Thursday, May 19, 2005

The Department of Water Affairs and Forestry has recently been seen to flex its muscles with respect to water pollution arising from mines. This has lead to interrelated court actions in which the far reaching environmental pollution provisions enacted in 1998 are finally starting to be considered and applied by the Courts. At the time of publication DWAF had issued three directives to five mines and four mine-operators in the Klerksdorp-Orkney-Stilfontein-Hartebeesfontein (Kosh) area, namely Harmony, AngloGold Ashanti, Stilfontein (Simmer & Jack), Buffelsfontein and Hartebeesfontein (DRDGold). In addition, at the time this article wsa written DWAF was threatening a fourth directive or criminal proceedings if the original directives were not complied with.

These are most likely "old news" by this stage, but nevertheless, the directives issues by DWAF raise a number of legal points that will be tested and tried by our courts in the years to come.

The directives stipulate (amongst other things) that the companies, share the water-pumping costs in the area equitably. The monthly costs are estimated at around R5 million a month, but this figure has also been disputed and may be higher. Harmony unsuccessfully challenged the directive in the High Court and at the time of writing was appealing the decision. Any precedent arising from this case is likely to have an impact on all mining activities in South Africa, and on the way environmental responsibilities are managed.

The directives are aimed at ensuring that the polluted water flowing out from the underground workings of the mines within the catchment basins does not flow into unpolluted water resources.

Directives issues under the NWA
DWAF’s power to issue the directives arises from section 19 of the National Water Act. Section 19(1) requires that an owner of land, a person in control of land or a person who occupies or uses the land on which any activity was performed which causes, 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.

The directives have been issued in terms of section 19(3) which provides that DWAF may direct any person who fails to take the measures required under subsection (1) to

· commence taking specific measures before a given date;
· diligently continue with those measures; and
· complete them before a given date.

The NWA does give an indication of sets out the sort of "reasonable" measures that should be taken. These include measures to:

· cease, modify or control any act or process causing the pollution;
· comply with any prescribed waste standard or management practice;
· contain or prevent the movement of pollutants;
· eliminate any source of the pollution;
· remedy the effects of the pollution; and
· remedy the effects of any disturbance to the bed and banks of a watercourse.

The above does not specifically permit DWAF to make an order that parties share equitably in particular remediation measures only that they commence and continue with measures. DWAF’s power to impose costs only arises if parties fail to comply with an order which is made.

Is DWAF empowered to issue such a directive?
In the interim relief application brought by Harmony against the directive they argued that the directive issued by DWAF was beyond its powers as this situation was not contemplated by section 19. It must be noted that in this instance no pollution had yet been caused and but there was the strong chance that if pumping was stopped pollution would be caused. There was however some debate about the steps that necessary to prevent pollution and which of the parties named in the directive would benefit most from those steps. Judge Goldstein in the judgement in the interim relief application made the following ruling on the interpretation of section 19(1):

"In my view a "situation exists" on the land of the applicant "which ... is likely to cause pollution of a water resource ..." That situation arises from the position of the land downstream from the seventh and eighth respondents and furthermore from the applicant’s mining activities on its land which will result in the pollution of any water that may reach the applicant’s land."

As such, in Judge Goldstein’s view the directive was within the powers which DWAF had in the NWA. Harmony has indicated that the judgement will be appealed but it appears from the above that section 19 can be applied to require steps be taken to prevent pollution. There is however still some debate regarding who can be required to take steps and whether parties can be ordered to bear the costs of such measures disproportionately to the benefit they will derive from the measures

Liability for costs
The NWA does not impose "strict liability" on owners etc of land and requires simply that reasonable measures be taken. However, where a directive is issued and not complied with and DWAF takes steps itself to recover the costs of such action it has extremely wide ranging powers to recover its remediation costs and can even recover from persons how have no knowledge of the pollution, the directive, or the failure to comply with it :

"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."

It is important to note that the NWA allows DWAF to recover costs jointly and severally from the persons listed above without requiring that persons are only required to pay to the extent that they caused or benefited from the polluting activity. In fact this approach is specifically rejected in subsection 7 which provides that if more than one person is liable, 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.

Criminal liability
The Department of Water Affairs and Forestry (Dwaf) has warned the -mines that they could face criminal action if they continue to fail to comply with water-pumping directives issued by the department in April and May. Section 151 of the NWA makes it an offence to fail to comply with a directive issued under section 19. A person found guilty of an offence is liable, on the first conviction, to a fine or imprisonment for a period not exceeding five years, or to both a fine and such imprisonment and, in the case of a second or subsequent conviction, to a fine or imprisonment for a period not exceeding ten years or to both a fine and such imprisonment. Furthermore, where any person is convicted of an offence under the NWA and another person has suffered harm or loss as a result of the act or omission constituting the offence; or damage has been caused to a water resource, may enquire without pleadings into the harm, loss or damage and determine the extent thereof.