is said of the relevant
Constitutional
provisions that inform the whole process of the
required interpretation exercise. As far as the argument of the
seventh respondent
is concerned there are certain factual disputes
which cannot be decided in these proceedings. EMC however repeats its
contention
with which I do not agree, that the water originates from
a single dolomitic compartment and is accordingly not extraneous
origin.
[53]
Applicant also filed heads of argument in
response to the fifth and sixth respondents’ heads of argument
in reply. It criticizes
Gold Fields for introducing a new case by
contending for the first time that the source of the obligation to
pump water may be
found in
section 24N(7)(f)
and
24P
(5). This
argument is not foreshadowed in the notice of motion or the
counter-application. Apart from being wrong in any event,
Gold Fields
should not be permitted to make out a new case in replying heads of
argument. I do not agree that a “new cause
of action” in
reply was sought to be established. The cause of action remained as
it was, namely that the applicant “remain
responsible”
for a certain period. A party is quite entitled to refer to the total
picture in the sense of properly contextualising
the relevant
statutory provisions.
Cool Heath
supra
at par [28] is
clear on this point as is
Endumeni
.
This exercise does not mean that each and every section of the
relevant legislation or amendments thereto in 2014 must be referred

to in the prayer sought. At all times the central question was: what
is the meaning of the word “remains” in the given
context
looked at holistically and against the back-drop read with s39 (2) of
the Constitution, a topic that has been studiously
avoided by EMC.
[54]
In my opinion EMC’s view is too narrow. The
mentioned riders to the general principles of interpretation referred
to in par
[28] of Cool heads were in my view not adequately
considered. Even if they were however, the central question that I
have referred
to in the previous paragraph remains, and it has been
answered and fully addressed and debated. I have given my comments
and opinions
on certain topics and submissions as the narrative
developed and I do not need to repeat them again. In my opinion EMC’s
interpretation of s43(1) and the meaning of “remains
responsible” cannot be supported by the plain language of the
section, nor in the proper context of all the relevant legislation
nor having regard to the purpose of the “One Environmental

System” introduced in 2014.
[55]
The result therefore is the following:
55.1  Prayer 1
of the Counter-Application of the 5
th
and 6
th
Respondents is granted.
55.2  Prayers 2
and 3 are dismissed.
[56]
In my view the applicants in the
counter-application have been substantially successful and there is
no reason why they should not
be awarded the appropriate costs. It is
therefore ordered that applicant’s (“EMC”) pay the
costs of the application
including the costs of 2 counsel.
H
FABRICIUS
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 15 January 2021.
DATE
OF HEARING:
Matter decided on the papers
filed (the judgment was reserved on 4 December 2020)
DATE
OF JUDGMENT:  15 January 2021
APPEARANCES:
COUNSEL
FOR THE APPLICANT:
Advocate
Chris Loxton, SC
Advocate
Peter Lazarus, SC
INSTRUCTED
BY:
Warburton
Attorneys
COUNSEL
FOR THE 2
ND
RESPONDENT:
Advocate
Jolandie Rust
Advocate
Natasha Fourie
INSTRUCTED
BY:
State
Attorney
COUNSEL
FOR THE 5
TH
AND 6
TH
RESPONDENT:
Advocate
Gerrit Grobler, SC
Advocate
Jannet Gildenhuys, SC
INSTRUCTED
BY:
Werksmans
Attorneys
COUNSEL
FOR THE 7
TH
RESPONDENT:
Advocate
Nickle Felgate
INSTRUCTED
BY:
Buckley-Farinha
Incorporated