Harmony Gold Mining Company Limted v Regional Director Free State Department of Water Affairs and Forestry and Another (269/05) [2006] ZASCA 66; [2006] SCA 65 (RSA) (29 May 2006)

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[2006] ZASCA 66
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Harmony Gold Mining Company Limted v Regional Director Free State Department of Water Affairs and Forestry and Another (269/05) [2006] ZASCA 66; [2006] SCA 65 (RSA) (29 May 2006)

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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 269/05
In the matter between
Harmony Gold Mining Co Ltd
Appellant
and
Regional Director: Free State, Department of Water Affairs
and Forestry
First Respondent
The Minister of Water Affairs and Forestry
Second Respondent
________________________________________________________________________
CORAM: HOWIE P, MTHIYANE, CONRADIE JJA, MAYA et CACHALIA AJJA
________________________________________________________________________
Date Heard: 15 May 2006
Delivered: 29 May 2006
Summary: Directive in terms
of
s 19(3)
of the
National Water Act 36 of 1998
– gold mining
company required to take anti-pollution measures in respect of
pollution on its land but such measures to be taken
on land of other
gold mines – whether directive empowered by
s 19(3)
Neutral citation: This judgment may be referred to as
Harmony
Gold Mining Co Ltd v Regional Director: Free State, Department Water
Affairs and Forestry
[2006] SCA 65 (RSA)
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE P
[1] Appellant, Harmony Gold Mining Company Limited, is
one of five gold mining companies with mines in the Klerksdorp –
Orkney –
Stilfontein – Hartebeesfontein (KOSH) basin of
North-West Province. The mines (which, for convenience, I shall
designate by reference
to the names of the companies responsible for
their operation) are Stilfontein, Buffelsfontein, Hartebeesfontein,
Harmony and Anglogold.
Each mine has various shafts but, again for
convenience, it is sufficient simply to refer to the mines
themselves. The first three
are the northernmost, the shallowest and
defunct. Despite their gold mining operations having ceased years
ago, dewatering of groundwater
from their shafts has had to continue
since. Harmony and Anglogold, in the south, are much deeper mines and
still operative. All
the mines are linked underground. Apart from
vertical or inclined shafts for the transport of personnel and
materials and for the
removal of ore, 60 years of mining has created
a labyrinth of horizontal tunnels and other diggings by means of
which groundwater
can pass, downstream as it were, from the northern
to the southern mines.
[2] The uppermost sedimentary layer in most of the area
is dolomitic. It holds large quantities of pristine groundwater in
aquifers.
The creation of inclined shafts has caused water to flow
out of the aquifers into the horizontal passages and so from mine to
mine.
When water comes into contact with mined-out reefs it becomes
polluted. This is mainly because they contain iron pyrite (iron
sulphide)
which oxidises when exposed to air and water causing the
total dissolved solids content of the water to rise. This leads to
groundwater
with low pH and high sulphate or heavy metal content.
[3] The
purposes of dewatering are to extract water at the highest possible
level before it becomes polluted and to prevent the deeper
mines
becoming flooded. The three shallower mines were designed to extract
large volumes of water. Because such volumes were not
encountered in
the Harmony and Anglogold mines their pumps do not have the capacity
to extract volumes as large as those of the defunct
mines.
Accordingly if the upstream mines were to cease dewatering and their
water flowed into the Harmony and Anglogold mines the
latter would be
incapable of coping with the increased volume and extensive flooding
would occur with resultant risk of large scale
loss of life and
certain loss of property. The economic impact would be so great that
those mines would effectively be lost for ever.
This would be due to
the time and cost involved in dewatering the mines, rendering them
safe and restoring their equipment. Loss
of production and huge
increased cost would make resumption of mining uneconomic.
[4] The present litigation was precipitated by the
provisional liquidation of the Buffelsfontein company on 22 March
2005. Not much
later the provisional liquidators let it be known that
Buffelsfontein had no funds to pay for continued pumping and that
Eskom had
indicated that it could cease supplying electricity to
Buffelsfontein and Hartebeesfontein after 12 April 2005. The
liquidators said
that pumping could only continue beyond that date if
the company in control of the Buffelsfontein and Hartebeesfontein
companies,
(DRD Gold Limited (DRD)), were to join forces with the
Stilfontein, Harmony and Anglogold companies in order to fund and
secure the
dewatering of the defunct mines.
[5] No joint arrangement came into being. Consequently
on 11 April 2005 the Anglogold company (Anglogold Ashanti Limited)
applied
in the High Court at Johannesburg for an order,
inter
alia
, compelling the Minister of Water Affairs and Forestry (the
Minister) to direct DRD, the Stilfontein company and the liquidators
of Buffelsfontein to continue the dewatering of the three northern
mines. Appellant was joined purely by virtue of its interest in
the
proceedings. The aim of that application, it is plain, was not to
prevent water pollution but to avoid flooding of the Anglogold
mines
(the likely loss of which in monetary terms was estimated at R11.8
billion) and to prevent concomitant loss of life.
[6] While the Anglogold application was pending the
Regional Director of Water Affairs: Free State, exercising powers
delegated by
the Minister, issued two directives. (It is not clear
why an official from another province was chosen but that is not of
importance.)
One directive was dated 13 April, the other 15 April.
Each was addressed respectively to appellant, DRD and the Anglogold
and Stilfontein
companies. The directives were issued in terms of s
19(3) of the National Water Act 36 of 1998 (the Act). The earlier
directive addressed
to appellant stated the following reasons for its
issue (I summarise):
(a) To
prevent pollution of ground and surface water resources in the
vicinity of the mines and to ensure mining safety, underground
water
needed to be removed and treated to an acceptable quality and
thereafter, in a legal and approved manner, either used or discharged
into the environment.
(b) Removal
needed to occur before the water was exposed to underground workings
or decanted in a way that would pollute surface water
resources.
(c) The five mines in question were listed as likely to
contribute to, or cause pollution of underground water, or likely to
benefit
from removal.
(d) Appellant was the owner of land on which there was
an activity or situation which caused or was likely to cause
pollution, and
was benefiting from anti-pollution measures being
taken, but was not itself taking all reasonable measures to prevent
pollution occurring,
continuing or recurring. (Certain specific
measures were then listed as reasonable but not being taken.)
[7] The
earlier directive then went on to give directions in numbered
clauses. The following was the first:
‘
1. From
the date of this directive, collect, remove and contain water arising
in the KOSH basin at the most appropriate location,
treat it to
standards as may be prescribed from time to time, and use or
discharge it in a legal manner under Chapter 4 of the [Act]’
.
[8] The third clause required appellant to provide the
Regional Director by 1 May 2005 with a determination of its financial
capacity,
given the respective surface and underground areas exposed
by its operations, to contribute to the cost of dewatering at the
three
northern mines.
[9] The later directive was issued in amplification of
the first. It is upon the later directive that the present case is
focused.
By way of reasons for its issue, it repeated the gist of
some of the reasons for the earlier directive as well as the thrust
of
the third clause (summarised above) contained in that directive.
It then added that it was necessary as an interim measure, and in
order to be able to calculate contributions of each individual mine
towards the cost of implementing the direction in clause 1 (quoted
above) of the earlier directive, to issue a supplementary directive
in amplification.
[10] The later directive reads as follows:
‘
1. For
the interim period, from the date of this directive until 7 May 2005,
Harmony Gold Mining Company Limited must
–
a. ensure
the management of any water found underground that may affect its
operations, which management encompasses, but is not limited
to, the
collection, removal, treatment to general effluent standards
specified in GN. R. 991 (GG 9225 of 18 May 1984), and either
re-used
in a legal and approved manner, or discharged into the environment in
a legal and approved 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,
2. For the interim period, from the date of this directive until 7
May 2005, 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 the surface by Harmony Gold Mining
Company,
reused by Harmony Gold Mining Company, and the cost for such
collection, removal, and re-use is to be carried by Harmony
Gold
Mining Company;
b. 1
ML/day of water found underground at Buffelsfontein Pioneer Shaft,
2,5 ML/day of water found underground at Hartebeesfontein
#7 Shaft,
5,7 ML/day of water found underground at Hartebeesfontein #2 Shaft,
and 31 ML/day of water found underground at Margaret
Shaft, are to be
collected and removed to the surface, treated to comply with general
effluent standards specified in GN. R. 991
(GG 9225 of 18 May 1984,
and either reused in a legal and approved manner, or discharged into
the environment in a legal and approved
manner in terms of Chapter 4
of the NWA. The cost for this, as well as to ensure the continued
operation and maintenance of all infrastructure
associated with any
aspect of the management of this water found underground, is to be
shared equally between AngloGold Ashanti Limited,
Harmony Gold Mining
Company and DRD Gold Limited.’
[11] Aggrieved by the terms of the direction in
paragraph 2.b. of the supplementary directive, appellant applied in
the High Court
at Johannesburg for the review and setting aside of
that direction as being administrative action assailable under s
6(2)(a)(i),
(d), (e), (f)(ii), (h) and (
i
)
of the Promotion of Administrative Justice Act (PAJA)
1
in that the Regional Director was not authorised by s 19 of the Act
to issue such a direction.
[12] Appellant’s application came before Goldstein J
who dismissed it. The learned Judge held that inadequate dewatering
at the
northernmost mines would result in the unremoved water
reaching appellant’s mine and becoming polluted and the matter
therefore
fell within the provisions of s 19 of the Act, duly
enabling the direction in question. He nevertheless granted leave for
this appeal.
[13] Of the nine respondents involved in the proceedings
in the Court below only two are parties to the appeal
viz
the
Regional Director, first respondent, and the Minister, second
respondent. The Anglogold and Stilfontein companies abide the
decision
of this court. Because the supplementary directive was so
limited in time the question arose at one stage in the lead up to the
appeal
whether the issue raised by the appellant was not moot. It
became apparent, however, that subsequent directives concerning the
same
parties have also depended, as does the appeal, essentially on
the proper interpretation of the presently relevant provisions of
s
19 of the Act. We were therefore requested to decide the
interpretation question despite expiry of the directive in issue.
[14] Sec 19 reads as follows:
‘
Part
4
Pollution prevention (s 19)
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(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 those 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 owner’s
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, benefited 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] In short, the argument for appellant is that a
directive under ss (3) can only be given in the event of a failure to
take the
measures mentioned in ss (1), and those measures are
confined to measures to be taken by the persons, and on the land,
referred
to in the latter subsection. In other words the section does
not require of those persons that they take, or pay for,
anti-pollution
measures on another’s land such as the supplementary
directive required of appellant.
[16] Before dealing further with the provisions of s 19
it is appropriate to point out that both directives refer to flooding
and
its attendant major risks and indeed clause 1 of the earlier
directive required dewatering to be in accordance with Chapter 4 of
the Act. That Chapter comprises sections 21 to 55 and deals with use
of water. Included in the various uses listed in s 21 there
is the
following:
‘
(j)
removing, discharging or disposing of water found underground if it
is necessary for the efficient continuation of an activity
or for the
safety of people.’
Appropriate authorisation under the Act to permit or
require this particular use in order to obviate flooding was not
resorted to
by the authorities concerned. Significantly the
directives did not purport to be issued under any other provision of
the Act than
s 19 and the materiality of s 21(j) was not the subject
of argument before us. Of course it does not matter if the issue of
the directives
was motivated more by the need to combat flooding than
pollution. As long as s 19 was legally resorted to there was no
impediment
to killing two birds with one stone.
[17] The task of construing s 19 must commence with
reference to s 24 of the Constitution.
2
It confers the right to an environment which is not harmful to one’s
health and to environmental protection by reasonable legislative
and
other measures that, among other things, prevent pollution and
ecological degradation.
[18] The Act’s preamble recognises the need to protect
the quality of water resources to ensure sustainability of the
nation’s
water resources in the interest of all water users.
3
[19] The purpose of the Act is stated in s 2 to be to
ensure that the nation’s 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.’
[20] ‘Pollution’ is defined in s 1 to mean
‘
the
direct or indirect alteration of the physical, chemical or biological
properties of a water resource so as to make it –
(a) less
fit for any beneficial purpose for which it may reasonably be
expected to be used;
(b) harmful or potentially harmful –
(aa) to
the welfare, health or safety of human beings;
(bb) ...
(cc) to the resource quality; or
(dd) ...
’
and
‘resource quality’ means the quality of all the aspects of a
water resource including –
‘(a) ...
(b) the
water quality, including the physical, chemical and biological
characteristics of the water;
(c) ... ’
[21] Section 3 declares that the National Government,
acting through the Minister, is the public trustee of the nation’s
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, 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.
[23] By way of preliminary observations I may say that
appellant’s counsel did not seek to argue that if ‘reasonable
measures’
in s 19(1) included, on a proper construction, measures
to be taken on the land of another, it was unreasonable on the facts
of the
case to require it to contribute effort and money to the
dewatering campaign at the defunct mines. It was also not disputed
that
pollution as referred to in the record and in argument was
‘pollution’ as defined in the Act. Finally, appellant did not
allege
in its papers that, as a fact, it could not, prior to the
directives, take the measures subsequently required of it.
[24] The submissions for appellant may be summarised as
follows: (a) the person who must take the measures referred to in s
19(1)
is the owner etc of the land where pollution occurs or is
likely; (b) the problem shafts are on the defunct mines and appellant
does
not own control, occupy or use them; (c) measures currently
taken on appellant’s land are not the subject of the directive; (d)
the measures referred to in s 19(1) cannot lawfully be taken beyond
the boundaries of appellant’s land; (e) the measures referred
to
in s 19(2) comprise a closed list and none involves the payment of
money; (f) appellant can only be required to pay money if a
catchment
management agency has acted in terms of s 19(4) and seeks recovery of
its costs under s 19(5); (g) water which reaches
appellant’s
mine from the defunct mines will be polluted already and no evidence
establishes that additional pollution will occur
on appellant’s
land.
[25] It will be apparent that notwithstanding the
parties’ professed wish to confine the appeal to the interpretation
issue, submission
(g) above involves a question of fact and it is
necessary to deal with it before proceeding to the legal question.
[26] Nowhere in the founding or replying affidavits does
appellant allege that water reaching its mine from the defunct mines
would
not be further polluted in appellant’s mine. Apart from
annexing to its own application some of the papers in the Anglogold
matter
in which detailed explanations are given as to how worked-out
reefs pollute groundwater, appellant does not challenge in its reply
an allegation in the Regional Director’s opposing papers that
mining activities pollute underground water. If any emphasis were
needed that appellant’s case rests solely on the law point one
finds in its affidavit in reply to the Minister’s opposing
affidavit
the following:
‘
The
basis of the relief sought by the Applicant is that the regional
Director does not have the power in terms of s 19(3) of the Water
Act
to impose the obligations ... purportedly imposed in terms of
paragraph 2.b. ... .’
There
is accordingly no merit in the submission designated (g) in [24]
above.
[27] Turning to the other submissions summarised in that
paragraph, (a) is obviously correct but, on the evidence, there is an
activity
or situation on appellant’s land which is likely to cause
pollution of groundwater which reaches there from the defunct mines.
Submissions (b) and (c) are statements of fact which take the case no
further. Submission (d) is the crucial one and I shall leave
it till
last.
[28] The contention in (e) that s 19(2) comprises a
closed list was advanced with reference to decided cases in which it
is said that
the word ‘includes’ can denote an exclusive rather
than an open-ended list.
4
I do not think those cases assist appellant. The wording here is ‘may
include’ and that unquestionably signifies that the list
in s 19(2)
is not exclusive.
[29] As regards submission (f) – that a payment
obligation can only arise if a catchment agency seeks reimbursement –
this depends
on the fate of submission (d).
[30] Submission (d) – the crucial submission – is to
the effect that there is a territorial limit to the measures referred
to
in s 19(1). If the legislature intended an owner to prevent
pollution on his own land by engaging in measures elsewhere it would,
said appellant’s counsel, have enacted a provision similar to s
28(6) of the National Environmental Management Act 107 of 1998
(NEMA)
.
5
[31] I do not think that reference to NEMA advances
appellant’s case. It will be seen that s 28(1) and (2) contain a
scheme and
wording reminiscent of the terms of s 19(1) and (2) of the
Act. In both sections the focus of their first two subsections is on
preventive
measures. By contrast, s 28(6) of NEMA is concerned with
rehabilitation or remedial work ie where some damage has occurred and
restoration
has to be effected. It seems to me that by referring in s
28(6) of NEMA to rehabilitation or remedial work requiring the person
concerned
to enter another’s land the legislature had in mind
measures that were necessary, not merely reasonable. On the other
hand where
reasonable measures are required and the person obliged to
take them is thwarted by another landowner’s refusal of access the
former
will probably have done what can reasonably be attempted; no
further can he or she reasonably be expected to go. It was therefore
unnecessary for the legislature in either statute to say more about
the purpose, scope and nature of reasonable measures than it
has.
[32] Reverting to the language of s 19 of the Act, I
find nothing in the wording of subsecs (1) and (2) which warrants the
conclusion
that the measures required are intended to be confined to
the land of the person obliged to take such measures. The wording is
wide
enough to include measures on another’s land. I may mention
that in a recently published work on the Act the following
proposition
is stated
6
‘A person only has to take measures due to activities, processes
and situations on the land concerned. The person need not take
measures due to the pollution caused by activities, processes and
situations on other land.’
With that one can have no quarrel. A only has to tackle
the pollution occurring or likely on his or her land, not B’s
pollution
(unless the pollution spreads from A’s land to B’s).
The author goes on to say with reference to s 19(3):
‘
(A)
CMA [catchment management agency] may give a written directive to a
person to take the necessary steps on its property to prevent
the
pollution of water resources ...’
7
Here
again I agree. What the author does not say, however, is that ‘the
necessary steps’ need not be taken on another’s land
(necessary,
I would emphasise, in the sense of the reasonable measures required).
[33] The legislature intended by the term ‘reasonable
measures’ to lay down a flexible test dependent on the
circumstances of
each case. On the facts here it was in my view a
reasonable anti-pollution measure to take steps to prevent
groundwater from the
defunct mines reaching the active ones. The
constitutional and statutory anti-pollution objectives would be
obstructed if the measures
required of the persons referred to in s
19(1) were limited to measures on the land mentioned in that
subsection. If the choice were
between an interpretation confining
preventive measures to one’s own land and a construction without
that limitation it is clear
that the latter interpretation would be
consistent with the purpose of the Constitution and the Act and the
former not.
[34] I conclude that on a proper construction of s 19(1)
there is no such territorial limitation as appellant contends for.
[35] Obviously if preventive measures were carried out
on appellant’s land the cost would be for its account. If it were
required
that measures be taken by appellant elsewhere the costs it
incurred would, again, be for its account. The situation we have here
is one where the various mines concerned have been required to join
forces in continuing with a dewatering process already physically
under way but insufficiently funded. I cannot see that it is outside
the scope of ‘reasonable measures’ to require this collaboration
and to require the companies concerned to share the expense of it.
That is what the directive in issue demanded and in my view the
first
respondent was empowered by s 19(3) (read with s 19(1)) so to
demand.
[36] It follows that the appeal must fail. It is
dismissed, with costs, including the costs of the two counsel.
_____________________
CT
HOWIE
PRESIDENT
SUPREME
COURT OF APPEAL
CONCUR:
Mthiyane
JA
Conradie
JA
Maya
JA
Cachalia
AJA
1
The
relevant provision of s 6 of PAJA provide:
s 6(2)(a) the
administrator who took it –
(i) was not authorised
to do so by the empowering provision;
(d) the action was
materially influenced by an error of law;
(e) the action was taken
–
(i)
for a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv) because of
unauthorised or unwarranted dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or
capriciously;
(f) (ii) is not
rationally connected to –
(aa) the purpose for
which it was taken;
(bb) the purpose of the
empowering provision;
(cc) the information
before the administrator; or
(dd) the reasons given
for it by the administrator;
(h) the exercise of the
power or the performance of the function authorised by the
empowering provisions, in pursuance of which
the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised the power
or performed the function;
or
(
i
)
the action is otherwise unconstitutional or unlawful.
2
’
24.
Every one has the right –
(a) to an environment
that is not harmful to their health or well-being; and
(b)
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.’
3
Preamble,
fifth paragraph.
4
Cf
De Reuck v Director of Public Prosecutions, Witwatersrand Local
Division
[2003] ZACC 19
;
2004 (1) SA 406
(CC) [17] – [19]
5
Sec
28 of NEMA contains the following subsections –
(1) Every person who
causes, has caused or may cause significant pollution or degradation
of the environment must take reasonable
measures to prevent such
pollution or degradation from occurring, continuing or recurring,
or, in so far as such harm to the environment
is authorised by law
or cannot reasonably be avoided or stopped, to minimise and rectify
such pollution or degradation of the environment.
(2)
Without limiting the generality of the duty in subsection (1), the
persons on whom subsection (1) imposes an obligation to
take
reasonable measures, include an owner of land or premises, a person
in control of land or premises or a person who has a right
to use
the land or premises on which or in 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 significant pollution or degradation of the
environment.
...
(6)
If a person required under this Act to undertake rehabilitation or
other remedial work on the land of another, reasonably requires
access to, use of or a limitation on use of that land in order to
effect rehabilitation or remedial work, but is unable to acquire
it
on reasonable terms, the Minister may –
(a)
expropriate the necessary rights in respect of that land for the
benefit of the person undertaking the rehabilitation or remedial
work, who will then be vested with the expropriated rights; and
(b)
recover from the person for whose benefit the expropriation was
effected all costs incurred.
6
Water
Law
by Hubert Thompson at 305.
7
At
624.