Harmony Gold Mining Company Ltd v Regional Director: Free State Department of Water Affairs

Harmony Gold Mining Company Limited (Harmony) managed gold mining operations at Orkney in the KOSH area through its subsidiary ARMGold from September 2003. Gold mining in the KOSH area created interconnected underground workings that drained aquifer water, which became contaminated with acid mine drainage from exposure to pyrite in the rock, causing pollution of water resources. On 1 November 2005, the Regional Director of the Department of Water Affairs issued a directive under s 19(3) of the National Water Act 36 of 1998 to Harmony and other mining companies requiring them to take anti-pollution measures including pumping, treating and managing contaminated underground water and sharing costs equally. The directive was expressed as an interim measure pending agreement on long-term water management. On 27 February 2008, Harmony ceased managing the mining operations when ARMGold sold its business to Pamodzi Gold Orkney (Pty) Ltd, with the land transferred to Pamodzi on 6 January 2009. Pamodzi was subsequently liquidated. Harmony argued that once it no longer owned, controlled, occupied or used the land, the directive became invalid or unenforceable against it. The Department refused to withdraw the directive. Harmony applied to the North Gauteng High Court for review and setting aside of the directive. Makgoka J dismissed the application and Harmony appealed to the Supreme Court of Appeal.

• Whether a directive issued under s 19(3) of the National Water Act 36 of 1998 becomes invalid or unenforceable against a person who ceases to be an owner, controller, occupier or user of land on which pollution-causing activities occurred
• Whether it is a mandatory requirement that a s 19(3) directive specify a completion date for anti-pollution measures and whether failure to do so renders the directive invalid
• Whether the directive is invalid on the basis that it imposes obligations that are infinite in duration
• Whether the directive by implication came to an end when it became clear that agreement on long-term water management could not be reached
• The proper interpretation of s 19 of the National Water Act in light of constitutional environmental rights under s 24 of the Constitution and NEMA principles

The appeal was dismissed with no order as to costs.

The binding legal principles established are: (1) A directive issued under s 19(3) of the National Water Act does not become invalid or unenforceable against a person merely because that person ceases to own, control, occupy or use the land on which pollution-causing activities occurred. (2) The Minister's powers under s 19(3) are not subject to an implied limitation that anti-pollution measures may only be required for as long as the directed party remains a landholder. (3) Section 19(3) vests the Minister with wide discretionary powers to determine what specific anti-pollution measures a defaulting landholder must take and for how long they must continue. (4) The purpose of s 19(3) is to direct landholders to address pollution however long it may take, and this purpose does not fall away when the directed party ceases to be a landholder. (5) Section 19 of the NWA must be interpreted purposively in light of s 24 of the Constitution (environmental rights), NEMA principles (including the polluter pays principle), and the NWA's purpose of protecting and managing water resources sustainably. (6) An interpretation that would allow polluters to evade environmental obligations by severing ties with land is inconsistent with the NWA's purpose and constitutional environmental protections.

The court made obiter observations that: (1) The measures required under s 19(1) and (2) are not confined to measures on the landholder's own land, and the same holds true for measures required under a s 19(3) directive. (2) The general approach of not awarding costs against an unsuccessful litigant in proceedings against the State where matters of genuine constitutional import arise is appropriate in environmental law cases. (3) If agreement on long-term water management cannot be reached (though this was not established on the evidence), the Minister may issue a directive under s 150 of the NWA requiring mediation and negotiation. (4) Words cannot be read into a statute by implication unless the implication is necessary to give effect to the statute as it stands (citing Rennie NO v Gordon). (5) The NEMA principles enumerated in s 2 apply throughout South Africa and guide interpretation of all laws concerned with environmental protection and management, and must be observed as they are of considerable importance.

This judgment is significant for establishing that anti-pollution directives issued under s 19(3) of the National Water Act continue to bind parties who caused or contributed to pollution even after they cease to be landholders. It prevents polluters from evading environmental remediation obligations by divesting themselves of land. The judgment affirms a purposive interpretation of environmental legislation that gives effect to constitutional environmental rights under s 24 of the Constitution and the polluter pays principle in NEMA. It emphasizes that the Minister has wide discretionary powers to require specific anti-pollution measures and determine their duration. The case reinforces that environmental protection legislation must be interpreted to prevent pollution and ensure sustainability rather than allowing technical legal arguments to undermine environmental safeguards. It has important implications for mining operations and the ongoing responsibility of mining companies for environmental remediation, even after cessation of operations or disposal of mining assets.