Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy and Others

Ezulwini Mining Company (Pty) Ltd operated the Ezulwini mine on the West Rand since 2014, having acquired it from a predecessor. The mine had been worked since 1961. Deep-level mining operations required continuous pumping of extraneous groundwater that seeped into underground mining voids. Ezulwini conducted such pumping for years under a water use licence issued in terms of the National Water Act. In September 2016, Ezulwini ceased underground mining operations as they were no longer economically viable, though it continued surface processing operations. In October 2017, Ezulwini applied for environmental authorization to cease pumping extraneous water under NEMA and to amend its water use licence. The NEMA application was refused in May 2018; an appeal resulted in remittal for reconsideration. The applications remained unfinalized. Acting on legal advice that no authorization was required, Ezulwini brought an application for declaratory relief seeking confirmation it could cease pumping without authorization. Gold Fields, operator of an adjacent interconnected mine, filed a counter-application seeking a declaration that Ezulwini must continue pumping until a closure certificate is issued under s 43 of the MPRDA, arguing that cessation could cause flooding of its mine and endanger its employees.

• Whether a mine operator has a continuing legal obligation to pump extraneous water from underground mining areas after cessation of underground mining operations
• Whether the obligation to pump extraneous water continues until a mine closure certificate is issued under s 43 of the Mineral and Petroleum Resources Development Act 28 of 2002
• The proper interpretation of s 43(1) of the MPRDA and s 24N of NEMA in relation to responsibility for pumping and treatment of extraneous water
• Whether s 24R of NEMA extends obligations beyond the issuing of a closure certificate

The appeal was dismissed with costs, including costs of two counsel. Paragraph 1 of the high court order was set aside and replaced with: 'It is declared that Ezulwini Mining Company (Pty) Ltd remains responsible for the pumping and treatment of extraneous water from the underground workings of Ezulwini Mine until the Minister of Mineral Resources and Energy has issued to it a closure certificate in terms of s 43 of the Mineral and Petroleum Resources Development Act 28 of 2002.' The reference to s 24R of NEMA was removed from the order.

A holder of a mining permit who has conducted pumping of extraneous water as an integral part of underground mining operations remains obliged to continue such pumping and treatment until authorized to cease through the mine closure process and issuance of a closure certificate under s 43 of the MPRDA. The word 'responsible' in s 43(1) of the MPRDA and s 24N(7)(f) of NEMA, when used in the phrase 'responsible for... the pumping and treatment of extraneous water', imposes an active obligation to continue the activity, not merely liability for consequences. Cessation of such pumping constitutes an environmental impact that must be assessed and managed through the regulated mine closure process under NEMA and the MPRDA. The legislative framework requires environmental management throughout the entire life cycle of mining operations, consistent with s 2(e) of NEMA and giving effect to the constitutional right to environmental protection under s 24 of the Constitution.

The Court observed that the ambit of s 24R of NEMA, which addresses post-closure responsibilities and appears to extend obligations beyond issuance of a closure certificate, was unnecessary to decide in this case as the closure process had not yet been initiated. The Court noted that s 24R relates to financial provision under s 24P and accords with the 'polluter pays' principle in s 2(4)(p) of NEMA, but consideration of post-closure obligations would be premature before the closure process determines appropriate conditions for a closure certificate. The Court commented that an interpretation allowing mine operators to cease pumping without assessment would be absurd and conflict with the risk-averse and cautious approach required by s 2(4)(vii) of NEMA. The Court noted that whether Ezulwini's expert assessment that re-watering would be environmentally preferable was correct or not was irrelevant to the legal question - such assessment must occur through the proper mine closure process.

This judgment is significant in South African environmental and mining law as it clarifies that mine operators' environmental responsibilities continue throughout the entire life cycle of mining operations, including after active mining ceases. The decision establishes that dewatering activities integral to mining operations cannot simply be discontinued without following proper mine closure procedures under the MPRDA and NEMA. It reinforces the constitutional right to environmental protection under s 24 of the Constitution and the implementation of the 'polluter pays' principle. The judgment provides important guidance on statutory interpretation of 'responsibility' in environmental legislation, distinguishing it from mere liability and recognizing it as imposing active obligations. It emphasizes that environmental impacts from cessation of mining activities must be assessed and managed through regulated closure processes. The decision is important for the mining industry as it confirms that historical mining practices that managed environmental impacts during operations create continuing obligations that cannot be unilaterally terminated, protecting interconnected mines and surrounding environments from potential harm.