On 30 May 2023, the Supreme Court of Appeal (SCA) confirmed in Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy and others [2023] ZASCA 80 (30 May 2023) that miners remain responsible for the pumping and treatment of extraneous water until the Minister of Mineral Resources and Energy has issued a closure certificate in terms of section 43 of the Mineral and Petroleum Resources Development, Act, 2002 (MPRDA).
Ezulwini Mining Company (Pty) Ltd (Ezulwini) is the holder of a mining permit and operator of a mine on the West Rand of Gauteng that it acquired in 2014. The mine has been operational since 1961. Following the discontinuation of underground mining in 2016, Ezulwini unsuccessfully applied for approval from the Ministry of Forestry, Fisheries and the Environment to permit it to cease pumping and treating extraneous groundwater from the underground works. In 2018, Ezulwini applied to the High Court seeking declaratory relief that neither an environmental authorisation under the National Environmental Management Act, 1998 (NEMA) nor an amendment to its water use licence under the National Water Act, 1998 was required to allow Ezulwini to stop pumping extraneous underground water.
The key issue for consideration in this case was whether a mine operator has a continuing obligation to pump extraneous water from an underground mining area even after the cessation of underground mining activities and whether this obligation extends to the closure of the mine under section 43 of the MPRDA. The High Court decided in the affirmative. The High Court’s decision was upheld by the SCA.
The SCA also confirmed that an Environmental Management Programme constitutes an environmental authorisation for purposes of the National Environmental Management Act, 1998 (para 32). This has long been understood to be the position, however, pending the commencement of amendments to NEMA under the National Environmental Management Laws Amendment Act, 2022, it remained a grey area.
The judgment emphasizes the importance of environmental management up until closure and the principles of the NEMA in the context of mining activities regardless of whether such activities have ceased.
For further information, please contact:
Patrick Leyden, Partner, Herbert Smith Freehills
patrick.leyden@hsf.com
