IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
Date: 19/10/2005
Case no: 19895/2003
Date of judgment: 9 October 2005
Reportable
In the matter between:
CHIEF PULE SHADRACK VII BAREKI NO 1st Plaintiff/Respondent
NKULELEKO ENVIRONMENTAL
AND DEVELOPMENT GROUP 2nd Plaintiff/Respondent
and
GENCOR LIMITED 1st Defendant/Excipient
GRIQUALAND EXPLORATION AND FINANCE
COMPANY (PTY) LTD 2nd Defendant
HANOVA MINING HOLDINGS LIMITED 3rd Defendant
GOVERNMENT OF THE RSA 4th Defendant
MINISTER OF MINERALS AND ENERGY 5th Defendant
MINISTER OF ENVIRONMENTAL AFFAIRS
AND TOURISM 6th Defendant
JUDGMENT
De Villiers, J
Introduction
These are exceptions by the first defendant (“Gencor”) to the plaintiffs’ particulars of
claim.
The first plaintiff is a traditional leader who brings the action in his own interest, the
interest of the Bareki tribe and the inhabitants of the He uningvlei community in the
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North West Province. The second plaintiff is an environmental concern group. The
plaintiffs aver that they have the necessary standing in terms of section 38 of the
Constitution as well as section 32 of the National Environmental Management Act,
107 of 1998 (“NEMA”). Their standing is not attacked in the present proceedings.
There are six def endants. As indicated, Gencor is the first defendant . Griqualand
Exploration and Finance Co (Pty) Ltd (“Gefco”) is the second defendant, Hanova
Mining Holdings (Pty) Ltd the third defendant, the Government of the RSA the fourth
defendant, the Minister of Minerals and Energy the fifth defendant and the Minister of
Environmental Affairs and Tourism the sixth defendant.
The plaintiffs’ claim is based on the alleged degradation of the environment caused by
mining activities conducted over a number of years. Asbestos was mined at the Bute
Asbestos Mine. Mining activities were discontinued some time ago, in 1981 or 1985.
The remains of mining are still present in the form of asbestos dumps, a beneficiation
plant, a mill, and a haul road between the mine and the beneficiation plant (particulars
of claim pars 9.2.1 to 9.2.3).
The plaintiffs’ amended particulars of claim consist of a first claim and six alternative
claims. The fifth and sixth alternative claims are not relevant to the present
proceedings. Gencor has e xcepted to the first claim as well as to the first , second,
third and fourth alternative claims on the grounds that they lack averments necessary
to sustain a cause of action against i t, alternatively that they are vague and
embarrassing.
Messrs Puckrin an d Cockrell appeared for Gencor and Messrs Pauw and Krüger for
the plaintiffs.
The pleadings
Paragraphs 1 to 10 of the particulars of claim are common to all the claims.
It is averred in these paragraphs that at all material times Gencor was the majority
shareholder of the second defendant, Gefco, and provided management services to
shareholder of the second defendant, Gefco, and provided management services to
Gefco (par 10). Between 1976 and 1981 Griqualand Chrysotile Mines (Pty) Ltd
(“Griqualand”) was a wholly-owned subsidiary of Gefco (par 9.1). Between 1976 and
1981 Gefco (through its subsidiary Griqualand) owned and/or operated the operations
referred to in the particulars of claim as “the mining operations” (par 9.2). In pars 9.5
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to 9.10 averments are made relating to certain regulations which are relevant to the
second, third and fourth alternative claims. I shall refer thereto when I deal with such
claims below.
The first claim
Plaintiffs aver that between 1976 and 1981 Gencor and Gefco caused significant
pollution in the mining area and the surrounding are a by the distribution o f asbestos
fibres, thereby contaminating the mining area and causing pollution of the
surrounding area (par 12).
The pollution and degradation of the areas are described in detail (par 13).
Paragraph 14 reads as follows:
“In terms of section 28(1) read wit h (2) and (3) of NEMA, Gencor and Gefco must
take reasonable measures to rectify such pollution and/or degradation of the
environment in the mining area and the surrounding area. Upon a proper construction
of the aforesaid sections of NEMA, Gencor and Gefc o remain responsible to take
these steps despite the fact that NEMA only commenced in 1999, after the acts of
pollution and degradation had been caused or commenced.”
Gencor and Gefco have failed to take reasonable measures to rectify the pollution
and/or degradation of the environment in the mining and surrounding area (par 15).
The pollution and degradation of the environment present a serious health risk to
residents and occupiers of the areas concerned, and a significant threat to the
environmental integrity of the region (par 16).
The pollution and degradation of the environment constitutes damage or loss caused
by an unlawful or negligent failure to perform “the aforesaid duty”, as contemplated
by section 49 of NEMA (par 17). The “aforesaid duty” obvio usly refers to the
averments contained in the first sentence of par 14.
The Government is the owner of the land and must, upon a proper interpretation of
section 28(1) , (2) and (3) of NEMA, similarly take reasonable measures to rectify the
pollution and/or degradation (par 18) but has failed to take such measures (par 19).
pollution and/or degradation (par 18) but has failed to take such measures (par 19).
The estimated fair and reasonable costs of reasonable measures to rectify the pollution
and/or degradation are calculated at R64 265 584.00 (par 20.1). Gencor, Gefco and
the Government do not accept such costs and estimate the costs to be in the region of
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R18 million to R24 million (par 20.2) but reasonable measures for rehabilitation
cannot be effected at such costs (par 20.3). It is unlik ely that Gencor, Gefco and the
Government will ef fect the reasonable rehabilitation at the costs contended for by
plaintiffs (par 20.4).
In the light of the unwillin gness of Gencor, Gefco and the G overnment to accept
liability for the costs of rehabilitation, the Director -General of the sixth defendant, in
order to comply with his or her statutory obligations, may in terms of section 28(7)
and (8) of NEMA effect the rehabilitation and is likely to do so. In that event, he or
she will likely claim the aforesaid sum from Gencor, Gefco and the G overnment (par
20.5). The court can, in terms of section 172 of the Constitution, direct the said
Director-General to recover the said sum from Gencor, Gefco and the Government
(par 20.6).
The plaintiffs have complied, alternatively substantially complied with the prov isions
of section 28(12) of NEMA, as appears from annexures AA1 and AA2, alternatively
annexure A4 to the particulars of claim, being copies of the notices given in
compliance with the aforesaid sub section (par 21). The sixth defendant has failed to
comply with the said notice (par 22).
The plaintiffs claim an order–
1. That the Director-General of the Department of the sixth defendant be
ordered, in terms of section 28(4) of NEMA, t o direct Gencor, Gefco
and the Government to:
1.1 investigate, evaluate an d assess the impact of the (said mining
operations of Gencor and Gefco) and to report thereon to the
court on or before a date to be determined by the court;
1.2 commence taking the reasonable measures (to rectify the
pollution and/or degradation of the environment) on or before a
date to be determined by the court;
1.3 forthwith and diligently continue with such measures; and
1.4 complete these measures on or before a date to be determined
by the court, being a reasonable date contemplated by
section 28(4) of NEMA.
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The exception to the first claim
Gencor contends that NEMA commenced operation on 29 January 1999. As a matter
of law, NEMA is not retrospective in operation and the obligation to take the
measures referred to in section 28(1) of NEMA does not apply in the case of pollution
that occurred prior to 29 January 1999.
Further, or in the alternative, upon a proper interpretation of NEMA, it is not
competent for a person to apply to court for a n order directing the Director-General to
take the steps envisaged in section 28(4) of NEMA unless that person has given notice
in the manner required by section 28(12).
Ex facie annexures AA1 and AA2, these documents do not comply or substantially
comply with section 28(12) since they are not addre ssed to the Director-General or to
the provincial head of department.
Ex facie annexure A4 does not comply or substantially comply with section 28(12)
since it was written after the present action had been instituted.
The relevant provisions of the Constitution
Section 24 provides as follows:
“Everyone 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 the present and future
generations, through reasonable legislative and other measures that:
(i) prevent the pollution and ecological degradation; ...”
The court must, in interpreting NEMA , promote the spirit, purport and objects of the
Bill of Rights (Chapter 2 of the Constitution). See section 39(2) of the Constitution.
NEMA was enacted to give content to section 24 of the Constitution.
The relevant provisions of NEMA
Of importance are the following parts of the preamble:
“WHEREAS many inhabitants of South Africa live in an environment that is harmful
to their health and well -being; everyone has the right to an environment that is not
harmful to his or her health or well-being;
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...
everyone has the right to have the environment protected, for the benefit of present
and future generations, through reasonable legislature and other measures that–
prevent pollution and ecological degradation ...”
Chapter 1 of NEMA bears the heading: “National Environmental Management
Principles”. In section 2(1) it is stated that
“the principles set out in this sec tion apply throughout the R epublic to the actions of
all organs of state that may significantly affect the environment and–
...
(e) guide the interpretation, administration and implementation of this
Act ...”
“Sustainable development” is defined in section 1 as “the integration of social ,
economic and environmental factors into planning, implementation and decision -
making so as to ensure that development serves present and future generations”.
Subsection 2(4)(e) and (p) provide that
“(4) sustainable development requires the consideration of all relevant factors
including the following:
...
(e) Responsibility for the environmental health and safety consequences
of a policy, programme, project, product, process, service or activity
exists throughout its life cycle.
...
(p) The costs of remed ying pollution, environmental degradation and
consequent adverse health effects and of preventing, controlling or
minimising further pollution, environmental damage or adverse
health effects must be paid by those responsible for harming the
environment.”
The relevant provisions of section 28 of NEMA provide as follows:
“(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 occur ring, continuing or recurring, or, in
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so far as such harm to the environment is authorised by law or can not
reasonably be avoided or st opped, to minimise and rectify such pollution or
degradation of the environment.
(2) Without limiting the generality of t he 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.
(3) The measures required in terms of subsection (1) may include measures to–
(a) investigate, assess and evaluate the impact on the environment;
(b) inform and educate employees about the environmental risks of their
work and the manner in which their tasks must be performed in order
to avoid causing significant pollution or degradation of the
environment;
(c) cease, modify or control any act, activity or process causing the
pollution or degradation;
(d) contain or prevent the movement of pollutants or the causant of
degradation;
(e) eliminate any source of the pollution or degradation; or
(f) remedy the effects of the pollution or degradation.
(4) The Director -General or a provincial head of department may, after
consultation with any other organ of state concerned and after having given
adequate opportunity to affected persons to inform him or her of their
relevant interests, direct any person who fails to take the measures required
under subsection (1) to–
(a) investigate, evaluate and assess the impact of specific activities and
report thereon;
(b) commence taking specific reasonable measures before a given date;
(c) diligently continue with those measures; and
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(d) complete them before a specific reasonable date: ...
...
(5) The Director-General or a provincial head of department, when consi dering
any measure or time period envisaged in subsection (4), must have regard to
the following:
(a) the principles set out in section 2;
(b) the provisions of any adopted environment management plan or
environmental implementation plan;
(c) the severity of any impact on the environment and the costs of the
measures being considered;
(d) any measures proposed by the person on whom measures are to be
imposed;
(e) the desirability of the State fulfilling its role as custodian holding the
environment in public trust for the people;
(f) any other relevant factors.
(6) ...
(7) Should a person fail to comply, or inadequately comply, with a directive
under subsection (4), the Director -General or provincial head of department
may take reasonable measures to remedy the situation.
(8) Subject to subsection (9), the Director -General or provincial head of
department may recover all costs incurred as a result of it acting under
subsection (7) from any or all of the following persons–
(a) any person who is or was respon sible for, or who directly or
indirectly contributed to, the pollution or degradation or the potential
pollution or degradation;
(b) the owner of the land at the time when the pollution or degradation or
the potential for pollution or degradation occurred, or that owner’s
successor in title;
(c) the person in control of the land or any person who has or had a right
to use the land at the time when–
(i) the activity or the process is or was performed or undertaken;
or
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(ii) the situation came about;
(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:
Provided that such person failed to take the measures required of him or her
under subsection (1).
(9–11) ...
(12) Any person may, after giving the Director -General or provincial head of
department 30 days’ notice, apply to a competent court for an order directing
the Director-General or any provincial head of department to take any of the
steps listed in subsec tion (4) if the Director -General or provincial head of
department fails to inform such person in writing that he or she directed a
person contemplated in subsection (8) to take one of those steps, and the
provisions of section 32(2) and (3) shall apply to such proceedings with the
necessary changes.
(13) When considering any application in terms of subsection (12), the court must
take into account the factors set out in subsection (5).”
Are the provisions of section 28 of NEMA retrospective?
Counsel for Ge ncor submitted that section 28(1) , (2) and (3) of NEMA is not
retrospective and that the obligation to take corrective measures does not apply where
the acts of pollution and degradation have been caused or commenced prior to
29 January 1999. Plaintiffs’ c ounsel, on the other hand , submitted that the said
provisions do have retrospective effect.
There is at common law a prima facie rule of construction that a statute should not be
interpreted as having retrospective effect. This presumption against retrospe ctivity
may be rebutted, either expressly or by necessary implication, by provisions or
indications to the contrary in the enactment under consideration. [Workmen’s
Compensation Commissioner v Jooste 1997 4 SA 418 (SCA) 424F–G]
Leaning against retrospectivity where there is unfairness
The basis of the presumption is “elementary considerations of fairness (which) dictate
The basis of the presumption is “elementary considerations of fairness (which) dictate
that individuals should have an opportunity to know what the law is and to conform
10
their conduct accordingly”. [Landsgraf v USI Film Produc ts et al 511 US 244 (1994)
265, quoted with approval by F arlam AJA in National Director of Public
Prosecutions v Carolus and Others 2000 1 SA 1127 (SCA) 1139C –D.] At 1145A the
learned judge referred to “the legal culture leaning against retrospect ivity where there
is unfairness”.
The ability to arrange one’s affairs in the shadow of the law is an essential
requirement to the rule of law. The point was made as follows by the American
Supreme Court in Papachristou v City of Jacksonville 405 US 156:
“Living un der a rule of law entails various suppositions, one of which is that ‘all
persons are entitled to be informed as to what the State command or forbids’
(Lanzetta v New Jersey 306 US 451, 453).”
A similar point was made by Mokgoro J in President of the Republic of South Africa v
Hugo 1997 4 SA 1 (CC) para 102:
“The need for accessibility, pr ecision and general application flow from the concept
of the rule of law. A person should be able to know of the law, a nd be able to
conform his or her conduct according to the law.”
The question accordingly arises whether there would be unfairness to Gencor, or an
encroachment upon the rule of law as far as Gencor is concerned, if the sections in
question were interpreted to possess retrospective force.
What is the nature of the duty in terms of section 28(1) and (2)?
In order to determine whether there is such unfairness or encroachment, it is necessary
to have regard to the nature of the duty or obligation created in terms of the said
sections and the circumstances under which it arises.
It was submitted on Gencor’s behalf that the duty or obligation is a strict one, in other
words without fault ( culpa) being an element of liability. Subsections (1) and (2)
certainly make no mention of such a requirement.
Section 28(8)(d) relates to
“any person who negligently failed to prevent–
(i) the activity or process being performed or undertaken; or
(i) the activity or process being performed or undertaken; or
(ii) the situation from coming about.”
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However, as the proviso to section 28(8) make s clear, the purpose of that section is
not to create a duty or obligation to take reasonable corrective measures. As indicated
by the proviso, s uch duty or obligation is created in terms of section 28(1) and (2).
The purpose of section 28(8) is to provide for the recovery of costs incurred by the
Director-General or provincial head of department as a result of their acting under
section 28(7) in taking reasonable measures to remedy a situation where a person
upon whom the duty or obligation rests in terms of section 28(1) and (2) to take
reasonable corrective measures, has failed to do so.
Section 49 of NEMA is also not relevant in considering whether a strict liability is
created by section 28(1) and (2). The relevant part of the section provides that
“... neither the State nor any other person is liable for damage or loss caused by–
(a) ...
(b) the failure to ... perform any function or duty under this Act,
unless the ... failure to perform the duty was unlawful, negligent or in bad faith”.
Section 49, accordingly, does not deal with the imposition of a duty or obligation to
take reasonable corrective measures, as do section 28(1) and (2), but with damage or
loss caused by the failure to perform such a duty or obligation and the circumstances
in which such damage or loss can be claimed from the person wh o has failed to
perform the duty.
Although plaintiffs aver in par 17 of their particulars of claim that “the pollution and
degradation of the environment constitutes damage or loss caused by an unlawful or
negligent failure to perform the aforesaid duty ” [ie the duty created by section 28(1)
and (2) alleged in par 1 4 of their particulars of claim] , the plaintiffs do not claim any
such damage or loss from the first defendant. The averments in par 17 are accordingly
irrelevant to plaintiffs’ claim.
As appears from section 28(1) , the duty or obligation to take reasonable corrective
As appears from section 28(1) , the duty or obligation to take reasonable corrective
measures flows merely from the fact that a person causes, has caused or may cause
significant pollution or degradation of the environment.
Section 28(2) goes even further by imposing such an obligation on an owner of land
or premises, or a person in control thereof, or a person who has a right to use it, on
which any activity or process is or was performed or undertaken, or any other
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situation exists which causes, has caused or is lik ely to cause significant pollution or
degradation of the environment. [Compare the provisions of section 28(8)(b) and (c).]
Accordingly, even an owner or possessor of land on whose land an activity or process
causing pollution has been performed without his knowledge and consent, prima facie
incurs an obligation to take reasonable corrective measures.
In the latter case there would prima facie be an absolute liability which precludes not
merely the element of fault, but also the element of unlawful conduct. See Burchell:
Principles of Criminal Law, 3rd ed, at 128 and 551.
I accordingly agree with the submission that section 28(1) and (2) create s at least a
strict liability. It may be that in some cases they even create an absolute liability.
It is important to note that there is no monetary limit to such liability. The liability can
potentially be a very heavy one. Compare, eg the amount of approximately
R64 million which plaintiffs estimate to be the fair and reasonable costs of reasonable
measures to recti fy the pollution and/or degradation of the mining and surrounding
area (par 20.1 of the particulars of claim).
Furthermore, no statutory defences are created by NEMA in favour of the person who
has caused the pollution. Indeed, in terms of the latter part of section 28(1), even
where significant pollution or degradation of the environment is authorised by law or
cannot be reasonably avoided or stopped, the person who causes, has caused or may
cause such pollution or degradation must take reasonable measures to minimise and
rectify such pollution or degradation of the environment. This may be another
example of absolute liability. Conduct which is not unlawful because it is authorised
by law, nevertheless gives rise to a duty to take reasonable measures.
How is the duty enforced?
The provisions of section 28 do not provide a person aggrieved by such pollution or
The provisions of section 28 do not provide a person aggrieved by such pollution or
degradation of the environment with a direct right of action against the person who
has caused such pollution or degradation, or against the owner or possessor of land on
which such pollution or degradation has taken place.
The duty to enforce the reasonable corrective measures by means of directives or
other reasonable me asures falls upon the Director -General or a provincial head of
department [section 28(4) and (7].
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Should the said officials, however, fail to issue directives in terms of section 28(4), an
aggrieved person may, after giving them the requisite notice, apply to a competent
court in terms of section 28(12) for an order compelling them to i ssue such directives.
Plaintiffs’ first claim is brought on this basis.
Undoubtedly the strict liability which NEMA thus imposes upon a person who has
caused the pollution or degradation or upon an owner or possessor, who has not
caused it, may be a very onerous burden indeed.
It is understandable that this should be so bearing in mind that one of the national
environmental management principles [subsection (2)(p)] provides that “the costs of
remedying pollution, environmental degradation and consequent adv erse health
effects and of preventing, controlling or minimising further pollution, environmental
damage or adverse health effects must be paid by those responsible for harming the
environment”.
However, as I have indicated, the provisions of section 28(1) and (2) go much further
than requiring that the costs of remedying pollution and degradation “must be paid by
those responsible for harming the environment”. As indicated, even an owner or
possessor of land who has not been responsible for such pollution or degradation has
an obligation to take reasonable corrective measures. [Compare the provisions of
sections 28(8)(b) and (c) with section 28(8)(a).]
Is it likely that the legislature intended unfairness?
If the legislature intended attaching new legal con sequences to past conduct by
creating severe strict liability retrospectively, one would have expected that such an
intention would have been made clear.
In the Carolus case ( supra) at 1140C –D, Farlam AJA quoted, apparently with
approval, the following sta tement by S traughton LJ in Secretary of State for Social
Security and Another v Tunnicliffe (1991) 2 All ER 712 (CA) 724f –g [which had in
turn been referred to with approval by the House of Lords in the Cherifien case (1194)
turn been referred to with approval by the House of Lords in the Cherifien case (1194)
1 All ER 20 at 30b]:
“In my jud gment the true principle is that Parliament is presumed not to have
intended to alter the law applicable to past events and transactions in a manner which
is unfair to those concerned in them, unless a contrary intention appears. It is not
simply a questio n of classifying an enactment as retrospective or not retrospective.
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Rather it may well be a matter of degree – the greater the unfairness, the more it is to
be expected that Parliament will make it clear if that is intended.”
See also the passage quoted in the Carolus case at 1140E–G from the opinion of Lord
Mustill in the Cherifien case.
In my view, the unfairness of retrosp ective effect being given to section 28(1) and (2)
is so great that it is unlikely that the legislature could have intended it. The s ame
would apply to the suggested encroachment on the rule of law.
Were the transactions completed before NEMA came into operation?
Mr Pauw , referring to a passage in S v Mhlungu 1995 3 SA 867 (CC) par 65, that
“retroactive legislation affects transactions completed before the new statute came
into operation”, submitted that the principle does not apply in the instant case for
three reasons:
(1) In terms of Regulation 2.11 read with 5.10, 5.12.2 and 5.13.3
promulgated in terms of the Mines and Works Act, 27 of 1956, the
pollution or degradation complained of was statutorily unlawful
between 1976 and 1981;
(2) The Atmospheric Pollution Prevention Act, 45 of 1965 was in force at
all material times. Particularly sectio n 28 thereof enjoin s persons to
adopt the be st practicable means for preventing dust which they
deposited, caused or permitted to be deposited on land in the mining
area and which is liable to cause a nuisance to persons residing or
present in the vicinity of such land on account of dust originating from
such matter, becoming dispersed into the atmosphere.
(3) In addition such pollution was unlawful in terms of the common law
on the basis of nuisance [see eg Regal v African Superslate (Pty) Ltd
1963 1 SA 102 (A)].
Mr Pauw submitted that the said tran sactions were, therefore, not completed before
NEMA came into operation. The pollution or degradation has been ongoing since
1981 or 1985 and is a situation which exists to this date. Such acts do, therefore, not
1981 or 1985 and is a situation which exists to this date. Such acts do, therefore, not
belong, as far as NEMA is concerned , to the past. The unlawful conduct commenced
15
before NEMA’s commencement still continues and will only cease once Gencor has
complied with its obligations.
As indicated, the passage in Mhlungu’s case referred to by Mr Pauw relates to
“retroactive legislation”, that is
“... legislation which invalidates what was previously valid, or vice versa ie which
affects transactions completed before the new statute came into operation ... It is
legislation which enacts that ‘as at a past date the law shall be taken to have be en that
which it was not’ ”.
The learned Justice, Kentridge AJ, continued to say:
“There is also a presumption against reading legislation as being retrospective in the
sense that, while it takes effect only from its date of commencement, it impairs
existing rights and obligations, eg by invalidating current contracts or impairing
existing property rights.”
The distinction between retroactivity and retrospectivity also appears from the
following passage quoted with approval by F arlam AJA from a Canadian cas e in the
Carolus case in par 34:
“A retroactive statute is one that operates as of a time prior to its enactment. A
retrospective statute is one that operates for the future only. It is prospective, but it
imposes new results in respect of a past event . A retroactive statute operates
backwards. A retrospective statute operates forwards, but it looks backward in that it
attaches new consequences for the future to an event that took place before the statute
was enacted. A retroactive statute changes the law f rom what it was; a retrospective
statute changes the law f rom what it otherwise would be with respect to a prior
event.” (My emphasis)
Section 28(1) and (2) is clearly not retroactive. The passage in Mhlungu’s case
referred to by Mr Pauw is, therefore, not apposite. It would be, therefore, more correct
to apply the abovementioned tests relating to retrospectivitiy, viz whether NEMA is
prospective but imposes new results in respect of a past event, or whether it attaches
prospective but imposes new results in respect of a past event, or whether it attaches
new consequences for the future to an event which took place before NEMA was
enacted, or whether NEMA “creates a new obligation or imposes a new duty ... in
regard to events already past” [National Iranian Tanker Co v MV Pericles GC 1995 1
SA 475 (SCA) 483I–J].
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Sections 28(1) and (2) of NEMA would be retrospective if it complied with such tests.
These sections certainly create a new obligation or impose a new duty in regard to
events which take place after NEMA came into operation. The question is whether it
was also intended to do so in respe ct of events which took place before it came into
operation. It is in this regard that the test of unfairness plays a major role in finding
the true intention of the legislature.
During the reply on Gencor’s behalf, Mr Cockrell correctly pointed out that t he
plaintiffs do not aver in their first claim that the pollution or degradation was unlawful
between 1976 and 1981 in terms of the regulations promulgated in terms of the Mines
and Works Act, or the Atmospheric Pollution Act, or in terms of the common law on
the basis of nuisance . He submitted that, for this reason alone, th e plaintiffs cannot
rely on such averments.
In any event it is clear that the obligation or duty created in terms of section 28(1) and
(2) of NEMA is quite a different animal compared t o any obligation or duty which
may have existed in terms of any other A ct or regulations before NEMA came into
operation.
Furthermore, although the plaintiffs in effect aver that the pollution and degradation
still continue and will only cease when Gencor complies with its obligations, they also
aver that Gencor and Gefco “at all times material hereto, between 1976 and 1981 ...
caused significant pollution, as contemplated in section 28(1) of NEMA in the mining
and surrounding area ” (par 12 of the particula rs of claim) and that on a proper
construction of section 28(1), (2) and (3), Gencor and Gefco remain responsible to
take reasonable measures despite the fact that NEMA commenced only in 1999, “after
the acts of pollution had been caused or commenced”. (Par 14 of the particulars of
claim)
The basis of plaintiffs’ first claim is, accordingly, that Gencor and Gefco caused
claim)
The basis of plaintiffs’ first claim is, accordingly, that Gencor and Gefco caused
significant pollution as contemplated in section 28(1), and that NEMA commenced in
1999 after the acts of pollution and degradation had been caused or commenced.
In terms of section 28(1) , the duty to take reasonable measures arises, in the case of a
person who causes pollution or degradation , at the very moment he or she causes the
pollution or degradation. In the instant case, plaintiffs av er that Gencor and Gefco
17
caused the pollution “at all times material hereto, between 1976 and 1981”. (Par 12 of
the particulars of claim)
The words “at all material times hereto ” in paragraph 12 are qualified by th e words
“between 1976 and 1981”. If paragraphs 12 and 14 of the particulars of claim are read
together, it appears from paragraph 14 that “the acts of pollution and degradation had
been caused or commenced” prior to the commencement of NEMA in 1999 ie
between 1976 and 1981.
It is averred in parag raph 14 that, despite this fact, Gencor and Gefco remain
responsible to take reasonable measures to rectify such pollution and degradation.
The plaintiffs accordingly plea d in paragr aph 14 that sections (1), (2) and (3) have
retrospective effect so that Ge ncor and Gefco are duty bound to take such reasonable
measures despite the fact that they caused the pollution prior to the commencement of
NEMA.
It is, therefore, not correct t o submit, as did Mr Pauw, that the acts of Gencor and
Gefco do not belong, as f ar as NEMA is concerned, to the past. In their particulars of
claim, the plaintiffs themselves rely on “the acts of pollution and degradation (that)
had been caused or commenced” prior to 1999 (par 14), between 1976 and 1981, and
they aver that Gencor and Gefco thereby “caused significant pollution, as
contemplated in section 28(1) of NEMA” (par 12).
Other alleged indications of retrospectivity
Mr Pauw submitted that the legislature’s use of the past tense in section 28(1), (2) and
(8), viz “has caused” in section 28(1) and (2) and “was responsible ” in section
28(8)(a), means that at the moment when NEMA commenced operation, ie
immediately after midnight between 28 and 29 January 1999, anyone who had caused
significant pollution or degradation of the environment prior to midnight was required
to take reasonable measures to rectify such pollution or degradation, alternatively
he/she was liable for the costs incurred by the Director-General in taking reasonable
he/she was liable for the costs incurred by the Director-General in taking reasonable
measures to remedy the existing situation which wa s caused by significant pollution
or degradation of the environment.
18
I do not agree. The words in the past tense were probably intended to refer merely to a
person who at some stage after the commencement of NEMA had caused pollution,
but was no longer doing so.
Mr Pauw also submitted that the principle set out in section 2(4)(e) of NEMA is an
indication of retrospective operation by necessary implication viz that “responsibility
for the environmental health and safety consequences of a policy, programme, project,
product, process, service or activity exists throughout its life cycle”. He contended
that the product, process , service or activity referred to would of necessity include
asbestos mining.
Even if the said words do include asbestos mining, that is, in my view, no indication
that the legislature intended NEMA to have retrospective operation. The legislature
could never have intended that the retrospectivity of the Act would be depend ent in
each case upon the life cycle of the particular product, process, service or activity.
The presumption against retrospectivity has accordingly not been disturbed. It follows
that the first claim lack s averments to sustain a cause of action since the claim is
incorrectly premised on the retrospective operation of NEM A. The exception to the
first claim should accordingly be upheld.
Failure to comply with section 28(12) of NEMA
Since the exception to the first claim should be upheld, it is unnecessary to decide this
issue.
The first alternative claim
This claim is prem ised inter alia on a finding in respect of par 21 of plaintiffs’ first
claim that there has not been proper or substantial compliance with section 28(12) of
NEMA.
Plaintiffs repeat pars 11 to 20 of their particulars of claim
In terms of this claim the pla intiffs claim an order in terms of section 28(1), (2) and
(4) read with section 32(1) of NEMA that Gencor, Gefco and the Government, to the
degree to which each was responsible for the harm t o the environment resulting from
degree to which each was responsible for the harm t o the environment resulting from
their respective failures to tak e the measures required in terms of section 28(1), (2)
and (4), forthwith take reasonable measures within a time determined by the court, to
rectify the pollution and/or degradation of the mining and surrounding areas.
19
In its notice of exception Gencor has not specifically raised the question of
retrospectivity in relation to the first alternative claim. Yet, insofar as this claim
repeats the averments in pars 11 to 20 of the particulars of claim, and particularly par
14 which specifically avers retrospecti vity, it obviously also lacks averments
necessary to sustain a cause of action. The grounds of exception set out in pars 1 to 6
(at 85–86) in respect of the first claim are accordingly also applicable in regard to the
first alternative claim.
The exception to the first alternative claim that it lacks averments necessary to sustain
a cause of action must, therefore, also be upheld.
The plaintiffs’ second, third and fourth alternative claims
These claims are premised on a finding that the plaintiffs cannot re ly upon the
provisions of NEMA as set out in the first claim and the first alternative claim. The
plaintiffs aver that they are entitled to rely on the provisions of the Mines and Works
Act (27 of 1956), the regulations published under that Act , and the pr ovisions of the
Minerals Act (50 of 1991) (par 26 of plaintiffs’ particulars of claim).
Averments common to the second, third and fourth alternative claims are pleaded in
pars 1 to 10 of the particulars of claim as well as in pars 26 to 32 thereof. Averments
which are in each case unique to the second, third and fourth alternative claims are, in
addition, respectively pleaded in pars 33 to 37, 38 to 43 and 44 to 49.
Certain averments in paragraphs 1 to 10 of plaintiffs’ particulars of claim have been
set out above.
Paragraphs 9.4 to 9.10 of the particulars of claim warrant detailed attention at this
stage.
In par 9.4 plaintiffs aver that the mining operations constituted a “mine” and “works”
contemplated by Mines and Works Act and the regulations promulgated in terms of
section 12 of that Act.
Between 1976 and 1981 Gefco was the owner of the mining operations and was
Between 1976 and 1981 Gefco was the owner of the mining operations and was
subject to, amongst others, regulations 2.11, 5.10, 5.12.2 and 5.13.3 published in the
Government Gazette Regulation R992 of 26 June 1970, as further amended from time
to time (par 9.5).
20
Gefco and/or Gencor obtained the necessary statutory authorization or permission in
terms of the regulations for the conduct of the mining operations (par 9.6).
When the Mines and Works Act was repealed by the Mine rals Act, the regulations
remained in force in terms of section 68(2) of the Minerals Act (par 9.7).
In terms of section 68(2) of the Minerals Act, any authorization or permission granted
in terms of the regulations immediately in force prior to the commen cement of that
Act, remained in force. Accordingly, in terms of section 68(2) the authorization and
permission to Gencor and/or Gefco remained valid and in force (par 9.8).
The aforesaid authorization or permission resulted in Gefco and/or Gencor becoming
holders as defined in section 1(c) of the Minerals Act (par 9.9).
By virtue of section 38(1) of the Minerals Act, Gencor and/or Gefco, as holders,
remained liable for the rehabilitation of the surface of the land concerned in mining
operations (par 9.10).
These averments are particularly relevant in regard to the second alternative claim.
The averments in pars 27 to 32 which are common to the second, third and
fourth alternative claims
Regulation 2.11, as amended from time to time, imposes an obligation on Gefco, as
owner of the mining operations, and Gencor, as the person acting as manager of the
mine, to comply with the regulations on discontinuance of mining operations until the
requisite statutory consent in terms of regulation 2.11 has been granted (par 27).
Regulation 2.11, in its original form (as contained in R992 of 26 June 1970) provided
as follows:
“When the operations at any mine or works are discontinued or abandoned, the owner
or the person acting as the manager of such mine and works at the tim e of its
discontinuance or abandonment shall continue to be responsible for compliance with
the requirements of these regulations so far as the protection of the surface and the
the requirements of these regulations so far as the protection of the surface and the
furnishing of plans and returns are concerned until the Inspector of Mines shall have
issued to him a certificate that such requirements have been complied with.”
The designation of “Inspector of Mines” in regulation 2.11 was amended from time to
time. Currently the relevant official is the Director: Mineral Development (par 28).
21
On a proper interpretation of regulation 5.10, as amended from time to time, Gefcor
and Gencor were obliged to cover the dumps with sludge or soil or to deal therewith
in a manner satisfactory to the Inspector of Mines, in order to prevent the
dissemination of asbestos dust therefrom (par 29).
In its original form regulation 5.10 (as contained in R992 of 26 June 1970) provided
as follows:
“Any dump, as the Inspector of Mines may direct, shall be covered with a sludge or
soil or otherwise dealt with in a manne r satisfactory to the Inspector, so as to prevent
the dissemination of dust or sand therefrom.”
Regulations 15.12.2 and 15.13.36 impose specific obligations on Gencor and Gefco to
rehabilitate the mining area (par 31).
In its original form regulation 15.12.2 (as contained in R992 of 26 June 1970)
provided as follows:
“Rehabilitation of the surface at any opencast mine shall form an integral part
of the mining operations and shall, as far as practicable, be conducted
concurrently with such operations and whe re applicable in accordance with a
programme laid down by the Inspector of Mines after consultation with the
manager and approved by the Government Mining Engineer.”
In its original form the relevant part of regulation 5.15.3 (as contained in R992 of
26 June 1970) provided as follows:
“When prospecting for or recovery of a mineral finally ceases and when the
operations finally cease at any works or the prospecting rights or mining titles or
contracts held cease to exist, the owner or manager shall cause to be demolished all
buildings, walls, foundations, dams, swimming -pools, posts or other structures and
installations, including pipelines and private railway lines laid on the surface of the
land where such operations were conducted and shall ensure the remo val or the
disposal of the rubble resulting from the demolition thereof and the rehabilitation of
the surface to as near to its natural state as is practicable to the satisfactio n of the
Inspector of Mines ...”
Inspector of Mines ...”
The designation “Inspector of Mines” contained in regulations 5.10, 5.12.2 and 5.15.3
was amended from time to time and the incumbent is currently known a s the
“Principal Inspector of Mines” (par 30).
22
Despite the repeal and/or amendment from time to time of the Mines and Works Act,
the regulations pu blished under that Act and the Minerals Act, they remain
enforceable by virtue of section 12(2) of the Interpretation Act, 33 of 1957 (par 32).
Further averments relating specifically to the second alternative claim
In terms of regulation 2.11 in force bet ween 1970 and 1990, Gefco and Gencor
continued, after the operations at the Bute Asbestos Mine had been discontinued or
abandoned, to be responsible for compliance with requirements of the regulations,
including regulation 5.10, until the Inspector Mines shall have issued to either of them
a certificate that such requirements have been complied with (pars 33 and 34).
Between 1976 and the present Gencor and/or Gefco failed to cover the dumps with
soil or otherwise deal therewith in a manner satisfactory to th e Inspector so as to
prevent the dissemination of dust or sand therefrom, alternatively failed, despite such
directive by the Inspector, to so cover such dumps (par 35).
The operations at the mines or works were discontinued or abandoned in 1981,
alternatively 1985 by Gefco and Gencor (par 36).
No certificate as contemplated in regulation 2.11 has been issued (par 37).
Plaintiffs claim an order firstly that Gencor and Gefco forthwith cover the dumps with
soil or otherwise deal therewith so as to prevent dis semination of dust or sand
therefrom, alternatively that they forthwith cover the dumps with soil or otherwise
deal therewith so as to prevent the dissemination of dust or sand therefrom in a
manner satisfactory to the Director: Mineral Development or the Principal Inspector
of Mines.
Gencor’s ground of exception relating to the second alternative claim
In pars 17 and 18 Gencor avers that the Minerals Act was repealed by the Mineral and
Petroleum Resources Development Act, 28 of 2002, (“MPRDA”) with effect from 1
May 2004, that the regulations (upon which plaintiffs rely) have ceased to have the
May 2004, that the regulations (upon which plaintiffs rely) have ceased to have the
force of law when the Minerals Act was repealed, and that contrary to what is stated
in par 32 of the particulars of claim, the regulations did not “remain enforceab le by
virtue of the provisions of section 12(2) of the Interpretation Act” (par 19 at 89).
Further and in any event Gencor points out in pars 20.1 and 20.2 (at 89) that
plaintiffs’ complaint is that Gencor failed to cover the dumps with soil “between 1976
23
and the present” (par 35 of the particulars of claim) which includes the period after
1 May 2004 when the regulations ceased to have the force of law. It is not apparent
how the plaintiffs’ reliance on section 12(2) of the Interpretation Act is alleged to
justify plaintiffs’ complaint that Gencor failed to comply with the regulations after
they ceased to have the force of law (par 20.3 at 89). Upon a proper interpretation of
section 12(2), Gencor was not under an obligation to comply with the regulations after
they ceased to have the force of law. The second alternative claim is accordingly
vague and embarrassing, alternatively lacks averments necessary to sustain a cause of
action (par 21 at 90).
Is the second alternative claim excipiable?
As appears fro m par 9.7 of plaintiffs’ particulars of claim , regulations 2.11 and 5.10
remained in force in terms of section 68(2) of the Minerals Act when the Mines and
Works Act was repealed. As stated in pars 9.8 and 9.9 of plaintiffs’ particulars of
claim, the authorization or permission of Gefco and/or Gencor granted in terms of the
regulations also remained in force in terms of section 68(2) of the Minerals Act and
resulted in Gefco and Gencor becoming holders as defined in section 1(c) of the
Minerals Act. By virtue of section 38(1) of the Minerals Act Gencor and/or Gefco, as
holders, remained liable for the rehabilitation of the surface of the land concerned in
the mining operations.
Gencor’s exception to the second alternative claim does not call into question any o f
the above averments. As indicated, the exception is based on the fact that the Minerals
Act was repealed by the MPRDA with effect from 1 May 2004.
The answer of plaintiffs’ counsel to this is that the summons in this case was served
during July 2003 and that the provisions of section 12(1)(c) and (e) of the
Interpretation Act result in the plaintiffs being entitled to enforce obligations in terms
Interpretation Act result in the plaintiffs being entitled to enforce obligations in terms
of the regulations which arose prior to the repeal of the Minerals Act.
Plaintiffs aver in particular that re gulations 2.11 and 5.10 “remain enforceable by
virtue of the provisions of section 12(2) of the Interpretation Act ...” (par 32 of the
particulars of claim).
The relevant parts of section 12(2) provide as follows:
24
“(2) Where a law repeals any other law, th en unless the contrary intention
appears, the repeal shall not–
...
(c) affect any right, privilege, obligation or liability acquired, accrued or
incurred under any law so repealed; or
...
(e) affect any ... legal proceeding or remedy in respect of any su ch right,
privilege, obligation, liability ... as is in this subsection mentioned,
and any such ... legal proceeding or remedy may be instituted, continued and
enforced ... as if the repealing law had not been passed.”
Accordingly, the repeal of the Minerals Act by the MPRDA would in terms of section
12(2)(c), unless the contrary intention appears, not have affected any obligation or
liability which had accrued or had been incurred under the said regulations and the
Minerals Act. It has not been contended t hat a contrary intention appears f rom the
MPRDA.
Since the plaintiffs’ summons was served during July 2003, in terms of section
12(2)(e) such repeal does not affect the legal proceedings in respect of such obligation
or liability and such proceedings may be continued and enforced as if the repealing
Act had not been passed.
It was submitted on Gencor’s behalf that it is not correct to aver in par 32 of the
particulars of claim that the Interpretation Act provides for the regulations to remain
enforceable. Furthermore, that subsections 12(2)(c) and (e) of the Act should have
been specifically pleaded and not merely a reference to section 12(2).
In my view, however, it appears from the context of par 32 that subsections (c) and (e)
of section 12(2) are the pro visions upon which the plaintiffs intend to rely. Although
par 32 may have be en inelegantly phras ed, it appears f rom pars 27, 29 and 32 of the
particulars of claim that the plaintiffs aver that the regulations impose an obligation
on Gencor [compare sectio n 12(2)(c)], and that the legal proceeding or remedy in
respect of such obligation may be enforced as if the repealing law had not been
respect of such obligation may be enforced as if the repealing law had not been
passed, as provided for by section 12(2)(e), read with the closing words of section
12(2). The exception on the grounds set out in pars 15 to 19 of the notice of exception
should therefore be dismissed.
25
Further or alternative grounds of exception to the second alternative claim
I now turn to the further or alternative grounds of exception in relation to the second
alternative claim (pars 22 and 23 at 90).
Gencor avers that prayers 1 and 2 of the claim seek to compel it to cover the dumps
with soil or otherwise to deal therewith but that ex facie the particulars of claim,
Gencor is not the owner of the land upon which the dum ps are situated and that it is
not averred that Gencor currently has any interest in the land on which the dumps are
situated. It is averred that it is not competent in law for this court to order Gencor to
take the steps envisaged in prayers 1 and 2 in re lation to land which it does not own
and in which it has no interest.
In their heads of argument Gencor’s counsel add that it would be impossible for
Gencor to take such steps since it has no lawful power to enter onto the land.
Mr Pauw submits that it is significant that Gencor was at no stage the owner of the
land. In terms of regulation 2.11 read with regulation 5.10 both the owner and the
person acting as manager of the mine continue to be responsible for covering the
dumps with sludge or soil so as to prevent the dissemination of dust or sand
therefrom. He submits that it is therefore clear that by necessary implication
regulation 2.11 grants Gencor the power to lawfully enter upon the land to comply
with its statutory obligations.
I agree with these s ubmissions. If Gencor avers that it is for some reason, unable to
enter upon the land to comply with the order prayed for, it could raise that as a
defence in its plea. It is not appropriate to decide at this stage that it is impossible for
Gencor to enter upon the land.
The exceptions to the second alternative claim on the grounds set out in pars 22 and
23 (at 90) should, therefore, also be dismissed.
Further averments relating to the third alternative claim
In terms of regulation 2.11 in force between 1970 and 1990, Gefco being the owner of
In terms of regulation 2.11 in force between 1970 and 1990, Gefco being the owner of
the mine or works and Gencor as the person acting as manager of the mine, continued,
after the operations at the Bute Asbestos Mine were discontinued or abandoned, to be
responsible for compliance with the requirements of the regulations concerned insofar
as the protection of the surface is concerned, including regulation 15.12.2 , until the
26
Director: Mineral Development alternatively Inspector of Mines shall issue to either
of them a certificate that such requirements hav e been complied with (par 38 of the
particulars of claim).
In terms of regulation 5.12.2 in force between 1980 and 1991, Gefco and Gencor were
under an obligation to–
1. rehabilitate the surface of the mining area as an integral part of the
mining operations;
2. as far as was practicable, conduct such rehabilitation concurrently with
such mining operations;
3. rehabilitate the surface area of the mining area, alternatively so
rehabilitate the surface in accordance with a programme laid down by
the Inspector of Mines (par 39).
Between 1976 and 1981 during the mining operations in the mining area, Gefco
and/or Gencor failed to act as they were obliged to in terms of the averments in the
previous paragraph (par 40).
Upon a proper construction of regulation 5.1 2.2 Gencor and/or Gefco were obliged to
comply with the programme laid down by the Inspector of Mines (par 41).
(Mr Pauw conceded that ther e was no basis for the averment in par 41 relating to the
instructions of the Director: Mineral Development.)
No certificate as contemplated in regulation 2.11 has been issued (par 42).
Although regulation 5.12.2 was repealed in terms of section 63 of the Minerals Act
with effect from 1 January 1992, the obligations thereof continued by virtue of, inter
alia, the provisions of section 38(1) of the Minerals Act, as set out in pars 9.8 to 9.10
of the particulars of claim (par 43).
The plaintiffs accordingly claim:
1. An order that Gencor and Gefco forthwith carry out rehabilitation of
the surface at the opencast mine inclu ding but not limited to the steps
set out in pars 15.1, 15.2 and 15.3 of the particulars of claim;
2. Alternatively an order that Gencor and Gefco forthwith carry out
rehabilitation of the surface at the opencast mine in accordance with
27
the programme laid down by the Principal Inspector of Mines within a
time determined by the court.
Gencor’s main grounds of exception to the third alternative claim
Gencor points out that t he third alternative claim is purportedly based on
regulation 15.12.2. The plaintiffs aver that the obligations imposed by regul ation
15.12.2 continue by virtue of section 38(1) of the Minerals Act (par 43 of the
particulars of claim, read with pars 9.8 to 9.10 thereof). The Minerals Act was
repealed by the MPRDA with effect from 1 May 2004. The regulations ceased to have
the force of law when the Minerals Act was repealed. Gencor avers that t he claim
accordingly lacks averments necessary to sustain a cause of action inasmuch as the
claim is based on regulations that no longer have the force of law.
Is the third alternative claim excipiable?
Although this ground of exception bears some similarity with the ground raised in
respect of the second alternative claim, the third alternative claim differs in an
important respect from the second alter native claim, viz that in par 43 thereof there is
an averment that regulation 5.12.2 was repealed in terms of section 63 of the Minerals
Act with effect from 1 January 1992, but that the obligations imposed in terms thereof
continued by virtue of inter alia, the provisions of section 38(1) of the Minerals Act
as set out in pars 9.8 to 9.10 of the particulars of claim. (My emphasis)
Section 38(1) of the Minerals Act provides as follows:
“(1) The rehabilitation of the surface of land concerned in any prospect ing or
mining shall be carried out by the holder of the prospecting permit or
authorization concerned–
(a) in accordance with the environmental management programme
approved in terms of section 39, if any;
(b) as an integral part of the prospecting or mining operations concerned;
(c) simultaneously with such operations, unless determined otherwise in
writing by the Director: Mineral Development; and
writing by the Director: Mineral Development; and
(d) to the satisfaction of the Director: Mineral Development concerned.”
28
Gencor’s counsel submitted that sec tion 38(1) of the Minerals Act is entirely
irrelevant and does not have the effect of perpetuating any obligations that might have
been imposed by regulation 5.12.2.
I agree with that submission. It must be borne in mind that, differing from the second
alternative claim, section 38(1) can in this claim not link up with the averments in
pars 9.6 to 9.10 of the particulars of claim because of the averment in par 43 of the
particulars of claim that regulation 5.12.2 was repealed in terms of section 63 of the
Minerals Act with effect from 1 January 1992.
There appears to be an inconsistency in plaintiffs’ averments in regard to the effect of
section 38(1) of the Minerals Act when the averments in pars 9.6 to 9.10 of the
particulars of claim are compared with the abovementioned averment in par 43
thereof. In par 9.7 the plaintiffs aver that , inter alia , regulation 5.12.2 remained in
force in terms of the provisions of section 68(2) of the Minerals Act, whereas in par
43 they aver that “Regulation 5.12.2 was repeal ed in terms of section 63 of the
Minerals Act with effect from 1 January 1992.”
This inconsistency was not specifically raised by Gencor in its notice to plaintiffs in
terms of rule 23(1) to remove the cause of complaint. In the said notice as well as in
its notice of exception, Gencor’s objection was that the regulations (including
regulation 5.12.2) ceased to have the force of law when the Minerals Act was repealed
by the MPRDA (pars 24–28 at 91).
If regulation 5.12.2 remained in force in terms of section 68(2) of the Minerals Act, as
averred in par 9.7 of the particulars of claim, the obligation imposed in terms thereof
could be enforced by means of the instant litigation which was instituted before the
repeal of the Minerals Act by MPRDA with effect from 1 May 2004, ie in terms of
subsections 12(2)(c) and (e) of the Interpretation Act. In other words, the same result
subsections 12(2)(c) and (e) of the Interpretation Act. In other words, the same result
would follow as in respect of the second alternative claim and section 38(1) of the
Minerals Act would fulfil the function as cribed to it in par 9.10 of the particulars of
claim.
But if regulation 5.12.2 was repealed in terms of section 63 of the Minerals Act with
effect from 1 January 1992, as averred in par 43 of the particulars of claim, neither
subsections 12(2)(c) or (e) of the Interpreta tion Act, nor section 38(1) of the Minerals
Act, could bridge the gap between 1 January 1992 and July 2003 when the summons
29
was served. Or, put differently, neither of the two statutory provisions could have the
effect of continuing the obligations imposed by regulation 5.12.2, as averred in par 43
of the particulars of claim.
Although the grounds of exception advanced by Gencor in pars 24 to 28 differ from
my above findings, I agree with its conclusion (in par 28) that the third alternative
claim lacks averments necessary to sustain a cause of action inasmuch as this claim is
based on a regulation (5.12.2) that no longer has the force of law. The exception to the
third alternative claim must, therefore, be upheld.
It is accordingly unnecessary to consider t he alternative grounds of exception to the
third alternative claim (pars 29 to 32 at 91–93).
Further averments specifically relating to the fourth alternative claim
Plaintiffs aver that in terms of regulation 2.11 Gefco, being owner of the mine or
works, and Gencor as the person acting as the manager of the mine, continued, after
the operations at the mine were discontinued or abandoned, to be responsible for
compliance with the requirements of the regulations insofar as the protection of the
surface is con cerned, including regulation 5.13.3, until the Inspector of Mines shall
have issued to either of them a certificate that such requirements have been complied
with (par 44).
In terms of regulation 5.13.3 in force between 1980 and 1991, Gefco and Gencor were
obliged to ensure the rehabilitation of the surface to as near to its natural state as is
practicable, to the satisfaction of the Inspector of Mines, when the recovery of
asbestos finally ceased and when the operations finally ceased at the mine or works
(par 45).
Gefco and/or Gencor finally ceased to recover asbestos and finally ceased the
operations at the mine or works in 1981 alternatively 1985 (par 46).
Between 1982 and the present, Gefco and/or Gencor failed to ensure rehabilitation of
the surface of the mine or works to as near to its natural state as is practicable to the
the surface of the mine or works to as near to its natural state as is practicable to the
satisfaction of the Inspector of Mines, currently design ated as the Principal Inspector
of Mines (par 47).
No certificate as contemplated in regulation 2.11 has been issued (par 48).
30
Plaintiffs repeat par 43 of the particulars of claim with the necessary changes required
by the context (par 49).
Plaintiffs accordingly claim:
1. An order that the fifth defendant, acting through the Principal Inspector
of Mines, instruct Gencor and Gef co to ensure the rehabilitation of the
surface at the mine or works as near to its natural state as is practicable
to the satisfaction of the Principal Inspector of Mines within a time
determined by the court.
2. Alternatively an order that Gencor and Gefc o ensure the rehabilitation
of the surface at the mine or works to as near to its natural state as is
practicable to the satisfaction of the Principal Inspector of Mines
within a time determined by the court.
The grounds of exception in regard to the fourth alternative claim
The first ground ( pars 33 to 37 at 93) is that regulations 2.11 and 15.13.3 ceased to
have the force of law when the Minerals Act was repealed by the MPRDA with effect
from 1 May 2004.
Paragraph 49 of the particulars of claim has been pleaded in a rather cryptic way.
Probably the pleader intended that par 49 , with the necessary c hanges to the wording
of par 43 as required by the context, should read as follows:
“Although Regulations 2.11 and 5.13.3 were repealed in terms of section 63
of the Minerals Act with effect from 1 January 1992, the obligations imposed
in terms thereof continued by virtue of, inter alia, the provisions of section
38(1) of the Minerals Act as set out in paragraphs 9.8 to 9.10 above.”
If that was the pleade r’s inte ntion, my above findings in regard to par 43 of the
particulars of claim, would similarly apply to par 49.
Once again, the grounds of exception in par 33 to 37 (at 93) differ to some extent
from the grounds upon which I find that the fourth alternative cl aim is excipiable, but
I agree with the averment in par 37 that the claim lacks averments necessary to sustain
a cause of action inasmuch as the claim is based on regulation s (2.11 and 5.13.3) that
a cause of action inasmuch as the claim is based on regulation s (2.11 and 5.13.3) that
no longer have the force of law.
The exception to the fourth alternative claim should accordingly be sustained.
31
It is accordingly unnecessary to consider the alternative bases upon which the
exception to the fourth alternative claim is based (pars 38 to 41 at 93–95).
Costs
In the result the exceptions to the firs t claim and the first, third a nd fourth alternative
claims should be upheld, while the exception s to the second alternative claim should
be dismissed.
Gencor should be awarded costs, including the costs of two counsel, in r espect of the
exceptions which should be upheld. Plaintiffs should be awarded costs, including the
costs of two counsel in respect of the exceptions to the second alternative claim which
should be dismissed.
For the assistance of the taxing master I estimate that approximately two thirds of the
total time taken up by argument was taken up in respect of the exceptions in regard to
which Gencor has been successful and about one -third of the time by the exception s
in respect of which the plaintiffs have been successful. The court sat from 09: 00 until
16:20 with the normal breaks for tea and lunch.
Order
The following order is granted:
1. The exceptions to the first claim, and the first, third and fourth
alternative claims are upheld with costs, including the costs of two
counsel;
2. The plaint iffs are granted leave to amend the claims referred to in
paragraph (1) hereof within 21 days from date hereof;
3. The exception s to the second alternative claim are dismissed with
costs, including the costs of two counsel.
I W B de Villiers
Judge of the High Court
32
Appearances:
For the Plaintiffs: Advv P Pauw SC & H J Krüger
Instructed by: Legal Resources Centre, Pretoria
For the Defendant
(Excipient): Advv C Puckrin SC & A Cockrell
Instructed by: Messrs Webber Wentzel Bowens (Johannesburg)
and
Rooth & Wessels (Pretoria)