JAGERSFONTEIN DISASTER
Mantashe says ‘dangerous’ high court judgment crippled his department’s jurisdiction over all tailings dams
Minister Gwede Mantashe says a high court judgment from 2007 that left the Department of Mineral Resources and Energy without jurisdiction over all tailings dams — including the one in Jagersfontein that burst on Sunday — was a dangerous mistake.
The minister of mineral resources and energy, Gwede Mantashe, visited Jagersfontein in the Free State on Tuesday, where the collapse of a tailings dam wall at the Jagersfontein diamond mine displaced more than 200 people and killed at least one.
Mantashe said a 2007 high court judgment that left the Department of Mineral Resources and Energy (DMRE) and the Mineral and Petroleum Resources Development Act of 2002 (MPRDA) without jurisdiction over all tailings dams — including the one in Jagersfontein — was a dangerous mistake.
The Free State tailings dam that collapsed near the towns of Jagersfontein and Charlesville, with the mud flow indicated by red arrows. (Map and graphic: Rudi Louw)
“It deprived this company and this mine [of the] opportunity to have regular mining inspectors visiting it,” he said during his visit to Jagersfontein.
“To me, it confirms that this cannot be an operation that is given a different definition — it is a mining operation, and therefore the DMRE must take full responsibility for the operations. That judgment, to me, was a mistake and it should be corrected.”
Mantashe was referring to the judgment in 2007 by the Free State High Court in the matter of De Beers v Ataqua Mining and the DMRE.
The case dealt with the questions of whether the Mineral and Petroleum Resources Development Act of 2002 deprived De Beers of the ownership of the minerals in its tailings dumps, and if the DMRE had the authority to grant prospecting or mining rights in tailings dumps created before 2002.
Minister of Mineral Resources and Energy Gwede Mantashe visited Charlesville in Jagersfontein after the tragedy. (Photo: Felix Dlangamandla)
The collapsed tailings dam (where byproducts of mining operations are stored) is adjacent to what used to be the Jagersfontein diamond mine, which was shut down in the 1970s by its then owners, De Beers. The tailings dam is now classified as a processing facility and is owned by Jagersfontein Developments (JD), a unit of the Dubai-based Stargems Group.
Tailings dumps or mines often contain large amounts of minerals that can be extracted, extending the economic lifespan of a mining operation.
De Beers won the 2007 court case, and the court held that tailings dumps are movables and thus ownership belongs to those who removed the minerals as they had occurred naturally in or on the earth, and the MPRDA could not control tailings dumps created before the act was created in 2002.
‘You can’t fragment mining’
Mantashe said this judgment meant all tailings dams in South Africa fall outside the jurisdiction of the DMRE and the MPRDA, and just by being there on Tuesday, the DMRE “is running the risk of being in contempt of court”.
“My own interpretation is that that judgement reflects the lack of understanding of mining as a value chain, because you can’t fragment mining,” Mantashe told the media. He said that classifying tailings dams as not a mine was a mistake and the judgment reflected judicial overreach.
Minister of Mineral Resources and Energy Gwede Mantashe assesses the damage to a house during his visit to Charlesville, Jagersfontein on 13 September 2022. (Photo:Felix Dlangamandla)
He said the DMRE had raised this issue with the Minerals Council South Africa, which he hoped would take it up with his department to change the decision of the judiciary, “because it’s dangerous”.
Mantashe said the Free State was an old gold mining area with many tailings dams, and to allow the jurisdiction of these dams to fall under the Department of Water and Sanitation (DWS), which happened after the judgment, was “a risk into a mining activity”.
Minister of Mineral Resources and Energy Gwede Mantashe negotiates a puddle of mud during his visit to Charlesville in Jagersfontein on 13 September 2022. (Photo: Felix Dlangamandla)
Mantashe added that this wouldn’t stop his department from now getting involved.
“Somebody who is mischievous can sue us for contempt of court. But we’re here — and we’re going to be part of the teams that work on this disaster.”
Who is accountable?
Mantashe said that according to the judgment: “The slime dam belongs to the mine, not the department, and therefore at the time it said De Beers. So whoever owns it now is a legal successor to De Beers, therefore they will take responsibility.”
Jagersfontein Developments told Daily Maverick that the Sonop Superkolong Consortium was the successful bidder for the Jagersfontein diamond mine when De Beers put it out to tender in 2010. Superkolong exited the transaction shortly thereafter, with billionaire Johann Rupert’s Reinet Investments taking control. Stargems acquired Reinet’s shareholding in Jagersfontein in April 2022.
Visit Daily Maverick’s home page for more news, analysis and investigations
Mantashe said that while in all cases mining companies take responsibility for disasters at their mines, the state does come in to lend a hand and find a solution.
“We don’t wash our hands and say, it is not our responsibility. We’re here. We’ll work with the company, we must find a solution to this disaster.”
Marius de Villiers, legal compliance officer at Jagersfontein Developments, speaks to the media on 13 September after the mine tailings dam collapsed. (Photo: Felix Dlangamandla)
Marius de Villiers, the legal compliance officer at Jagersfontein Developments, told the media on Tuesday: “The processing facility obviously must accept the liability that comes with the operations and with the break of the dam wall.
“The fact that a person died is tragic. We mustn’t try and put blame on people for what happened. Let the process continue and get done.
Warnings
“You’ve got to rely on your experts and your engineering, I can show you pictures of this wall, three, four days before the accident, and you won’t be able to tell me that there was a risk.”
However, community members have said that they had been raising concerns over the dam wall for years, and Daily Maverick reported that the director-general in the Free State Office of the Premier, Kopung Ralikontsane, said Jagersfontein got instructions from the government to cease operations two years ago.
Residents go through what is left of their houses in Charlesville, Jagersfontein after the tailings dam burst. (Photo: Felix Dlangamandla)
The spokesperson for the Department of Water and Sanitation, Sputnik Ratau, confirmed to Daily Maverick that after the department issued Jagersfontein Developments with a directive in 2020, it ceased all operations in January 2021 while addressing the issues raised.
Ratau said the department had conducted site inspections and assessed all the reports and available information to ascertain compliance with the directive. Some of the risks identified had been addressed, like installing new digital flow meters to accurately measure the volumes of waste disposed to the tailings dam and submitting quarterly reports of the coarse tailings depositions.
Residents of Charlesville in Jagersfontein mop up after the tailings dam collapse. (Photo: Felix Dlangamandla)
The department lifted restrictions on the facility in May 2021. “JD was, however, also advised that they should contact the DWS dam safety engineers to address the dam safety requirements on the dam break analysis report by SRK dated November 2020 and the emergency preparedness plan dated January 2021.”
“JD has been submitting the reports regularly to DWS, including the reports on the stability of the dam, which was submitted to DWS in August, which report was confirming that the dam was stable.”
Working together
Mantashe said the high court ruling had stopped his department from conducting mining inspections, but despite that, he wanted government departments to work together.
A military helicopter flies over a search and rescue team in Charlesville, Jagersfontein after the tailings dam collapsed. (Photo: Felix Dlangamandla)
“If we’re dealing with a disaster of this nature it is not a particular department that does what — we pull together all the state resources, work together as departments, break silos to overcome the disaster. We’re in agreement on that, and that’s what we’re going to do.”
De Villiers said Jagersfontein Developments had put aside R20-million in relief funds as an interim amount for disaster relief, and that this was not a limit. The funds are going toward displaced residents, providing food parcels and necessary supplies and settling medical and hospital bills.
De Villiers said so far about R600,000 had been spent on accommodation in Bloemfontein for people displaced by the disaster. They had accommodated more than 360 displaced people in hotels in Bloemfontein and in hostels in neighbouring towns.
A search and rescue team in Charlesville, Jagersfontein on 13 September 2022. (Photo: Felix Dlangamandla)
“We’ve arranged for the electricity; hopefully, that will be connected today [Tuesday]. The water was connected yesterday [Monday]. There’s, at this point in time, engineers working on their reports, there’s people out in the river looking at the pollution,” said De Villiers.
Meropa Communications, working for Jagersfontein Developments, said the tailings dam in Jagersfontein had remained stable overnight and operations to pump the remaining waste from the treatment facility had commenced.
Too soon for speculation
There will be an inquiry into what caused the dam wall to collapse, but Mantashe said, “it would be putting the cart before the horse” at this stage to speculate on whether the dam burst due to incompetence or negligence.
Jagersfontein Developments has appointed an independent investigation team to try to ascertain the facts.
De Villiers echoed the minister, saying: “We can’t speculate at this stage. That’s the worst thing we can do. So let’s all wait for that [investigation] to get finalised.” DM
This article was factually updated on 14 September 2022 to reflect the correct year of the 2007 court judgment.
Become an Insider
The most astonishing comments and declarations by Mantashe ? Good luck to him “fixing this disaster”.
I notice its quite often that investigations into disasters reveal prior concerns raised by people from those areas. That happened in the Knysna fires too, but the narratives post disaster tend to reflect the obfuscation of responsibility. I hope that the people affected are duly compensated within the scope of the law.
Agree
The working of the tailings has recently been taken over by the Dubai-based company, the Stargems Group. From their website it is clear that these owners are very actively seeking to maximise the extraction of high grade diamonds; it is thus highly likely that they have considerably increased the water flow in order to achieve higher diamond extraction, and thus it would seem to be highly likely that, this increase in water and slurry flow, was now at a level that threatened the stability of the dam.
The question thus needs to be – who exactly are the owners of the Dubai-based Stargems Group?
Their website references an owner, Mr Bhavesh Javieri of 40 years ago, but clearly ownership has recently changed, and a new diamond polishing facility set up in Gaborone. The Indian/African new owners (the Free State seems to have had other dubious Indian business connections, referenced in the Zondo Commission) clearly require to be thoroughly investigated.
Exactly this. Follow the money, the trail might not even be as far as Dubai.
Mantashe is lying or doesn’t have a full understanding of the MPDRA. The
case he refers to is about tailings dumps (i. e. Heaps) not fine residue, tailings ponds.
You are on the right track – the De Beers Judgement deals with the ability of the DMRE to grant Prospecting Rights or Mining Rights on movable tailings dumps. It has nothing to do with rehabilitation or management of health and safety issues for tailings dumps, slimes dams etc. Mantashe does not understand the MPRD Act. Why should he? He is after all an ANC Minister and is by definition incompetent, self – serving and wouldn’t know a stressed tailings facility if it jumped up and bit him on the backside. To raise the “dangerous” De Beers Judgement as the reason for this avoidable disaster is a monument to his stupidity and lack of knowledge of the MPRD Act.
Surely legislation exists permitting punitive action when a disaster results from negligent or careless action?
While this will not help the dead and homeless, it should be sufficient to replace the homes and secure the futures of dependants, by extending liability to the owners of the defaulting business, in their personal capacity?
Agree 100%. The owners must take responsibility and adequately compensate for lost property, loss of income, etc.
So Gweezy waited 13 years to act on a judgement he found to be ‘in error’? Seems about right, no doubt like CR, “he’s shocked”!
Yah, and I’m s-u-u-u-u-r-e his dept would have done something about it, and totally averted the diaster, had the Court not handed down that decision. Uh-huh.
Hmm. So Gwede didn’t bother to appeal that decision despite thinking that it was a “dangerous” decision? So much for integrity.
The 2009 case referred to related to whether or not the course residue tailings dumps constituted a mine or not. The Court ruled that these dumps were assets owned by the owner of the mine. This prohibited the Department of mineral resources from unilaterally confiscating these rights and awarding them to a third party. This led De Beers to selling these assets to the highest bidder. These tailing dumps are known to contain reserves of diamonds that were not recovered back in the days before modern recovery techniques were utilized.
Fine residue tailings dams (aka slimes dams) have always been the responsibility of the Department of water affairs. They are the so-called experts in this field as this area is more a civil engineering than a mining engineering field of expertise. Gwede Mantashe was either misquoted or his ignorance of the mining industry is again coming to the fore.
Minister Gwede Mantashe blatantly lied. Minister of Mineral Resources & Energy is responsible for all the mining and processing of the minerals related environmental issues related to mining including Tailings dams, dumps, waste rock dumps etc., in terms of “One Environment System” from 14th December 2015 in an agreement between Department of Mineral & Energy, Department of Environmental Affairs now DFFE and Department of Water Affairs now DWS.
the De Beers Consolidated Mines Limited v/s Ataqua Mining Limited High Court Judgement dated 13 December 2007 not 2009.
The Judgement confirmed ownership of the said dump De Beers Consolidated Mines Limited as owner of the land/property in terms of the common law as De Beers acquired the land from the old owner in 1977.
the same Judgement indicated the responsibility of the Department of Environmental Affairs in term of NEMA 1998, regulates all the waste including hazardous waste, the mining waste is the hazardous Weste under NEMA Waste Act 2008.
HAWKS and NPA has to verify under which Authorisation the said Dubai based company processing the said tailings dams which required financial provision for environmental rehabilitation liability provided in an Environmental Rehabilitation Trust registered with Master of High Court and SARS, written consent from the landowners and affected parties.
I believe that all these dumps are process NOT MINED. illegally, needs urgent investigation by HAWKS and NPA with DFFE, DWS and DMRE.
I find the remarks of Minister Mantashe rather strange. An Authority: be it any one of the three levels of government, does not have to own a building or installation in order to exercise their judicial responsibility over that building or installation. For example, if the fire inspector of a local authority reports a building to be not in compliance with Fire Regulations; the local authority can force the owner of that building or installation to comply and if he does not the local authority can shut the building or installation.
So – Min Mantashe you don’t have to own the mine or slurry dam to regularly inspect it for safety compliance
Useless comments and useless promises by our politicians. Nothing new here.
A very good and informative article on the disaster as it brings all the role players together and responsibilities despite the headline. It is a very useful basis to look at those who are criminally and vicariously liable for the disaster. The police and the NPA need to be at work to drag those who are criminally liable for the disaster to ensure that it does not happen again and those who get involved in this business must know that they must act responsibly. There are reports by JD to the Department of Water and Sanitation and there is no need to wait for years to sue or prosecute people. If the NPA Investigative Directorate is not captured it will act with speed on this matter and one hopes the HSF, CASAC and the de Klerk foundation as well as Afriforum will raise they hands if they are genuine.
If the ruling was so dangerous, why didn’t Mantashe take it under review?
The words of a well known song from way back are so apt here in South Africa.”Clowns to the left of me Jokers to the right,Here I am stuck in the middle with you”
The investigators will do well to keep the theory of the organisational error model in mind when getting to work on this one!