(Virtual Showroom): Mining plays a significant role in South Africa economy, contributing substantially to the nation’s employment and GDP. Due to the destructive nature typically associated with mining on environmental resources, it is imperative that the correct processes are followed when mine closure takes place in order to minimise residual impacts and restore the mining operation to its previous land use as far as possible. Key legal legislations applicable to mine closure within South Africa are mentioned and discussed below.

Mineral and Petroleum Resources Development Act (MPRDA):

The MPRDA, enacted in 2002 served as the cornerstone legislation for the mining industry in South Africa until 2015 when the Government Notice R1147 Regulations (GNR1147) were implemented. For mining operations which were established prior to the implementation of the GNR1147 regulations, the MPRDA continues to regulate the mining houses until March 2024 whereafter the GNR1147 regulations will apply. The MPRDA sets out the requirement relating to the development of the nation’s mineral and petroleum resources. It additionally aims to ensure the promotion of economic and social development through exploration and mining related activities. The requirement for financial provisioning in the MPRDA has been repealed and replaced by Section 24P of the NEMA, as amended, which provides that the holder of a mining right or permit must make adequate financial provision for rehabilitation of negative environmental impacts.

The financial provision must guarantee the availability of sufficient funds to undertake the rehabilitation of the adverse environmental impacts of the listed specified activities; rehabilitation of the impacts of the prospecting, exploration, mining or production activities including the treatment of polluted or extraneous water; decommissioning and closure of the operation; remediation of latent or residual environmental impacts which become known in the future; removal of building structures and other objects and the remediation of any negative environmental impacts.

South Africa, Department of Minerals and Energy. Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002). Government Gazette No. 7949. R. 527.

Government Notice R1147 (GNR1147)

The Government Notice R1147 (GNR1147) was published on the 20th of November 2015 by the Minister of Environmental Affairs. The regulations pertain to the Financial Provisioning for Prospecting, Mining, Exploration and Production Operations and are incorporated into the operations mine closure plants. The Department of Forestry and Fisheries and Environment (DFFE) is the legislative authority with regards to the legislation of the regulations whilst the Department of Mineral Resources and Energy (DMRE) is the competent authority to the implementation of the regulations which came into effect on the date of publication in the Gazette. These regulations replace the previous financial provisioning and rehabilitation regulations which were governed under the Mineral and Petroleum Resource Development (Act No. 28 of 2002) (MPRDA ) as mentioned above.

Under Regulation 11 (1) of GNR 1147, three (3) plans are required per mine/ permit, right with financial provisioning required for each. These include:

Rehabilitation plan

Final Rehabilitation, Decommissioning and Mine Closure Plan; and

An Environmental Risk assessment.

Deposit into an account administered by the Minister; or

These reports are then required to be compiled, reviewed and assessed by a third-party, independent expert (Pr. Eng or Pr. Sci.Nat). The financial provision for an operation is required to be audited on an annual basis by an independent auditor registered with the Independent Regulatory Board of Auditors (IRBA) with comprehensive reconciliation required annually.

An applicant or right or permit holder must determine and make financial provision to guarantee the availability of sufficient funds for the rehabilitation and remediation of adverse environmental impacts to the satisfaction of the Minister of Mineral Resources and Energy.

The applicant or holder of the right or permit must ensure that, at any given time, the available funds is equal to the sum of the actual costs for implementing the plans and reports for the period of at least ten (10) years forthwith.

The applicant or holder of the right or permit must make financial provisions by one of or a combination of a:

Financial guarantee, which is required to align with the format requirements set out in Appendix 1 of the Regulations;

Deposit into an account administered by the Minister; or

A contribution to a trust fund established in terms of applicable legislation. Such contribution to a trust fund may only be in relation to financial provisions made for the remediation of latent or residual environmental impacts, and not for the annual rehabilitation or final rehabilitation, decommissioning and closure of the operation. This financial instrument may also not be used by the applicant/ holder for a mining permit in terms of the MPRDA. Furthermore, such contribution to a trust fund must be established by a deed of trust and must comply with the requirements set out in Appendix 2 of the Regulations.

The general requirements of financial provision include but are not limited to the following:

The determination, review and assessment of the financial provision must be undertaken by a specialist;

The financial provision liability may not be deferred against assets at the mine closure or the mine infrastructure salvage value.

South Africa, Department of Environmental Affairs. National Environmental Management Act, 1998 (Act No. 107 of 1998) Regulations to the Financial Provision for Prospecting, Exploration, Mining or Production Operations. Government Notice No. R. 1147 (20 November 2015).

National Environmental Management Act (Act No. 107 of 1998) (NEMA):

NEMA which was enacted in 1998, provides the overarching legal framework for environmental management within South Africa. Under NEMA, mining activities fall within the category of listed activities which require Environmental Authorization. Section 24 (1)(a) and (b) of NEMA states that the potential impact on the environment and socio-economic conditions of activities that require authorisation or permission by law, and which may significantly affect the environment, must be considered, investigated and assessed prior to their implementation and reported to the organ of state charged by the law with authorizing, permitting, or otherwise allowing the implementation of an activity.

The NEMA also requires, that financial provisioning be made for the rehabilitation of a mine’s environmental impacts.

South Africa, Department of Environmental Affairs. National Environmental Management Act, 1998 (Act No. 107 of 1998).

National Environmental Management: Air Quality Act (Act No. 39 of 2004) (NEM:AQA):

According to the NEM:AQA, the DFFE, the provincial environmental departments and local authorities (district and local municipalities) are separately and jointly responsible for the implementation and enforcement of various aspects of NEM:AQA. A fundamental aspect of the new approach to the air quality regulation, as reflected in the NEM:AQA is the establishment of National Ambient Air Quality Standards (NAAQS) (GN R 1210 of 2009). These standards provide the goals for air quality management plans and also provide the benchmark by which the effectiveness of these management plans is measured. Cognisance must also be taken of the National Ambient Air Quality Standard for Particulate Matter with Aerodynamic Diameter less than 2.5 Micron Metres (PM 2.5), published under Government Notice 486 in Government Gazette 35463 of 29 June 2012 and the National Dust Control Regulations, published under Government Notice R827 on 1 November 2013.

South Africa, Department of Environmental Affairs. National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) National Framework for Air Quality management in the Republic of South Africa (Updated in 2017).

National Water Act (Act No. 36 of 1998) (NWA):

NWA provides for the sustainable and equitable use and protection of water resources. It is founded on the principle that the National Government has overall responsibility for and authority over water resource management, including the equitable allocation and beneficial use of water in the public interest, and that a person can only be entitled to use water if the use is permissible under the NWA.

The Conservation of Agricultural Resources (Act No. 43 of 1983) (CARA): CARA states that the degradation of the agricultural potential of soil is illegal and required that the protection of land against soil erosion and the prevention of water logging and salinisation of soils means of suitable soil conservation works to be constructed and maintained.

South Africa, Department of Water and Sanitation. National Water Amendment Act, 2002 (Act No. 27 of 2014). Government Gazette No. 37715. Vol. 588.

Constitution of the Republic of South Africa (Act No. 105 of 1996):

Section 24 states that everyone has the right to have the environment protected, for the benefit of present and future generations, though through reasonable legislative and other measures that prevent pollution and ecological degradation and promote conservation.

South Africa's legal requirements for mine closure reflect the government's commitment to promoting responsible mining practices. These requirements aim to ensure the protection of the environment, the well-being of affected communities, and the sustainable use of land after mining activities cease. Compliance with the legal framework is essential for mining companies to fulfil their obligations and contribute to the long-term social, economic, and environmental sustainability of South Africa. By adhering to these requirements, the mining industry can demonstrate its commitment to responsible resource extraction and set a positive precedent for the global mining sector.

The Constitution of the Republic of South Africa, Act 108 of 1996, Citation of Constitutional Laws, 2005 (Act No. 5 of 2005).

ENVASS has a wide range of services catering for the mining sectors environmental requirements such as Mine Closure and Financial Provisioning, specialist report writing, authorizations, compliance monitoring.