SOUTH AFRICA: JAGERSFONTEIN TRAGEDY HIGHLIGHTS COMPLICATED REGULATORY REGIME FOR TAILINGS DAMS
The recent and tragic Jagersfontein tailings dam failure has brought into focus the complicated regulatory environment that exists for mine residue or ‘tailings’ facilities in South Africa, with the Minister of Minerals and Energy seeking to distance his department from the tragedy  by claiming that a 2007 judgement, which co-incidentally specifically concerned the Jagersfontein mine residue deposits  (Jagersfontein judgement), means that such facilities are not administered by his department.
This is unfortunately not the first such disaster to befall South Africa. The 1994 Merriespruit dam failure was amongst the worst tailings dam failures in the country’s mining history. This tragedy, however, prompted the authorities at that time to take measures to ensure that such events could be avoided in future. This was done through the development of the South African National Standards on Mine Residue (SANS 10286), which covers the disposal of mine residue and includes all waste produced by a mine as defined by the now repealed Minerals Act 50 of 1991.
The standard prescribes principles and minimum requirements for best practice on how to manage tailing storage facilities to ensure that there are no avoidable or latent risks associated with such tailings. The standard does not cover environmental, health and safety regulation and is not ‘compulsory’, but focuses on the management and maintenance of tailing storage facilities.
Off-mine tailings facilities
In the past, a Mandatory Code of Practice for Mine Residue Deposits was also required to be developed and maintained under the Mine Health and Safety Act for all tailings facilities.
It is now the nub of the complaint that Minister Mantashe appears to be making with respect to the current regulatory regime. Following the Jagersfontein judgement the administration of tailings facilities was split into those that were part of a producing or recently closed mine (on-mine tailings facilities) and those that had become separated from recent mining operations (off-mine tailings facilities). This is because the effect of the Jagersfontein judgement was that no ‘mining right’ was needed to reprocess the tailings in off-mine tailings facilities.
Management of off-mine tailings facilities then fell to the environmental and water authorities. Such facilities required a water use licence (but the water licensing regime was fraught with delays). No waste licence was specifically required initially, though, because mine wastes were specifically excluded from the waste licencing regime at that time.
Minister Mantashe is correct that this created a ‘lacuna’, particularly in so far as safety was concerned as no inspections by mining inspectors, which occur regularly on operating mines, could take place. It is also true that such facilities no longer had to operate in terms of the Mandatory Code of Practice for Mine Residue Deposits under the Mine Health and Safety Act.
In 2015 the Department of Environment Affairs sought bring all such facilities under one administrative regime with the publication of the Regulations Regarding the Planning and Management of Residue Stockpiles and Residue Deposits, 2015 under the National Environmental Management: Waste Act, 2008 (Waste Act).
This regulation, however, focused on environmental matters possibly less than ongoing management of the safety of such facilities. The ‘split’ in administration of off-mine and on-mine tailings facilities also persisted, and the Minister of Mineral Resources and Energy was given authority to administer the Waste Act and these regulations in the ‘mining sector’.
Dams with a safety risk
Throughout this time the Department of Water and Sanitation (DWS) had responsibility and authority under the National Water Act (NWA) for managing the water management aspects of on and off-mine tailings facilities. This gives responsibility for managing the ‘safety’ risks of dams, as well as the water pollution potential of such facilities.
Dam safety legislation is covered by chapter 12 of the NWA and by Dam Safety Regulations.  Only dams with a ‘safety risk’ (that is dams with a maximum wall height exceeding 5 m and with a storage capacity exceeding 50 000 m3, or any other dam declared by the Minister as a dam with a safety risk) are subject to the regulations, which are administered by the Dam Safety Office within the DWS. These require, amongst other things the appointment of a certified professional to undertake planning and construction and regular inspection by the owner.
In the case of Jagersfontein, although the facts are still emerging, it appears that the DWS did accept responsibility for the enforcement of safety and pollution controls at the Jagersfrontein tailings reprocessing operations. Reports are that the DWS went as far as issuing a directive in January 2021, requiring that Jagersfontein cease all operations while addressing issues raised by the DWS. The operators were required to submit regular reports to the DWS following operations being allowed to recommence in May 2021. The reports are said to have included reports on dam stability.
It does appear that more comprehensive attention should be given to the safety regime applicable to off-mine tailings facilities in particular considering that the Mine Health and Safety Act and the responsible person under the Mine Health and Safety Act are currently not applied to such facilities. This unfortunate tragedy has highlighted an urgent need to the authorities to focus on this.
In this regard it seems logical that if the expertise for assessing and monitoring tailings facilities resides with the Department of Mineral Resources and Energy (DMRE) then responsibility for ensuring the safety of such facilities should remain with the DMRE until such time as a closure certificate is issued.
 De Beers v Ataqua Mining and the DMRE [ JOL 24502 (O)]
 , Published under the NWA in Government Notice R. 139 of 24 February 2012.