STILL WATERS RUN (MINE) DEEP

The obligation to deal with underground mine dewatering

Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy and Others (Case no 289/2021) [2023] ZASCA 80 (30 May 2023)

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Deep-level mining requires the management of water that enters the underground mining area. This water is as a result of the seepage of groundwater from areas higher up from the deep mining areas.

This water must be pumped out and discharged at the surface of the mine in order that mining operations may continue safely and effectively.

The cessation of pumping will result in a significant impact, causing the mine to fill with water as well as those areas higher up from which the ground water has drained.

This can have a series of adverse impacts on activities, such as farming, as well as adjacent underground mines.

Mine dewatering is therefore an essential feature of underground mining operations.

THE EZULWINI MINE

Ezulwini is the holder of a mining permit and operator of a mine on the West Rand of Gauteng (the Ezwulini mine), which it acquired from its predecessor in 2014.

When Ezulwini took over mining operations from its predecessor, it continued to pump extraneous groundwater from its underground mining areas. The extraneous water was pumped to the surface where it was treated before being discharged into natural water courses on the surface.

The pumping and treatment of the extraneous water was licenced in terms of the National Water Act.

However, in September 2016, Ezulwini stopped its underground mining operations as it was no longer economically viable. A year later it applied to the Department of Mineral Resources for an environmental authorisation to cease pumping of the underground water, as well as to the Department of Water and Sanitation, to amend its water use licence.

PRETORIA HIGH COURT

Ezulwini then brought an application before the Gauteng Division of the High Court (Pretoria High Court) where it sought declaratory relief on whether a mine operator’s obligation to continue pumping extraneous water from underground mining areas, endures despite its cessation of underground mining operations.

The High Court answered that question in the affirmative and ordered Ezulwini to continue with such pumping, until the Department of Mineral Resources had issued to it, a closure certificate in terms of s 43 of the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRDA).

SUPREME COURT OF APPEAL

Ezulwini appealed against the High Court order.

The issue on appeal before the SCA was:

Is Ezulwini obliged in law to continue pumping extraneous water from its underground mining works despite its cessation of underground mining?

If so, when does the obligation cease?

THE LAW

MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT 28 OF 2002 (MPRDA)

Section 43 of the MPRDA provides that:

The holder of a … mining permit… or previous owner of works that has ceased to exist, remains responsible for any environmental liability pollution, ecological degradation, the pumping and treatment of extraneous water, compliance to the conditions of the environmental authorisation and the management and sustainable closure thereof, until the Minister has issued a closure certificate in terms of this Act to the holder or owner concerned.

NATIONAL ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998 (NEMA)

Section 24N(7)(f) of the NEMA provides that:

The holder and any person issued with an environmental authorisation is responsible for any environmental damage, pollution, pumping and treatment of polluted or extraneous water or ecological degradation as a result of his or her operations to which such right, permit or environmental authorisation relates.

EZULWINI’S ARGUMENT

Ezulwini’s argument before the SCA was that it was under no legal obligation to continue the pumping operations to remove extraneous water seeping into its now unworked underground mining area.

It argued that the pumping operations were not a legal obligation but a necessity associated with its mining activities. Now that it had ceased mining operations, it was entitled to cease the pumping.

It further argued that the water use licence which was issued to it, conferred on it a right to use water, and that right could not be construed as an obligation.

THE SCA’S CONCLUSION

The court held that on a proper interpretation of s43(1) of the MPRDA and s24N of NEMA, a legal obligation rested on Ezulwini.

The court subsequently declared that:

Ezulwini Mining Company (Pty) Ltd remains responsible for the pumping and treatment of extraneous water from the underground workings of Ezulwini Mine until the Minister of Mineral Resources and Energy has issued to it a closure certificate in terms of s 43 of the Mineral and Petroleum Resources Development Act 28 of 2002.

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This case once again reflects the onerous liability provisions prevalent in our environmental law.

It also confirms that even though a business (mining concern) may have ceased its activities, it may still be obligated to fulfil its environmental responsibilities.

In the context of mining activities, these obligations exist until a closure certificate has been issued.

However, the law as it stands (s24R of NEMA), even extends this obligation beyond the closure certificate. (The court in this case did not see the need to deal with this particular aspect).