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.
“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.
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.
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”.
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.
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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, 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.
“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.
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.
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.”
Mantashe said the high court ruling had stopped his department from conducting mining inspections, but despite that, he wanted government departments to work together.
“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.
“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.