Harmony Gold Mining Co Ltd v Regional Director: Free State, Department of Water Affairs and Forestry

Harmony Gold Mining Company Limited was one of five gold mining companies operating in the KOSH basin of North-West Province. The mines were interconnected underground, with three defunct northern mines (Stilfontein, Buffelsfontein, Hartebeesfontein) and two active southern mines (Harmony and Anglogold). Groundwater flowed from the northern mines through underground passages to the southern mines. When water contacted mined-out reefs, it became polluted due to oxidation of iron pyrite. The defunct mines had been dewatering groundwater to extract it before pollution and prevent flooding of the deeper active mines. When Buffelsfontein went into provisional liquidation in March 2005, it could no longer fund continued pumping. The Regional Director of Water Affairs issued directives under section 19(3) of the National Water Act 36 of 1998, requiring Harmony and other companies to share the costs of dewatering at the defunct mines on land they did not own or control. Harmony challenged the directive, arguing that section 19 only authorized measures to be taken on the land owned, controlled, occupied or used by the person obliged to take anti-pollution measures.

• Whether section 19(3) of the National Water Act 36 of 1998 empowers a directive requiring a landowner to take anti-pollution measures on land belonging to others
• Whether 'reasonable measures' in section 19(1) includes measures to be taken beyond the boundaries of the landowner's own property
• Whether the measures specified in section 19(2) constitute a closed or open-ended list
• The proper interpretation of section 19 of the National Water Act in light of constitutional environmental rights under section 24 of the Constitution

The appeal was dismissed with costs, including costs of two counsel.

Section 19(1) of the National Water Act 36 of 1998 does not impose a territorial limitation confining reasonable anti-pollution measures to the land of the person obliged to take such measures. The term 'reasonable measures' in section 19(1) establishes a flexible test dependent on the circumstances of each case and can include measures to be taken on another's land. Section 19(2) provides an open-ended, not exhaustive, list of measures (indicated by the phrase 'may include'). An interpretation of section 19 that permits preventive measures beyond one's own land boundaries is consistent with the purpose of the Constitution (section 24) and the National Water Act, and must be preferred under section 1(3) of the Act over an interpretation limiting measures to one's own land. A directive under section 19(3) requiring mining companies to collaborate and share the costs of dewatering operations at defunct mines to prevent pollution is within the scope of 'reasonable measures' and is lawfully empowered by the section.

The court noted that the directives referred to flooding and safety concerns, and that section 21(j) of the National Water Act (which deals with removing water found underground for safety or continuation of activities) was not relied upon by the authorities or argued before the court. The court observed that it does not matter if the directives were motivated more by the need to combat flooding than pollution, as long as section 19 was legally resorted to. The court commented that if a person required to take reasonable measures is thwarted by another landowner's refusal of access, the former will probably have done what can reasonably be attempted. The court distinguished section 28(6) of NEMA, suggesting it was concerned with rehabilitation/remedial work requiring necessary (not merely reasonable) measures, whereas section 19 is concerned with preventive measures. The court agreed with academic commentary that a person only has to take measures due to pollution on their own land, not another's pollution (unless it spreads from their land), but emphasized this does not mean the reasonable measures must be taken only on their own land.

This case is significant in South African environmental and water law as it establishes that section 19 of the National Water Act empowers authorities to require landowners to take reasonable anti-pollution measures beyond their own property boundaries. The judgment adopts a purposive interpretation of environmental legislation consistent with the constitutional right to environmental protection under section 24 of the Constitution. It confirms that 'reasonable measures' to prevent water pollution is a flexible, context-dependent standard not limited by territorial boundaries. The case demonstrates the polluter pays principle and establishes that mining companies can be required to collaborate and share costs of anti-pollution measures even on others' land where pollution originates from or affects their operations. The decision reinforces the state's role as public trustee of water resources and the broad powers of water authorities to direct preventive measures. It has implications for mining operations, environmental compliance obligations, and the interpretation of environmental statutes generally.