The 11 September tailings dam collapse at the Free State diamond mine operated by Jagersfontein Developments that killed one person — with two missing — has likely caused damage that will run into hundreds of millions of rands, Spoor told Business Maverick in an interview.

This raises the question: is the company in a position to pay these damages if it is ultimately found to be liable? As the old adage has it, you can’t get blood from a stone. 

“Do they have the money to compensate people? As far as I know, this is an operating subsidiary. I don’t doubt that it has working capital. But where is it going to find the money to pay its claims? It will conservatively amount to hundreds of millions of rands,” said Spoor, who spearheaded a R5-billion silicosis class action suit against several South African gold producers to compensate miners who contracted the incurable lung disease underground.

“There’s the property damage, there are three dead people, there are a number of people who are quite seriously injured. Then there is the compensation for the downstream farmers who have incurred very substantial losses in terms of grazing and water resources. 

“And there is the greater environmental clean-up. Then there’s the municipal sewerage works,” he said. “Answers to those questions will determine the way forward.”

Liability

The way forward could be a legal dispute over liability or a negotiated settlement, and a lot will hinge on what the cause of the collapse is determined to have been. 

Spoor is representing 30 of the affected families from the community. This includes the family of Ralehana Aaron Mosoeu who was killed and those of Shadrach Williams and Mantele Mokhali, who are still missing after being swept away by the flood of sludge.

In response to queries from Business Maverick, Andersen Attorneys, which is representing Jagersfontein Developments, said by email:

“At this stage, while investigations are still ongoing and information being gathered, it is obviously premature to speculate on the cause of the incident. So far, relief efforts remain focused on supporting affected residents of the town with temporary accommodation, meals and various other assistance, as well as mobilising clean-up operations and environmental management and impact measures as quickly as possible.”

The Free State government has committed to building homes for more than 160 people — though it must be said that this is a provincial government with a spotty track record when it comes to delivery — and the company has made R20-million available in relief funds for residents displaced by the disaster. 

Read more in Daily Maverick: “Rebuilding of houses begins after Free State mine tragedy, search and recovery mission continues”

The company has also said it understands that the wastewater released was not hazardous, though scientists have sounded alarm bells. 

“The ecological impacts of the spill… are still being played out,” Dr Gordon O’Brien of the School of Biology and Environmental Sciences at the University of Mpumalanga said in a commentary this week. 

“The estimated more than 6,000m3 of tailings has spread over a massive area and reached the Kalkfontein Dam and the Riet River. From the Kalkfontein Dam, the moderately utilised Riet River flows for about 200km into the Vaal River just 35km upstream of the confluence between the Vaal and Orange Rivers.

“The massive spill of tailings is now spread over such a massive area of more than 30km… clean-up is impossible.”

Among other things, this is a threat to a species of yellow fish targeted by anglers — part of South Africa’s multimillion-rand sports fishing industry.

Meanwhile, companies and organisations that bear no responsibility have been stepping in to help.

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“The Minerals Council South Africa’s humanitarian intervention at Jagersfontein has started, with deliveries of food, clothing and other essentials made to the town in the Free State affected by the collapse of a tailings dam. Longer-term relief measures are also under way,” the Minerals Council — the main umbrella group for South Africa’s mining industry — said on Wednesday.

Jagersfontein Developments is not a Minerals Council member. 

“The Minerals Council launched the Jagersfontein Relief Fund for its members to collectively contribute R50-million towards immediate and longer-term assistance to residents affected by the events of 11 September,” the Council said.

“Gift of the Givers will drill Minerals Council-sponsored boreholes at three schools to provide long-term, sustainable sources of clean water to the community after the tailings dam collapse polluted and disrupted water services to the Jagersfontein community.

“The Red Cross is providing clothing, underwear, sanitary packs, food, water and cooking utensils to the affected community. Soul Food is distributing 15,000 of its vitamin-rich Powa Packs to the community, providing 300,000 meals from September to the end of January,” it said.

It is a testimony to the South African spirit that business and charities can rise to the occasion when disaster strikes. Meanwhile, legal wrangling and investigations into the cause of the disaster lie ahead. DM/BM