South Africa’s mining industry continues to experience the challenges posed by the plethora of legislation at national, provincial and local levels, and faces potential costly consequences for noncompliance, says legal firm Norton Rose environmental law specialist Tina Costas.

Further, she states that although the legislation govern- ing environmental requirements embodies the concept of sustainable development and is progressive, mines face compliance challenges in that the legislation is fragmented; there are frequent changes and often it is not clear exactly what is required to achieve compliance.

This is clearly shown in a recent Supreme Court case where the court was asked to consider whether the holder of a mining right is precluded from starting or continuing with its operations without first obtaining environmental authorisation in terms of the National Environmental Management Act (Nema) in respect of “listed activities” as defined in the Nema regu- lations. The court failed to address the issue, creating further uncer- tainty.

However, Costas points out that mining companies are still required to take reasonable pre- cautions to prevent environmental pollution and degradation from occurring during mining operations. Section 28 of Nema stipulates the duty of care is applicable, as well as Section 38 of the Minerals and Petroleum Resources Development Act which holds mining right applicants responsible for any environ- mental damage, pollution or ecological degradation as a result of his/her reconnaissance, prospecting or mining operations, which may occur inside or outside the boundaries to which such right, permit or permission relates.

“Mining houses should be aware of mining requirements and be familiar with legal obligations, and take all reasonable measures to prevent pollution and damage to the environment,” says Costas.

She encourages mining companies to be proactive and develop tools to prevent potential costs as a result of noncompliance and damage to the environment.

In addition to the potential costs arising from noncompliance and damages, mining companies also face the threat of having to challenge or deal with class actions brought by applicants where the question of law and fact is common to that class.

The courts have recognised that class actions are available in South African law, and a recent Constitutional Court judgment has opened the door for mineworkers to recover damages from negligent mine owners for occupational injury or diseases.

The possibility of class actions brought by claimants in respect of health and environmental issues is now a reality.

Overall, Costas believes mining companies should look beyond the increasingly changing legislation and compliance issues, as they are shaping the way in which mines will do business in the future.

“Companies need to become aware of their duties, familiarise themselves with the law, be proactive and strategise,” she concludes.

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