Court rules on Harmony acid mine water saga

The North Gauteng High Court in Pretoria ruled earlier this week that Harmony Gold has to continue paying for pumping and treating acid minchalk crushere water in and around the Orkney gold mine.

Judge Tati Makgoka had dismissed the company’s application for the court to set aside a November 2005 directive, under the National Water Act’s anti-pollution section, from the Department of Water Affairs.

Harmony Gold claimed that the directive no longer applied to it as it had sold the mine to Pamodzi Gold Orkney in 2007 and was no longer the owner. Pamodzi went into provisional liquidation in 2009.

According to the directive, Harmony and other companies mining in the Klerksdorp, Orkney, Stilfontein and Hartbeesfontein (KOSH) area of the North West province have to share the costs of pumping and treating acid mine water affecting the areas.

The directive will remain in effect until the mining houses reach an agreement on the long-term management of mine water in the area; to date, the companies have failed to come to an agreement.

Makgoka also said that Harmony is responsible as it was the owner of the property when the directive was issued.

“The applicant’s mining activities polluted and contributed to the pollution of the underground water in the KOSH area,” he said.

“The applicant derived financial benefit from its pollution activities. Without fully complying with the directive, and while the obligations in terms of the directive remained unfulfilled, the applicant disposed of its entire issued share capital to Pamodzi in August 2007.

“It is therefore not correct that the applicant is obliged to take responsibility for others’ contribution to the pollution.”

He said the directive required Harmony to take measures for, among others, pollution that occurred while it owned the land.

“There is therefore a clear causal and moral link between the directive and the applicant’s pollution activities.”

Makgoka said Harmony’s interpretation of the Act would lead to a glaring absurdity in that landholders who caused pollution through their activities could escape their obligations by simply disposing of the land.

Such an interpretation would defeat the purpose and principles of the National Environmental Management Act, the Water Act and the Constitution, he said.

“Until the applicant fully complies with the directive, the directive remains valid,” Makgoka concluded.